CFL Finance Ltd v Gertner [2021] held that the Consumer Credit Act 1974 can apply to settlement agreements appended to Tomlin Orders and to the deferral of a debt appended to Tomlin Orders included in such settlement.

This is likely to impact those seeking to settle financial claims by way of Tomlin Order or other settlement agreements and may be relevant to those at risk of insolvency.

Due to the success of the Court system's acclimatisation to remote and hybrid hearings in the Pandemic, a degree of online operation is likely to stay. Returning to the court room will still occur when safe to do so but litigants should be aware of the likelihood that some of the litigation process will be remote and this may be at the discretion of the court. For example, the Business and Property Courts have introduced a default position for all hearings under half a day to be online.

Litigants should be aware of whether a hearing will be in the court room or in person and appreciate that this is unlikely to be the same for each hearing.

The Civil Justice Council’s report on compulsory alternative dispute resolution (ADR) has concluded that mandating ADR is legal subject to a number of factors. 

Litigants can be forced to consider ADR in lieu of or prior to litigation. This may include but is not limited to negotiations, mediations or arbitration. 

Fixed recoverable costs (FRCs) set a limit on the amount of legal costs that the winning party can claim back from the losing party in civil litigation. The Government is planning to extent FRCs to different areas of civil litigation following their consultation on the matter.

Litigants should be aware to which areas that FRCs apply. Although it will give certainty in the amount the losing party will be liable to pay, the to the winning litigant may not recover the actual costs of the case. 

The Business and Property Courts have been running a Disclosure Pilot Scheme to make significant changes to the disclosure process which includes a requirement for parties to agree a list of issues for disclosure (the issues for which disclosed documents will relate to) and for parties to disclose in two stages. 

Litigants must be aware of these changes and also be aware of any permanent changes as a result of the Pilot Scheme.

Cases with a European dimension may be impacted by Brexit as the law applicable to the case and the court which has jurisdiction may be affected. However, cases issues before the end of the Brexit Transition Period (31 December 2020) will be unaffected and remain under the EU regime. There is no significant changes as of yet and so currently UK and EU member state courts should continue to uphold UK law in the same way as pre-Brexit. Arbitration is unaffected by this Brexit framework.

In terms of jurisdiction, many of the EU and International Agreements no longer apply to the UK. However, the Government are looking at a range of options to address this issue such as joining the Lugano Convention in its own right.

Businesses should be aware of the impact of Brexit on contractual provisions that specify the law, the UK courts or UK judgements. Parties should take care when entering into contracts with European counterparts and in cross-border disputes. Businesses should be aware of the results of these changes in jurisdiction and any developments that happen in the future.