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Dispute Resolution round-up - June 2022

Overview

Welcome to the seventh edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution world over the last three months or so.

The team here has been heavily involved in this month's London International Disputes Week ("LIDW"), which provided a perfect showcase for the depth and breadth of legal expertise in this jurisdiction.  Notwithstanding the twin impacts of Brexit and COVID, the English courts remain extremely busy with both domestic and international disputes, as the Commercial Court's recent annual report amply demonstrates. As to the subject matter of those disputes, the impact on data breach claims of the Supreme Court's decision last year in Lloyd v Google continues to be felt, and disputes relating to crypto-assets also continue to generate interesting – and novel – case law, as covered by my colleague John Lee in his recent LIDW speaker slot. We also report below on an important Court of Appeal decision on the interpretation of exclusion clauses, which for anyone involved in the drafting of such clauses is a must-read.

This month has also seen publication of Mr. Justice Hildyard's full judgment in the long-running, multi-billion dollar litigation arising out of HP's 2011 acquisition of the FTSE 100 software company Autonomy, in which our firm acted for the HP claimants. In a comprehensive victory for our clients, the judge ruled that they had "substantially succeeded in their claims" against two of Autonomy's former directors, Dr. Michael Lynch (the ex-CEO) and Mr. Sushovan Hussain (the ex-CFO), in doing so considering for the first time some knotty questions concerning the liability of issuers of securities for published statements under Schedule 10A of the Financial Services and Markets Act 2000.  This analysis will be of particular interest to shareholders looking for a remedy in circumstances where they have acquired shares in a listed company on the basis of information in interim and annual reports and other trading updates that turns out to be untrue or misleading, or where important information that would have been relevant to the investment decision was omitted. You can read more about the judgment in the "Cases" section below, and in this detailed briefing.

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.

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News

Commercial Court Report 2020-2021

The Commercial Court has published its annual report, which aims to give a high level overview of what the court does and its work over the last year. The report makes clear that Brexit and the COVID-19 pandemic have had a smaller impact on the workings of the court than might have been expected, with the court continuing to deal with many significant international commercial disputes, as well as complex disputes arising in a domestic context. Some COVID-related disputes have emerged, the most significant of which have been expedited for trial. There have also been some impacts from Brexit, particularly in terms of service out of the jurisdiction, but the wave of supply chain disputes that some foresaw has not materialised. Overall, the court has remained very busy, with more trial days in 2020-2021 than in 2019-2020 and unprecedented demand for one-day hearings.

Strategic Law Suits Against Public Participation

On 17 March 2022, the Deputy Prime Minister, Dominic Raab, launched a Call for Evidence in response to the emerging challenges and concerns presented by the increased use of strategic lawsuits against public participation ("SLAPPs"). Although there is no legal or statutory definition of the term, SLAPPs are most often described as a form of retaliatory litigation intended to deter freedom of expression. The government's stated concern is the use of litigation brought by powerful entities such a lobby groups, corporations and state organs to target acts of public participation which are of social importance, with a view to preventing information which is in the public interest from being published. There is particular focus upon the deployment of SLAPPs against watchdogs, journalists, human rights defenders and civil society organisations to inhibit them from performing their functions in the protection of democracy and the rule of law. Their purpose is to censor, intimidate and silence critics by burdening them with the pressure and costs of litigation. The Call for Evidence is focused on establishing evidence about the use of SLAPPs in England and Wales with a view to, amongst other things, potentially reforming the law of defamation as the primary vehicle for SLAPP cases.

Read more information on the Ministry of Justice's Call for Evidence

In addition, on 27 April 2022 the European Commission published a proposal for a Directive on protecting natural and legal persons who engage in public participation from SLAPPs. The proposal aims to protect SLAPP recipients by developing a common EU-wide understanding of the phenomenon and by introducing procedural safeguards which provide: (i) courts with effective means to deal with SLAPPs; and (ii) SLAPP recipients with measures to defend themselves. The Directive is intended to apply to any type of legal claim of a civil or commercial nature with cross-border implications irrespective of the court or tribunal (including civil claims brought in criminal proceedings).  The proposed safeguarding measures also apply in all EU cross-border cases but do not extend to SLAPPs initiated in third countries.

Read more information on the European Commission's proposal.

Cases
Team news

We are delighted to announce that John Lee and Joseph Moore are two of the eleven lawyers to be promoted to the Travers Smith partnership, with effect from 1 July 2022. Their endorsement from the wider partnership is not only a show of faith in their talent, but also in the future of our dispute resolution practice, which continues to grow year-on-year.

We are delighted for each of them and are sure that they will contribute significantly to the practice and firm's future success. View the full press release covering the firm's recent partner promotions. 

For further information, please contact

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