UK: Round-Up Of Litigation And ADR Procedure News For In-House Lawyers (UK Construction Focus)

Our latest briefing focused on UK construction disputes summarises recent changes to court procedure and news on alternative dispute resolution (ADR) processes.


Update on the Disclosure Pilot

  • The mandatory Disclosure Pilot under Practice Direction 51U (PD51U) began in the Business and Property Courts (B&PCs) on 1 January 2019 and is scheduled to run for two years. You can read more about the pilot here: Disclosure Pilot in force from 1 January 2019. Since PD51U came into force, there have been a number of developments.

Guidance on the application of the Disclosure Pilot to Part 8

  • Chief Master Marsh, a member of the drafting sub-committee of the Disclosure Working Group, has published guidance on the application of the Disclosure Pilot Scheme to CPR Part 8 claims: Disclosure pilot and Part 8 claims. CPR Part 8 (which provides an alternative procedure for those claims not involving substantial factual disputes) contains its own disclosure regime. Chief Master Marsh's note aims to avoid overlap with or duplication between PD51U and Part 8 and confirms that the Disclosure Pilot does not apply to Part 8 claims. However, the court will have some scope to order extended disclosure under the pilot as appropriate.

Court guidance on the Disclosure Pilot

  • In UTB LLC v. Sheffield United Ltd and others [2019] EWHC 914 (Ch), the Chancellor of the High Court, Sir Geoffrey Vos, highlighted that PD 51U was intended to effect a cultural change – "it is not simply a rewrite of CPR Part 31". The judge's decision also makes clear that PD51U applies to all proceedings including those existing as at 1 January 2019 and those issued since. He emphasised that the requirements for the parties to cooperate and to act with proportionality are of the greatest importance under PD51U. The judge's conclusions and his assertion that requests for extended disclosure must not be used "as a tactic let alone a weapon in hard fought litigation" are a clear pointer of the approach to disclosure that we should expect from courts in future."
  • It is worth noting that the Commercial Court has recently granted an order for specific disclosure ostensibly under CPR Part 31 where the case in hand was subject to PD51U. As there are no transitional provisions in PD51U, the decision in Kazakhstan Kagazy plc and others v. Zhunus and others [2019] EWHC 878 (Comm) could be an indication that the courts will take a practical approach to disclosure applications relating to cases/disclosure processes already underway - where appropriate.

Extension of fixed recoverable costs in civil cases

  • The Ministry of Justice is consulting on the implementation of Sir Rupert Jackson's fixed costs proposals (as set out in his Supplemental Report on Fixed Recoverable Costs, July 2017) and the proposals to extend fixed recoverable costs in civil cases in England and Wales. In response to that consultation, which closes on 6 June 2019, the Law Society recommends that civil litigation costs should be fixed at a reasonable rate with thresholds kept under regular review, not least to keep up with process and technology changes.

Capped Costs Pilot starts in the B&PCs

  • One of Sir Rupert Jackson's proposals, a voluntary Capped Costs Pilot scheme, started on 14 January 2019 in the B&PCs in Leeds and Manchester (Chancery Division, Circuit Commercial Court and Technology and Construction Court (TCC)) and the London Circuit Commercial Court (see Practice Direction 51W). The pilot applies to claims worth up to £250,000 and will run for two years. Based on Sir Rupert Jackson's recommendations, there is an overall cap of £80,000 on recoverable costs (excluding VAT, court fees, wasted costs and the costs of enforcement). Those courts participating in the pilot will operate a Capped Costs List of those cases operating within the scheme.
  • Law and costs firms will be monitoring the Capped Costs Pilot carefully and will be watching out for the results of the government consultation with interest - particularly the consultation on whether to expand the fast track to include simple "intermediate" cases valued at between £25,000 and £100,000.

Costs budgeting

  • A new statement of costs for summary assessment (PD51X) is being piloted on a voluntary basis for two years from 1 April 2019. The new forms used in the pilot, N260A and N260B, can be accessed at the end of PD51X.
  • A new Precedent R – Budget Discussion Report became effective from 25 April 2019. It can be found in Annex C of Practice Direction 3E.

Update on the Electronic Working Pilot: application of electronic filing system widened

  • The Courts' Electronic Filing System (CE-File) has been mandatory in the Rolls Building courts since 25 April 2017. It was extended to the Queen's Bench Division in January 2019 (where it will be optional until 1 July 2019, and mandatory thereafter).
  • Electronic filing became optional for all users in regional B&PCs from 25 February 2019. From 30 April 2019, it became mandatory for court practitioners in those courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. This means court practitioners must now issue all new proceedings electronically using CE-File and file electronically any new documents or submissions on cases issued electronically on or after 25 February 2019.
  • The procedure for issuing and filing documents using the CE-File can be found under Practice Direction 51O. Other guidance has been issued including for example: Frequently Asked Questions prepared by Her Majesty's Courts and Tribunal Service (HMCTS) (which supplement the CE-File system information and support advice) to provide guidance and tips on using the CE-File; Baring J's Practice Note providing guidance on procedural requirements during the transitional period (in Manchester); and Senior Master Fontaine's guidance on the electronic working pilot scheme which explains how the courts will process documents for claims, appeals and other court practices during the pilot.

Guidance on removing court bundles after hearings

  • A joint notice from HMCTS on removal of court bundles, endorsed by the Bar Council and the Law Society, has clarified a previous HMCTS notice about removing court bundles after hearings. In summary, barristers and solicitors are not responsible for removing bundles belonging to the court: responsibility for other remaining bundles will need to be agreed between the barristers and solicitors in each case. Those leaving bundles and papers containing special category (formerly sensitive) personal data unsecured or unattended in court should take note that they risk breach of personal data laws under the General Data Protection Regulation and the Data Protection Act 2018.

