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.
Michael Frisby