<p>Filter Knowledge</p>

Welcome to the latest edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution world over the last three months or so.

The Court of Appeal has recently determined an appeal in the FX CPO proceedings, against a first instance decision of the CAT.

Following Brexit, the UK Government is keen to boost trade with countries outside the EU. Our interactive maps show the extent of the UK's global network of free trade agreements and bilateral investment treaties.

Our round-up of recent and forthcoming developments in UK law and practice for our international stakeholders.

In the first warranty & indemnity insurance ("W&I") claim to be decided by the Commercial Court, the Defendant insurers succeeded on every issue, with the Court finding that there had not been a breach of the relevant warranties and indeed no loss as the buyer would have paid the full purchase price in any event.

Major fashion brands are increasingly making efforts to capitalise on growing ESG consciousness by consumers. At the same time however, brands are also aware of activity by regulators and campaigners that seeks to hold businesses accountable for "greenwashing" and human rights risks present in their value chain.

In The University of Dundee v Chakraborty [2023] CISH 22, the Scottish Court of Session considered the privilege status of an early unpublished version of an internal investigation report, which had been amended and reissued following the receipt of legal advice, and then disclosed in its final form in Employment Tribunal proceedings. The Court held, in a decision which, albeit Scottish, is binding on all UK Employment Tribunals, that the early version of the report was not privileged.

The doctrine of separability under English law means that an arbitration clause is separate from the underlying agreement. In turn, this means that the law governing the obligations of the underlying contract can be different to the law governing the arbitration agreement.

The recent (so far, unsuccessful) action brought by activist environmental charity ClientEarth against the directors of Shell highlights concerns around whether boards of UK companies are taking sufficient account of the wider environmental and social impacts of their decision-making and activities. In this article, we look at some of the arguments for and against changing UK law on directors' duties, in the context of a constantly evolving backdrop.

In its recent decision in Forster v Reynolds Porter Chamberlain LLP, the High Court found that City law firm, RPC, had breached its duty of care to its client, Ms Forster, after failing to keep her adequately informed of costs incurred under a conditional fee agreement ("CFA"). The Court also held that RPC were conflicted in acting for Ms Forster, and that in failing to enforce the settlement agreement in accordance with Ms Forster's wishes, it caused her to suffer loss. The decision serves as a useful reminder that whilst a CFA governs the solicitor's remuneration, it does not alter the duties owed to the client.

The Government announced on Monday that it will introduce new measures to address Strategic Lawsuits Against Public Participation ("SLAPPs") through amendments to the Economic Crime and Corporate Transparency Bill. The new measures will only address SLAPPs relating to economic crime and corruption, and it is unclear whether the Government intends to address SLAPPs in other fields in the future, or whether it sees this as the endpoint.

In its recent decision in McClean & Ors v Thornhill, the Court of Appeal found that a leading tax silk appointed to advise the promoter of three tax avoidance schemes did not owe a duty of care to investors, notwithstanding that the silk had consented to his advice being shared with the investors. The decision provides useful guidance as to the circumstances in which professionals, particularly legal professionals, may be found to have adopted a duty of care to prospective claimants by whom they have not been directly instructed.

Our regular round-up of recent and forthcoming developments in law and practice for in-house counsel.

In the recent decision in Mackenzie v Rosenblatt Solicitors (a firm) and another, Fancourt J dismissed a professional negligence claim against a defendant firm of solicitors arising out of advice they had given to the claimant in relation to a claim he had issued against his former employer and certain directors of the employer for unlawful means conspiracy. The decision provides a useful reminder of solicitors' contractual and common law duties to keep a client properly apprised of developments on a matter or claim and makes clear the need for claimants to demonstrate that, in the absence of any breach of duty, they would have behaved differently and avoided some or all of the alleged loss.

Businesses with overseas operations, and firms that provide social audit support services to those businesses, need to be cognisant of attempts by claimant law firms to extend the existing boundaries of tort law and bring novel and ambitious value chain liability claims against them. Several claimant law firms (and litigation funders) have explicitly pivoted towards bringing these claims in the ESG space.

In the recent decision in Mundy v TUI [2023] EWHC 385 (CH), the High Court considered how a rejected offer to settle liability on a 90%/10% basis ("90/10 offers") fitted with the provisions of CPR 36.17.

The Court of Appeal has recently considered the Henderson abuse principle, which precludes a party from raising in subsequent proceedings matters which were not but could and should have been raised in earlier ones.  

Value chains are under the spotlight with the increase in so-called value chain liability claims in the UK: businesses operating in high-risk sectors need to carefully take stock of their potential exposure to this type of litigation risk. The retail sector (most notably larger retailers and supermarkets) needs to pay particular attention to these developments, given the size of their value chains and public profiles (and therefore the breadth of their potential legal and reputational exposure).  

The principal aim behind many climate change claims may not be to "win" but to draw attention to activities that cause and contribute to climate change, litigation being just one tool in an activist's toolbox.