Ensuring claims against multiple parties are particularised adequately

  • The TCC has reminded litigating parties to plead their claims to loss and damage from multiple defendants with precision and clarity. In BAM Glory Mill Ltd v. Balicrest Ltd [2018] EWHC 3926 (TCC) (3 October 2018), the TCC refused to strike out the claimant's claim made under collateral warranties. The defendants had argued that strike-out was justified due to the lack of particulars in the claim or because it amounted to an abuse of process. The TCC found that the claim was insufficiently pleaded and ordered the claimant to specify which defendant was in breach in relation to each complaint along with the supporting facts and matters and full particularisation of the loss and damage claimed on each.


Article 50 extension: exit day now 31 October 2019

  • Following the EU's agreement to extend the Article 50 notice period, the UK will now leave the EU on 31 October 2019. Consequential amendments to the European Union (Withdrawal) Act 2018 have been made under the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 SI 2019/859. The EU imposed certain provisos to the extension, not least that the UK must proceed with the European elections scheduled for the end of May 2019, failing which the UK will exit on 1 June 2019.

Brexit: key issues for construction

  • For more information about the effects of leaving the EU with no withdrawal agreement, email one of the Key Contacts to request our briefing note: Brexit: key issues for construction.

Brexit guidance for professionals on cross-border litigation

  • The Ministry of Justice has published Cross-border civil and commercial legal cases after Brexit: Guidance for legal professionals in the event that the UK leaves the EU without a deal. The guidance explains which rules currently govern jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial disputes (including Brussels I and the Lugano Convention of 2007) - which will be revoked in the event of a no-deal Brexit under the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019. Transitional rules will come into effect to cover those cases started, but not completed, before exit day.

    The guidance also covers the rules relating to governing applicable law (Rome I and Rome II), the Hague Convention on choice of court agreements and transitional arrangements pending the UK's accession to the Hague Convention as an independent contracting state.

Provisions for amendments to the CPR if there is a no-deal Brexit

  • The Ministry of Justice's plans for a "no-deal" Brexit include a revision of the CPR to ensure court practice can continue smoothly in the event of a no deal. On the day the UK leaves the EU (exit day), the European Union (Withdrawal) Act 2018 will come into effect and mean that powers, processes and orders under EU instruments or treaties will no longer apply. Under the 107th Practice Development (PD) amendments (PDA107), provision has been made for references to these EU powers/processes and orders to be removed from Civil Procedure Rules (CPR) PDs on exit day. Where relevant EU instruments or treaties are retained in an amended form, PDA107 also amends such provisions. Transitional arrangements will be in place to cover court proceedings issued but not concluded before exit day.

    Specific CPR PDs that will be amended on exit day include: Service within the UK (PD6A); Service out of the Jurisdiction (PD6B); Default judgments (PD12); Disclosure Pilot Scheme for the Business and Property Courts (PD51U); and Enforcement of judgments in different jurisdictions (PD74A).

Adjudication procedure

Alternative Dispute Resolution

  • The Centre for Effective Dispute Resolution (CEDR) and The International Institute for Conflict Prevention and Resolution (CPR) have issued a collaborative report, Insights into alternative dispute resolution, on the use of alternative dispute resolution (ADR). The report shows that whilst negotiation is by far the most popular method for early dispute resolution, arbitration and mediation are often being used proactively to achieve resolution and manage conflict. However, the report also demonstrates there are areas where there may be barriers to use (for both mediation and arbitration) which will need further consideration. (See CPR and CEDR's new ADR Research.)
  • The Civil Justice Council (CJC) has published its recommendations for ADR including the creation of a judicial-ADR liaison committee which will report to the Chair of the CJC and head of the Civil Justice in England and Wales as well as professional training and a new website to act as a single source of ADR information. You can read more in our article here: ADR liaison forum proposed.
  • The Construction Industry Council has consulted on its proposals for a model mediation agreement. You can read our report in the latest edition of Construction Law here.


  • The International Chamber of Commerce (ICC) Commission on Arbitration and ADR recently revised its "Construction Industry Arbitrations Report: Recommended Tools and Techniques for Effective Management". You can read a summary of the report which is intended to help arbitrators with little experience of the ICC rules here: No right way to arbitrate.
  • Those responsible for appointing arbitrators may have read about US rapper, Jay-Z's, successful application for a stay of arbitration proceedings on the basis that the lack of African American arbitrators in the American Arbitration Association arbitration proceedings made him vulnerable to unconscious bias. Growing awareness of diversity issues and acknowledgement of the need to make our institutions diverse could mean such applications might become more common.
  • The International Bar Association Arb40 Sub-committee is focusing on "making modern day technology more accessible to arbitration practitioners". It has collated a list of those technological advances currently available on a website: the Technology Resources For Arbitration Practitioners. The website spotlights technology that can help practitioners throughout an arbitration. Court as well as arbitration practitioners will almost certainly find the website worth a browse.
  • The ICC Task Force on emergency arbitrator (EA) proceedings has released its findings and will be of use to parties, counsel and arbitrators who are considering whether to issue and how to manage EA proceedings. The report, Emergency Arbitrator Proceedings – ICC Arbitration and ADR Commission Report analyses the procedural and substantive issues that may arise in EA applications which enable proceedings to be commenced within as little as 24 hours of the application. The ICC hopes "to identify and examine any emerging trends and to facilitate the use of EA proceedings through increased transparency and predictability".

Court reform

  • The Judiciary has launched a Pre-Application Judicial Education programme. Aimed at improving judicial diversity, this programme will encourage lawyers from under-represented groups to apply for a judicial career and provide guidance.
  • HMCTS has launched a communications survey of those who use and work within the justice system to improve its communication with court users. The survey closes on 10 May 2019.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions