Litigation Brief | October 2019

Written on 24 Oct 2019

Welcome to the latest edition of Osborne Clarke’s Litigation Brief.

This edition includes the first in an upcoming series of articles on parent company liability, and how best to manage the risks that arise in large corporations. The article looks at the trend of overseas claimants brining claims in English courts against UK parents of multinational groups.

We consider the difficulties that can arise from disclosure: where non-parties seek access to documents used in a case; and where duties to disclose documents under English law conflict with duties owed in other jurisdictions.

Also in this edition are two articles on alternative dispute resolution, which highlight recent developments in judicial treatment of tiered dispute resolution clauses and encouragement for different forms of ADR.

Finally, with a no deal Brexit still a possibility despite recent progress, we look at what a no deal Brexit would mean for the enforcement of judgments.

If you would like to discuss any of the issues raised in this edition of Litigation Brief, please contact one of us. Our contact details are set out below.

Are the parents in control? Parent company liability in mass tort claims

Parent company liability for the actions of foreign subsidiaries is a hot topic. There has been an trend in overseas claimants bringing proceedings in the English courts against UK parent companies for the actions of its foreign subsidiaries. This is often done where, for a variety of reasons, the claimants consider that there is no real prospect of recovering significant damages in their jurisdiction of domicle.

A trilogy of important jurisdictional cases that have recently reached the Supreme Court emphasise that the legal separation of companies in itself is not enough to avoid parent company liability – or at least the realistic prospect of it, which is enough to enable the claimants to pursue their claim in the English courts.

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What documents can non-parties see when a case is litigated?

Parties involved in civil litigation sometimes fear that non-parties might use documents in the case as ammunition to bring their own, related, cases. In a recent case, the Supreme Court reiterated that the court has an inherent jurisdiction to allow the public access to the documents placed before a court and referred to during a hearing.

However, the person seeking access to any other documents must explain why they wish to see it and confidentiality may override the non-party’s reasons for wanting to see a document in certain circumstances.

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Problems for parties under foreign law when giving disclosure in English proceedings

English litigation rules differ from those of most civil law jurisdictions in requiring litigants to give disclosure not just of documents that support their case, but also to relevant documents that are adverse to their case.

In an article first published in the International Bar Association Litigation Committee Newsletter, we consider two recent High Court decisions that highlight the difficult position that litigants can find themselves in when torn between two competing duties in two different jurisdictions.

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Why your settlement strategy is (at least) as important as your litigation strategy

Two recent cases highlight where the courts will, and will not, intervene when it comes to alternative dispute resolution (ADR). What is clear is that a clear ADR strategy is an essential part of any litigation.

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How effective is your tiered dispute resolution clause?

It is increasingly common for contracts to contain tiered dispute resolution clause, designed to encourage parties to settle without the need for formal litigation. A recent High Court case highlights some of the issues arising when parties agree to a tiered dispute resolution mechanism in their contracts which includes mandatory or compulsory mediation.

The case also reveals some fundamental problems regarding the court’s interaction with private mediation.

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Enforcing judgments in the event of a no deal Brexit

With the possibility remaining of the UK leaving the EU without a deal, and businesses facing disruption as a result, it is important to be prepared for any contractual disputes that may follow. For cross-border contracts, two of the most important questions will be where any such disputes might be brought, and how easy it will be to enforce any judgment in a different jurisdiction.

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