Welcome to the second edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution sphere over the last three months.
The pipeline of COVID-19 related caselaw has slowed somewhat over the summer, as both courts and parties adjust to the new normal (although for those who want a recap of the key recent cases, please see this round-up prepared by our team). We have, however, seen a very important decision handed down in the last few weeks in the form of the first instance judgment in the FCA's seminal test case in the Financial List, which is aimed at providing clarity to insurers and policyholders alike as to whether certain common non-damage business interruption insurance policies have been triggered by the pandemic. Although the 156-page judgment requires careful reading, the general consensus is that it represents a victory for policyholders and the FCA. This case also represents the first time that the test claim procedure in the Financial List has been used, and it appears to have been a resounding success, moving through the various stages of the litigation quickly and efficiently to provide timely guidance to the market within a very compressed timeframe. That said, it certainly does not represent the last word on this matter and an appeal (possibly by way of a leapfrog to the Supreme Court) appears likely.
In other news, collective actions remain a hot topic as the courts in this jurisdiction seek to strike a balance between affording large groups of claimants a mechanism to obtain redress, and retaining the important link between redress awarded and actual loss suffered. This can be seen in the recent commencement of a new collective data breach action against Marriott, an area where we expect to see a lot more activity over the coming months and years. It can also be seen in the High Court's recent judgment in Jalla v Shell International Trading and Shipping Company Ltd  EWHC 2211 (TCC), which could be read as the court applying the brakes somewhat to the gradual judicial expansion that has occurred in recent times of the circumstances in which a representative action (i.e. an action brought by a representative on behalf of a wider pool of claimants) may be brought.
Finally, as Brexit looms and the English courts seek to shore up their position as a global forum of choice for international disputes, this month has also seen the publication of two important sets of proposals aimed at revising the current rules in this jurisdiction relating to disclosure and witness evidence, to ensure that they remain relevant and appropriate for the modern world.
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.