Commercial Courts report 2024
Portland’s annual Commercial Court report analyses judgments from the London Commercial Courts to identify notable trends from each year. This year, the report reviewed the 262 judgments handed down by the London Commercial Courts between April 2023 and March 2024.
Complemented by expert opinion, they examine:
- the appeal of London’s Commercial Courts to international litigants – the research found it was another record-breaking year
- Russia’s dramatically decreased presence with the number of Russian litigants using the London Commercial Courts more than halved since last year
- emerging jurisdictions
- other international commercial courts and
- public perceptions of climate-change litigation (very supportive) and the role of artificial intelligence in the legal profession (unfavourable).
Hausfeld Partner, Ned Beale contributed to the report to discuss ‘out-of-court settlements: the public’s response’.
He said: ‘Settlements are very much in the public eye, from the furore over the compensation that sub-postmasters received compared to their own legal costs and those of the Post Office, to Hugh Grant complaining that CPR Part 36 forced him to accept an “enormous sum” to settle his phone hacking claim.
Litigators know that settlement is fact of life, given inherent litigation risk and how the court rules incentivize settlement. With the polling data showing that 40% of the UK believe a company is guilty if they settle out of court, the public seems to view settlement more pejoratively.
Given the advantages of early settlement to both claimants and defendants, this public perception is unhelpful. If court proceedings receive increased publicity, as the polling data suggests the public would support, it may be worth also publicising why settlements can benefit both sides. Absent first-hand experience, both businesses and individuals tend to underestimate the burden of litigation. That burden includes own party costs and adverse costs risks, length the process may take (especially when appeals are involved) the opportunity cost and – often forgotten – the psychological impact. Efficiencies in the litigation process can mitigate some of those factors, but ultimately settlement is the most effective way of avoiding them.
We have seen a judicial trend of using costs to promote ADR and settlement – observed in last year’s Court of Appeal’s judgment Churchill v Merthyr Tydfil County Borough Council – which is not without its dangers. Deploying costs punitively will inevitably put more pressure on the weaker resourced party. Also, whilst most Commercial Court claims are monetary, litigation can deal with fundamental matters that go beyond the financial, involving fundamental questions of accountability. Hence Mr Grant’s disquiet at his successful financial settlement.
Of course, settlements can be accompanied by admissions of liability and offers of compensation. However, another trend has been the problems observed in redress schemes established after admissions, including the Horizon scheme operated by the Post Office and the schemes implemented by Lloyds Bank to deal with the HBoS Reading Fraud. Victims are finding that perpetrators devising their own schemes to deliver compensation – in some cases operated by the same lawyers who defended the original claims – can mean that outcomes do not favour victims.
With significant numbers of mass consumer claims now underway before the Courts, it will be interesting to see how both claimants and defendants will navigate the settlement discussions which are likely to ensue.’
