Commercial Litigation EP3: General update

In this third episode of our series of commercial litigation update podcasts, we look at developments in disclosure and privilege since our February update, as well as some developments relating to costs and funding. This episode is hosted by Anna Pertoldi https://www.herbertsmithfreehills.com/our-people/anna-pertoldi, a partner in our litigation team, who is joined by Maura McIntosh https://www.herbertsmithfreehills.com/our-people/maura-mcintosh, a professional support consultant, and Ajay Malhotra, a senior associate https://www.herbertsmithfreehills.com/our-people/ajay-malhotra.You can find links to our blog posts on the cases covered in this podcast below:•High Court finds privilege not waived in expert report referred to in context of security for costs application https://hsfnotes.com/litigation/2020/05/20/high-court-finds-privilege-not-waived-in-expert-report-referred-to-in-context-of-security-for-costs-application/•High Court takes expansive view of when reference to legal advice may result in broader waiver https://hsfnotes.com/litigation/2020/06/12/high-court-takes-expansive-view-of-when-reference-to-legal-advice-may-result-in-broader-waiver/•Court of Appeal finds regulator cannot demand production of client’s privileged documents unless statute overrides privilege https://hsfnotes.com/litigation/2020/02/18/court-of-appeal-finds-regulator-cannot-demand-production-of-clients-privileged-documents-unless-statute-overrides-privilege/•High Court holds auditor must form its own view on client’s claim to privilege when responding to its regulator’s notice to produce documents https://hsfnotes.com/litigation/2020/06/15/high-court-holds-auditor-must-form-its-own-view-on-clients-claim-to-privilege-when-responding-to-its-regulators-notice-to-produce-documents/•High Court finds evidence of without prejudice discussions should be admitted to establish real risk of dissipation of assets in support of freezing injunction https://hsfnotes.com/litigation/2020/05/22/high-court-finds-evidence-of-without-prejudice-discussions-should-be-admitted-to-establish-real-risk-of-dissipation-of-assets-in-support-of-freezing-injunction/•High Court finds “without prejudice” statements contained in mediation paper were admissible to defend against allegation of fraud https://hsfnotes.com/litigation/2020/06/08/high-court-finds-without-prejudice-statements-contained-in-mediation-paper-were-admissible-to-defend-against-allegation-of-fraud/•High Court finds “control” for the purposes of disclosure includes third party documents that the litigating party can access under a standing consent short of an enforceable right https://hsfnotes.com/litigation/2020/03/11/high-court-finds-control-for-the-purposes-of-disclosure-includes-third-party-documents-that-the-litigating-party-can-access-under-a-standing-consent-short-of-an-enforceable-right/•Court of Appeal confirms funders’ adverse costs liability not limited to amount of funding provided: Arkin “cap” not a binding rule https://hsfnotes.com/litigation/2020/02/25/court-of-appeal-confirms-funders-adverse-costs-liability-not-limited-to-amount-of-funding-provided-arkin-cap-not-a-binding-rule/•High Court orders security for costs against member of Association of Litigation Funders https://hsfnotes.com/litigation/2020/03/03/high-court-orders-security-for-costs-against-member-of-association-of-litigation-funders/•Two recent cases illustrate that belief in a strong case does not justify refusing to engage with ADR https://hsfnotes.com/adr/2020/05/05/two-recent-cases-illustrate-that-belief-in-a-strong-case-does-not-justify-refusing-to-engage-with-adr/•The High Court disallows a substantial proportion of a successful defendant’s costs on the basis of an unreasonable refusal to mediate https://hsfnotes.com/adr/2020/05/19/the-high-court-disallows-a-substantial-proportion-of-a-successful-defendants-costs-on-the-basis-of-an-unreasonable-refusal-to-mediate/