Since the landmark 20th century cases of Conway v Rimmer and Wiley, courts have been the final arbiters of the public interest when a party asserts that relevant documents should be withheld on the basis of public interest immunity. In its recent decision in Thompson, the Supreme Court revisited both the structure of the public interest balancing exercise and the standard of appellate review. The Supreme Court held that appellate and reviewing courts must determine the balance for themselves, rather than confining review to ordinary public law principles. At the same time, it held that a first instance court conducting the initial balancing exercise may depart from a Secretary of States' assessment of national security risk only if that assessment is irrational in the public law sense. This note argues that, notwithstanding its formal reaffirmation of judicial primacy in determining the public interest, the judgment significantly recalibrates the Wiley framework in favour of the executive. By combining a merits-based appellate standard with a highly deferential approach to ministerial assessments of the national security risk, the Supreme Court narrows the practical scope for independent judicial balancing. The approach, it is contended, is a departure from the law to date.
International commercial arbitration ('ICA)' is often described as the preferred means of resolving cross-border disputes. In an effort to maintain its preferred status, and thereby best serve the needs of ICAs' merchant end-users, States regularly review and revise their arbitration laws. Amongst several ongoing reform initiatives, Singapore is considering introducing an award appeal regime into its International Arbitration Act 1994 (Singapore, 2020 rev ed.): whereby, on an opt-in basis, parties would be able to appeal against awards to Singapores' courts on questions of law. This reform was recommended by the Singapore International Dispute Resolution Academy ('SIDRA)'. This article argues that Singapore should not provide for such award appeals, for five reasons: award appeal systems are theoretically unsound; they remain exceptional internationally; SIDRAs' proposal does not align with Singapores' own ICA context and its particular positioning as a preferred ICA seat; appellate arbitration (involving second-tier tribunals) is already available in Singapore; and there is minimal demand for ICA merits review. If Singapore does accept SIDRAs' proposal, this article further argues that it should not adopt SIDRAs' award appeal model on a wholesale basis. Instead, that model should be limited in two key respects: award appeals should be available for questions of Singapore law but not foreign law; and there should be no legislative clarification that review waivers in institutional rules do not prevent award appeals where parties otherwise opt-in.
In April 2021, the Business and Property Courts implemented major steps to reform witness preparation practice in civil proceedings. Practice Direction 57AC authoritatively recognised the capacity of the interview process to corrupt the memory of witnesses and undermine accurate fact-finding in civil proceedings, and took a number of positive steps to address this. In January/February 2025, the author interviewed 35 judges, solicitors and counsel to assess how successful the practice direction has been in changing witness preparation practice. The results suggest that, while the practice direction has achieved positive change, the witness preparation process continues to be prone to taint witness memory and undermine the achievement of justice in civil proceedings. This article reports on these findings and calls for PD 57AC to be extended to provide greater transparency into the witness preparation process.
In Evans v Barclays Bank Plc and Others [2025] UKSC 48, the Supreme Court, in a unanimous decision, clarified the factors to be taken into account when the Competition Appeal Tribunal determines whether to certify collective proceedings on an opt-in basis or an opt-out basis under s.47B of the Competition Act 1998 and r.79(3) of the Competition Appeal Tribunal Rules 2015. In particular the Court clarifies the strength of the claim factor, the practicability of bringing opt-in proceedings factor, the ability of the claimants to vindicate their rights in competition law, and the deterrence effect of permitting opt-out claims. The Court emphasised balancing the risk of providing undue leverage to the claimants to force the defendants to settle, even where the claim is unmeritorious, with providing adequate access to justice to the claimants. The Courts' approach to the determination is restrictive, especially in the context of "follow-on" claims, exacerbated by the Courts' approach to the admissibility of similar Commission decisions and the value of the content of Commission object decisions giving rise to the claim in articulating the follow-on claim. This case note reviews the Courts' guidance on the CATs' discretion to take account of these factors and criticises the "balance" upon which the Court settled.
