Litigation Update | January 2018

Written on 1 Feb 2018

 

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

With 2018 now well underway, in this edition we look back at some of the issues that have dominated the last 12 months, legally and politically. With Brexit never far from the headlines, some have questioned whether the popularity of English law and jurisdiction clauses in contracts will be affected. In our view, where English would otherwise be the law and jurisdiction of choice, this will invariably remain the case notwithstanding Brexit.

Issues of jurisdiction become all the more complicated when claims are brought against entities that are not party to contracts containing jurisdiction clauses. We encountered this issue recently, managing to obtain an anti-suit injunction to restrain proceedings brought in Morocco.

One of the factors that some cite as a downside of litigating in England and Wales is the cost, particularly when it comes to disclosure. This may soon change, with proposals being put forward to significantly curtail, in most cases, the scope of disclosure.

Another major trend that will remain high on agendas in 2018 is data protection and security. A recent case in which an employer was found vicariously liable for a deliberate data breach by one of its employees has significant implications for all businesses that process large amounts of data.

2017 also saw two major decisions, which we have covered in previous updates, that put real pressure on the scope for claiming legal privilege. In this edition, we discuss two more recent cases that perhaps offer some crumbs of comfort, although raise issues of their own when it comes to challenging assertions of privilege made by opponents.

Finally, we offer nine practical tips for resolving disputes through mediation.

We hope you enjoy this update.

Post-Brexit: should our contracts still have English law and jurisdiction clauses?

English law and jurisdiction will continue to be a sound choice for international contracts, regardless of the form that Brexit takes. English governing law and jurisdiction clauses are likely to continue to be widely recognised by courts in other jurisdictions, and English judgments enforceable. Where there are commercial pressures to avoid London courts, international arbitration in England, which is essentially ‘Brexit-proof’, may well offer the answer.

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Osborne Clarke obtains anti-suit relief for Dell EMC to restrain Moroccan proceedings

In dealings between global businesses, disputes often arise around whether group companies other than those named in the original contract have been involved in the delivery of services. The extent to which a non-party to a contract can enforce its terms is sometimes contested in the context of exclusive jurisdiction clauses and applications for ‘anti-suit’ relief, to restrain proceedings commenced in another jurisdiction.

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Disclosure working group proposes fundamental changes to litigation disclosure regime

There are a number of reasons why England and Wales continues to be considered a leading jurisdiction for the resolution of disputes. Yet for detractors and rival jurisdictions, one of the perceived downsides of litigating in England is cost, particularly when it comes to extensive, expensive disclosure exercises.

Recognising this, a judge-led working group was set up to review the current process for disclosure of documents and to propose changes to streamline it.

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Morrisons found vicariously liable for mass data breach caused by employee

In a recent judgment handed down on 1 December 2017, Morrisons was found vicariously liable for the act of one of its employees, who posted personal data of 100,000 other employees on a file-sharing website.

This decision has significant implications for businesses that find themselves the victims of data breaches perpetrated by employees.

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Legal privilege | High Court offers some crumbs of comfort

2017 saw two of the most significant, and for many, unwelcome, decisions on legal privilege for some time.

As two more recent cases demonstrate, though, parties claiming privilege are still to a large extent “judge in their own cause”. The courts are reluctant to look behind assertions of privilege, even when it comes to greyer areas such as communications with litigation funders.

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Tips from a mediator | How to prepare for the mediation of your dispute

You may hear that most disputes are settled at mediation, with the parties compromising their claims in order to avoid litigation. This is true, but settlement doesn’t just happen.

Osborne Clarke’s Adrian Lifely offers nine tips for preparing successfully for a mediation.

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