Recent litigation cases - October 2020

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

Arbitration agreements

The Supreme Court has given guidance on the governing law of arbitration agreements and the role of the English court in enforcing the parties’ arbitral bargain where they have chosen English seat arbitration. In the absence of any choice of law in an arbitration agreement, the agreement will be governed by the law with which it is most closely connected. The majority concluded that the arbitration agreement in this case was governed by English law given the parties’ choice of English seat and the absence of any express or implied choice of law to govern the substantive contract (Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb).

Privilege and the iniquity exception

Legal professional privilege does not apply where it is being used as a cloak for crime or fraud. The so-called iniquity principle applied where a company satisfied the court that there was a strong prima facie case that its former director had breached his directors' statutory duties.  It was entitled to disclosure of privileged documents created by solicitors who had advised the company and the director under a joint retainer (Barrowfen Properties v Patel).

Privilege and foreign in-house legal advice

Communications with the claimant’s Russian in-house lawyers were subject to legal advice privilege under English law. There was no need for the court to enquire into the applicable systems of regulation or professional standards under Russian law (PJSC Tatneft v Bogolyubovsee our briefing Does legal advice privilege extend to foreign in-house lawyers?).

Judicial bias

A judge should have recused herself in the middle of a hybrid trial after she made pejorative remarks about a party from her private room without appreciating that they were being broadcast via Zoom.  The Court of Appeal noted with sympathy that the judge was trying to manage a very heavy workload and was reluctant to pass the trial to another judge, given the tremendous pressure facing family judges (Re C (A Child) – see our briefing What can we tell from recent allegations of judicial bias?).

Vicarious liability

An employer was not vicariously liable for the acts of its employee who played a prank on a contractor resulting in serious injury even though the acts were committed in the workplace during working hours (Chell v Tarmac Cement And Lime Ltd – see our briefing When the laughter stops - when is an employer liable for an employee’s practical joke?).

Leapfrog appeals

The High Court has granted leapfrog certificates for an appeal to the Supreme Court to the Financial Conduct Authority and seven insurers in the Business Interruption Litigation following its Test Case judgment in September (The Financial Conduct Authority v Arch and others). The court also granted permission to the same parties to appeal to the Court of Appeal in the event that permission to appeal is not granted by the Supreme Court.

Further litigation and arbitration cases and insights

More recent cases and insights can be found in the further reading panel at the bottom of the litigation and arbitration page

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