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Procedure

E-filing – Rolls Building

Since 25 April 2017 the use of the court’s electronic filing system has been mandatory in the Rolls Building. But, it seems that ministerial approval of the necessary PD is required, and that has been delayed by the election. Accordingly, the transitional period remains unclear, but it seems that PD 510 (which governed the previous pilot scheme) is the one to follow (although it does not apply to unrepresented litigants).

 

Arbitration – confidentiality

Arbitration allows parties to resolve their disputes in private. There is far less potential for exposure of trade secrets, proprietary information or business practices, and adverse publicity when disputes are kept out of the public courts. Thus, a key element of London’s status as an arbitration centre is the assumption that arbitration proceedings will be private and confidential.

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Mediation – confidential costs

Generally, documents used in mediation are covered by without prejudice privilege, and thus cannot be used as evidence outside the mediation process. Moreover, the mediation agreement will typically contain confidentiality provisions (ie the parties agree not to disclose or use documents or material produced for the purposes of the mediation for any other purpose).

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Debt claims – protocol

A new pre-action protocol, specifically for debt claims, will come into force on 1 October 2017. At the moment, there is no specific protocol for debt claims, although parties are expected to comply with the existing PD for pre-action conduct.

Note that the protocol applies to ‘any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader)’. Thus it does not apply to business-to-business debts (although it will apply when suing for debt due on a guarantee).

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High Court – business and property

The High Court is creating a Business and Property Courts division by merging the Commercial Court (including the Admiralty Court), the Technology and Construction Court, and Chancery Division.

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Holiday bugs – strict liability

There are those who see holiday bug claims (ie claims for holiday sickness and food poisoning) as the perfect replacement for whiplash. Indeed, the SRA is so concerned that it has asked a dozen of the leading firms to prove that they are not paying referral fees for this work.

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Part 36 – indemnity costs?

Is there an entitlement to indemnity costs when there is late acceptance of a Part 36 offer?

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Part 36 – nominal damages?

Who is the ‘unsuccessful party’ where the defendant admits liability in a £15m claim, rejects the claimant’s Part 36 offer of £1.5m, but then the defendant only recovers nominal damages of £2?

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Costs budgets – detailed assessments?

Even the committee that updates the CPR cannot agree on whether costs budgeting fetters the powers and discretion of the court’s judge at a detailed assessment. As the committee reported recently: ‘on the one hand there is a view that if costs are claimed at or below the figure approved or agreed for that phase of the budget, then they should be assessed as claimed without further consideration… There is a contrary view that the costs judge’s powers and discretion are not fettered by the budgeted figure… and the budget is but one factor to be considered’.

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Motor insurance – ‘use’?

A fitter used the company’s workshop to do some welding on his car (which had failed the MOT). Needless to say, an errant spark caused a fire, which resulted in £2m worth of damage to the buildings. The property and public liability insurers paid out, but then sought to recover from the fitter’s motor insurers.

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