This note critically examines the recommendations of the CJCs' Review into Litigation Funding following the publication of its Final Report in June 2025. It welcomes the long overdue recommendation to reverse the UK Supreme Courts' decision in PACCAR as well as the recommendation to finally fix the Damages Based Agreements Regulations 2013 . Both recommendations will go a long way to restoring certainty in litigation funding arrangements, thereby increasing the range of funding options available to ordinary individuals who cannot afford the extremely high costs of litigation upfront. However the proposed regulatory framework outlined in the CJCs'Final Report requires much further policy work and consultation, whilst some of the recommendations should be rejected altogether as a severe threat to access to justice and discriminatory against those least able to access the justice system.
The absence of a generic opt-out class action regime under English law has created a significant access to justice gap, preventing many individuals from seeking redress for mass harm. At present, opt-out class actions exist only in the context of competition law. This means that, even if an alleged harm best aligns with another area of law, a litigant must repackage their claim as a breach of competition law to access the benefits of the class action framework. Drawing on the Gutmann Boundary Fares case, this article argues that repackaging reinforces the case for expanding class actions beyond competition law.
Since the Court of Chancery first acknowledged the legitimacy of charitable trusts, the question of proper enforcement mechanisms has remained unresolved. Extensive scholarly work has explored the roles of settlors, designated enforcers, the Attorney-General, and public regulators in overseeing the enforcement of charitable trusts. However, there is a paucity of analysis concerning the role of charitable trust objects in this process. These objects include potential objects, who are intended to benefit from the trust, and past objects, who have already benefited in line with the trusts' purpose. The public law nature of charitable trusts justifies the application of a liberal standing rule. Allowing charitable trust objects to initiate legal action in certain circumstances is consistent with this liberal approach. Against this backdrop, this article examines the enforcement of charitable trusts from the perspective of charitable trust objects. It analyses case law and legislation across all Australian jurisdictions, highlighting the inconsistencies and debates within each jurisdictions'current legal framework. Furthermore, the article adopts a comparative law approach, drawing insights from the experiences of English and American charitable trusts.
The "Shareholder Rule"-that a company cannot invoke legal professional privilege to resist disclosure in litigation against its shareholders-has been a long-standing principle of English law. In Jardine Strategic Ltd v Oasis Investments II Master Fund and 80 Others (No.2) , an appeal from the Court of Appeal for Bermuda, however, the Privy Council held that the Shareholder Rule forms no part of the law of Bermuda and should not continue to be recognized in England and Wales. This case note analyses the Privy Councils' decision, with an eye to jurisdictions that have not yet ruled on the Shareholder Rules' validity, arguing that a modified case-by-case Shareholder Rule, rather than the elimination of the Rule altogether, best realizes the policies underpinning legal professional privilege in the corporate context. The note concludes by considering the broader implications of the Privy Councils' decision on the Shareholder Rule for the doctrine of joint interest privilege.
The African Continental Free Trade Area Agreement (AfCFTA) was signed in March 2018 to boost intra-African trade and will transform economic integration in Africa by creating the largest free trade area in the world measured by the number of countries participating. In 2023, one of the most important protocols under AfCFTA, the Investment Protocol was adopted without a dispute resolution mechanism. Central to the success or otherwise of AfCFTA is the existence of an effective dispute resolution mechanism to resolve disputes arising under the Investment Protocol. Indeed, any dispute resolution mechanism adopted must be efficient, effective and pragmatic. This article examines four practical options that could be adopted and argues that a reformed form of ISDS should be adopted given it is the most efficient, effective and pragmatic option in the short to medium term.
When, in the course of disclosure, one party disputes the appropriateness of redactions applied by another, considerable difficulties almost inevitably arise. Neither of the two traditional solutions-requiring the redacting party to re-review the relevant documents, or having the court itself inspect the disputed documents-are free from problems. Recently, there has been some movement towards the adoption of a novel solution proposed by Charles Hollander KC. The so-called "Hollander order" involves the documents being reviewed, in the first instance, by the disputing partys' solicitors rather than by the court. In this article, I argue that the supposed advantages of the Hollander order, in terms of saving time and cost, are easily overstated. Moreover, the scale of the risk of putting the disputing partys' solicitors in a conflicted position has not been fully appreciated. In addition, I also argue that it is difficult to determine a clear jurisdictional basis for the making of these orders. On the whole, Hollander orders are more likely to generate expensive satellite litigation than they are to streamline the disclosure process.
