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Train tickets cases

Gutmann v Govia Thameslink Railway, Govia Ltd, The Go-Ahead Group, Keolis Ltd, MTR South Western, Stagecoach South Western, London & South Eastern Railway, and Secretary of State for Transport

The train tickets cases continue to move through the courts, with trial one set to take place in June and July. Issues linked to the alleged dominance abuse will be heard in this trial, with quantification of damages left to be heard in trial two, following in June 2025. The claim is expected to total over £166m in damages across all claims.

The claim rests on whether people in possession of a travelcard that was valid for a London portion of a journey were effectively overcharged when paying a full fare for a journey leaving London, due to the rail franchise operators not making boundary fares obvious. The alleged behaviour, it is argued, would constitute an abuse of the companies’ dominant market position, and breach UK competition laws. Freshfields Bruckhaus Deringer competition litigator and London managing partner Mark Sansom explains the case as indicative of a wider trend. ‘It’s one of those consumer-type complaints, it’s not really a conventional antitrust issue, but there are a lot of them now,’ with the trial addressing whether the complaint is capable of constituting an abuse in a competition law sense.

For Justin Gutmann: Philip Moser KC, Stefan Kuppen and Alexandra Littlewood (Monckton Chambers) instructed by Hausfeld and Charles Lyndon

For London & South Eastern Railway and Govia Thameslink Railway: Paul Harris KC, Anneliese Blackwood, Michael Armitage and Clíodhna Kelleher (Monckton Chambers) instructed by Mark Sansom and Nicholas Frey (Freshfields)

For First MTR: Tim Ward KC and James Bourke (Monckton Chambers) instructed by Slaughter and May

For Stagecoach South Western Trains: Sarah Abram KC and Jonathan Scott (Brick Court Chambers) instructed by Dentons

For the interveners: Anneli Howard KC, Brendan McGurk KC and Khatija Hafesji (Monckton Chambers)

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Shepherd Construction v Kingspan & Ors

Building contractor Shepherd Construction is bringing a claim valued at almost £70m against 12 defendants, including building materials company Kingspan in the first dispute to consider the new cause of action against cladding manufacturers introduced in the Building Safety Act 2022.

The dispute concerns four cladding systems used on a mixed-use development in Colindale, London. Shepherd alleges numerous defects including that cladding and insulation products provided were non-compliant with building regulations.

The case is set to be heard in the Technology and Construction Court in an 11-week trial from October. The Court’s decision will shape the development of legal principles on fire safety issues under the new post-Grenfell regime – and will by extension help determine the number and manner of cases brought against cladding manufacturers.

For Shepherd Construction: Sean Brannigan KC and Luke Wygas (4 Pump Court) and Sarah Williams and Thomas Saunders (Keating Chambers) instructed by Mayer Brown

For Kingspan entities: Rachel Ansell KC (4 Pump Court) and Jonathan Lewis (Monckton Chambers) instructed by Fenwick Elliott

For Leach Rhodes Walker Ltd: Katie Powell (Atkin Chambers) instructed by Brabners

For Cladtech Associates: Ben Patten KC (4 New Square) instructed by Emily Monastiriotis and Jeremy Roberts (Simmons & Simmons)

For Drytech Facades Ltd: Lynne McCafferty KC (4 Pump Court) and Daniel Churcher (4 Pump Court) instructed by CMS

For Bickerdike Allen Partners: Peter Oliver (4 Pump Court) instructed by Keoghs

For Hamilton Underwriting: Paul Cowan (4 New Square) instructed by Weightmans

For Hoare Lea entities: Adrian Williamson KC and Abdul Jinadu (Keating Chambers) instructed by Hill Dickinson

For Axis Specialty Europe SE: David Pliener KC (Gatehouse Chambers) instructed by Beale & Co

For Newline Insurance Company: Reynolds Colman Bradley

For Atrium Underwriters Ltd: Imran Benson (Hailsham Chambers) instructed by Kennedys

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Serco

Serco hits the High Court at the start of June in the first s90A securities group action to go to trial. Claimants allege that they were shareholders of Serco and acquired, held, or disposed of shares in Serco between 2006 and 2013, asserting that they suffered loss due to untrue or misleading statements published by Serco. With this being the first case under s90A of the Financial Services and Markets Act 2000 (FSMA) to reach judgment, there are a range of fundamental issues to be addressed, touching on the interpretation of key provisions of the statute. The case also involves novel issues of reliance, loss and quantum, and the identification of persons discharging managerial responsibility.

