Global Legal Insights: Litigation & Dispute Resolution: 2024

Over 2,000 years ago, Marcus Tullius Cicero coined the pithy phrase the more laws a society has, the less justice to describe the unintended consequence of excessive regulation and over-prescription of law.  Whether it is to legislate for permitted hours of outdoor activity during a pandemic, the length of bananas for sale within a free market, or the interpretation of arcane rules of parliament, the Roman philosophers words apply more today than ever before, as society tolerates an excess of intrusive rules amidst a bottomless ocean of rules and regulations.  But is the tide turning?

The rapid explosion of lawfare, a modern term used to describe the use of legal systems and institutions to damage and delegitimise an opponent, risks bringing the rule of law into disrepute by eroding the credibility of international legal systems and procedures, and rendering amorphous the otherwise immutable institutions comprising the separation of powers.  Whether it is domestic politics (Gina Miller and Brexit in 20182019) or international geopolitics (the International Court of Justice of the UN; the International Criminal Court), the integrity of and respect for the rule of law is only as good as the conduct of those responsible for the pursuit of it and the respect society holds for the institution authorised to dispense it.  To encourage and indulge the narrative of lawfare achieves little, when so often it appears to offer only the oxygen of publicity for political gain.

There is also a concerning increase in judicial activism.  The unedifying spectacle of former Supreme Court judges signing a letter to advance a political opinion on the Middle East was a nadir of unprecedented depth, only to be met by a response from other former Supreme Court judges to disagree and point out an error in their analysis.  In another example, a serving district judge was rebuked for not disclosing his social media support for a political cause in a trial over which he presided, when he failed to punish the three defendants found guilty of terrorism offences.  Their offences were committed at a protest for the same political cause.  Despite the public rebuke, the judge remains one of only four judicial commissioners of the Judicial Appointment Commission, responsible for appointing new judges.  He said his social media engagement was a mistake.  There is a new government in the UK led by a former human rights lawyer, accompanied by other human rights lawyers in key legal roles.  With their hands finally on the levers of executive power, perhaps the human rights lawyers can slow down the unrelenting enthusiasm for lawfare and judicial activism.  Dont bait the breath.

In other developments, the Supreme Court clarified in Lipton v BA Cityflyer Ltd [2024] UKSC 24 the applicable law for pre-Brexit causes of action, stating that they remain unaffected by the repeal of the European Communities Act due to the presumption against retrospective legislation.  Arbitration lawyers continue to wait patiently for the long-awaited update to the Arbitration Act 1996.  The Arbitration Bill was slated for the legislative process in 2023, but was delayed earlier this year by the General Election, and is now back on the agenda for this parliamentary year.  Other legislative activity is expected in the form of the Litigation Funding Agreements (Enforceability) Bill, introduced on 19 March 2024, which aims to address (and reverse) the decision in the PACCAR Inc and others v Competition Appeal Tribunal [2023] UKSC 28 that held that litigation funding agreements entitling funders to payment based on recovered damages are damages-based agreements, which, unless they meet the statutory requirements, are unenforceable (and the majority did not).  This will be a relief to many in the funding industry who provide access to justice for so many, illustrated perfectly in the Post Office scandal, which rose to mainstream prominence in an ITV drama explaining the scandal and the litigation that followed.

As always, this book is intended as a tool for those who wish to explore the developments across a variety of jurisdictions.  I am grateful to the many contributors to this book for their updates.