Here's what our litigators are looking forward to over the coming months…

Jurisdiction issues in Supreme Court and Court of Appeal

In Keefe v Mapfre Mutualidad Compania de Seguros y Reaseguros SA and Another [2015] EWCA Civ 598, a case involving an English tourist injured by an umbrella whilst on holiday in Spain, the Supreme Court will rule on whether a claimant can rely on Article 11(3) of the Brussels I Regulation to join a foreign domiciled tortfeasor to English proceedings in which an English domiciled claimant is bringing proceedings against the tortfeasor's foreign domiciled insurer. Article 11(3) provides that if the law governing direct actions against an insurer permits the insured policyholder to be joined as a party to the action, the same court as is seized of the direct action shall have jurisdiction over the policyholder.

In Bosworth v Arcadia Petroleum [2016] EWCA Civ 818, the Court has been asked to interpret the scope of Section 5 of the Lugano Convention, which governs jurisdictional matters in claims relating to contracts of employment, including the general rule that proceedings can only be brought against an employee in the state in which they are domiciled. The Court will rule on whether a claim pleaded in conspiracy, but relating to conduct which could also amount to a breach of the defendant's contract of employment falls within Section 5. Interestingly, the Court has also been asked to determine whether group companies should be treated as a single employer, or separate employers, where employees provide their services to multiple group companies.

In Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV and Others [2017] EWHC 2598 (Comm) the Court will rule on the correct legal test to apply when determining whether an undisclosed principal is bound by an exclusive jurisdiction clause purportedly made on their behalf.

Limitation and fraudulent conduct

The Supreme Court are also due to rule on the disapplication of limitation periods on the grounds of fraudulent conduct under s.21(1)(a) of the Limitation Act 1981 in First Subsea Ltd (formerly BSW Ltd) v Balltec Ltd [2017] EWCA Civ 186. Specifically, the Court is faced with the question of whether s.21(1)(a) should apply to a breach of trust committed by a director who violates his fiduciary duties to the company, regardless of whether or not this involves a misappropriation of company property.

Foreign limitation periods and the Civil Procedure Rules

Other highlights in the Court of Appeal's case list include the appeal against Stuart Smith J's decision that CPR 17.4 and the Foreign Limitation Periods Act 1984 do not allow a claim introduced by an amendment to a statement of case permitted under CPR 17.4(1)(b)(iii) to be back-dated to the date on which the original claim was issued (Vilca and Others v Xstrata Ltd and Another [2018] EWHC 27). 

Privilege and internal investigations

A highlight in the Court of Appeal's upcoming calendar is the eagerly anticipated ruling in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB). On 2 July 2018, the Court began hearing the appeal against Mrs Justice Andrews' decision, which had severely restricted the scope of legal professional privilege by limiting a party's ability to claim privilege over documents created during the course of an investigation where a prosecution is not yet reasonably contemplated, or, even if prosecution is reasonably contemplated, where the dominant purpose of producing the document is not for it to be used in the course of that litigation. Andrews J's decision requires businesses to disclose a broad range of internal documents relating to criminal investigations. The significance of this case for the legal sector is demonstrated by the Law Society having been given permission to intervene. 

Interest rate SWAPS – bank's duties

In Marz Limited v Bank of Scotland PLC [2017] EWHC 3618 (Ch), the Court of Appeal will consider the appeal against the High Court's dismissal of contractual and tortious claims against the Bank of Scotland in respect of an interest rate swap agreement. The Bank was held to have successfully excluded any advisory duties using the 'Basis Terms' in the ISDA agreement; whilst Marz's sole director was found not to have acted on the advice of the Bank, meaning that the contractual and tortious duties upon which the claim was predicated were not established.

Disclosure Pilot in Business and Property Courts

Finally, on 13 July 2018, the CPR Committee approved the Disclosure Working Group's proposal for the pilot of a new disclosure practice direction in the Business and Property Courts, with the pilot now due to be included in the 99th CPR update in September and to come into force in January 2019. The DWG's new practice direction is a response to concerns about the expense of disclosure. It is recognised that the current rules have not kept up to date with technological change. The Pilot introduces 'basic disclosure', to be given with statements of case, of limited key documents relied upon by the parties, or which are necessary for the other party to understand the case they have to meet. The parties may then submit requests for 'extended disclosure', following which the court may order one of five new disclosure models. The Pilot will impose new express duties on parties and their legal representatives, including a duty to cooperate and promote the efficient conduct of disclosure, (using technology where appropriate), refrain from disclosing irrelevant documents and provide written confirmation to the court outlining the reasonable steps taken to preserve relevant documents. If successful the Pilot could represent the most significant change in civil procedure since the Jackson (Costs) Reforms in 2013.

Please contact Daniel Hovington for more information.

Key contact

Kate Menin

Kate Menin

Principal Knowledge Lawyer, Dispute Resolution
London, UK

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