The case continues the development of securities litigation, which started in 2013 in the high-profile case brought against The Royal Bank of Scotland. It will also provide clarity on the effects of the Autonomy litigation, which considered the issue of reliance.

For institutional investors: Andrew Onslow KC, Calum Mulderrig and Katherine Boucher (3VB) and Shail Patel KC and Carola Binney (4 New Square) instructed by Chris Warren-Smith (Morgan Lewis)

For Serco: Richard Hill KC, Andrew de Mestre KC and Andrew Rose (4 Stone Buildings) instructed by Luke Tolaini and Kelwin Nicholls (Clifford Chance)

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Municipio de Mariana & Ors v BHP Group

Described by one London disputes head as ‘the biggest class action ever’, Municipio de Mariana & Ors v BHP Group sees a claimant class of more than 700,000 bringing claims for damages in excess of £36bn arising from the 2015 collapse of Brazil’s Fundão Dam.

On 5 November 2015 the dam suffered a catastrophic failure. Nineteen people were killed and over 40 million cubic metres of iron ore waste poured into the Doce River in what became the worst environmental disaster in Brazil’s history.

The dam was owned and operated by Samarco, a joint venture between Brazilian companies Vale SA and BHP Billiton Brasil Ltda. BHP Brazil is a subsidiary within the BHP group, headed by BHP England and BHP Australia.

The English class action was first brought in 2018. The High Court struck the claim out in 2020 but in 2021 the Court of Appeal granted the claimants leave to appeal. The Court of Appeal allowed the appeal in July 2022 and the case is currently set for an 11-week trial beginning in October this year. The High Court also in November 2023 allowed BHP to bring a part 20 claim against Vale for 50% of any damages BHP may be required to pay as a result of the litigation.

The decisions to allow the case to proceed in the English courts and to allow BHP’s part 20 claim against Vale further demonstrates the increased willingness of the English courts to handle large and complex multijurisdictional claims. The rulings build on decisions in similar environmental mass claims such as Vedanta in 2019 and Okpabi in 2021 that expanded the extent to which UK-based parent companies can be held liable for the actions of their overseas subsidiaries. Both Vedanta and Okpabi also concerned environmental disasters, in Zambia and Nigeria respectively. And a win for the claimants in Mariana would give further incentive to victims of environmental disasters to seek redress in the English courts.

BHP denies the claims in their entirety and continues to hold that the English proceedings are unnecessary because ‘all claimants have avenues in Brazil to resolve any potential claims’.

For Vale: Simon Salzedo KC, Richard Eschwege KC, Michael Bolding, Crawford Jamieson and Charles Wall (Brick Court Chambers) instructed by Lawson Caisley and Stephanie Stocker (White & Case)

For Municipio De Mariana: Alain Choo Choy KC (One Essex Court), Russell Hopkins (Temple Garden Chambers), Nick Harrison and Jonathan McDonagh (Serle Court), Antonia Eklund (Blackstone Chambers) and Pippa Manby (4 New Square) instructed by Pogust Goodhead

For BHP: Daniel Toledano KC, Nicholas Sloboda, Oliver Butler, Patricia Burns, Tamara Kagan, Maximilian Schlote, Stephanie Wood, Veena Srirangam, Jade Fowler, Michael Kotrly and Joseph Johnson (One Essex Court)

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Mastercard proceedings

Complex claims are being brought against Mastercard and Visa in an ongoing decade-long saga involving over 1,800 corporate claimants across the hospitality, arts, financial services, and leisure sectors. With three different strands of cases – Merricks v Mastercard, collective cards, and umbrella proceedings – lawyers involved are finding themselves in court almost weekly. The first of these, the Merricks claim, is the second collective proceedings to have ever been brought in the CAT, starting seven years ago. Judgment on a causation hearing came through in February, examining the veracity of the central facts, which ultimately determined that on the factual basis, the European interchange fees did not drive the UK fees. Cited as a success by Freshfields, a spokesperson for the firm commented, ‘this is a very significant judgment. It finds that over 90% of Mr Merricks’ case fails factually’. If the judgment is left to stand, the value of the claim will be reduced by £9bn from a total of £10bn. Merricks’ lawyers have indicated their intention to push for a trial on a counterfactual scenario, which if successful, would bring this amount back into play.

