ANALYSIS: Commercial Dispute Resolution And Life At The Bar

4 New Square Chambers' George McDonald and Matt Waszak explore new representative actions and the complex interplay between litigation funding and class actions, addressing the legal challenges that arise. They emphasise the importance of courts making early rulings on funding arrangements to ensure the viability of class actions. Key Topics Discussed: Funding Challenges: Issues related to funding agreements and privity of contract among class members. Early Court Decisions: The potential for courts to provide early clarity on funding arrangements. Conditional Fee Agreements (CFAs): Insights into CFAs, including success fees and cost recovery for class representatives. Damages-Based Agreements (DBAs): Limitations and challenges of DBAs in collective actions. Adverse Costs: Discussion on liability for adverse costs in representative actions. Legislative Reforms: Speculation on potential reforms to expand the CAT's collective action regime for consumer claims. Judicial Management: The proactive role of courts in managing funding and costs early in litigation. Early Determinations: Advantages of pre-emptive court decisions on funding for smoother processes. Recommendations for Funders: Guidance on creating tailored funding agreements for representative actions.

In this latest episode in our costs and litigation funding mini-series, 4 New Square Chambers' Nicholas Bacon KC, George McDonald, and Ben Smiley provide an authoritative analysis of the Competition Appeal Tribunal (CAT) and the key cost-related issues that are arising in CAT proceedings. This episode will cover: The CAT's approach to litigation funding arrangements, including the scrutiny of funding agreements and the returns available to funders. The complexities surrounding the distribution of collective settlements, with a focus on how the CAT manages the allocation of damages and costs, and the potential for judicial intervention to adjust terms proposed by the parties. The impact of the ongoing PACCAR reforms on CAT cases, particularly with regard to procedural and cost-related considerations. Key procedural issues unique to the CAT, such as the treatment of costs incurred at the certification stage. This episode offers an informed perspective on how the CAT is handling these issues and what practitioners can expect as more cases proceed to settlement and distribution.

In this episode of our costs and litigation funding mini-series, Roger Mallalieu KC, Hugh Evans, and Ben Smiley examine security for costs. They discuss the fundamental principles and offer top tips for successfully making a security for costs application. The episode also explores the use of after the event insurance (ATE Insurance) and Anti-Avoidance Endorsements (AAE) as forms of security for costs.

In the second episode of our costs and litigation funding mini-series, 4 New Square Chambers' Benjamin Williams KC and Theo Barclay discuss the complexities of costs in group litigation. They discuss the distinction between individual and common costs, examining the mechanisms designed to simplify the allocation of common costs and offering insights into how these systems can be effectively utilized. Furthermore, they delve into the role of cost budgeting, evaluating its effectiveness in controlling and forecasting costs in complex legal proceedings, and highlight the challenges posed by the detailed assessment of costs in large-scale group litigation.

Join 4 New Square Chambers' Rob Marven KC, Pippa Manby, and Theo Barclay as they launch our mini-series on costs and litigation funding. In this opening episode, the team delves into the repercussions of the Supreme Court's unexpected ruling in Paccar, which sent shockwaves through the industry. They recount a tumultuous year marked by this landmark decision, which many feared could spell the end of litigation funding as we know it.

In this podcast episode, 4 New Square Chambers Barristers Clare Dixon KC and Ben Smiley explore the SRA's guidance on SLAPPs (Strategic Lawsuits Against Public Participation), the implications for litigation conduct and the challenges it presents to solicitors, COLPs and GCs. With the publication on 31 May 2024 of the SRA's updated Warning Notice on SLAPPs, this podcast couldn't have come at a better time.

In this latest episode of our back to basics Conversations in Professional Liability series, Helen Evans KC, Marie-Claire O'Kane and Will Cook explain all you need to know about audit, discuss key judgments and legal developments and consider what might lie ahead in auditor's negligence.

In this latest episode of our back to basics Conversations in Professional Liability series, barristers Amanda Savage KC, Paul Parker and Ben Smiley discuss all you need to know about applications for wasted costs; what they are, how you go about making them and what hurdles there might be.

In this latest episode of our Conversations in Professional Liability series, barristers Hugh Evans, Stephen Innes and Matt Waszak look at some of the key points and topics related to costs from the perspective of a professional liability practitioner including pre-action costs, part 36, assessment of costs and the civil justice council costs review.

In this first episode of our new series, Conversations in Professional Liability, barristers Jamie Smith KC, Clare Dixon and Anthony Jones explain the insurance cover solicitors are required to obtain (minimum term insurance) and look at the types of claim are covered and which are not.  They explain how claims attach to a policy, whether multiple claims can be aggregated and the consequences if they are not. 

