Recent litigation cases - March 2020 roundup

Duty of disclosure

A party's duty to disclose documents under the CPR is limited to documents which are or have been in their control.  A parent company does not exercise control over the documents held by its subsidiary merely by virtue of its shareholding in that company.  It may, however, have control under a standing consent to obtain access to its subsidiary’s documents, or control may only extend to a single document (Pipia v Bgeo Group Ltd).

Disclosure Pilot Scheme

Immediately payable adverse costs orders should be employed to stop parties being difficult and using the Disclosure Pilot Scheme (applying in the Business & Property Courts under Practice Direction 51U) as an opportunity for litigation advantage (McParland & Partners Limited v Whitehead). 

Capping costs orders against funders

The Court of Appeal has confirmed that the Arkin cap (from Arkin v Borchard Lines Ltd), which limits a commercial funder's adverse costs liability to the extent of its funding, does not apply in all cases. The court has a broad discretion to make whatever order is fair.   Relevant factors in this case included the funder's prospective gains in relation to its outlay (its profit amounted to more than five times what it had spent) and the extent to which applying the Arkin cap would have left the defendants out of pocket (Chapelgate Credit Opportunity Master Fund Ltd v Money).

Privilege and email

Multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient.  When deciding whether legal advice privilege attaches to each communication between sender and recipient, a dominant purpose test should apply.  The party claiming legal advice privilege must show that the dominant purpose of a communication was to obtain or give legal advice.  If an email combines a privileged communication to a lawyer with a non-privileged communication to a non-lawyer, the non-privileged communication will not be privileged unless the dominant purpose of the email is to instruct the lawyer (R (Jet2.com) v Civil Aviation Authority). 

Privilege and regulatory powers

Where a regulator calls for documents under its statutory powers, privilege will be a defence unless the statute overrides privilege expressly or by necessary implication.  That is the case whether the privilege belongs to the person who is subject to the investigation or that person’s client. Emails and their attachments have to be considered separately when it comes to privilege.  Pre-existing documents that are sent to a lawyer for the purpose of obtaining legal advice do not become privileged by being attached to a privileged letter or email (Sports Direct International Plc v The Financial Reporting Council).

Part 36 offers

It may be appropriate to make an indemnity costs order against a claimant where their claim is speculative, weak, opportunistic or thin, and where they have unreasonably refused to accept a defendant’s early Part 36 offer that they then fail to beat at trial (Lejonvarn v Burgess).