A round up of some recent litigation cases - September 2019

We round up some recent litigation cases.

Power to order Early Neutral Evaluation

CPR 3.1(2)(m) enables the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case". There are no express words either in CPR 3.1 generally or specifically in subparagraph (m) to the effect that an ENE can only be ordered if all the parties consent. The Court of Appeal held that the court can order an ENE where a party does not consent (Lomax v Lomax).

Enforcement of ADR agreements

There is a clear and strong policy in favour of enforcing alternative dispute resolution provisions. Where a contract contained a valid, binding and applicable ADR clause that prescribed a mandatory escalation and mediation procedure prior to the commencement of proceedings, the court exercised its discretion to stay the proceedings pending referral of the dispute to mediation (Ohpen Operations UK Ltd v Invesco Fund Managers Ltd).

Relief from sanctions

An application for an extension of time allowed to take a particular step in litigation is not an application for relief from sanctions, provided that the applicant files an application notice before the expiry of the permitted period. The power to extend time for compliance with a court order pursuant to CPR 3.1(2)(a) does not distinguish between routine court orders on the one hand and "unless" orders on the other. Accordingly, an in-time application to extend time for compliance with an "unless" order, whether heard before or after the expiry of the time limit, is to be determined in accordance with the overriding objective and not as an application for relief from sanctions (Everwarm Ltd v BN Rendering Ltd).

Standstill agreements

The Court of Appeal held that the judge had wrongly adopted a disciplinary approach to standstill agreements in the context of claims under the Inheritance (Provision for Family and Dependants) Act 1975. He had stated that parties wishing to agree a moratorium should issue the claim in time and invite the court to stay proceedings. On the contrary, without prejudice negotiations, instead of proceedings, should be encouraged. Where there is a properly evidenced agreement and the parties are legally represented, a judge should ordinarily not refuse to extend time (Cowan v Foreman).

Access to court documents

The Supreme Court reviewed the scope of CPR 5.4C and concluded that court rules do not provide an exhaustive list of the circumstances in which a non-party may access court documents. All courts have an inherent jurisdiction to allow access in accordance with the open justice principle. Non-parties should be allowed access to any documents placed before the court and referred to during the hearing, but they need to explain why they are seeking access and how granting them access will advance the open justice principle  (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)).

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