A round-up of recent litigation cases - September 2022

Here are some recent litigation cases that may be of interest.


A trial has been adjourned for two years after about 40% of documents were missed by the US defendant during the harvesting stage, amounting to about 800,000 documents. The judge criticised a lack of supervision by the defendant’s solicitors who did not question the information they received from their client’s in-house document review provider nor did they instruct an e-disclosure expert. Because of this continuing failure to grapple with the need for proper supervision and oversight of the process, the judge awarded costs of the aborted trial date against the defendant on the indemnity basis (Cabo Concepts Ltd v MGA Entertainment (UK) Ltd).

Service of claim forms

There was no good reason to make an order treating service of an unsealed claim form as good service under CPR 6.15.It was material that the claimant issued the claim form at the very end of the limitation period, the unsealed claim form differed from the final version in material respects, and the claimant could and should have made enquiries about the whereabouts of the sealed version. He could also have made an application for an extension of time before the end of the period for service under CPR 7.6 even though he did not have a sealed copy of the claim form (Walton v Pickerings Solicitors).

Duty of good faith

The Court of Appeal has confirmed that solicitors’ retainers do not contain an implied term that their client will act in good faith. The fact that the solicitors are acting under a conditional fee agreement is irrelevant: beyond the question of remuneration, there is no relevant distinction between a CFA and an ordinary retainer (Candey Ltd v Bosheh).

Abuse of process

The Court of Appeal held that the judge had been wrong to strike out the claims of more than 200,000 Brazilian claimants relating to the collapse of the Fundão dam. The judge had made unsustainable findings that the claims would be irredeemably unmanageable. In any event, the fact that a claim properly advanced was said to be unmanageable did not make it an abuse of process. There is a realistic prospect of a trial yielding a real and legitimate advantage for the claimants that outweighs the disadvantages concerning expense for the parties and the use of court resources. The remedies available in Brazil are not so obviously adequate that it can be said to be pointless and wasteful to pursue proceedings in this country (Municipio De Mariana v BHP Group (UK) Ltd).

Waiver of privilege

The court ordered disclosure of privileged Russian law advice where it had been “deployed” in court. The trustees in bankruptcy had quoted part of the advice in support of a section 366 Insolvency Act 1986 application. They had waived privilege over the advice relating to their application but not over sections of the advice relating to other issues.  These sections remained privileged and could be severed from the deployed advice (Thomas v Metro Bank plc).

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