Dispute Resolution Bulletin - May 2017

Shortlisted for Litigation Team of the Year 
We have been shortlisted for 'Litigation Team of the Year' at the Solicitors Journal Awards. This is the second year running that we have been shortlisted for this prestigious award. The awards ceremony takes place on 17 May 2017 when the winners will be announced.

National Leaders (outside London) for Litigation & IP
We have again been ranked as National Leaders (outside London) for Litigation, and have also been ranked as National Leaders (outside London) for IP. The firm was ranked in many other practice areas. Chambers said of our litigation practice: "They punch well above their weight in Guildford. They have excellent national and international clients."

For further information please visit Chambers and Partners.

Seizing jurisdiction in England & Wales
Our client faced a claim for damages for £450,000 arising out of our client's early termination of a contract. Its opponent instructed Scottish solicitors to issue proceedings in Scotland (perhaps to get around the higher court fees which we have in England and Wales). We immediately issued and served proceedings in the High Court in England so as to ensure that the English rather than the Scottish courts were seized with jurisdiction. The claim sought declarations that our client had no liability. The defendant very quickly agreed to drop its claims bringing the matter to a speedy and successful resolution for our client.

Disputes about MHRA applications
We have been involved in several disputes between medicine manufacturers and distributors, including those which have at their centre an erroneous application to the UK regulator, the MHRA. See our note on the MHRA's tips on submitting or varying your manufacturing authorisation application here.

Court of Appeal confirms Claimant can only recover court fees of less than £5,000 from Defendant on a claim for more than £3 million, because no costs budget filed
See the article by Lorna  Sleave and Catherine Penny  here.

Intellectual Property Update
See our latest IP Bulletin here.

Litigation Funding Roundtable 
Michael Frisby was one of the participants in a round table discussion organised by The Law Society Gazette to discuss the current state of the litigation funding market and its impact on litigation and arbitration. For a summary of what was discussed, please click here.

Dangers of IT failure on a business
The need to plan for and guard against the impact of IT failure was discussed in a recent article for Insurance Day following the power outage at software firm SSP. Click here to read the article.

Costs recoverability in adjudication
The possibility of claiming costs in an adjudication under the Late Payment of Commercial Debts (Interest) Act 1998 was discussed in articles for The Construction Index and in Litigation Funding; copies available here.

ATE Insurance defeats security for costs application 
An article by Tim Carter and Oliver Lawson. Click here to read the article.

A recent case has confirmed that litigation funding costs are recoverable in arbitration
Essar Oilfield Services Limited v Norscot Rig Management Pvt Limited confirmed that an arbitrator does have the power to award the costs of funding a dispute. Whilst the arbitrator has the power, it is ultimately a matter of discretion as to whether it will be exercised in a particular case. This is in marked contrast to litigation where the current approach of the courts is not to allow recovery. Click here for our analysis of the case.

New Arbitration Rules
The ICC and SCC have introduced new arbitration rules, including for expedited arbitrations which is a growing trend across arbitral institutions as they attempt to address the lack of a fast track process in arbitration.

We have advised clients on bespoke arbitration agreements to get around the lack of a ready-made expedited process, but these new rules, and others like them, could be the answer. For further information please visit: New SCC Arbitration Rules in force and ICC arbitrations in 2017.

Fixed Recoverable Costs
As mentioned in our April 2016 update, Lord Jackson, who overhauled costs in civil litigation in 2013, is continuing to review proposals for fixed recoverable costs. Fixed costs are now in place for some personal injury claims, but it may be broadened to include other types of litigation.

Lord Jackson is to report back on his findings by 31 July 2017. In the event that any extension of fixed costs is eventually approved, it could signal the end of the current costs budgeting regime in certain areas of litigation, an important area. We will continue to keep this under review but a new regime or pilot could be in place before the year is out.

Statutory Demands and Insolvency
The long awaited Insolvency Rules 2016 are now in force - see our note.

Some changes include different forms for a statutory demand and winding up petition.

New Business and Property Courts from June 2017
From June 2017 the Commercial Court, the Admiralty Court, the TCC, the Financial List, the courts of the Chancery Division (including the courts dealing with intellectual property, competition and insolvency) will be called the Business and Property Courts.

The intention is that this will allow judges to work between these specialist Courts more flexibly so as to maximise on their expertise in particular areas. As a significant proportion of our work is in these specialist courts, we will see how this comes into effect later on this year.

Online Dispute Resolution Platform - One year on
We reported the introduction of the European Online Dispute Resolution Platform in our April 2016 bulletin. It is a platform designed so that consumers can to make claims easily.

Over a year on, the European Commission's Press Release, has provided an update on its use - over 24,000 consumer complaints have been lodged, of which one third related to cross-border purchases and the majority of complaints received were connected with clothing/footwear, airline tickets and information and communication technology goods.

