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1 février 2024
Disputes Quick Read – 15 de 101 Publications
What are the litigation trends for 2024?
Members of our Disputes and Investigations team consider litigation trends for 2024 in the current market.
What is the litigation landscape?
2023 saw a number of significant developments in the disputes landscape including the introduction of mandatory ADR rules, important decisions on litigation funding and judicial guidance on the use of AI by the courts. All of which came against a backdrop of a difficult and at times unstable macro-economic and political climate which remains as we go into 2024. Whilst we have certainly seen a rise in disputes over the past year, the surge of claims predicted in fraud, ESG, climate change, consumer protection, data and environmental litigation has not yet emerged but we predict increased activity in these types of disputes in the coming year as well as a continued focus on AI in a litigation context.
In what areas will we see more dispute activity?
We have focussed on six areas of litigation trends for 2024:
ADR
The year of 2023 brought some important developments regarding the way future disputes will be resolved. Following the publication of the Civil Justice Council's report in 2021 in which it concluded that mandatory ADR is to be encouraged, the Court of Appeal gave judgment in the case of James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA CN1416, ruling that the courts can stay proceedings to order parties in dispute to engage in ADR, including mediation. This is provided that the order made does not impair the very essence of the claimant's right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of setting the dispute fairly, quickly and at reasonable cost. The decision overturns what was thought to be an English law prohibition on courts compelling ADR (see our recent article). This is an important development and we can expect further consultation about changes to the CPR to reflect the impact of this judgment.
AI
This was undoubtedly the hot topic of 2023 and came with much discussion about not only the uncertain legal framework of AI, but also the potential impact of AI on dispute resolution. The cautionary tales and significant limitations with using generative AI remain widely publicised and we can expect to see more instances of AI featuring in the dispute resolution process. Guidance has already been published to judges about their own use of AI positively identifying areas where it could be usefully deployed including summarising large bodies of text, writing presentations and carrying out some administration texts including composing emails. It is not recommended for the purposes of legal research or legal analysis so we are clearly a long way from AI generated judicial legal reasoning (see our article for further details). This is all against a backdrop of legal and regulatory uncertainty particularly with regard to the development, creation and use of AI in the UK as well as any applicable liability regime. The EU remains much further ahead with the texts of both the AI Act and amended Product Liability Directive agreed last year and we can expect to see both significant new laws coming into force as early as 2025.
So what does all this mean for AI and disputes? Currently we have not seen much evidence of harm caused by AI products which would give rise to claims. However, as the use of generative AI increases this will become much more likely. See our article on how the use of AI could increase the incidence of fraud in businesses. The introduction of regulation could also give rise to disputes about the meaning and application of the guidance by regulators. We see this as an area to watch.
Class actions
There are significantly more class actions/group litigation coming through the courts (in addition to those currently going through the collective proceedings regime in the Competition Appeal Tribunal). Three of the Lawyer's Top 20 cases include class actions involving almost 3 million claimants and covering a number of different types of disputes including environmental disasters, product liability, consumer protection and personal injury. In an entirely novel and innovative approach to active case management, Dame Victoria Sharp (President of the King's Bench Division) and three other High Court judges held in December that there should be a common and consolidated approach to case management of various claims which are being pursued against OEMs in the next wave of diesel emission claims. This is so as to simplify the management of the claims in order to reduce costs and delays and to ensure the efficient use of court resources. The group claims are being brought by 1.2 million UK vehicle owners against 16 car global manufacturing groups pursuant to various Group Litigation Orders. This shows how the court is prepared to pro-actively manage claims of this size and re-affirms the reputation of the English courts as a place which can handle disputes of this type, volume and scale.
ESG litigation
There have been some key themes in ESG litigation in 2023. Director's duties and derivative actions are not a new topic for climate litigation specialists but this had been largely untested until ClientEarth's derivative claim against the directors of Shell. Ultimately, ClientEarth did not succeed (subject to a successful application to appeal) but we expect ESG and fiduciary duties of directors to remain a hot topic for 2024. See our most recent article on the decision. We also expect to see more claims for redress from multinational companies for alleged ESG-related harm outside of the corporate group but within the corporate supply chain. This increases the pressure on companies to carry out due diligence on all their suppliers to check their ESG credentials widening the responsibility beyond the immediate corporate group.
Fraud
We are continuing to see a steady increase in civil fraud related claims, arising in a variety of circumstances, with relevant facts often coming to light as a result of strained economic circumstances. There has been an increase in alleged deceit / fraudulent misrepresentation-based claims in a business and investment context, and businesses are being targeted by increasingly sophisticated fraudsters, with authorised push payment fraud continuing to be a key theme. Tech and AI enabled fraud is also increasing, with deep-fake and voice spoofing technology improving at rapid pace and dark-web generative AI programmes giving rise to new challenges in distinguishing genuine and forged documents.
