A round-up of some recent litigation cases – September 2018

A round-up of some recent litigation cases that may be of interest to you.

Litigation privilege

ENRC were entitled to claim litigation privilege over certain categories of documents created in connection with their internal investigation prior to an anticipated SFO criminal investigation and potential prosecution. Their claim to rely on legal advice privilege failed since the Court of Appeal was, reluctantly, bound by their previous decision in Three Rivers (No 5) (Serious Fraud Office v Eurasian Natural Resources Corporation).

Access to trial documents

The Court of Appeal held that there is no inherent jurisdiction to allow a non-party access to trial bundles and documents which have been referred to in court or in skeleton arguments, written submissions, witness statements and experts’ reports (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)).

Limitation in contribution claims

The liability arising under an indemnity insurance contract sounds in damages rather than debt and falls within section 1 of the Civil Liability (Contribution) Act 1978. Section 10 sets a limitation period of two years for such claims. It followed that an insurer who had provided an indemnity under a liability insurance policy only had two years from the date of judgment or settlement to seek a contribution from other insurers and the claim was time-barred (RSA Insurance Plc v Assicurazoni Generali SpA).

Part 36 offers

Where the defendant made a Part 36 offer with the knowledge of the claimant's dishonest material non-disclosure about attempts to find work and the claimant accepted it out of time, justice did not require the usual costs rule to be disapplied. To avoid the standard Part 36 costs consequences, a defendant facing a dishonest claim should make a Calderbank offer offering to settle the genuine claim and offering to settle costs on the basis that the claimant will pay the defendant's costs incurred in respect of the fraudulent or dishonest aspects of the case on an indemnity basis (Tuson v Murphy).

Refusal to mediate

Where allegations of serious wrongdoing are made, the proceedings are intrinsically unsuitable for mediation. In circumstances where the claimant had made serious allegations of fraud, conspiracy and dishonesty and then abandoned them, thereby depriving the defendant of any opportunity to vindicate his reputation, an order for indemnity costs was appropriate. The defendant’s refusal to mediate did not affect this conclusion (PJSC Aeroflot - Russian Airlines v Leeds & Anor (Trustees of the estate of Boris Berezovsky)).

Duty to assist other side

A defendant's obligation to comply with CPR 1.3 to help the court to further the overriding objective did not mean that it had been under a duty to tell the claimants, before the time for service had expired, that service of the claim form was defective. The culture introduced by the CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent's solicitors, to draw attention to that mistake. It was not appropriate to validate the defective service under CPR 6.15 where the difficulties had been of the making of the claimants' solicitors (Phoenix Healthcare Distribution Ltd v Woodward – see our briefing).

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