4 New Square Chambers' Tim Chelmick and Hannah Daly will join Andrew James of PCB Byrne in a webinar hosted by ThoughtLeaders4 Disputes on 4th November 2022. The October 2022 amendments to the Civil Procedure rules have brought about significant change to the service of claims out of the jurisdiction. The ‘gateways' included in Practice Direction 6B have undergone no fewer than 20 substantive changes with several entirely new gateways having been added. These changes come in the wake of the significant upheaval of the rules of international jurisdiction in the UK brought about by Brexit and the UK's exit from the Brussels Regime. In this talk the speakers will consider the impact of these amendments on the scope of the English court's jurisdiction in civil and commercial matters and the opportunities and difficulties these changes may bring for foreign litigants in England. Amongst other topics the panellists will cover: Jurisdictional aspects of the new gateways, in particular the new gateway for information orders against non-parties to the proceedings; Whether the amendments represent change or merely the codification of existing rules and practice; What impact the new gateways are likely to have when it comes to challenging jurisdiction, from a claimant and defendant point of view.

In this podcast episode, barristers Paul Mitchell QC and Ben Smiley focus on the position of professionals who recommend tax avoidance or mitigation schemes or who adapt the contractual documentation necessary to give effect to these schemes. They will also be touching on a very recent claim against the architect of one such scheme, a tax Silk.

In this podcast episode, barristers Paul Mitchell KC and Ben Smiley focus on the position of professionals who recommend tax avoidance or mitigation schemes or who adapt the contractual documentation necessary to give effect to these schemes. They will also be touching on a very recent claim against the architect of one such scheme, a […] The post When Tax Schemes Go Sour appeared first on 4 New Square Chambers.

In this podcast episode, barristers David Halpern QC and Ben Elkington QC address aggregation clauses, when two or more claims are treated as a single claim, in professional liability insurance policies including solicitor's insurance and other types of professional indemnity insurance.

In this podcast episode, barristers David Halpern KC and Ben Elkington KC address aggregation clauses, when two or more claims are treated as a single claim, in professional liability insurance policies including solicitor's insurance and other types of professional indemnity insurance. The post Aggregation in Professional Indemnity Insurance Policies appeared first on 4 New Square Chambers.

The litigation of civil fraud claims is on the rise, with the Commercial Court consistently reporting this as an area of growth over the last three years. In this podcast, Tim Chelmick and Hannah Daly examine recent developments in the case-law concerning allegations of dishonesty against professionals, including insights into how dishonesty is defined, how it is proved, the causes of action it unlocks and the pros and cons of alleging fraud.

The litigation of civil fraud claims is on the rise, with the Commercial Court consistently reporting this as an area of growth over the last three years. In this podcast, Tim Chelmick and Hannah Daly examine recent developments in the case-law concerning allegations of dishonesty against professionals, including insights into how dishonesty is defined, how […] The post Dishonest Professionals: Recent Developments appeared first on 4 New Square Chambers.

In this podcast episode on limitation, Helen Evans QC and John Williams will cover four core topics; section 32 of the Limitation Act, the law on repeated breaches by professionals, the niche but important issue of when time starts to run for limitation purposes during the  course of the day and making amendments after the expiry of the limitation period.

In this podcast episode on limitation, Helen Evans KC and John Williams will cover four core topics; section 32 of the Limitation Act, the law on repeated breaches by professionals, the niche but important issue of when time starts to run for limitation purposes during the  course of the day and making amendments after the […] The post Double Trouble: recent developments in limitation appeared first on 4 New Square Chambers.

Euro Pools v RSA is the first case in 10 years in which the Court of Appeal has considered the important topic of notifications and attachment of claims in professional indemnity insurance. The speakers for this podcast include counsel who appeared in the case at trial and in the Court of Appeal. They will discuss the judgment, its ramifications and broader issues of notification, attachment and aggregation of claims.

Euro Pools v RSA is the first case in 10 years in which the Court of Appeal has considered the important topic of notifications and attachment of claims in professional indemnity insurance. The speakers for this podcast include counsel who appeared in the case at trial and in the Court of Appeal. They will discuss […] The post Professional indemnity insurance: Europools v RSA appeared first on 4 New Square Chambers.

Where a wrong is caused to a company, do its shareholders also suffer a loss?  Can a shareholder sue for his own loss, where it “reflects” the company’s loss?  What if the company can’t or won’t sue?  These thorny issues have led to much litigation for nearly 200 years.  Reflective loss has now been given a major overhaul by the Supreme Court.

Where a wrong is caused to a company, do its shareholders also suffer a loss? Can a shareholder sue for his own loss, where it “reflects” the company's loss?  What if the company can't or won't sue?  These thorny issues have led to much litigation for nearly 200 years.  Reflective loss has now been given […] The post Reflective loss following Marex v Sevilleja appeared first on 4 New Square Chambers.