Fraud continues to be high on the legislative agenda, driven by the Government's Fraud Strategy which aims to reduce fraud by 10% on 2019 levels by December 2024. The Economic Crime and Corporate Transparency Act came into force in October 2023 and is a key part of that strategy. It makes significant changes to the UK's economic crime and fraud regime, including a new "failure to prevent fraud" offence for large organisations and a widening of corporate criminal liability for economic crimes committed by senior managers. The focus of these changes is to make it easier for businesses to be prosecuted and held liable for the acts of senior managers within their organisation, and appears to be driven by concerns that bad actors have used opaque corporate structures to avoid liability for fraud offences, and in turn it has been very difficult to prosecute the corporate entities themselves due to the legal test on attribution of liability. See our article for further comments.
Litigation funding
2023 has been a turbulent year for the litigation funding industry. In July, the Supreme Court held in R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28 that, contrary to accepted market practice, litigation funding agreements ("LFAs") providing for a funder to be paid by reference to a proportion of an amount ultimately recovered might be damages-based agreements ("DBAs"). This raised arguments as to whether existing LFAs might be unenforceable because they might not comply with the DBA regulations. As a consequence we have seen claimants seeking to revise existing agreements to ensure compliance. In November 2023, the UK government proposed an amendment to the Digital Markets, Competition and Consumers Bill to allow the use of LFA's providing for a funder to be paid by reference to a proportion of an amount ultimately recovered outside of the DBA regime. This is of limited application (currently only opt-out class actions before the CAT). The Government however indicated its intention to "reverse" PACCAR, and we expect to see further legal activity in 2024 regarding this issue, not least based on how the legislative response develops.
Should you require any further information on the topics and trends set out above, please contact one of our dispute resolution experts.
Dans cette série
Wirral Council v Indivior plc: Court of Appeal upholds strike out of opt-in representative action securities claim
30 January 2025
What are the litigation trends in 2025?
22 January 2025
par plusieurs auteurs
Changes to the privilege rules between companies and shareholders
6 December 2024
Victory for energy companies/defeat for the environment?
14 November 2024
par Tim Strong, Kate Hamblin
Failure to prevent fraud offence to come into force in September 2025
14 November 2024
par Emma Allen
Non-Disclosure Agreements - updated guidance from the SRA
8 November 2024
par Edward Spencer
Essex Cricket Club charged by Cricket Regulator
30 October 2024
par plusieurs auteurs
UK introduces mandatory reimbursement rules to combat APP fraud
15 October 2024
par Emma Allen, Andrew Spencer
Notice of Claim: What constitutes 'reasonable detail'?
5 July 2024
par Stuart Broom, Tom Charnley
New SFO Director announces bold plans to tackle fraud
21 March 2024
par Emma Allen, Amy Cheng
What are the litigation trends for 2024?
1 February 2024
par Katie Chandler, Emma Allen
ClientEarth v FCA: Challenging Regulator Decisions
12 February 2024
par Tim Strong, Nicole Baldev
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
par plusieurs auteurs
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
par plusieurs auteurs
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
par plusieurs auteurs
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
par plusieurs auteurs
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
par James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
par James Bryden
Disputes Quick Read: Breaking the north/south divide?
5 April 2023
par Tom Charnley
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
par Katie Chandler, Emma Allen
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
par Jessie Prynne
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
par Georgina Jones
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
par Gemma Broughall
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
par Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
par Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
par Edward Spencer
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
par Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Disclosure Pilot Scheme – here to stay
21 July 2022
par Edward Spencer
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
par Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
par Stephanie High
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
par Edward Spencer
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
par plusieurs auteurs
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
par Stephanie High
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
par plusieurs auteurs
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
par Edward Spencer
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
par Stephanie High
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
par Jess Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
par David de Ferrars
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
par Stephen O'Grady
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
par Stephanie High
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
par Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
par Stephanie High
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
par Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
par Nick Storrs
Disputes Quick Read: The importance of proper service
26 May 2020
par Edward Spencer
Disputes quick read: Mandatory changes to Statements of Truth
18 May 2020
par Katie Chandler
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
par plusieurs auteurs
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
par plusieurs auteurs
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
par Stephanie High
Disputes Quick Read: A different approach to witness evidence
11 March 2020
par James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
par Stuart Broom
Disputes quick read: climate change activism by litigation
26 February 2020
par Tim Strong, Andrew Howell
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
par Andrew Howell
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
par Georgina Jones
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
par Georgina Jones
Disputes Quick Read: Privilege waiver warning
2 July 2020
par Tim Strong, Georgina Jones
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
par Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
par Katie Chandler
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
par Tim Strong, Jess Thomas
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Climate change litigation update
8 March 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
par Emma Allen, Georgina Jones
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