Arbitration analysis: In a recent preliminary ruling, the Court of Justice considered the interplay between civil procedure and data privacy regulation when it comes to the production of documents as evidence in a civil court proceeding. The court held that such production of documents constitutes processing of personal data under the General Data Protection Regulation (GDPR) and that, accordingly, where a document including personal data is requested for production as evidence, courts and potentially arbitral tribunals must always consider the interests of the data subjects. Written by Jacob Ericson and Victoria Ribbnäs at Westerberg & Partners, Stockholm.

Law360, London: When the defense bar came up with forced arbitration, it seemed to give companies broad latitude to evade accountability for legally dubious practices.

Dispute Resolution analysis: Where a contract gives the English courts jurisdiction to determine a claim, or the claim is 'in respect' of such a contract, the claimant can serve proceedings out of the jurisdiction without the English court's permission. However, whether or not such a contract exists and whether it binds the parties to the dispute is not always obvious. The High Court has now provided welcome clarification of the rule. A 'contract' in CPR 6.33(2B)(b) and (c) means 'a contract to which the defendant is subject'. In other words, a claimant cannot argue that their claim is 'in respect of' a contract if they cannot show a good arguable case that the defendant is a party to it. In this case, White Rock Corp failed to show a good arguable case that Middle Volga was a party to the charterparty or otherwise bound by its English jurisdiction clause. Middle Volga's challenge to jurisdiction therefore succeeded. Written by Harriet Campbell, senior knowledge lawyer at Penningtons Manches Cooper LLP.

Property Disputes analysis: The judgment in Kensington Mortgage Company Ltd v Mallon and others is an important indication of the courts’ approach to late amendments to pleadings or attempts to raise unpleaded arguments at trial. Deborah Sheldon, partner at TLT, discusses the practical implications of the decision, which affects any parties to litigation before the courts.

This Practice Note provides guidance on the court’s powers to make orders for the exchange of witness statements and to manage evidence under CPR 32 along with points to consider when proposing factual witnesses and handling their statements. Case management of evidence—Rules 32.1 and 32.2(3) Under CPR 32.1, the court can: • control the evidence by giving directions on: ◦ the issues on which it requires evidence ◦ the nature of the evidence which it requires to decide those issues, and ◦ the way in which the evidence is to be placed before the court • exclude evidence that would otherwise be admissible (CPR 32.1(2)) • limit cross-examination (CPR 32.1(3)) Further, and in relation to factual evidence specifically, the court can reduce the volume of irrelevant or inadmissible material put forward in civil proceedings by giving directions under CPR 32.2(3): • identifying or limiting the issues to be addressed by factual witnesses (CPR 32.2(3)(a)) • identifying the witnesses who may be called or whose evidence may be read (CPR 32.2(3)(b)) • limiting

Restructuring & Insolvency analysis: In Maher v Holmes, the High Court allowed an appeal against a bankruptcy order founded on a judgment debt arising from a secured loan carrying 20% interest. Although the court declined to go behind the judgment on the conventional grounds of fraud, collusion or miscarriage of justice, it held that the trial judge had erred in excluding the unfair relationship provisions of the Consumer Credit Act 1974 (CCA 1974). Re-exercising the bankruptcy discretion, the court found the lending relationship unfair and concluded that bankruptcy would be disproportionate and unjust. The decision highlights the breadth of the court’s residual discretion in insolvency proceedings and confirms that unfair relationship considerations may justify refusal of a bankruptcy order even where the underlying judgment debt remains valid. Produced in partnership with Alexander Bradford of St Philips Chambers.

Dispute Resolution analysis: This case concerned the court’s power to grant an injunction to restrain a litigant from sending abusive communications to an opposing party’s legal team. The High Court dismissed the application, stating that there was no ‘sound jurisdictional basis’ for such relief. The Court of Appeal held this was wrong: the court does have inherent jurisdiction at common law to protect the integrity of its own proceedings. However, the court agreed that refusal of the injunction was appropriate, as there was no ongoing risk and other discretionary factors weighed against relief. The judgment provides guidance for practitioners considering how to address disruptive litigation conduct. It clarifies the scope of the court’s inherent jurisdiction where behaviour poses a serious risk to the administration of justice. Where the conduct falls short of contempt, practitioners seeking such injunctions must also consider the impact of Article 10 ECHR, section 12 HRA, and litigation immunity. The case further highlights appropriate procedural routes and key discretionary factors relevant to injunctive relief. Written by Sarah Ellington, partner at Watson Farley & Williams LLP.

PI & Clinical Negligence analysis: The Court of Appeal has clarified the law on granting anonymity orders as part of the court’s inherent jurisdiction, overturning the first instance decision which had cast doubt on the guidance provided by the Court of Appeal in X v Dartford and Gravesham NHS Trust, in which it established the general rule for granting anonymity orders made post-settlement in advance of approval hearings for protected parties in personal injury cases. At first instance, Mr Justice Nicklin held that the court had very limited powers to make an anonymity order in personal injury litigation and that it was not appropriate to make such an order in the case of PMC, where the claimant’s case had been much publicised in the press. Written by Robert Weir KC, barrister at Devereux Chambers.

Local Government analysis: Two appellants appealed to the High Court against teaching prohibition orders made against them under section 96 of the Education and Skills Act 2008 (ESA 2008). Previously, they had been convicted of running an independent educational institution without a valid registration contrary to ESA 2008, s 96(2). The High Court concluded that the appeal against the prohibition orders was a review of the decision to impose them and not a re-hearing. Further, the appeal did not offer an opportunity to revisit the findings of fact in the criminal proceedings, and the appellants were bound to accept that those findings of fact could not be challenged in the appeal. Written by Denis Edwards, barrister, Normanton Chambers.

(1) legal safeguard put in place to protect bondholder's interests (2) underlying promise of the employer to pay contributions to a pension scheme

A legal safeguard put in place to protect bondholder’s interests.

The underlying promise of the employer to pay contributions to a pension scheme.