Overview
Notwithstanding Brexit, the United Kingdom appears to remain the preferred forum for many parties in dispute. Privilege, disclosure and costs are recurring issues. For the purposes of privilege, the English courts have confirmed that labels do not matter: the court will look at the substance of a communication to determine whether it attracts privilege. Many parties continue to play the potentially expensive game of forum shopping, as evidenced by the number of anti-suit injunctions which came before the English courts in the last six months. Further, the courts continued to exercise their powers in support of the many international arbitrations seated in London. There have also been a string of cases which have held that, where there is no express law of the arbitration agreement, the law of the seat of the arbitration governs. This is something parties should keep in mind when drafting dispute resolution clauses.
Pavilion Property v Urban & Civic Projects [2018] EWHC 1759 (Ch)
The main issue in this case was whether a meeting between the parties was "without prejudice". The judge decided, on the evidence, that the meeting had not been expressly agreed to be without prejudice. However, he went on to find that both the meeting and the communications between the parties after the meeting were without prejudice because they were negotiations aimed at settlement.
It made no difference that one of the parties did not think that the meeting was conducted on a without prejudice basis. Negotiations genuinely aimed at settlement will be considered without prejudice (unless expressly agreed otherwise) as it is in the public interest that such negotiations occur and parties should be free to have candid discussions.
This decision follows the Court of Appeal ruling in Muller v Lindsey & Mortimer [1994] which held that, even if neither party wanted the privilege to apply, it can still apply simply by virtue of the fact that the parties are negotiating (in the absence of express agreement to the contrary).
Cape Intermediate Holdings v Dring [2018] EWCA Civ 1795
Non-party access to court documents
The applicant was a non-profit unincorporated association representing asbestos victim support groups and it sought access to various documents produced in a case between a parent company and an employee of its subsidiary who contracted asbestosis.
CPR r5.4C provides that non-parties can obtain statements of case (which includes the pleadings but not documents filed with them) but the court's permission is required to obtain "from the records of the court a copy of any other document filed by a party..." At first instance, as reported in our last Newsletter, it was held that the applicant was entitled, subject to the court's permission, to all documents filed at court, including trial bundles and skeleton arguments. The Court of Appeal has now allowed an appeal from that decision.
It held that the "records of the court" are documents kept by the court office as a record of the proceedings, principally "communications between the court and a party or other person", for example the list of documents as opposed to the disclosed documents themselves, or the receipt document for the trial bundles rather than the trial bundles themselves. The following documents are also not "records of the court" (and so cannot be obtained by non-parties under CPR r5.4C): the witness statements, the expert reports, the skeleton arguments, opening or closing submissions, and trial transcripts.
However, the court has an inherent jurisdiction to allow non-parties to obtain copies of skeleton arguments/written submissions used in lieu of oral submissions (see GIO v Liverpool & London Steamship P&I [1999]) as well as the statements of witnesses (including experts) whose evidence stands as evidence in chief and would have been available for inspection during the course of the trial (see CPR r32.13). That said, there is no inherent jurisdiction to allow non-parties to obtain access to trial bundles and trial documents even if they have been referred to in skeleton arguments, witness statements, expert reports, or in open court.
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