The European Commission is looking to improve and increase the promotion of the ODR platform including by making sure traders include easily accessible links to the ODR platform on their websites.

For further information on the ODR platform and details of approved ADR entities, see this note produced by our commercial team.

Can you circumvent an arbitration clause by bringing only non-contractual claims?
To read our commentary on the case of Microsoft Mobile OY (Ltd) v Sony Europe Ltd and others [2017] EWHC 374 (Ch), please click here.

Privilege and Data Protection: A New Conflict?
James Lister considers the implications of the Court of Appeal's finding that a law firm were obliged to provide disclosure to a beneficiary in a trust dispute under the Data Protection Act 1998. Read more.

Language v factual matrix - which triumphs when interpreting contracts? The Supreme Court reveals...
Read more.

Ilott v Mitson - The Final Curtain
James Lister reviews the end of the long-running saga over a child's ability to claim inheritance from their parent(s), in the Supreme Court's landmark judgment from March 2017. Read more.

E-filing now compulsory
From 25 April 2017, you will only be able to file documents at certain Courts electronically. This was introduced in 2016 (see our April 2016 Bulletin). The transition to CE-File will be a smooth one as we have been making use of the online service for some time. The change may be more difficult for litigants in person / those with limited access to IT equipment but public access terminals and scanners will be made available in Court reception areas following the closure of Court counters.

Changes at the Top
We are pleased to announce that from May 2017 Richard King, currently head of dispute resolution, will become our next managing partner, following the completion of Ken Woffenden's 5 year term at the helm. Richard will be continuing his dispute resolution practice, alongside his responsibility for the day to day management of the firm. Ken will continue as a corporate partner and will also lead our international practice group and relationships with law firms across the world.

Richard Mumford will be taking up a new role as head of our Commercial Litigation and International Arbitration Group, at the same time as continuing to develop our aviation practice. Richard King commented: "I am very much looking forward to the new challenge of managing partner and I am delighted that Richard Mumford is taking over as head of our Commercial Litigation and International Arbitration Group. The team has never been stronger and under Richard's leadership I have every confidence that it will go from strength to strength."

New Joiners
The team continues to grow. We're delighted to be strengthening our team with the addition of three new litigators:

James Lister has particular expertise in disputes focussing on UK trust and probate claims. He advises primarily on disputes relating to High Net Worth and Ultra High Net Worth individuals and their affairs, both on and offshore.

Kimberley Eyssell has joined our Construction & Engineering team. Her practice encompasses all aspects of dispute resolution in construction and engineering matters including adjudication. Kimberley has particular knowledge of resolving disputes in the rail industry.

Stephanie White is part of our Property Litigation team. Stephanie advises on all aspects of contentious property work. She has experience advising on a range of landlord and tenant issues including business lease renewals, forfeiture, break rights and dilapidations.

USA Visit
Earlier in the year, Managing Partner Ken Woffenden and Sarah Murray were invited to give a talk in Las Vegas to US and Australian lawyers, clients and contacts about Brexit and its implications for cross border legal work. They, along with Tom Lingard, James Waddell and David Steinberg then travelled to Atlanta where they repeated the talk and had meetings with US contacts as part of our international initiative strengthening relationships with clients and contacts in the United States of America.

LCIA/YIAG Symposium May 2017
Senior Associates Catherine Penny and Elaine O'Hare are looking forward to the YIAG Symposium in May 2017. Do get in touch if you are planning to go along.

INTA May 2017
Partners Tom Lingard and Charlie Tillett and Senior Associate Elaine O'Hare are preparing to attend the annual International Trademark Association meeting, held this year in Barcelona from 20-24 May 2017. Please do get in touch if you are planning to attend.

Recent Seminars
Data Protection - The New GDPR - is your business ready? We hosted a seminar on this hot topic on 16 March 2017.

Annual Construction Law & Practical Tips Update - we ran this annual update in March at locations in London and Guildford looking at key developments in construction law and practice.

If you weren't able to make these events but would be interested in further information or attending similar events in future please contact Laura Reynolds

Cyber Threats to Business - 15 June 2017 : 9.00 am - 10.30am (registration from 8.30am) Guildford
In conjunction with HSBC we are holding a seminar looking the nature of cyber threats to business, lessons learned and the steps a business might take to minimise risk. It will include presentations from the Cyber Crime Unit, South East Regional Organised Crime Unit and Kroll investigations cyber security team.

For further information please  click here and if you would be interested in attending please contact Laura Reynolds 

Brexit and International Trade - Choosing arbitration or litigation - 6 July 2017: 4.30 pm (registration from 4pm) Guildford
With Brexit approaching, we'll be taking a look at what this means for international trade disputes and how businesses should protect themselves; including the benefits and drawbacks of arbitration and litigation, key recent developments in international arbitration, current law on jurisdiction in international disputes and the impact of Brexit.

If you would like further information please contact Laura Reynolds