Commercial claims involving merchants and retailers, including an opt-in claim for large businesses with more than £100m in revenue and an opt-out claim for smaller businesses, will face a certification hearing in the first few days of April. The final proceedings are the high-profile umbrella cases, the first ever of their type in the CAT, pulling together all types of similar claims under the same banner and jointly case managing them. Ricky Versteeg at Freshfields comments that ‘almost everything in this claim is groundbreaking’, expanding that the umbrella proceedings procedure is almost a practice area in itself.

Trial one on liability of the first umbrella proceedings in the CAT first went to the courts in a six-week trial from 14 February. Trial two is set to follow in November, with an estimated six weeks commencing on 11 November. All interchange claims filed in the High Court have been transferred across to the CAT, and they are now being actively case managed by CAT President Marcus Smith and two other members of the Tribunal. This, according to Genevieve Quierin at Stephenson Harwood, is quite unusual, with the CAT liaising with the High Court and pulling all claims in together of its own motion, including those that have not been pleaded out and are stayed, with the outcome being binding on all claimants.

On Merchant Interchange Umbrella proceedings
For the Mastercard Scheme defendants: Timothy Otty KC and Naina Patel (Blackstone Chambers), Matthew Cook KC and Ben Lewy (One Essex Court) instructed by Mark Sansom and Ricky Versteeg (Freshfields)

For the Visa Scheme defendants:Simon Salzedo KC and Daniel Piccinin KC (Brick Court Chambers), Jason Pobjoy and Isabel Buchanan (Blackstone Chambers) instructed by Linklaters and Milbank

For the class representative in Merricks: Nicholas Saunders KC (Brick Court Chambers), Aidan O’Neill KC (Matrix Chambers) and Anneliese Blackwood (Monckton Chambers) instructed by Willkie Farr & Gallagher

For some Umbrella Interchange Fee claimants: Mehdi Baiou (One Essex Court) instructed by Humphries Kerstetter and Scott & Scott

For some Umbrella proceedings claimants: Ronit Kreisberger KC, Philip Woolfe KC and Antonia Fitzpatrick (Monckton Chambers) and Oliver Jackson (11KBW) and instructed by Stephenson Harwood

Commercial cards collective proceedings
For the proposed class representatives:Alexander Hutton KC (Hailsham Chambers), Flora Robertson (Blackstone Chambers) and James White (Henderson Chambers) instructed by Harcus Parker

For Mastercard: Sonia Tolaney KC, Matthew Cook KC and Veena Srirangam (One Essex Court) and Hugo Leith (Brick Court Chambers) instructed by Mark Sansom and Ricky Versteeg (Freshfields) with Nick Cotter and Sarah Batley (Jones Day)

Merricks collective proceedings
For Merricks: Marie Demetriou KC and Crawford Jamieson (Brick Court Chambers) and Paul Luckhurst (Blackstone Chambers) instructed by Willkie Farr & Gallagher

For Mastercard:Joe Smouha KC and Stephen Donnelly (Essex Court Chambers), Matthew Cook KC (One Essex Court) and Hugo Leith (Brick Court Chambers) instructed by Mark Sansom and Ricky Versteeg (Freshfields)

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Russian aircraft claims

In line with the trend towards mega-trials, the Commercial Court in October is due to hear the highly publicised Russian aircraft insurance claims, with aircraft lessors bringing multiple proceedings across a range of jurisdictions.

The losses arise from the detention of hundreds of commercial aircraft in Russia due to its invasion of Ukraine and the subsequent implementation of international sanctions against it. The litigation encompasses complex multi-party insurance claims, involving expert evidence across Russian politics, civil aviation, insurance underwriting, and US sanctions.

