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Getting The Deal Through

Introduction

Martin Davies and Kavan Bakhda

Latham & Watkins LLP

Thursday 25 July 2019


As we look back at 2018, the first half of 2019, and onwards into 2020, the dispute resolution landscape has encountered (and continues to encounter) some notable changes and developments at both a national and international level. Important rulings on unsettled areas such as legal professional privilege, in addition to substantive updates to the Civil Procedure Rules (such as the permanent introduction of the Shorter Trials Scheme, and the roll-out of the Disclosure Pilot Scheme), are all noteworthy. The most significant international development for practitioners and litigants alike, which continues to dominate, is the planned departure from the European Union of the United Kingdom and whether this (along with other challenges) will affect London’s status as the leading international centre for dispute resolution.

At a national level, one of the most important cases to come before the English courts was the appeal from a controversial High Court decision by Andrews J in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 QB, which provided some much needed clarity to the law of legal professional privilege. This case clarified that litigation privilege can apply to documents produced during an internal investigation provided that (i) litigation is reasonably in contemplation (to be considered as a matter of fact), and (ii) the documents in question are created with the dominant goal of resisting, preventing, avoiding or settling that litigation. This provides comfort to companies facing regulatory and criminal investigations, who may now be more confident in investigating allegations (with the assistance of external counsel and advisers, where necessary) under the protection of legal professional privilege.

Progressing through 2019 and into 2020, the key development that will impact upon most practitioners and clients in the English High Court will likely be the Disclosure Pilot Scheme for the Business and Property Courts, which took effect on 1 January 2019 and will run for two years. The provisions that govern this scheme are complex, with many of the underlying concepts and intricacies yet to be tested before the courts, making full compliance difficult to achieve in practice. It remains to be seen whether practitioners and the judiciary embrace the proposed reforms as provided for in the pilot scheme, and whether the disclosure process can adapt to meet the realities of modern, document intensive, litigation.

Considering developments at an international level, a central question that has come into greater focus in the past 12 months is whether London can retain its status as the pre-eminent forum for international dispute resolution in light of the many uncertainties of Brexit (including whether a post-Brexit UK will be able to participate in the EU framework for the mutual recognition and enforcements of judgments), significant budget cuts and belt-tightening at the UK Ministry of Justice, and the increasing attractiveness of competing fora (eg, Singapore and Hong Kong). Notwithstanding these challenges, there are reasons to remain positive about the attractiveness of London as the leading international dispute resolution forum. A steady (and substantial) caseload continues to occupy the Business and Property Courts, there has been no evidence of leakage to the much-publicised English-language commercial courts in mainland Europe (inter alia, France, the Netherlands, Belgium and Germany) and English courts continue to be favoured by corporate litigants. This points to the continued resilience of London in this regard. Furthermore, the English judiciary continues to design and implement measures (eg, the Disclosure Pilot Scheme) to ensure that the courts efficiently meet the needs and expectations of modern litigants.


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