Commercial litigation: What’s new and what’s coming up?

Written on 16 Oct 2015

Changes in force from 1 October 2015

Effective from 1 October 2015, the following three developments will be of interest to in-house and disputes lawyers:

  • The new Financial List has been established;
  • The ADR Regulations 2015 come into effect; and
  • The Hague Convention on Choice of Courts Agreements came into force.

Financial List

As we have discussed in a previous blog, a new, specialist ‘Financial List’ has been launched, effective from 1 October 2015, which will handle more complex and important claims relating to financial markets.

The Financial List is a joint initiative of the Chancery Division and the Commercial Court and will sit in the Rolls Building, London. The intention is to provide a faster, more efficient and more economical forum for financial dispute resolution and to promote London as a venue for international disputes in the financial services sector.

The Financial List has been introduced via a new CPR 63A and Practice Direction 63AA, which provides that to be eligible for the Financial List, a claim must either:

  • be for more than £50 million and relate to banking or financial transactions;
  • require particular expertise in the financial markets; or
  • raise issues of general importance to the financial markets.

For those using the Financial List, the key benefits will be greater procedural flexibility and access to specialist judges. The Financial List is hoped to set an “international benchmark”, as London competes with venues such as New York and Singapore to be the venue of choice for high-value and high-profile disputes in the financial services sector.

ADR Regulations 2015

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (SI 2015/542) (ADR Regulations) came into force on 1 October 2015. They implement the EU ADR Directive, which aims to promote Alternative Dispute Resolution as a simpler and lower-cost alternative to litigation for resolving consumer disputes.

Accredited ADR providers use methods such as online or face-to-face mediation, or facilitated negotiations to resolve disputes raised by consumers. Under the ADR Regulations, traders are required to provide consumers with information about accredited ADR providers, but unless they are under any sector-specific obligation to do so, they are not obliged to use ADR if they do not wish to.

From 9 January 2016, traders will also be required to pubish information on their websites about the new EU Online Dispute Resolution (ODR) platform. Again, the use of the ODR platform, however, will be voluntary, not mandatory.

Hague Convention on Choice of Courts Agreements

On 1 October 2015 the Hague Convention on Choice of Courts Agreements 2005 came into force, some 10 years after the Convention was concluded. It has been implemented in English law through amendments to the Civil Jurisdiction and Judgments Act 1982 and a number of sections of the CPR.

Initially, the Convention will only have effect between Mexico and EU member states. If the EU’s accession is followed by a procession of other states, however, the Convention could significantly shift the balance between arbitration and litigation as a forum for resolving international disputes.

The key principles of the Convention are that:

  • an exclusive jurisdiction clause in favour of one contracting state will be respected by another contracting state; and
  • a judgment given by a court in one contracting state will be enforceable in another contracting state (subject to limited exceptions and formalities for recognising the judgment).
    The US and Singapore have already signed (but not ratified) the Convention, and other countries are considering doing so. As the number of contracting states rises, the Convention will begin to make a real difference to the enforcement of judgments between contracting states.

What’s coming up?

Following the significant increase in issue fees on 9 March 2015, further increases are expected. The Government has confirmed that small increases to certain categories of fees (such as applications and issue fees for possession claims) will be implemented imminently. More significantly, the Government has also been consulting on much larger increases, with issue fees potentially rising from a current maximum of £10,000 to a maximum of ‘at least’ £20,000 for higher value cases. No decision has been reached yet, but another large increase in the near future would undoubtedly prove controversial.

This autumn the Supreme Court’s judgment is expected in one of the more early anticipated cases this year, Beavis v Parking Eye. The case has attracted interest for a number of reasons. The Court of Appeal’s judgment seeming to open the door to a new class of enforceable ‘penalty’, where a charge does not bear any relation to the level of harm suffered, but is otherwise justifiable for economic reasons – in this case, the ability to levy such charges is fundamental to the business model of Parking Eye and others responsible for managing private car parks. 

The case is also of interest for the innovative use of crowdfunding to fund the claimant’s legal costs. This approach raises a number of questions in relation to any adverse costs order, such as who would be responsible for meeting such a costs order, and how the defendant can be assured that those persons would be able to pay.