The trial includes claims brought by AerCap, Merx Aviation, and Genesis, and is listed for a joint trial of an estimated 11 weeks. For Clifford Chance litigation and dispute resolution head Helen Carty, the case highlights the exciting nature of the profession. ‘Ten years ago we were doing a huge amount of banking work. Now things look very different. If you’d asked me even five years ago I’d never have expected that our biggest case this year would be related to aircraft.’

February claimants
For AerCap: Stephen Midwinter KC, Charlotte Tan and Edward Ho (Brick Court Chambers) instructed by Alexander Oddy, Fiona Treanor, Antonia Pegden and Gregg Rowan (Herbert Smith Freehills)

For Aircastle Ireland:Stephen Hofmeyr KC, Josephine Higgs KC, Stephen Du and Douglas Grant (7KBW) instructed by Peter Sharp, David Waldron and Paul Mesquitta (Morgan, Lewis & Bockius)

For Avolon, BOCA, CDBA, DAE, Falcon, Hermes, KDAC, NAC and SMBC AC: Alistair Schaff KC, Rebecca Sabben-Clare KC, Alexander MacDonald, Sandra Healy, Frederick Alliott and Daniel Corteville (7KBW) instructed by Philip Hill, Julian Acratopulo, Claire Freeman and Lindsay Bickerton (Clifford Chance)

For Carlyle Aviation Management: Stephen Hofmeyr KC, Michael Holmes KC, Sarah Martin and Henry Moore (7KBW) instructed by Peter Sharp, David Waldron and Paul Mesquitta (Morgan Lewis)

For FTAI Aviation (Fortress): Josephine Higgs KC, Stephen Du and Douglas Grant (7KBW) instructed by Peter Sharp, David Waldron and Paul Mesquitta (Morgan Lewis)

For Dubai Aerospace Enterprise: Alistair Schaff KC, Rebecca Sabben-Clare KC, Alexander MacDonald, Sandra Healy, Frederick Alliott and Daniel Corteville (7KBW) instructed by Philip Hill, Julian Acratopulo, Claire Freeman, Lindsay Bickerton and Baljit Rai (Clifford Chance)

For KDAC Aircraft Trading 2: Alistair Schaff KC, Rebecca Sabben-Clare KC, Alexander MacDonald, Sandra Healy, Frederick Alliott and Daniel Corteville (7KBW) instructed by Philip Hill, Julian Acratopulo, Claire Freeman, Lindsay Bickerton and Baljit Rai (Clifford Chance)

For Falcon 2019-1 Aircraft 3 Ltd: Alistair Schaff KC, Rebecca Sabben-Clare KC, Alexander MacDonald, Sandra Healy, Frederick Alliott and Daniel Corteville (7KBW) instructed by Philip Hill, Julian Acratopulo, Claire Freeman, Lindsay Bickerton and Baljit Rai (Clifford Chance)

For AIG Europe: Gavin Kealey KC, Andrew Wales KC, Clara Benn and Sophie Hepburn (7KBW) and David Murray (Fountain Court Chambers) instructed by Edward Spencer and Mark Waters (HFW).

For Fidelis Insurance Ireland: Dominic Kendrick KC, Peter MacDonald Eggers KC, Timothy Kenefick and Rebecca Jacobs (7KBW) and Timothy Howe KC and Christopher Knowles (Fountain Court Chambers) instructed by Naomi Vary

For Global Aerospace: Jonathan Gaisman KC, Siobán Healy KC, Adam Fenton KC, Keir Howie, Jason Robinson and Charles Littlewood (7KBW) instructed by Gillie Belsham (Wikborg Rein)

For the HAR insurers (Fidelis Underwriting): Paul Stanley KC (Essex Court Chambers) and John Bignall (7KBW) instructed by Kathryn Ward, Victoria Cooper and Lucy Stevens (DLA Piper)

For HDI Specialty: N G Casey KC and Timm Jenns (7KBW) instructed by Stephen Netherway (Devonshires)

For Liberty Mutual Insurance Europe: David Bailey KC and Richard Sarll (7KBW) and Charles Kimmins KC and Susannah Jones (Twenty Essex) instructed by Tristan Thompson (Kennedys)