In line with international developments, both the judiciary and the legislature in Ireland have strongly supported the use of mediation in civil matters and have taken steps to encourage litigants to engage in mediation as a means of resolving their dispute(s). In the context of medical negligence claims, mediation has been recognised as particularly suitable given its potential to ameliorate the costs and duration of these cases, as well as its capacity to address the emotional components which are frequently present in these cases where harm and/or loss has occurred. Although mediation has been an option available to disputants in Ireland for some time, the Mediation Act 2017 introduced a formal framework for the integration of mediation in the civil justice system in 2018. However, little is known about the operation of mediation in these disputes in practice. Against this backdrop, this research examines the use of mediation in the resolution of medical negligence disputes, through an exploration of attitudes to the process, drawing on the findings of a qualitative study (interviews with barristers). Though focused on Ireland, the findings underscore important considerations for policymakers internationally, including the impact of legal culture on dispute resolution processes, and the necessity for a more considered mediation model in medical negligence disputes.
This article considers the contribution of intervenors, in adjudication of anti-discrimination law cases in the United Kingdom (UK), to the social function of civil justice and, by extension, the success of the reflexive regulation movement. It will be argued that the Equality and Human Rights Commission (EHRC) is uniquely equipped to contribute positively as an intervenor to the creation of (and publicity surrounding) a critical mass of cases for sustained and positive change. Drawing on the findings of a desk-based study of Supreme Court and House of Lords cases decided under the Equality Act 2010 and predecessor legislation and in which the EHRC intervened, it will be contended that whilst there is some evidence of the EHRCs' contribution to cases being influential, there is a concerning lack of transparency around its effectiveness as an intervenor. Not only is this problematic from the perspective of open justice, but it also inhibits the extent to which the EHRC (and other intervenors) can use their powers of publicity to advance the public interest in the enforcement of anti-discrimination law. More visibility on the activity of third-party intervenors is needed to ensure the public interest benefit of interventions is realised to its full potential.
In Prismall v Google UK Ltd, the Court of Appeal unanimously determined to strike out a proposed representative action for misuse of private information. In so doing, the Court of Appeal remarked that representative actions of this kind are "always going to be very difficult to bring". Prismall demonstrates that, in the wake of the landmark Supreme Court decision in Lloyd v Google LLC, there are limited options for prospective claimants seeking collective redress in privacy cases. Parts I and II of this note explain the background to the litigation and summarise the reasoning of the High Court and Court of Appeal. Part III argues that the status quo places undue pressure on case management judges and jeopardises justice outcomes. It contends that the introduction of a statutory class action regime, at least for data and privacy cases, is vital. Finally, it considers how best to "come atjustice" ifstatutorychange does not occur, exploring potential avenues for prospective claimants in the current legal landscape.
This note highlights some of the ways legal professional privilege appears to have been abused and/or had a negative impact on corporate decision making by the Post office when dealing with complaints or litigation about its now infamous Horizon IT software. That software was used to bring criminal prosecutions and civil claims against sub-post masters accused of accounting fraud based on alleged discrepancies in their accounts. As it has now emerged in most cases the cause of discrepancy was the Horizon IT software which had critical faults in it. Much of the misuse and abuse of LPP has emerged during the official Horizon IT Inquiry. Against the background of this abuse, the editorial rehearse the rationales for legal professional privilege generally; explore how those rationales weaken in practice especially in the case of corporations; and sets out limited ways in which legal professional privilege can be reformed to better align the purpose of legal professional privilege with its practice. It recommends retention the controversial narrow client test for corporate legal advice privilege; strengthening the procedures for claiming and challenging legal professional privilege and qualifying corporate privilege so that a court may overrule legal professional privilege where it would be in the interests of justice.