Tim Chelmick and Lucy Colter discuss practical completion post-Mears v Costplan and other critical events in the life of a construction project, by reference to the role and responsibilities of key construction professionals.  They will provide an overview of claims in this area, and also discuss the latest cases with particular focus on the responsibilities of architects including duties to inspect and to issue instructions.

Tim Chelmick and Lucy Colter discuss practical completion post-Mears v Costplan and other critical events in the life of a construction project, by reference to the role and responsibilities of key construction professionals.  They will provide an overview of claims in this area, and also discuss the latest cases with particular focus on the responsibilities […] The post Practical completion and other problems for construction professionals appeared first on 4 New Square Chambers.

On 11th April 2017, the Supreme Court handed down its decision in Swynson v Lowick Rose [2018] AC 313, a case that sought to push the boundaries of equitable subrogation beyond breaking point. The Claimants were very firmly knocked back and it was made entirely clear that equity cannot be used as a modern day palm tree. Equity is based on legal principle, not discretion, or an amorphous concept of fairness. However, that does not mean there is no scope to get creative – provided you work out what the rules are and stick to them. We tend to think of professional negligence in terms of contract or tort, but the Chancery concepts of trust and proprietary claims can expand the boundaries – or get both claimants and defendants out of tricky corners. Equally, a Chancery perspective can lead to avenues of recovery that tort and contract will not touch – such as unjust enrichment. This podcast by Nicole Sandells QC will look at a few of the concepts in the context of potential claims against solicitors.

This podcast by Nicole Sandells KC will look at a few of the concepts in the context of potential claims against solicitors. On 11th April 2017, the Supreme Court handed down its decision in Swynson v Lowick Rose [2018] AC 313, a case that sought to push the boundaries of equitable subrogation beyond breaking point. […] The post Professional Negligence – Getting Creative and Pushing the Boundaries from a Chancery Perspective appeared first on 4 New Square Chambers.

A podcast by Helen Evans, Anthony Jones and Seohyung Kim bringing you up to date with the key professional negligence developments in 2019 and 2020. The podcast will include: Asking whether the approach to vicarious liability has become more sophisticated Considering how courts are implementing the Patel v Mirza​ 'policy-based' approach to the doctrine of illegality Reviewing where we are on the 'loss of a chance' doctrine, and how the vexed question of after-available evidence ​fits in

A podcast by Helen Evans, Anthony Jones and Seohyung Kim bringing you up to date with the key professional negligence developments in 2019 and 2020. The podcast will include: Asking whether the approach to vicarious liability has become more sophisticated Considering how courts are implementing the Patel v Mirza​ ‘policy-based’ approach to the doctrine of illegality […] The post Professional Negligence Update – what’s new in vicarious liability, illegality and loss of a chance appeared first on 4 New Square Chambers.

Murray Rosen QC, an arbitrator and mediator at the new Court of Arbitration for Art at The Hague, discusses the special features of dispute resolution in Art disputes, including a comparison between recent court cases and ADR methods, and the impact of the COVID-19 virus on procedures, especially remote hearings and meetings.  

Murray Rosen QC, an arbitrator and mediator and a member of the new Court of Arbitration for Art at The Hague, discusses the special features of dispute resolution in Art disputes, including a comparison between recent court cases and ADR methods, and the impact of the COVID-19 virus on procedures, especially remote hearings and meetings. […] The post Art disputes in times of pandemic appeared first on 4 New Square Chambers.

A look at how discontinuity of insurance coverage may arise for insurance policies written on a ‘claims made’ basis. This has particular resonance for professional persons who may believe they have seamless cover so long as they take out back-to-back yearly policies. Discontinuity problems are analysed in relation to both the ‘claims’ and ‘circumstances’ attachment mechanisms typically written into professional indemnity insurance policies. This podcast illustrates how, outside the regulatory sphere where policies are written on pro-consumer terms, there are a number of ways in which the professional may be left without cover.

A look at how discontinuity of insurance coverage may arise for insurance policies written on a ‘claims made' basis. This has particular resonance for professional persons who may believe they have seamless cover so long as they take out back-to-back yearly policies. Discontinuity problems are analysed in relation to both the ‘claims' and ‘circumstances' attachment […] The post Claims and circumstances: continuity of coverage in English insurance law appeared first on 4 New Square Chambers.

In a world where Russian oligarchs refer to litigation as “lawfare”, in this podcast we look at the issues arising where personal commercial rivalries are played out in spurious litigation. We go on to consider the new phenomenon of malicious prosecution claims arising from big money divorces, touching finally on the professional liability exposure of […] The post “Lawfare”, big money divorces, and the impact of the new tort of malicious prosecution of civil proceedings appeared first on 4 New Square Chambers.

