English court ordered disclosure – an “information imbalance” not a reason to order the defendant to provide additional disclosure

The English court decision in Alame & Ors v Shell PLC (formerly known as Royal Dutch Shell PLC) & Anor [2024] EWHC 510 (KB), is relevant to the way that the court will approach disclosure in large scale litigation, including class actions and litigation being pursued under a Group Litigation Order.

The case relates to claims for damages arising from pollution in the Niger delta. The claimants had sought wide ranging disclosure arguing that the defendants had all the information on the pollution, while the claimants had very little.

The judge disagreed. He held that the disclosure requests amounted to a classic fishing expedition and that the touchstone for disclosure is that it should be done against the as-pleaded issues in the case. Moreover, an “information imbalance is not a sufficient reason to order disclosure”.

The key paragraphs are worth quoting in full:

23. As the Defendants accept, that does not mean the case is to halt or that there is not substantial disclosure to be made. There is. But it does require me to consider carefully what is relevant and proportionate now, by reference to the case as it currently is, and not as the Claimants would like it to be, or even as it may be in future. An information imbalance is not a sufficient reason to order disclosure, where relevance has not first been established. The observations of Fraser J in ordering specific disclosure of two documents in the Cavallari case are not to be understood as establishing a free-standing right to disclosure where one side has more information than the other. Relevance to pleaded issues must be the touchstone. Two examples from this case serve to demonstrate the difficulty of taking the general approach advocated by Mr Hermer: first, under Nigerian law there is strict liability for pollution arising from equipment failure. For such events, maintenance records will be irrelevant. Next, if, at the PI trial, I come to the same view as Akenhead J did in the Bodo litigation as to the proper meaning and effect of section 11 of the OPA – that there is liability provided negligence is shown – how is disclosure relevant to negligence in respect of third-party interference to be given where the individual events have not been identified?

24. Some of the documents sought may be relevant and (proportionately) disclosable for other reasons, but not on the sole basis that they might have information which might assist the Claimants in identifying which event(s) have caused an individual’s loss. That would be a classic fishing expedition. I repeat that the Claimants have chosen to bring a case based on multiple polluting events of many differing kinds occurring in a wide area over an extended period of time; it is for them to provide the necessary clarity so as to permit disclosure which is properly tethered to the issues. The Defendants are not to be expected to throw open the doors to their archives or to permit a general trawl through their records. The tail must not be allowed to wag the dog.

English court stays its own proceedings in favour of arbitration

Seven companies have a claim against their former director for breach of fiduciary duties. Three of those companies have an arbitration agreement.

All seven companies bring a claim in the English court against the former director who applies to have the court proceedings stayed in favour of arbitration.

The three claimants with an arbitration agreement concede that they must sue in arbitration, and the question then becomes whether the court claims by the other claimants should be stayed in favour of the arbitration or not.

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Court of Appeal rejects challenge to yacht seizure and sanctions designation

The Court of Appeal in London has today handed down judgment in Dalston Projects Limited & Ors v Secretary of State for Transport [2024] EWCA Civ 172.

The decision relates to two appeals:

      1. a challenge by a non-designated Russian national to the seizure and freezing of his yacht in London; and
      2. a challenge to his designation by Eugene Shivdler, originally from the Soviet Union but now a British national.

Both had been unsuccessful at first instance and both lost on appeal.

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Duane Morris Submits Evidence to the House of Lords Special Public Bill Committee on the Bill to Amend the Arbitration Act 1996

On 6 February 2024, Partner, Mark Handley and Associate, Paul-Raphael Shehadeh of the London office submitted written evidence to the House of Lords on the proposed reforms to the Arbitration Act.

The evidence has now been published and is available (here).

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Major changes to the enforcement of economic crime in the UK pass into law

On 26 October the Economic Crime and Corporate Transparency Act 2023 finished its passage into law. We reported on this legislation while it was still in the bill stage (here).

This Act introduces unprecedented changes to criminal enforcement against corporations in the United Kingdom.