For Lloyd’s Insurance: Richard Waller KC, Jawdat Khurshid KC, Michael Ryan and Joshua Fung (7KBW) instructed by Chris Zavos and Andrew Westlake (Kennedys)

For Swiss Re: SJ Phillips KC, Elizabeth Lindesay, Harry Wright and James Goudkamp (7KBW) instructed by Louise High and Lisa Hillary (Penningtons Manches Cooper)

For Tokio Marine Underwriting Ltd: David Edwards KC and James Brocklebank KC (7KBW) instructed by Leon Taylor (DLA Piper)

October claimants
For AerCap: Mark Howard KC, Stephen Midwinter KC, Edward Ho and Sophie Bird (Brick Court Chambers) instructed by Alexander Oddy, Fiona Treanor, Antonia Pegden and Gregg Rowan (Herbert Smith Freehills)

For Dubai Aerospace Enterprise, Falcon 2019-1 Aircraft 3 and KDAC Aircraft Trading 2: Alistair Schaff KC, Rebecca Sabben-Clare KC, Alexander MacDonald, Sandra Healy, Frederick Alliott and Daniel Corteville (7KBW) instructed by Philip Hill, Julian Acratopulo, Claire Freeman and Lindsay Bickerton (Clifford Chance)

Defendants
For AESA/AIG Europe: James Cutress KC, Simon Paul, Ian Bergson, and Adam Sher (Fountain Court Chambers) instructed by Alex Davis (Stephenson Harwood)

For AIG Europe: Gavin Kealey KC, Andrew Wales KC, Clara Benn and Sophie Hepburn (7KBW) and David Murray (Fountain Court Chambers) instructed by Edward Spencer (HFW)

For Chubb European Group: Jeffrey Gruder KC, David Peters KC and Helen Morton (Essex Court Chambers) and Ben Lynch KC and Daniel Schwennicke (Fountain Court Chambers) instructed by Dorothy Cory-Wright and Ricci Potts (Dechert)

For Fidelis Insurance Ireland: Dominic Kendrick KC, Peter MacDonald Eggers KC, Timothy Kenefick and Rebecca Jacobs (7KBW) and Timothy Howe KC and Christopher Knowles (Fountain Court Chambers) instructed by Naomi Vary (RPC)

For Global Aerospace: Jonathan Gaisman KC, Siobán Healy KC, Adam Fenton KC, Keir Howie, Jason Robinson and Charles Littlewood (7KBW) instructed by Gillie Belsham (Wikborg Rein)

For the HAR insurers (Global Aerospace Underwriting): Christopher Hancock KC (Twenty Essex), Guy Blackwood KC, Tom Bird and Robert Ward (Quadrant Chambers) instructed by Weightmans

For the HAR insurers (Convex Insurance): Nigel Tozzi KC and James Hatt (4 Pump Court) and Bajul Shah (XXIV Old Buildings) instructed by DACB

For the HAR insurers (Fidelis Underwriting): instructed by Paul Stanley KC (Essex Court Chambers) and John Bignall (7KBW) instructed by DLA Piper

For HDI Specialty: N G Casey KC and Timm Jenns (7KBW) instructed by Stephen Netherway (Devonshires)

For Liberty Mutual Insurance Europe: David Bailey KC and Richard Sarll (7KBW) and Charles Kimmins KC and Susannah Jones (Twenty Essex) instructed by Kennedys and Shoosmiths

For Lloyd’s Insurance: Richard Waller KC, Jawdat Khurshid KC, Michael Ryan and Joshua Fung (7KBW) instructed by Chris Zavos and Andrew Westlake (Kennedys)

For Lloyd’s Insurance Company: David Railton KC, Simon Atrill KC, Ian Bergson and Joseph Leech (Fountain Court Chambers) instructed by Kennedys

For Swiss Re: SJ Phillips KC, Elizabeth Lindesay, Harry Wright and James Goudkamp (7KBW) instructed by Louise High and Lisa Hillary (Penningtons Manches Cooper)

For Syndicate 3010 at Lloyds): Bankim Thanki KC (Fountain Court Chambers) and Andrew Neish KC, Kate Livesey and Ron Chatterjee (4 Pump Court) instructed by HFW

