Dispute Resolution Bulletin - April 2016

Welcome to the seventh edition of the Dispute Resolution Bulletin - an e-bulletin from the dispute resolution team at S&B, containing news about recent and topical developments here and in dispute resolution law.

Contact our experts for further advice

Richard Mumford, Michael Frisby
  1. Stevens & Bolton in Practice

    S&B named National/Regional Firm of the Year at the 2016 Legal Business Awards
    The Legal Business Awards, organised by Legal Business, are one of the most prestigious awards in the legal sector. The “National/Regional Law Firm of the Year” award recognises the UK-based national or regional firm (with headquarters outside of London) that has made the most significant progress over the past year in advancing its strategy. Key factors taken into account for this award are evidence of effective leadership, impressive financial performance and increased market share across the firm’s major practice areas.

    S&B shortlisted: Litigation Team of the Year - Solicitors Journal Awards 2016

    We are delighted that S&B has been shortlisted for the Litigation Team of the Year in the upcoming Solicitors Journal Awards 2016. The Awards recognise excellence in a changing legal market. The judges were looking for technical brilliance in reported case work; an innovative approach with the use of alternative dispute resolution, arbitration, or other methods; and outstanding expertise and dedication to clients. The other five firms shortlisted include national and city based firms and a London barristers chambers. The winners will be announced at an awards dinner on 25 May 2016 in London.

    National Leaders outside of London – Commercial Litigation and Intellectual Property
    We have been ranked amongst a handful of firms as "National Leaders outside of London" for both Commercial Litigation and Intellectual Property, by the 2016 edition of the Chambers legal directory.

    The Legal 500 directory also ranked our Dispute Resolution team in the top tier of firms based in the South of England for Litigation, Aviation and Intellectual Property.

    Hong Kong Arbitration
    A team made up of Michael Frisby (partner), Paula Harris (senior associate) and Catherine Penny (senior associate) were in Hong Kong for a 5 day arbitration hearing in the summer.

    S&B acted for the UK subsidiary of an international life sciences company in a multi-million US$ dispute against a foreign life sciences company. The dispute concerned allegations of breach of contract and regulatory breaches and involved 7 expert witnesses.

    In the recently published award our client was successful on its claim, defeated the counterclaim and was awarded interest and costs.

  2. A New form of ADR for Chancery cases - "Ch FDR"

    The recently published Chancery Court Guide now includes early neutral evaluation (which has been available in the Commercial Court for some time), and a new “Ch FDR”. The chancery division handles cases including company matters, shareholder disputes, property and insolvency issues.

    Ch FDR is essentially judge led mediation, at least the initial plenary session of a mediation and without the hours of shuttle diplomacy. The parties must agree to it, it will be non-binding and without prejudice. Position papers will be exchanged and a bundle of relevant documents agreed. Before the judge joins the meeting, the parties will be directed to have a pre-meeting to hold initial discussions. Assuming no settlement is reached at the pre-meeting, the judge will facilitate negotiations and may provide the parties with a judicial view about the claim or elements of it.

    Ch FDR might offer a valuable and cost effective alternative to existing ADR offerings in the market for the appropriate case.

  3. Financial List

    The High Court has launched a Financial List to cater for disputes arising out of the financial markets.   Eligible cases are financial disputes of over £50m or equivalent, or cases which require particular market expertise, or raise issues of general market importance. There will be a Financial Markets Test Case Scheme allowing for suitable cases to be tried as test cases, with no order for costs ordinarily being made. Such cases will be heard by two Judges, one of whom will be an appellate judge.

  4. Stevens & Bolton News

    Growing team
    We were very pleased that all three of the S&B trainee solicitors who qualified in September joined the Dispute Resolution team. Hannah Lunn and Daniel Baker joined the Commercial Litigation/International Arbitration team, and Tom Collins joined the Intellectual Property team.

    Client Choice Awards 2016
    Partner Tim Carter won the Client Choice Awards 2016 Insolvency & Restructuring category for the United Kingdom. Tim was presented with the award at the Client Choice (Lexology/International Law Office) Awards Dinner held in London in March. It was a truly international affair with 96 winners worldwide announced on the night.

    Fellowship of the Chartered Institute of Arbitrators
    Partner Michael Frisby recently became a Fellow of the Chartered Institute of Arbitrators.

    Baltic Air Charter Association
    Partner and Head of Aviation, Richard Mumford, has been appointed Chairman of the Baltic Air Charter Association (BACA).  BACA was founded by members of the Baltic Mercantile and Shipping Exchange in March 1949. Its purpose was to bring to aircraft chartering the same standards of integrity and professionalism for which the Baltic Exchange and the Institute of Chartered Shipbrokers have for so long been known and respected.
    Secondment
    Senior Associate Catherine Penny enjoyed a three month secondment with the in house legal department of a client at the end of 2015. It was a great opportunity for Catherine to get to know our client's business and understand the pressures faced by in house teams. Catherine also enjoyed being the client and instructing S&B Commercial Litigation and International Arbitration partner Sarah Murray.

