Litigation cases round-up - November 2023

Limitation and deliberate concealment

The defendant newspaper and online publisher argued that the claims for misuse of confidential information were barred by limitation. The court ruled that it was not entitled to summary judgment because the claimants had a real prospect of demonstrating concealment by the defendant under section 32 of the Limitation Act 1980 that was not, and could not with reasonable diligence have been, discovered by the relevant claimant more than six years before proceedings were issued (Lawrence v Associated Newspapers Ltd – section 32 was considered by the Supreme Court shortly after this decision in Canada Square Operations Ltd v Potter).

Non-party costs orders

A non-party costs order should not be made against a solicitor representing a party on a conditional fee agreement. The fact that solicitors stand to benefit financially from the success of the litigation does not mean that they have acted in some way beyond or outside their role as a solicitor (The Scout Association v Bolt Burdon Kemp)

Scope of arbitration agreement

The Supreme Court held that the claims asserted by the Republic of Mozambique, which included bribery, conspiracy and fraud arising from loans and guarantees connected to supply contracts, were not "matters" falling within the scope of the Swiss arbitration clauses in those contracts. The proceedings should not therefore be stayed under section 9 of the Arbitration Act 1996 (Republic of Mozambique v Privinvest Shipbuilding SAL (Holding)).

Adjudication and bias

The disclosure of inadmissible without prejudice communications to the adjudicator rendered his decision unenforceable as there was an inevitable question mark over whether he was inadvertently or sub-consciously biased. The key issue was not whether the decision was significantly founded upon the without prejudice material but whether the deployment of the material gave rise (objectively) to a fear of lack of impartiality (AZ v BY).

Challenging jurisdiction and anti-suit injunctions

A guarantee issued by a German bank in favour of a Russian company was governed by English law and provided for arbitration in Paris. The English court was the proper forum in these circumstances to bring a claim for injunctive relief seeking to ensure that a party adhered to an English law contract. Although French courts do not grant anti-suit injunctions, they would recognise one granted by a competent foreign court. The Court of Appeal granted an injunction restraining the company from continuing Russian court proceedings in an apparent breach of the arbitration agreement (Deutsche Bank AG v RusChemAlliance LLC).

Effect of unenforceable funding arrangement

The Court of Appeal upheld the decisions below that solicitors instructed under an unenforceable conditional fee agreement were not entitled to sever the offending parts of the CFA in order to claim fees for work done on a quantum meruit basis. They were also not entitled to retain fees paid by their clients on account (Diag Human Se v Volterra Fietta (a firm).