In a world where Russian oligarchs refer to litigation as “lawfare”, in this podcast we look at the issues arising where personal commercial rivalries are played out in spurious litigation. We go on to consider the new phenomenon of malicious prosecution claims arising from big money divorces, touching finally on the professional liability exposure of lawyers who have acted for the tortfeasor in maliciously prosecuted or abusive civil proceedings.

In this podcast, Jamie Smith QC, Helen Evans and Hannah Daly review where we are with dishonest assistance and unlawful means conspiracy claims after Group 7 and Stobart / The Racing Partnership. A look, too, at insurers' recovery options in the event that the insured is engaged in ‘naughty conduct'. The post Fraud and all that – professionals who know too much appeared first on 4 New Square Chambers.

In this podcast, Jamie Smith QC, Helen Evans and Hannah Daly review where we are with dishonest assistance and unlawful means conspiracy claims after Group 7 and Stobart / The Racing Partnership. A look, too, at insurers’ recovery options in the event that the insured is engaged in ‘naughty conduct’.

Graeme McPherson KC and Diarmuid Laffan share some practical thoughts on preparing for disciplinary hearings and conducting tribunal advocacy. The post Podcast: Do's and don'ts of tribunal advocacy appeared first on 4 New Square Chambers.

Graeme McPherson QC and Diarmuid Laffan share some practical thoughts on preparing for disciplinary hearings and conducting tribunal advocacy.

A review of recent decisions on the disclosure pilot running in the Business and Property Courts and a discussion of the key issues which face practitioners grappling with the procedure set out in PD 51U. The post Podcast: The Disclosure Pilot – where are we now? appeared first on 4 New Square Chambers.

A review of recent decisions on the disclosure pilot running in the Business and Property Courts and a discussion of the key issues which face practitioners grappling with the procedure set out in PD 51U.

Richard Liddell KC (4 New Square) and Sarah McNally (Herbert Smith Freehills) have received various questions regarding insurance coverage in the wake of COVID-19.  In this podcast recorded at the end of March, they consider some of the issues that policyholders and insurers are likely to be grappling with across many different forms of insurance. The post COVID-19 – Will Insurance Come To The Rescue? appeared first on 4 New Square Chambers.

Richard Liddell QC (4 New Square) and Sarah McNally (Herbert Smith Freehills) have received various questions regarding insurance coverage in the wake of COVID-19.  In this podcast recorded at the end of March, they consider some of the issues that policyholders and insurers are likely to be grappling with across many different forms of insurance.

The Supreme Court has had two chances to bring some much needed clarity to these questions, but has ducked them. This podcast with Mark Cannon QC and Hugh Evans, provides the answers. The post “Lost Litigation”: what is the loss and how do you quantify it? appeared first on 4 New Square Chambers.

The Supreme Court has had two chances to bring some much needed clarity to these questions, but has ducked them. This podcast with Mark Cannon QC and Hugh Evans, provides the answers.

In this podcast Nicole Sandells KC and Miles Harris take a practical look at how to fashion and pursue proprietary routes to recovery – and what to do when you can't find one, including a look at the restitution and unjust enrichment wild card, rights to information and documentation beyond the CPR, and factoring in […] The post Asset tracing and recovery reassessed appeared first on 4 New Square Chambers.

In this podcast Nicole Sandells QC and Miles Harris take a practical look at how to fashion and pursue proprietary routes to recovery – and what to do when you can’t find one, including a look at the restitution and unjust enrichment wild card, rights to information and documentation beyond the CPR, and factoring in the particular issues when professional indemnity insurers seek recovery.

In this podcast Neil Hext KC and Matthew Bradley look at the latest state of play in relation to the Muller exception to the without prejudice rule. The Court of Appeal's decision in Muller v. Linsley & Mortimer [1996] PNLR 74 seems well established, but the exception remains difficult to square with basic principle. The podcast will consider how […] The post What's going on with WP Privilege? appeared first on 4 New Square Chambers.

In this podcast Neil Hext QC and Matthew Bradley look at the latest state of play in relation to the Muller exception to the without prejudice rule. The Court of Appeal’s decision in Muller v. Linsley & Mortimer [1996] PNLR 74 seems well established, but the exception remains difficult to square with basic principle. The podcast will consider how WP privilege works in the three-party situation, and the impact of recent cases such as EMW Law LLP v. Halborg [2017] EWHC 1014 and Briggs v. Clay [2019] EWHC 102.

In this podcast Paul Parker provides an overview of the “StaRs”, the enforcement regime and their perceived flexibility, and examines the SRA's reach into one's private life and personal affairs. The post The 2019 SRA Standards & Regulations: what's new, what's the same and what should we be getting ready for? appeared first on 4 New Square Chambers.