  5. Events

    19 May 2016 Seminar: Settling Property Disputes
    S&B is hosting an event focussing on settling property disputes.

    Construction Law and Practical Tips Update
    S&B’s annual Construction Law and Practical Tips Update took place on 9 March 2016 at the Institution of Mechanical Engineers in London. Members of the litigation and insolvency team spoke about topical issues and recent developments in construction law, including disputes and payment issues. 

    If you would like to be invited to future seminars and workshops, please email Emma Zovich on emma.zovich@stevens-bolton.com.

  6. Recent Articles Published

    Arbitration agreements

    • “When ‘may’ means ‘must’” – to read Catherine Penny’s article in the Law Society Gazette, please click here

    Aviation disputes

    • “Getting the timing right” – to read Daniel James’ article on p21 in the magazine of The European Regions Airline Association, please click here

    Cybersecurity

    • “What all Tech Companies Should Know for 2016” – to read Michael Frisby’s article as featured in Tech City News, please click here
    • “Cybersecurity finding a cure for pharma companies” – to read Michael Frisby and Beverley Flynn’s article published in Pharmaceutical Market Europe, please click here

    IP rights

    • “What can smaller brands learn about licensing from the high street?” – to read Elaine O’Hare’s article published in MWB, please click here 
    • “When imitation becomes an illegal form of flattery” - to read Elaine O’Hare’s article published in Drapers, please click here
  7. Industry News

    Online Dispute Resolution Platform – if you deal with consumers you may need to update your website
    From 15 February 2016 EU legislation requires traders to give information to consumers about an approved ADR entity and an EU-wide online dispute resolution platform.

    For further information, please see the note by our commercial team here.

  8. Shorter and flexible trials pilot scheme

    A pilot scheme for cases dealt with in the Rolls Building (home to the courts handling the larger business disputes in London) has been launched. 

    The shorter trials scheme for cases lasting no more than 4 days aims to streamline the litigation process by, amongst other things:

    • Limiting statements of case to 20 pages, with relevant documents provided at the same time
    • Limiting disclosure to documents a party relies on, plus documents requested by the other side
    • Limiting witness evidence to no longer than 25 pages.

    The flexible trials scheme allows parties to vary procedures by agreement but offers a default procedure limiting disclosure, witness statements, oral expert evidence and submissions. Further details can be found here, in our briefing note.

    S&B is pleased to be taking part in the scheme which will hopefully lead to significant savings for our clients in both costs and time. 

  9. Predictive coding

    Given modern business communications methods, a problem faced by litigators conducting disclosure exercises is the sheer volume of electronic data that needs to be reviewed. We commonly use document management systems to help with the task. By carefully choosing keywords and phrases and eliminating duplicates, the data set can be reduced. However, it can nonetheless still leave large amounts of data for lawyers to review each document and decide whether it is relevant and disclosable or not.

    An automated review tool has been available in many systems for some time. Known as predictive coding, it is essentially a computer driven review of large volumes of documents. By lawyers reviewing a sample of the documents, the system can be effectively trained to identify relevant documents. Concerns have been expressed about the reliability of such searches and whether using predictive coding complies with the parties' duties to conduct a reasonable search.

    The English court has just approved the use of predictive coding in a case (Pyrrho Investments Limited and anor –v- MWB Property Limited and ors). It is believed to be the first time it has done so. 

    This is a welcome development, used in appropriate cases it could lead to significant costs savings.

  10. Electronic filing at Court

    For any claims in the Rolls Building, it is now possible to file documents electronically, including issuing new claims.

    S&B is delighted to be using the scheme which coincides with our aim to reduce paper. E-filing should also speed up the process. For example to issue a new claim, we can submit it online at any time and it will be issued by the Court (with an issue date of the date we submit it) and an electronic version of the sealed claim form returned to us for service in a matter of days.

     
  11. Fixed recoverable costs for claims up to £250,000 proposed

    Lord Justice Jackson whose report led to costs reforms being implemented in 2013 recently delivered a speech calling for fixed recoverable costs for all claims up to £250,000. He said that he understands informally that the Ministry of Justice is supportive of the proposal and, if the political will is there, this whole project could be accomplished during the course of this year.  

    If approved it will lend certainty to all parties in litigation and by removing the budgeting and costs management element of those cases should lead to savings in litigation costs.

  12. CIArb new rules and Business Arbitration Scheme for claims under £100,000

    With effect from 1 December 2015, the Chartered Institute of Arbitrators Arbitration Rules came into effect for use in both domestic and international ad hoc arbitrations. The rules are based on the 2010 UNCITRAL Arbitration Rules and include the possibility of appointment of emergency arbitrators.

    Another initiative, the Business Arbitration Scheme is for claims between £5,000 - £100,000 and it aims to provide parties with a final, legally binding decision in less than 90 days from the appointment of the arbitrator. A fixed fee of £1,250 + VAT is payable by each party on commencement of the arbitration. The successful party can apply to reclaim their application fee and up to £1,000 towards their costs of the arbitration.

  13. Change in threshold for use of statutory demands against individuals

    Used in the correct circumstances, a statutory demand can be an effective way of obtaining payment from a debtor. A statutory demand is a formal demand for money and is often used as the first step in insolvency proceedings. To be able to serve a statutory demand on a company it must owe a debt of at least £750.

    The threshold used to be the same to serve a statutory demand on an individual but it has now been increased to a minimum debt of £5,000.

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