For the Tokio Marine Kiln war risk insurers: Akhil Shah KC, James Duffy KC, Nick Daly and Max Kasriel (Fountain Court Chambers) instructed by Alaina Wadsworth (CMS)

For Tokio Marine Underwriting Ltd: David Edwards KC and James Brocklebank KC (7KBW) instructed by Leon Taylor (DLA Piper)

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Securities litigation in the UK: A changing landscape

The recently published fourth edition of the City of London Corporation’s international competitiveness study 1 ranked London as the world’s top global financial centre. The foreword to that report states: ‘Amidst a range of macroeconomic and geopolitical challenges, this latest report shows how the UK’s financial services are key to driving growth and promoting the breadth of specialist expertise available in the City of London.’

Continue reading “Securities litigation in the UK: A changing landscape”

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Perspectives: Adrian Chopin


When I was nine years old, an elderly relative told me I should consider being a lawyer because I was an argumentative brat. On that flimsy basis I studied law with German law. For my first year, I hated the subject – everything had come easily to me at school but this new thing required a lot of effort. I nearly gave up. At some point I had one of those moments that still makes me wince, but that nevertheless shaped my life. I was sitting on the floor of my room alone, pre-loading on vodka and listening to Pink Floyd’s Time when I had a moment of white panic that I was going to achieve nothing with my life. I ended up learning that the surest way to start to enjoy something is to get good at it, which is usually the reward of a tonne of hard work. I ended up loving my law degree.

When I joined Allen & Overy, I discovered that I adored the puzzle of understanding, structuring, and negotiating derivatives transactions. It was a total nerd bonanza, and it was perfect for me. During this time, as a junior associate, I squiffily wrote an email to a girl I was dating telling her how much I liked her and… well you get the idea. I put my BlackBerry into my pocket but forgot to lock the keypad. While it was in my pocket, I somehow pressed the combination of buttons to forward my amorous email to ‘A&O New York (all)’. I checked my BlackBerry the next morning and my blood ran cold. I was certain my career was going to end with an article picking over my lovestruck sweet nothings.

I tried to phone anybody and everybody in the A&O New York IT team, but it was the middle of the night, and nobody answered. After about four stomach-churning hours I finally got hold of a lovely chap who confirmed that the mailbox filter had quarantined my email for review and that he would delete it without reading. I almost wept with relief. I put a picture of that guy up on the wall of my office. Old A&O NY IT guy, if you’re out there reading this and you ever need anything, you just have to call me.

One of my colleagues at A&O once said, ‘we cheer as loudly when a deal dies as when a deal closes’. He was right: when a deal closed or aborted the associates would get a few days’ respite from working long hours and would mostly be paid the same amount either way. By contrast, in my first month as an investment banker, when I showed relief at the death of my first deal, my boss observed ‘you won’t last long here with that attitude’. Things have improved at law firms since those days, but I still think that sense of ownership is something many lawyers don’t really experience until they are much later in their careers. Also, Deutsche Bank involved a lot more swearing.

I loved the combination of law and finance and I observed there were lots of litigators but not enough finance professionals in the industry. I thought I could bring something a bit different and that it would be exciting to be part of building a new market. So I took the plunge in 2015, which now makes me one of the dinosaurs of this young industry.

My biggest achievement is setting up a litigation funding business from scratch in 2015: I had no track record, no employees, no models, no documents and all my legal contacts were at Magic Circle and white-shoe firms, none of whose clients wanted funding. I had to spend nights and weekends drafting template documents, building models, and setting up operational systems, all starting from nothing. And during the day I was running around the City taking meetings to build a new network of contacts. I was hugely grateful to John Young and Gary Wee at Orchard, who took a flier on me when I had just an idea; their support, and the fact that they paid me a salary, made it possible. It was the greatest learning experience of my life.

But in close second place, is the deck of ‘top trumps: funder mentals’ that my wife and I made during lockdown. We made cards for high-profile figures in the funding industry with ratings in categories such as ‘charisma’, ‘nerd number’, ‘spin factor’ and ‘pain infliction’ and we included a fairly robust comment on each person at the bottom of the card. People in the industry now beg to be included in the deck. The only thing worse than being in top trumps is not being in top trumps.