This article presents an overview of the state of the transposition of Directive 2020/1828 on representative actions for the protection of collective interests of consumers, offering a comparative analysis of the sources of implementing texts and their subjective and material scope. It also examines procedural trends among Member States regarding the entities authorised to bring representative actions, rules about the initiation and conduct of proceedings and third-party funding. The study questions whether the Directive and its national transpositions, as they stand, will bring meaningful developments in the collective redress landscape, given the concerns that led to its adoption. The analysis reveals a reluctance to exceed the Directives' minimum harmonisation framework. While Member States converge on mandatory provisions of the Directive, strategic divergencies persist in areas where discretion is left to them including, notably, minimum participation for admissibility of the action, the adhesion regime (opt-in or opt-out) and litigation funding. Key procedural gaps in the Member States and soft law provisions of the Directive may hinder the economic viability of the collective mechanism, emphasising the need for more robust rules to achieve the Directives' intended goals. So far, the delayed implementation has led to minimal changes across Europe. With a few exceptions, most of the countries where collective redress was previously inactive remain underdeveloped whereas those already active reinforce their roles as hubs. Ultimately, the author calls for a European jurisdictional body to address the complexities of cross-border infringements, ensuring global justice in the face of widespread violations.
For over 135 years, it has been a principle of English law that a company cannot invoke legal profession privilege to resist disclosure in litigation against its own shareholders the "Shareholder Rule"). However, in Aabar Holdings S.a.r.l v Glencore Plc & Ors, Picken J held that the Shareholder Rule was unjustifiable as a matter of precedent and principle and that it accordingly should no longer be applied. If he was wrong, he held that the Shareholder Rule should apply only on a case-by-case basis. This case note analyses the decision, arguing that Picken J's reasoning fails to follow binding judicial precedent, and that his alternative case-by-case approach sufficiently responds to his principled objections to the Shareholder Rule. Notably, Picken J's objections to the Shareholder Rule, premised upon the formal differences between the company-shareholder and other legal relationships in which joint interest privilege arises, problematically risks undermining other long-held species of joint interest privilege. Rather than formal analysis of the corporate form, we argue that the best justification for the Shareholder Rule lies in the policies underpinning legal profession privilege in the corporate context. We offer suggestions for a revised, case-by-case Shareholder Rule.
In Hirachand v Hirachand, the Supreme Court considered the payment of CFA success fees in claims brought under the Inheritance (Provision for Family and Dependants) Act 1975. The court decided that a CFA success fee is not a debt, the satisfaction of which may constitute a financial need for which the court may make provision in an award under the 1975 Act. Now that this issue has been clarified, this note takes the opportunity to explore the use of cost shifting and conditional fee agreements in 1975 Act cases and civil litigation generally. It draws upon the way in which costs are dealt with by the Family Court in financial remedy proceedings in considering whether there is still a place for cost shifting in 1975 Act cases or whether there is a more effective way to distribute legal costs between the parties.
Australias' six legislative class action regimes contain provisions that are designed to provide clarity in relation to the important and complex issue of the impact of statutes of limitations on class action litigation. The principal purpose of this article is to canvass, in some detail, the significant uncertainty which these provisions have themselves generated and to suggest measures that might rectify this problem and ensure that these provisions balance the interests of group members with the interests of defendants.
This article explores how and why the test for determining the scope of documents to be disclosed as part of the discovery process in Victorian civil litigation has narrowed over the past 20 years. It examines the reforms made by the Parliament of Victoria and the Supreme and County Courts of Victoria to address issues of increasing discovery disputes and costs. The article evaluates the development of the tests for determining the scope of disclosure, starting with the Victorian Law Reform Commissions' Civil Justice Review Report in 2008 and the legislative changes in 2011. It then analyses how these reforms have been applied in court judgments and recent practice notes, highlighting the trend towards minimising traditional discovery in favour of early disclosure of critical documents, and concluding that responsibility for engineering discovery policy in Victoria has shifted from parliament to the courts. Lastly, the paper recommends an empirical study to assess the impact of these changes on discovery and disclosure disputes.
This article discusses the Court of Appeal's decision in Smith v Kirkegaard [2024] EWCA Civ 698, in which the court considered the question of whether a contempt application could be permitted to proceed against a judgment debtor who had failed to pay and taken steps to frustrate enforcement against his assets. It argues that the Court of Appeal was wrong to conclude that a contempt application could not be brought in those circumstances. In reaching this conclusion it was confusing the separate concepts of contempt and of committal and misunderstood the effect of the Debtors Act 1869. This was in part because it failed to consider the new CPR Pt 81 (which governed the application) and erroneously applied the old, repealed rules without properly considering their full context, including the substantive law of contempt. The decision is per incuriam and wrong and should not be followed by future courts considering similar applications.