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Bribery begins at Home

Two recent anti-corruption enforcement actions in the U.K. are a reminder of how readily the UK’s anti-corruption laws can apply to people who are not ordinarily based here.

On 10 August, the National Crime Agency arrested the Chief of Staff of the President of Madagascar along with another man who is a French national. The next day they were charged with requesting a bribe contrary to the Bribery Act 2010 and made their first appearance in court on 12 August. They are due to appear again on 8 September. The offences are alleged to have taken place at a meeting in London where the two are alleged to have sought significant cash payments as well as an equity stake in a mining project in Madagascar in return for the award of licences.

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New Legislation will make it easier to prosecute Foreign and Domestic Companies for financial crimes in the UK

Duane Morris is tracking the passage of the Economic Crime and Transparency Bill 2023 through the British Parliament. Amongst other changes, once it is enacted in the coming months it will introduce major changes to corporate criminal liability in the UK, making it much easier for prosecutors to successfully convict corporates of financial crime.

For more detail see our recent client alert: https://www.duanemorris.com/alerts/uk_making_it_easier_prosecute_foreign_domestic_companies_financial_crimes_0823.html 

Avoid Getting Stuck in Employment Tribunal’s Backlog by Resolving Cases Early

With public services seeking to catch up on waiting lists, it seemed timely to provide an update regarding the ongoing backlog of employment tribunal cases.

A statistical data set published on 13 February 2023 by the HM Courts & Tribunals Service reported that there are more than 50,000 live cases awaiting a hearing or decision. This figure is a 7 percent increase from the December 2021 figure of 47,041.

For context, it was reported in 2019 that the number of outstanding employment tribunal cases had reached 23,700, which at the time was the highest level recorded since the abolition of tribunal fees in 2017.

It is clear that the number of cases issued in the employment tribunal continues to increase rapidly and consistently. However, with current wait times of between 12 and 24 months from claims being filed, processed and then heard, it is evident that the tribunals do not have the structural capabilities to support the existing caseload, let alone any further increase to these numbers.

On a positive note, the Employment Lawyers Association’s (ELA) ‘Bringing down the backlog’ report showed that in 2022-23, 74 percent of cases were resolved without the need for a hearing at the Employment Tribunal, either through Acas early conciliation or resolution between the parties. There are also steps organisations can take within their operations to assist in reducing the backlog:

•Increase attempts by the HR department to resolve disputes within the early conciliation window. This can be achieved by working closely with occupational health and trade unions.

• Increase the ‘conflict confidence’ and capability among line managers in dealing with employment issues as they arise. The ELA also stated in their report that this lack of conflict confidence and capability among line managers acts as one of the key barriers to early and successful resolutions.

• Increase line management training to instil confidence in dealing with workplace conflict.

• Update handbooks with clear policies and procedures that are followed and applied correctly and consistently.

If you have any questions or queries on this topic or any other matter, do please get in touch. Our London Employment Law team provides assistance with review of existing policies and procedures or training programmes for line managers and are happy to discuss these at any time.

Jurisdiction in International Arbitration

International arbitration is, by its very nature, multi-jurisdictional. The international element could come from the parties being located in different jurisdictions, or perhaps having elected to refer disputes to a forum connected to a jurisdiction common to one, all or none of them. There are many factors that play into this decision. For example, one party may want ‘home court’ advantage, or be concerned as to the limit of remedies available in the jurisdiction where the underlying work is taking place. Another party may be more familiar with dispute resolution within a specific jurisdiction, or have easier access to resources if a dispute is determined in a certain place. The overlay to this is the governing law agreed between the parties – it is not unusual for an arbitration tribunal in one jurisdiction to determine a claim governed by the laws of another jurisdiction. The governing law and jurisdiction can be entirely unrelated to the location of the subject matter of the contract.

To read the full text of this post by Duane Morris attorney Chris Recker, please visit the Duane Morris International Arbitration Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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