The time is right to review the rules on electronic service, says judge in a case involving invalid service of claim form.

By Oliver Middleton and Duncan Graves

A recent decision in the English High Court highlights the continued need for litigants to faithfully abide by the procedures governing the service of claim forms, which are “bright line rules” requiring stricter observance than many others in the Civil Procedure Rules (CPR).[1] In the decision, the judge commented that the present framework governing service by electronic means, such as email, may not reflect modern litigation practice and could therefore be due for reform.

The ruling clarifies that a litigant can withhold disclosure of communications even if the other person was unaware that the communication was for a privileged purpose.

By Daniel Smith and Mair Williams

In recent years, the English court has examined litigation privilege carefully. However, no aspect has been the subject of more scrutiny than the requirement that documents that a litigant seeks to withhold must have been prepared for the “dominant purpose” of preparing for litigation.

In Ahuja Investments Limited v. Victorygame Limited and Surjit Singh Pandher,[1] the court considered a situation in which one party to an exchange of correspondence withheld from the other their underlying dominant purpose, which was to prepare for litigation with a third party. The court permitted the assertion of litigation privilege, distinguishing previous authority that deception destroyed a claim to privilege. However, the decision raises some difficult questions about precisely whose intention matters if the document in question is correspondence involving multiple authors.

The ruling confirmed that Section 423 of the Insolvency Act 1986 has extensive international reach, and does not require a transaction at an undervalue to leave the debtor with insufficient assets.

By Simon J. Baskerville, Oliver E. Browne, Jessica Walker, Daniel Smith, and Chris Attrill

The English High Court has held that a creditor pursuing a claim under Section 423 of the Insolvency Act 1986 (s. 423) does not need to prove that the debtor has

Landmark decision holds that the SFO does not have the power to procure documents from foreign companies outside the jurisdiction.

By Stuart Alford QC and Callum Rodgers

On 5 February 2021, the UK Supreme Court handed down a highly significant judgment in R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2. The Court unanimously ruled in favour of KBR, Inc in its appeal of a 2018 High Court judgment, which had permitted the Serious Fraud Office (SFO) to use its section 2(3) powers under the Criminal Justice Act 1987 (the 1987 Act) to require foreign companies that were sufficiently connected to the UK to provide documents and other information for the purposes of an SFO investigation.

This is the first case in which the UK courts have ruled on the extraterritorial reach of the SFO’s section 2 powers, which are its primary means of gathering evidence and factual information in support of its criminal investigations into bribery and corruption. 

The Court found that the Administration of Justice Act 1920 should be interpreted purposively rather than literally.

By Oliver E. Browne and Callum Rodgers

The English Court of Appeal has considered for the first time whether the Administration of Justice Act 1920 should be interpreted as permitting the registration of a Commonwealth State judgment in England and Wales, which was itself a judgment enforcing an original judgment given by the courts of a third State.

English High Court holds that alleged breaches of a director’s statutory duties can engage the ‘iniquity exception’, which disapplies legal professional privilege under certain conditions.

By Stuart Alford QC and George Schurr

In Barrowfen Properties v Girish Dahyanhai Patel & Ors.,[i] the English High Court held that the ‘iniquity exception’ to legal professional privilege will become engaged if:

  • An applicant can establish a “strong prima facie case” that a respondent director has breached at least one of their statutory directors’ duties.[ii]
  • Either of the following is true:
    • Those allegations involve fraud, dishonesty, bad faith, or sharp practice.
    • The director consciously or deliberately preferred their own interests over the interests of the company, and did so “under a cloak of secrecy”.

The court held that the appropriate standard of proof in such circumstances (“a strong prima facie case”) is a lower threshold than both (i) the balance of probabilities, and (ii) the summary judgment test (no real prospect of success).

High Court holds that English law legal advice privilege can extend to such communications regardless of whether or not the lawyers are in-house practitioners.

By George Schurr

In PJSC Tatneft v Gennady Bogolyubov & Ors.,[i] the English High Court held that legal advice privilege can apply to communications with foreign lawyers in certain circumstances. Specifically, privilege can extend to such communications if:

  • The communications are between a client and its lawyers (whether or not they are acting “in-house”).
  • Such communications are made in connection with the provision of legal advice.
  • The lawyers with whom the client is communicating are acting in their professional capacity.

The English courts will not look into whether the foreign lawyers are “appropriately qualified” or recognized / regulated as “professional lawyers” as a matter of local law.

The decision overturns a series of cases deemed to have over-expanded a principle preventing shareholders from claiming against third parties for falls in a company’s value.

By Oliver Middleton and Thomas F. Lane

On 15 July 2020, the UK Supreme Court unanimously overturned a Court of Appeal decision that had barred a creditor of companies owned and directed by an individual from bringing tort claims against him for allegedly asset-stripping the companies in order to prevent them paying a court-ordered debt to that creditor. In Sevilleja v. Marex Financial Ltd,[1] the Supreme Court ruled that the “reflective loss” principle — restricting third parties from suing persons alleged to have harmed a company in a manner that caused “reflective loss” — should be narrowed so as only to apply to situations involving shareholders claiming for diminutions in value.

The ruling may point to a trend that English courts are ever more willing to intervene in managing confidentiality rings.

By Hayley M. Pizzey

In Infederation Limited v Google LLC and others[1] the English High Court considered the extent to which confidential information should be protected from disclosure in competition proceedings. In a somewhat novel approach, Mr. Justice Roth gave the defendants a choice: they could either amend their case so that they no longer relied on the confidential information, or the claimant’s expert witness could be admitted into the relevant confidentiality rings, allowing him to see the confidential information.

The High Court also provided important guidance on making claims for confidentiality and commented on the prevalence of excessive confidentiality claims in competition proceedings.

The Court’s ruling supports the general principle that costs follow the event.

By Oliver E. Browne and Robert Price

In Andrew Martin, Nicholas Greene, Coban 2017 LLP (formerly named Strutt & Parker LLP) v. Michael Harris [2019] EWHC 2735 (Ch), the English High Court held that any arbitration award as to costs stood or fell with the substantive award. Therefore, if the substantive award was overturned by the court, the costs award would cease to have effect, regardless of whether the costs have been dealt with in separate award.