For budding lawyers, my advice would be to learn to write professionally and succinctly but always ensure you remain a normal human being. As a trainee I thrived on sprinkling bombast into my emails, like ‘timeous’ and ‘eleemosynary’. But I mostly sounded pompous and insecure. And never forget you are there to do a deal, not to burn the other side to the ground. This is just as important in litigation and arbitration as in transactional work. So don’t act as if you’re engaged in mortal combat, but try to cultivate a decent, professional relationship. It will make your work fun and fruitful.

For those considering a move from law into funding, you need to learn that you aren’t litigating these cases, and you need to start thinking like an investment professional. That’s multifaceted – you need to learn a bit about maths, a bit about finance, and a bit about deal structuring even if you’re in a pure due diligence role. It will make you a far better funder.

Also, if you think you’re a better litigator than the lawyer you are backing, you shouldn’t be backing them. It’s better to back a great lawyer with a good case than a great case with a good lawyer.

My biggest inspiration in the law is David Benton, my old boss from A&O. He is an extraordinary individual: he wears his planet-sized intelligence as lightly as the ugly camo jacket he used to wear to client meetings. And he allies it to a casual, generous sense of humour. He taught me many things, including that real confidence comes from understanding your subject matter and that the best lawyers are not rule-moaners, they are imaginative, creative, and solution-oriented. He built a team that was bright, hardworking, and happy, which made being at work a pleasure, even when the hours were tough.

I think over the next few years we’ll see some more consolidation in the industry, especially in continental Europe, where the market will continue to grow but some smaller funders will end up being absorbed into larger platforms. Both Europe and the UK will see further development of their class action regimes. We’ll probably see at least one or two absolute ‘gut buster’ wins in a non-US group action and this will lead to another flood of cash trying to come into the market. They’ll struggle to build platforms that replicate the success of the more established funders. But that’s fine; we’ll still be here making it work after the fast money has retreated.

My favourite book is The Book of Ebenezer Le Page. It’s an awkward and engaging canter through the twentieth century history of Guernsey via the life of an oddball. I grew up in Guernsey and I still get dewy-eyed reading some passages. Do yourself a favour and give it a try.

Adrian Chopin is co-founder and managing director at Bench Walk Advisors.

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Two themes in arbitration cases before the English courts: state parties and the nature and extent of the court’s pro-arbitration approach

Claims relating to arbitration make up a significant portion of the English Commercial Court’s case list. Arbitration is by its nature international and London’s enduring status as a global hub for international arbitration reflects its position as a destination for international parties to resolve their disputes. Recent cases before the English courts which this article addresses corroborate that fact. They arose in the context of important world events. Several high-profile cases involved states. Also last year, the Law Commission published its recommendations as to how the Arbitration Act 1996 (the Act), the arbitration law of England, Wales and Northern Ireland, should be modernised. The new legislation is expected to be enacted by the end of 2024.

Continue reading “Two themes in arbitration cases before the English courts: state parties and the nature and extent of the court’s pro-arbitration approach”

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The UK mediation sector

Churchill v Merthyr Tydfil County Borough Council

In a landmark decision, the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] made a significant stride in the evolution of dispute resolution within the legal system of England and Wales. The case, stemming from Merthyr Tydfil’s approach to managing Japanese Knotweed on its land, has revisited the contentious issue of court-mandated dispute resolution processes. Three dispute resolution bodies, The Civil Mediation Council (CMC), Ciarb and CEDR, were intervenors in the landmark case regarding the concept of court-ordered mediation. The aim was to overturn a 2004 Court of Appeal decision that determined that compelling parties to mediate was a breach of provisions in the European Convention on Human Rights that guarantee the right to a fair trial.

Previously, in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 (Halsey), Lord Justice Dyson’s remarks had been perceived as a barrier to mediation, suggesting that forcing unwilling parties into mediation infringed their right to court access.

However, this view was critically reassessed by a specially convened Court of Appeal panel including Baroness Carr, Lady Chief Justice, Sir Geoffrey Vos, Master of the Rolls, and Lord Justice Birss. They unanimously concluded that Dyson LJ’s observations were merely obiter dicta, and not part of the ratio decidendi. In modern language: ‘they were not a necessary part of the reasoning that led to the decision’, adopting the words of Lord Justice Leggatt in R (Youngsam) v The Parole Board [2019] EWCA Civ 229.

