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The English High Court found that a current risk of unfair trial in Russia justified declining to enforce Russian exclusive jurisdiction clauses.

By Oliver Middleton and Sean Newhouse

The English High Court has cleared the way for major aviation insurance litigation to proceed in England. In an important judgment on jurisdiction, the High Court refused to stay a group of claims based on the alleged total loss of aircraft formerly leased to Russian airlines. The defendants contended that any such…

A recent decision reminds litigants about the dangers of referring to legal advice in witness statements.

By Oliver E. Browne and Alex Cox

The English courts have recently taken an expansive approach in finding waivers of privilege when legal advice is referred to in witness statements, pleadings, and submissions.[i]

The High Court’s recent decision in Paul Clements v. Adam Frisby[ii] further reminds litigants about the dangers of referring to legal advice when advancing their case. However, it also demonstrates the nuanced and fact-specific approach the court will take in determining whether there has been a waiver and, if so, how widely that waiver extends.

Two cases illustrate the narrow scope of application for exceptions to the without prejudice rule of legal privilege.

By Stuart Alford and Clare Nida

Background

In two recent judgments, the High Court found exception to the ‘without prejudice’ rule of legal privilege. The rule protects statements made by parties to a dispute (whether written or oral statements) in a genuine attempt to settle the dispute. There are certain situations in which this public policy justification will be outweighed by other factors if the fairness of judicial proceedings is at risk. Motorola Solutions, Inc. v Hytera Communications Corporation Ltd[1] and Berkeley Square Holdings v Lancer Property Asset Management Limited[2] clarify the scope of certain aspects of these exceptions, namely the “unambiguous impropriety”, misrepresentation/fraud, and the “Muller” exceptions.

The UK has taken steps to accede to the Lugano Convention 2007, as maintaining the status quo under the Brussels Recast Regulation 1215/2012 will no longer be an option once the transition period expires.

By Oliver Browne, Sebastian Seelmann-Eggebert, and Tom Watret

The UK has recently requested to join the Lugano Convention 2007, which is the UK’s preferred regime for governing questions of jurisdiction and the enforcement of judgments with EU countries post-Brexit. These rules will be critically important for all parties when they consider which jurisdiction clauses to include in their contracts.

This blog post explains what the Lugano Convention is, provides an update on recent developments in the accession process, and highlights some important differences between the Lugano Convention and the current regime.

The CAT’s Royal Mail v. Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice.

By David Little, Gregory Bonné, Alexandra Luchian, and Nathan Wilkins

On 12 November 2019, the UK Competition Appeal Tribunal (the CAT) published its judgment rejecting Royal Mail’s appeal against a £50 million fine imposed by the UK Office of Communications (Ofcom), the UK communications and postal services regulator, for abuse of a dominant position in bulk mail delivery following a complaint from Whistl.

This post focuses on three areas of the CAT’s judgment: (1) the distinction between abusive conduct and mere preparatory acts; (2) the relevance of the “as-efficient competitor” test when assessing exclusionary conduct by dominant companies; and (3) the treatment and protection of expert economic advice.

By Eleanor M. Scogings

English High Court stays litigation pending mediation.

In Ohpen Operations UK Limited v. Invesco Fund Managers Limited,[i] the English court held that mediation was a condition precedent to the commencement of litigation and, accordingly, stayed the proceedings to enable mediation to take place. The decision confirms that an alternative dispute resolution provision can be an enforceable condition precedent to formal proceedings.

Background

Invesco Fund Managers Limited (Invesco) entered into an agreement with Ohpen Operations UK Limited (Ohpen), under which Ohpen was to develop and implement a digital online platform through which Invesco’s customers could buy and sell investments (the Agreement). Pursuant to the Agreement, between the effective date of the Agreement and the launch of the platform, the parties would enter into a development and implementation phase. Post launch, Ohpen would operate the platform.

As litigation funders find new disputes markets, PE firms should consider litigation funding as a growth sector — and as a valuable tool for de-risking portfolio company claims.

By Stuart Alford, Dan Smith, David Walker, Tom Evans, and Catherine Campbell

Litigation funding, the third-party financing of legal costs in disputes, is increasingly common in the UK. As litigants have become comfortable with sophisticated litigation funders, these funders are responding to business needs, and finding new disputes markets. The UK litigation funding landscape has begun to resemble the US, where external parties commonly finance a wide range of claims in return for a share of any ultimate litigation win. In our view, PE firms should consider litigation funding as a growth sector — and as a valuable tool for de-risking portfolio company claims.

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Litigation Funding: Drivers of a Growing Market

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Litigation funding is finding new markets. Increased use of group redress and group litigation orders is creating demand for funding. Following trends visible in American class action litigation, European legal systems are developing new group redress claims procedures. Germany and the Netherlands have well-established systems, and other jurisdictions (including the UK) are heading in the same direction. In fact, 60% of shareholder group actions are now outside the US. Group litigation includes related claims, e.g., mass torts affecting a large number of defendants, or similar-fact claims such as device malfunctions, or the VW emissions scandal. Group litigation can also facilitate unified actions where individual claims are financially unviable, such as shareholder actions.

The decision clarifies how lawyer-client privilege applies in the context of transactions.

By Daniel Smith and James Fagan

The recent English High Court decision Raiffeisen Bank International AG v Asia Coal Energy Ventures Limited and Ashurst provides guidance on the application of legal advice privilege in a transaction context, confirming that confidential client instructions can be privileged even if the legal adviser has been instructed to provide a third party with confirmations based on those instructions.

This case offers a useful overview of the application of privilege to communications between lawyers and clients during transactions. The decision sets out a number of useful principles regarding privilege and client instructions:

  • For lawyer-client communications to benefit from privilege they must take place in a legal context.
  • Confidentiality is necessary for privilege to apply to communications, but it is not determinative.
  • Communications that do not contain legal advice can still be covered by legal advice privilege provided they form part of a continuum of communications between lawyer and client.
  • When instructing a legal adviser to disclose confidential information to third parties, clients must take care to ensure that underlying communications remain privileged.

The English Court has set aside permission to bring proceedings against foreign defendants based on non-disclosures and subsequent conduct.

By Dan Smith and Duncan Graves

The recent decision in Punjab National Bank (International) Limited v Ravi Srinivasan and others [2019] EWHC 89 (Ch) provides guidance on the proper conduct of an application for service out of the jurisdiction and highlights the potential pitfalls an applicant may encounter. In particular, the decision demonstrates that a party must:

  • Make full and frank disclosure on a without notice application, in particular if there are related foreign proceedings or new material facts arise
  • Renew its application for permission for any substantive changes to its pleadings
  • Plead fraud with care, precision, and particularity

Failure to follow these guidelines may result in the court setting aside permission for service, thereby bringing the claim to an end.

Judgment clarifies the exceptional circumstances in which anti-arbitration injunctions against foreign-seated arbitrations might be granted.

By Oliver E. Browne and Robert Price

In Sabbagh v Khoury, Justice Knowles in the High Court issued an anti-arbitration injunction to restrain arbitration proceedings commenced in Lebanon on the basis that, contrary to the Lebanese arbitral tribunal’s findings, the tribunal did not have jurisdiction to hear the case.

Background

The claimant, Sana Sabbagh, is the daughter of the late Hassib Sabbagh who founded the Consolidated Contractors Company (CCC) group of companies, the largest group of engineering and construction companies in the Middle East. She claimed that after her father’s stroke, the defendants, which include her two brothers, conspired to misappropriate assets and shares belonging to her father that lawfully belonged to his estate following his death (and in which Ms. Sabbagh was entitled to inherit a one-third interest).