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London Solicitors Litigation Association

Welcome to the latest LSLA E-Newsletter, our monthly summary of our most recent and future activities and in which we highlight issues which might affect and interest you. As always, for more detail please visit our website by clicking here.

LSLA NEWS

LSLA Annual Dinner – 18 November 2008
The LSLA Annual Dinner is to take place on 18 November 2008 at the Law Society. There are still a few tickets left for what is usually a very enjoyable and informative evening. This year the speakers will be Mr Justice Peter Smith and Ms Catrin Griffiths, Editor of the Lawyer.

Autumn Lecture Series
Our first lecture in our Autumn Lecture series has already taken place successfully. Hugh Tomlinson QC presented “Kissing, Telling and Suing: Privacy Claims and the Press” whichfocused on the “quiet revolution” which had taken place following the Human Rights Act 1998 and the development of a "modern approach" to privacy claims as demonstrated by Max Mosley's recent High Court victory over the News of the World. Click here for a copy of Hugh’s handout.
The forthcoming lectures are:

• Tuesday 4 November 2008: Duncan Matthews QC, 20 Essex Street “To challenge or not to challenge – is your decision maker biased or not?”;
• Thursday 20 November 2008: Mark Phillips QC, 3-4 South Square “Credit Crunch or Credit Crash? Identifying and finding the solutions”; and
• Wednesday 26 November 2008: Laurie Rabinowitz QC, One Essex Court “Interpretation of Contracts and the admissibility of evidence of subjective intention”.

For a further details and to apply for tickets click here.

LSLA Autumn Event - 23 October
This year we held a debate on Financing Commercial Litigation - A Brave New World.
The event was chaired by soon to be Lord Justice of Appeal, the Honourable Mr Justice Jackson. The funders and insurers were represented by an ATE provider, Peter Smith of FirstAssist, Christian Stuerwalk of Allianz (who working on insurance and third party funding) Mike Smith of Calinius (leading brokers in the area) and a new entrant to the funding market, Michael Zuckerman of Redress Solutions. The debate focussed on a hypothetical case. The funders set out their approach to such case, the insurers explained how they might finance it, the issues that arise and what they expect from the lawyers involved.

The event was well received by those who attended and demonstrates that the financing process with a growing army of third party funders is one of the hot topics at the moment.

Legal Week Conference – 17 September
Our current president, David Greene and past presidents Simon Davis and Graham Huntley chaired panel sessions at the conference.

Simon was joined by Ali Malek QC and Anthony Boswood QC. The aim of the panel was to analyse the report of the Commercial Court Working Party on long trials. Whilst there was a mixed reaction to the report, generally the view was that the courts have many case management powers available to them which powers could be better utilised. Questions were raised whether further "reform" was necessary or if there should be more powerful reminders to judges about the existing powers. Anthony Boswood raised particular concerns about the workability of seeking to have the parties/ judge achieve a list of issues which was useful. Overall however, there was support for any steps to reduce the amount of work on the parties, with a view to reducing costs. Simon urged those present to ensure that any feedback on the Working Party's recommendations was provided to the LSLA or the relevant Bar association.

Graham chaired a panel session on costs with Lisa Cameron (General Counsel Ernst & Young LLP) and Stephen Pearson (General Counsel RBS Group).

The panelists thought that the most important criteria were predictability and transparency of costs. There was little enthusiasm for conditional fee or contingency agreements to assist heavy and complex commercial litigation, therefore, the cost debate to date had focused more on restricting the amount of work carried out in heavy cases. The consensus was that ultimately this would not be achievable without strong judicial case management. Accordingly, there was considerable sympathy and support for the proposals of the Commercial Court Working Party to narrow the issues in complex cases and make ongoing litigation more comprehensible and manageable.

There was also considerable support for the view that unless these principles were recognised in any further review of costs, the result might be to import external solutions such as CFAs or costs capping regimes, which many felt were likely to create as many problems as they might solve. In that context there was considerable evidence that the CFA regime introduced to date had been unworkable and of little real help in dealing with the issues that arose in the context of heavy commercial litigation.

Civil Procedure Rules Committee (“CPRC”) consultation paper on Cost Capping
LSLA Committee member Andrew Parker produced a paper for the CPRC in February of this year and the topic looks like becoming a potentially contentious one for the future. We are setting up a sub-committee to look further into the issue. If anyone is interested in joining please contact David Greene at David.Greene@EdwinCoe.com.
For a copy of Andrew’s paper see www.justice.gov.uk/docs/costs-capping-consultation.pdf.

Legal News

Third Party Funding
In July the Civil Justice Council met to progress its investigations into the provision of third party funding. One of the issues discussed was a draft code produced by three leading litigation funders. The CJC recognised that a suitable code would be favourable and the Solicitors Regulatory Authority is reported as considering introducing a rule to prevent solicitors from dealing with funders who have not joined up to a code.

Amendment to the Civil Procedure Rules
Further to our newsletter of April, amendments to the CPR – primarily in relation to Part 6 - came into force on 1 October 2008. The principle changes include:

• A Claim Form will be deemed served on the second business day after dispatch notwithstanding the method of service (r6.14)
• Where no Acknowledgement of Service is filed, the time within which to file a Certificate of Service of the Claim Form is extended from 7 to 21 days from the date of service (r6.17(2)(a))
• Where an Acknowledgement of Service is filed it will no longer be necessary for the Claimant to file a Certificate of Service (r6.17)
• It is only under “exceptional circumstances” that a Court may dispense with service of the Claim Form (r6.16)
• The Court will be able to order service of the Claim Form at an alternative place (r6.15)
• There are new provisions applicable to proceedings against limited liability partnerships

An important amendment is made to CPR Part 7, which will provide that where a Claim Form is to be served within the jurisdiction, once it has been issued it must be dispatched within four months of the date of issue (r7.5). This contrasts with the current position which provides that service of the Claim Form must be effected within four months of the date of issue.

Details of the amendments can be found at
www.justice.gov.uk/civil/procrules_fin/menus/rules.htm.

Judicial Appointments
The Hon Mr Justice Jackson and The Hon Mr Justice Goldring were appointed Lords Justices of Appeal with effect from 1 October 2008. Their appointment will be followed by that of The Hon Mr Justice Aikens from 19 November 2008.