Welcome to the third edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution sphere over the last three months or so.
With the post-Brexit transition period drawing to a close at the end of last year, and the EU and UK having agreed the shape of their future trading relationship, we finally have some clarity as to how English courts and EU courts will co-operate with each other in the new, post-Brexit world. The previous pan-European regime governing allocation of jurisdiction as between different national courts, and the recognition and enforcement of judgments in cross-border civil disputes, no longer applies to or in the UK. Instead, a different international regime, the 2005 Hague Convention, will now step in in many cases to determine which national court should hear a dispute, and whether overseas judgments should be recognised and enforced. The Hague Convention is at present relatively untried and untested, and we wait with interest to see how it will operate in practice. However, the general expectation is that in most cases, things will very largely proceed as they did before, with perhaps the odd new procedural bump built in.
On the domestic front, it is full steam ahead with new reforms to witness evidence - which have been mooted for some time - now in force as from 6 April 2021. It is to be hoped that the reforms will refocus the minds of parties to English litigation on the real purpose of a witness statement – to set out the factual evidence that the witness would give if they were giving oral evidence-in-chief at trial – and go some way to avoiding the lengthy and over-lawyered statements that the judiciary have complained of much of late.
And we have seen a lot of activity on the case law front, too. Notwithstanding Brexit, London continues to be a pre-eminent centre for international arbitrations, and we have recently seen the Supreme Court hand down two important decisions in this area, in Enka v Chubb and Halliburton v Chubb, concerning the test for determining the proper law of an arbitration agreement and an arbitrator's duty of disclosure where they are instructed on multiple overlapping matters respectively. We have also potentially seen the first small signs of the anticipated wave of litigation which many believe will inevitably arise from the Covid-19 pandemic, with the courts starting to grapple with force majeure issues in Travelport v Wex and Fibula Air Travel v Just-Us-Air, alongside of course the Supreme Court's seminal decision in FCA v Arch concerning Business Interruption insurance coverage. Finally, we have also seen a couple of interesting litigation funding decisions in the last few months, in Zuberi v Lexlaw and Rowe v Ingenious, as courts continual to grapple with the limits of what is acceptable practice for this relatively new industry. All of these decisions are explored further in our "Cases" section below.
We hope that you continue to enjoy reading this round-up, whether a litigator by trade or a generalist, and whether in-house or in private practice, and that you will share it with any of your colleagues who may also find it useful. In the meantime, please stay safe.