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The Commercial Litigation Journal: March/April 2015

Neil Jamieson examines the increasing significance of mediation

Would-be litigants certainly cannot be criticised for approaching the prospect of bringing or defending court proceedings with increasing trepidation. The recent and sudden rise in the fee charged by the courts to bring proceedings has caused widespread alarm. The cost of commencing a £200,000 claim rose just weeks ago from £1,315 to £10,000. Although subject to a maximum limit of £10,000, the fee rise is nevertheless startling. Add to this the impact of the Jackson reforms – the increased control by judges over the litigation process and focus on strict rule compliance (backed by sanctions), together with the requirement for all parties to claims worth less than £10m to produce a detailed costs budget for the entirety of the case (with the risk of costs falling outside that budget being irrecoverable) – and it seems inevitable that parties will find litigation a less attractive option than before.

Dechert LLP

Andrew Hearn looks at the availability of Norwich Pharmacal relief for claimants in international cases heard in England

A valuable remedy open to a party in English civil proceedings is the Norwich Pharmacal order. Such an order requires a respondent to disclose certain information or documents to the applicant. The respondent party need not necessarily be accused of wrongdoing itself but must be involved or mixed up in wrongdoing.

RPC

Geraldine Elliott and Sarah Bishop consider the iniquity exception with respect to the disclosure of privileged documents

In the case of London Borough of Brent v Kane [2014], the court considered an application for the disclosure of legal advice that was alleged to have been given for an iniquitous purpose, such that the benefit of any privilege that might otherwise have attached to the document was lost.

Miranda Whiteley summarises recent guidance on costs from the Technology and Construction Court

We have had to wait for nearly two years for some guidance from the courts on the new proportionality test for costs introduced in 2013. It has come from the Technology and Construction Court (TCC) in Savoye v Spicers Ltd [2015] – no surprise there since the TCC, and in particular its former presiding judge Jackson LJ, has always been in the vanguard when it comes to case and costs management reform.

Ryan Deane outlines a recent decision on jurisdiction

Article 5(1) of EC Regulation 44/2001 (the Regulation) allows a person domiciled in a member state to be sued in another member state ‘in matters relating to a contract, in the courts for the place of performance of the obligation in question’. This article examines the approach the English courts take when no single place of performance can be identified, as occurred in the recent case of Canyon Offshore Ltd v GDF Suez E&P Nederland BV [2014].

Davina Bentley and Helen Mulcahy investigate the troubled relationship between social media and civil enforcement

In this article we discuss various areas in which Parliament and the judiciary have considered the use of social media to harass, bully and defame, often anonymously, giving rise to civil proceedings and/or criminal offences.

David Sawtell reports on a recent case concerning a steadfast notice of discontinuance

The story began on 20 September 1948, in the year following the partition of the Indian subcontinent. Two days previously the newly formed sovereign state of India had forced the surrender of the army of the seventh Nizam of Hyderabad as part of Operation Polo, its successful campaign to annex the princely state. On that day the Nizam transferred just over £1m into a bank account in the name of the first High Commissioner of Pakistan. The bank was the Westminster Bank Ltd, which was later to become the National Westminster Bank plc (NatWest). Thus began years of legal wrangling over the legal and beneficial title to the money. Despite the best efforts of the current High Commissioner of Pakistan to discontinue a new claim, the renewed action must go on; thus held Henderson J in High Commissioner for Pakistan in theUnited Kingdom v National Westminster Bank plc [2015].

Alex Fox, Chris Hoyer Millar and Clare Arthurs discuss the evolution of offers to settle, Part 44 and changes to Part 36

Litigation, we are told, should be the last resort for parties in dispute. The courts and practitioners are exhorted to encourage parties to settle their disputes early and at both reasonable and proportionate cost. Case law increasingly shows the courts frowning upon parties (and their advisers) for failing to settle before trial or to control the associated costs. Easier said than done, sometimes: not least where there are different rules and costs consequences governing an offer depending on how it is made.