Commercial litigation concerns and trends – autumn 2023

Articles & Publications
20 October 2023

4 New Square’s commercial litigation networking breakfast provided a useful forum to take the temperature on what is happening in the market.  Some parts of the commercial litigation world are ever present (such as the issue of disclosure) whilst others come into sharper focus as the result of world events (such as the pandemic and the war in Ukraine) and new regulation.

Daniel Saoul KC, Theo Barclay, Shail Patel, Will Harman, George Spalton KC, Lucy Colter, Sian Mirchandani KC, Diarmuid Laffan, Tim Chelmick, Lionel Nichols, Matthew Bradley KC, Kendrah Potts, Helen Evans KC, Pippa Manby, Paul Mitchell KC and Saaman Pourghadiri hosted a lively discussion of a variety of issues, no doubt fuelled by copious amounts of tea/coffee and pastries, including:

  • Witness statements. The “confessional corner” on this topic proved very therapeutic.  The new rules have been in place for just over 2 years and discussion of how those rules are working revealed a diverse range of views including reformers proposing scrapping witness statements entirely in favour of both early-stage depositions and evidence in chief at trial! There was a general consensus that one of the trickiest issues was how to satisfy the witness statement rules regarding documents shown to witnesses when dealing with witnesses who are also existing management of a company and who have been involved at earlier stages of the pleadings and are needed to continue to give instructions on the claim.
  • ESG trends in securities litigation. ESG is a hot topic generally but this discussion focused on the impact for those involved in banking and financial litigation.  There was some crystal ball gazing about ESG trends in securities litigation and beyond. Participants debated whether ESG litigation was something more written about than real. Concrete themes identified included ESG warranties in business purchases, philanthropic litigation funding and the future consequences of environmental disclosure obligations.
  • Law Commission report on Arbitration Act 1996. As has been evident online, this has aroused a great deal of discussion.  There was general agreement though that the proposed changes were sensible, constructive and pragmatic. In particular, it was felt that the proposed provision dealing with governing law would be well received by practitioners and clients.
  • The use of ATE insurance as security for costs. There was a lively debate about a recent High Court judgment which found that a broadly-worded anti-avoidance endorsement was effective in excluding the insurer’s right to avoid in the event of findings of fraud against the insured, with no consensus emerging on whether the same result would be reached if the point reached the Supreme Court. Attendees also swapped war stories on their attempts either to obtain acceptable ATE insurance for clients, or oppose its substitution for conventional security for costs.
  • The iniquity exception. The main points of discussion here were the strength of the pleaded case required when disclosure was sought of a defendant’s prima facie privileged communications; the Court’s approach to determining the strength of the pleaded case on an application for specific disclosure; and the breadth of examples of iniquitous conduct resulting in the privilege being disapplied.  Many people had had experience of making such applications, suggesting that the iniquity exception is invoked relatively frequently.
  • Freezing Orders: Attendees discussed recent trends in relation to the granting of freezing orders and related interim relief, including as to the extent to which the Courts are able to scrutinise such applications at the ex parte stage (and whether such scrutiny can go too far in discharge applications) and generally whether the right balance is being struck as between the need to protect victims of fraud from asset dissipation pending judgment, and the need to protect respondents from the potentially oppressive effect of such orders. Consideration was given to recent decisions concerning the granting of such orders against persons unknown in cryptocurrency cases, the increasing use of the Chabra jurisdiction, freezing orders in support of arbitrations and the requirement for an unlimited cross-undertaking in damages, even in insolvency scenarios, as well as the latest jurisprudence on fortification.

If you are interested in discussing any of the issues in this article further, please contact Dennis Peck.

Related People

Paul Mitchell KC

Call: 1999 Silk: 2016

Siân Mirchandani KC, FCIArb

Call: 1997 Silk: 2019

Daniel Saoul KC

Call: 2008 Silk: 2019

George Spalton KC

Call: 2004 Silk: 2021

Helen Evans KC

Call: 2001 Silk: 2022

Matthew Bradley KC

Call: 2004 Silk: 2022

Shail Patel KC

Call: 2006 Silk: 2024

Tim Chelmick

Call: 2004

Kendrah Potts

Call: 2017    Solicitor: 2006

Lucy Colter

Call: 2008

Lionel Nichols

Lionel Nichols, FCIArb

Call: 2008 (Australia); 2013 (England & Wales)

Pippa Manby

Call: 2010

Saaman Pourghadiri

Call: 2012

Theo Barclay

Call: 2013

Diarmuid Laffan

Call: 2014

William Harman

Call: 2016



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