News and Updates
CPR Update: Practice Direction 57AC — Trial Witness Statements
From 6 April 2021, witness statements for use at trial in the Business and Property Courts will have to comply with the new Practice Direction 57AC.
PD 57AC applies to witness statements signed on or after 6 April 2021, and applies regardless of when the claim was issued.
The new PD requires careful consideration. It makes significant changes to the way in which trial witness statements are prepared in the Business and Property Courts. Broadly, PD 57AC: (i) restates the purpose and the requirements, in terms of preparation and content, of trial witness statements (see paragraphs 2 and 3 of PD 57AC); (ii) introduces new requirements in relation to the content of and certifications required to be made in trial witness statements (see paragraphs 3 and 4 of PD 57AC); and (iii) introduces sanctions where trial witness statements do not comply with the new PD 57AC (see paragraph 5 of PD 57AC).
As the new PD has not been in force long there is little judicial guidance on its practical application, but the following comments are of note:
- In Global Display Solutions Ltd v NCR Financial Solutions Group Ltd  EWHC 1119 (Comm), Jacobs J commented that the new rules contemplate that witnesses will be shown contemporaneous documents, particularly those they had seen at the time of the relevant events (although the new PD did not apply to the witness statements in that case).
- At the 2021 open meeting of the Civil Procedure Rule Committee (CPRC) held on 14 May, when asked if it was acceptable under the new PD to show the witness additional documents after the witness statement has been served, Sir Geoffrey Voss responded “maybe”.
This is clearly an area where case law and guidance will keep developing as to how this PD is to be applied.
Governing Law, Jurisdiction and Enforcement: Post-Brexit Transition Updates
Following the end of the Brexit transition period on 31 December 2020, it is important to keep in mind the changes that will apply from a UK perspective when considering and negotiating issues of governing law, jurisdiction and enforcement.
The key changes are as follows:
- Governing law: The UK has adopted Rome I and Rome II (with minor amendments). UK and EU courts will continue to apply broadly the same rules and to uphold express choices of
- Jurisdiction: Previously the Recast Brussels Regulation and the Lugano Convention applied to uphold parties’ express choice of forum. These rules no long apply. The UK has applied to join Lugano in its own right and is waiting for the unanimous approval of the convention countries (including the EU). In the meantime, the UK has re-joined the Hague Convention on Choice of Court Agreements. The Hague Convention only applies to exclusive jurisdiction clauses, and there is some ambiguity about its application to agreements entered into prior to 1 January 2021. If the Hague Convention does not apply, the question of governing law will be decided by the national courts hearing the dispute.
- Enforcement: the Recast Brussels Regulation no longer applies and the UK’s application to join the Lugano Convention is pending (although the EU Commission recommended on 4 May 2021 that the EU Parliament and Council should reject the UK’s application to join the Lugano Convention). There are reciprocal arrangements in place for the enforcement of judgments pursuant to the Hague Convention; UK judgments will be enforceable in the EU and other contracting states.
Court activity — issued claims
Whilst it can be a blunt instrument, there are probably few better indicators of the levels of litigation in the English courts than the statistics detailing the number of issued claims. Given the pandemic backdrop over the majority of 2020 it is interesting to consider what impact this had on the prevalence of litigation in the English courts.
The last major economic dislocation following the great financial crisis of 2008 saw a subsequent surge of litigation in the UK courts that lasted for almost a decade. However, that surge took some time to materialise and while there was an expectation at the time that it would happen overnight, there was a period of 6-9 months in which very little litigation was commenced, certainly relative to what transpired.
The main theory behind this was that the dislocation was so stark that businesses just wanted to remain in existence and not take any action until they knew that the system was not going to break down entirely.
The Covid-19 pandemic provides another black swan event just over a decade after the GFC and although the reasons for economic dislocation are different, it might be reasonable to assume that the impact in terms of litigation prevalence would be similar. However, statistics released by the Ministry of Justice for the Business and Property Courts show some interesting trends which suggest that this time it might be different. While there has been a dramatic and expected drop off in cases issued in the Insolvency and Companies List because of the legislation brought in by the government to prevent Covid related insolvencies, Q3 and Q4 of 2020 in the Commercial Court and Financial List in particular showed that litigation activity was not only being maintained, but was actually rising.
In the Commercial Court, 472 cases were filed in the last 6 months of 2020. This compares to 406 in the same six months of 2019 and 391 the year before that. The 878 cases filed in total in 2020 in the Commercial Court is the largest number for at least the last six years. This is mirrored in the Financial List where, while recognising that it is a developing court, 34 cases were filed in the last half of 2020, compared to just 14 in the corresponding six months of the previous year.
There has been somewhat of a drop in these numbers for Q1 of 2021, however overall the numbers tend to suggest that the expected rise in litigation caused by the economic consequences of Covid-19 may be happening sooner than it did in the GFC and despite the unprecedented levels of government support. It remains to be seen how this will develop throughout the year.
Goodwin Gains Litigation Partner
We are delighted to announce that Hannah Field has joined us as a partner in the Goodwin litigation team in London.
Hannah brings more than 15 years of dispute resolution experience to the team. That work has seen her handle complex commercial cross-border and domestic disputes across a number of sectors, with a particular focus in the private equity space, where she has represented some of the market’s biggest sponsors.
Hannah’s addition to the team is a significant step as we look to the next stage of growth for our disputes capability in London and we warmly welcome her to Goodwin.
Court Statistics and Trends
Trial date windows (as of 4 June 2021):
|Length of Trial||Trial held within these dates||Final day for appointment to fix trial date|
|1 to 2 days||November 2021 to February 2022||5 July 2021|
|Between 2 and 5 days||April 2022 to July 2022||5 July 2021|
|Between 5 and 10 days||June 2022 to December 2022||5 July 2021|
|Over 10 days||October2022 onwards||5 July 2021|
Next available date to list an application hearing before a High Court Judge (as of 4 June 2021):
|Time Estimate||Next Hearing Date||Final day for appointment to fix application date|
|Half a day or less||July to October 2021||5 July 2021|
|1 day||October 2021||5 July 2021|
|More than 1 day||November 2021||5 July 2021|
Dates for trials (as of 15 June 2021)
|Length of trial||Trial dates available not before|
|1 to 2 days||March 2022|
|2 to 3 days||March 2022|
|1 week||March 2022|
|2 to 3 weeks||June 2022|
|4 weeks or more||October 2022|
Dates for application hearings (as of 15 June 2021)
|Length of hearing||Hearing dates available not before|
|30 minutes||October 2021|
|1 hour||October 2021|
|1.5 to 2 hours||October 2021|
|half day||October 2021|
|1 day||February 2022|