The Deputy District Judge initially reluctantly ruled against compelling the parties to engage in non-court-based dispute resolution processes, citing Halsey. However, the appellate court clarified that while Halsey’s principles remain influential, they are not a straitjacket that binds judicial discretion. Consequently, the court has the authority to stay proceedings for non-court-based dispute resolution if it is proportionate and preserves the essence of the parties’ right to a judicial hearing.

This ruling underscores the court’s commitment to dispute resolution that is fair, expedient, and cost-effective, without strictly prescribing when such measures should be applied. It reaffirms that the Court of Appeal will not lay down absolute rules but will consider the specifics of each case. For practitioners, this decision reiterates the need for a strategic approach to dispute resolution, considering both litigation and alternative methods as viable pathways to resolving complex disputes.

Independent Mediators’ Michel Kallipetis KC was part of the team representing the successful appellant council and Rebecca Clark was part of the team of intervenors in her role as chair of the CMC.

Ministry of Justice integrating mediation into the court process

Following a consultation in 2022 on ‘Increasing the use of mediation in the civil justice system’ it was confirmed in 2023 that mediation would be integrated into all defended small track claims (those valued under £10,000). Unless an exemption is granted by the court, all parties to a defended small claim will be required to attend a free mediation appointment with His Majesty’s Courts and Tribunals Service before their case can progress to a hearing. The mediation session will be provided via the existing Small Claims Mediation Service run by HMCTS. Parties each have an hour-long telephone conversation with the mediator. If settlement is reached a binding settlement agreement is drawn up. This service is free.

The proposal is expected to help an additional 272,000 parties every year to access the opportunity to resolve their dispute consensually through mediation. It is also expected to divert up to 20,000 cases each year from the court system, freeing up judicial resources to be used for complex cases.

The government is also considering whether a requirement to mediate should be expanded beyond small claims.

This initiative forms part of the government’s broader efforts and ambition to help parties realise the benefits of consensual dispute resolution processes, such as mediation, and integrate these processes as a key step within the justice system.

UK signs the Singapore Convention on Mediation

In 2023 the [UK] government became a Party to the Singapore Convention on Mediation (the Singapore Convention). A clear signal to international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors.

The Singapore Convention responds to the demand from a growing body of mediation users for an enforcement mechanism applicable to mediated settlement agreements in cross-border disputes.

UNCITRAL perceived a need from the international business community for an enforcement mechanism for mediated settlement agreements in international (or cross-border) disputes akin to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

The Convention applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (settlement agreement) which, at the time of its conclusion, is ‘international’. International is defined as the situation where at least two parties to the settlement agreement have their places of business in different states; or the state in which the parties to the settlement agreement have their places of business is different from either:

  1. the state in which a substantial part of the obligations under the settlement agreement is performed; or
  2. the state with which the subject matter of the settlement agreement is most closely connected.

The Convention does not apply to settlement agreements arising out of transactions for family, personal or household purposes or relating to family, inheritance or employment law, nor to court-approved settlement agreements enforceable as a court judgment or arbitral awards.

On 7 August 2019 The Singapore Convention was signed by 46 states including two of the world’s largest economies – the US and China – as well as three of the four largest economies in Asia – China, India and South Korea. Another 24 countries attended the signing ceremony in Singapore to show their support for the Convention. Since then other states have also signed.

On 25 February 2020, Singapore and Fiji became the first two countries to deposit their respective instruments of ratification of the Convention at the United Nations Headquarters in New York. With the third instrument of ratification deposited by Qatar on 12 March 2020, the Convention entered into force on 12 September 2020.

As of February 2024, the Convention has 55 signatories, of which eight are parties to the Convention.

The team

Independent Mediators comprises ten full-time commercial mediators. They are nationally and internationally recognised for their work. Between them they have mediated over 9,500 matters in almost every sector of business and law. Cases ranges from ten of thousands of pounds in value to multi-billion. They are at the forefront of developments in the mediation sector both in the UK and overseas.