Issues in commercial litigation

9 May 2019 | 14:00 - 17:00 | 180 minutes


39 Essex Chambers, Brick Court Chambers, Clifford Chance, CMS Cameron McKenna Nabarro Olswang, Fountain Court Chambers, Mishcon de Reya, RPC, Simmons & Simmons

What this session will cover

This session will examine how the Courts and legal profession in England & Wales have responded to demands to modernise and improve the approach taken to the production and deployment of evidence during the litigation process.

A keynote speech from Sir Rupert Jackson will be followed by three panels, comprising justices of the High Court, US trial advocates, Queens Counsel, clients and lawyers from the UK and Ireland. The sessions will provide a lively and we anticipate controversial debate on what ‘perfect’ procedures might include in relation to disclosure, witness evidence and the deployment of evidence at trial.

Panel 1—Disclosure in England & Wales—a model to follow?

With the explosion of data and the challenges that presents for all civil justice systems that place an emphasis on documentary evidence, what is the right approach to be taken to disclosure?

Is justice dependent on the parties leaving no stone unturned, irrespective of cost or should disclosure be limited to just those documents on which a party relies?

In the first of three discussions on the theme of ‘evidence’, this panel will review:

  • The pros and cons of the Disclosure Pilot Scheme, operating in the Business and Property Courts of England and Wales.
  • How the Disclosure Working Group, comprising clients, the judiciary and profession, sought to align the many conflicting views on and different approaches to disclosure in the reforms that were ultimately approved.
  • What has Ireland’s experience been of operating an arbitration style/request-based system of disclosure, and how does that sit with the use of technology?
  • And finally, the panel will include observations from a US perspective.

Moderator: Ed Crosse (Partner, Simmons & Simmons, Immediate Past President of the London Solicitors Litigation Association). Panel: The Hon. Mr Justice Robin Knowles, CBE (Commercial Court, London), Parham Kouchikali (Partner, RPC, London), Clare Lynch (Senior Solicitor, Litigation, Vodafone Group, London), Glenn Hendrix (Partner, Arnall Golden Gregory, Atlanta, USA.  Former Chair of the ABA Section of International Law) and Paula Fearon (Head of Project Services, McCann FitzGerald).

Panel 2—Witness Evidence—the next cab on the reform rank? Do we need to change and, if so, what?

  • Is the current model for witness statements doing litigants and the courts a disservice? Do we get the evidence the court wants or needs to do justice?
  • The science of recollection: how should witness evidence best be presented to assist the court? How do we best get to the truth and what role does live testimony have to play? Is the only reliable evidence contained in contemporaneous documents?
  • Judge-led reform: the views from the Commercial Court Working Group—what are the options for reform
  • The views of the end user—what do clients want to see? Are new rules or more proactive case management the solution? Does procedural reform actually increase rather than reduce cost in practice? What is the most effective way of getting to the truth, in the witness’ own words?

Moderator: Julian Acratopulo (Partner, Clifford Chance). Panel: The Hon. Mr Justice Andrew Baker, Paul Darling QC (39 Essex Street Chambers, London), Bridget Murphy (Senior Litigation Counsel, GE Capital) and Guy Pendell (Head of Disputes, CMS Cameron McKenna Nabarro Olswang),

Panel 3—Deployment of evidence at trial

  • ‘Every truth has two sides; it is as well to look at both, before we commit ourselves to either’ Aesop
  • Preparation of witnesses—a perspective from the US and the UK. Is it a fine line between assisting witnesses in the way they give evidence and contaminating the contents of their evidence?  Can witnesses be too prepared?
  • Cross-examination—does anyone care anymore? Is cross-examination necessary to get to the truth or an expensive and complicating factor?
  • Role of the court—a balance between active trial management and excessive intervention? How can you tell if a witness is being untruthful? Do judges do enough to castigate untruthful witnesses?
  • Use of technology in the trial process—help or hindrance?

Moderator: Nicola Bridge (Partner Mishcon de Reya). Panel: The Hon, Mrs Justice Sara Cockerill (Commercial Court, London), Harry Matovu QC (Brick Court Chambers, London), Leigh-Ann Mulcahy QC (Fountain Court Chambers, London), Mark Hyland (Partner, Seward & Kissell, New York) and Philippa Hill (Partner, Grant Thornton).

Registration and catering: Registration and networking will commence at 13:30 pm, in time for a prompt 14:00 pm start to the session. A short drinks reception will take place after the session.

This event is being held at:

Simmons & Simmons


One Ropemaker Street,

Getting There

We recommend using Transport for London (TFL) for the most up-to-date information on how to get to Simmons & Simmons.