Countersignature Cruise Itinerary Made Easy

Countersignature cruise itinerary

good morning well good afternoon actually we are now good to see you both um so welcome to law 2020 online civil litigation shape the debate with me emma dion from the solicitors group helen swaffield and martin langston you both both well you're welcome very well great let's get going in this live session delegates can put questions to helen and martin and interact as the information is being delivered today's live q a is new to last an hour and we'll cover your pre-submitted questions and live questions to the right hand side there's a chat function all questions are submitted in private so please do ask away and if you're watching a replay the live chat function is disabled but you may contact the solicitors group for further information a recording of today's live session will be sent out by email within four to eight hours so please keep an eye out for that so i'm going to introduce our speakers today so that is helen swaffield barrister and head of contract law chambers helen has been the barrister for over 20 years and has worked in london and internationally before starting contract law chambers at chancery lane currently she's involved in large multi-party cases involving hundreds of claimants in the high court she's given seminars on contract and commercial subjects and litigation and as part of law 2020 online helen's submissions included part 36 and costs interim applications top 10 20 20 cases and procedures and damages and other remedies and martin martin langston is a specialist business and property practitioner with experience in complex and high value claims he's developed a busy and varied litigation practice routinely appearing at the business and property court throughout england and wales martin acts for individuals businesses lenders insurers and local authorities at interlocutory applications injunctions trials appeal and adr so to kick off we'll start addressing some of the pre-submitted questions we've been receiving from you so the first question i think we were going to throw open to martin there seem to have been lots of cpr amendments coming out lately what do they cover you're absolutely right there have been lots of uh cpr sort of updates and amendments over the last few months and i suppose notably some of the the most significant ones have been to do with possession proceeding so we've had the new practice direction 51 zed which has stayed all the possession proceedings and this was back in march and then that was extended in june and it was extended again in august but actually just as of last week master of the roles has confirmed that the that stay as of the 20th of september is now lifted so there's a document which if you're practicing and dealing with possession matters uh is well worth the read it's the overall arrangements for possession proceedings in england and wales and it sets out the priority of what will be dealt with um kind of most urgently and and how to get stuff rolling again and most of the cases that will be dealt with most urgently will be things like anti-social behavior um extreme rent areas although extreme renter is only covering things that are over 12 months or if you are a landlord with more than 25 of your income coming from rental and uh nine months which is still an ex you know very long period of time uh illegal occupation uh from squatters uh fraud deception unlawful subletting and abandonment and some local authority stuff so there is a relatively small list of stuff that will be given priority to begin with um but alongside that there's the new practice direction 55c and this is something that anybody that's involved in possession proceedings will need to read it's not really something that i can do good justice to in sort of two lines but the that there isn't a requirement for reactivation notices for all possession proceedings and without those notices those notices will include things like how how uh coronavirus has impacted on tenants and the uh party's proceedings and but without that the cases just won't get relisted so it's important that people have a look at that there's also the it's not really a cpr amendment but there's the uh the new notice requirements uh under the coronavirus act so you'll be aware that uh as of the coronavirus act uh 2020 uh section 8 and section 21 notices were were initially made to be uh three months notice and then as of the 29th of august i think it was um date in july in wales there those have actually now been extended it's now a section 21 notice now needs six months notice and section 8 notices are now a sliding a range of uh dates between two weeks and six months depending on the ground um and those those changes will stay in place until march 2021 so that's quite a big change uh one way or another we've got some new um amendments i mean they're not particularly recent in the sense that they're not this year but the the new statement of truth um for for court-facing documents uh is now is now widely in practice um so you know in fact stated in this document i believe that the understandable procedures the standard proceedings for contempt of court may be bought against anyone who makes or causes to be made uh a false statement in a document verified by a statement of truth without an honest belief in this truth that's that's a new form of the statement of truth um which we need to be careful to make sure that on uh you know pleadings and in witness statements is up to date um and one i mean there are a number of other smaller members but probably uh the last two that i'll touch on one is that actually pre-action correspondence has now been bought into the scope of um uh documents which uh can't contempt proceedings can be bought for so the old 3214 which deals with contemptible statements and and really the takeaway from this is just don't mislead don't don't make sure your clients realize that the lay clients realize that you know we can't deliberately mislead people in even it you know be in pre-action correspondence and particularly obviously in witness statement court documents so the old uh 32-14 said proceedings for concept of court may be bought against a person if he makes or causes to be made a full statement in a document verified by a statement of truth without an honest belief it's truth the new one the new 32-14 says proceedings for a contempt of court may be bought against the person who makes or causes to be made a full statement in a document prepared in anticipation of or during proceedings verified by statement truth about nice belief so so the scope of documents which are which are contemptible has uh has been widened that includes pre-action correspondence um the last cpr amendment that i will just touch on briefly is the whole thing of electronic bundling um there are various local protocols have kind of been updated and really the takeaway with this is um only include that which is absolutely essential and he's on a judge hodge qc and manchester recently um was giving some guidance on this in relation to the local uh protocol there and he reminded us that uh the essential can be defined as indispensable or important in the highest degree and and certainly my experience has been recently the the court is really hot on this just to make sure that we are only including that which is absolutely essential um and really to the exclusion and it can be tricky working out what it you know what is absolutely vitally essential but less is more certainly at the moment um the protocols almost all of them include page numbers it's really important that the page numbers at the bottom of the page you know the bundle number matches the electronic page number because that um there have been a number of points where that's been pointed out to be uh in fact i had it recently where on appeal where the judge was very keen to make sure that the the numbering matched because otherwise it could be confusing bookmarks it can be really helpful to bookmark um the very you know sort of tabs it's important that there aren't so many bookmarks that it just becomes confusing so um and keeping them searchable almost all of the protocols uh indicate that the pdf should be searchable so there are obviously depending on where you are it's worth looking at the bundling requirements for whichever particular tribunal court you're in front of but certainly keep it to what it just that which is essential page numbers that match the electronic pages and bookmarks just for uh sort of essential tabs is the so they're they're just a highlight it's not by no means is that everything but they're some of the um the highlights hopefully that helps i'm sure it will there's quite a lot to take in there isn't there but um much shorter question next which is um so when should i use part 36 uh sure shall i shall i take that one uh what is that the name aimed at me there yeah martin yes um hello everybody welcome this afternoon uh when she always [Laughter] should say a bit more um always especially if you're a claimant because you won't get the uh money uh that you could possibly get in terms of costs if you don't in fact i think that given what we talked about in the part 36 seminar which was that it's really clear now if you've equaled or beaten it you get what i like to call the strictly four which is 10 up to 10 of your interest on the judgment up to 10 uh interest in addition to your standard interest indemnity costs and the prescribed percentage which is another 10. so you know to get hold of the strictly for you you really do need to be able to have um a part 36 so you can just whip out of your bag and say here's one i made earlier and if you have a part 36 that you can put out of your bag um then what we have seen this year and this is what the seminar is about on our the online seminar is don't take any rubbish from the court just say i've been on mrs warfield seminar and there are so many cases which say i want the lot i'm not having some and not i'm having 10 10 10. yeah just just go all strictly and you'll remember it if you're the defendant then i would think very carefully about making an offer i know that means that you're putting your hand in the fire for costs but if they accept it late it sort of it's rather like a boomerang you know you sort of throw it out there and then it comes back around and hits them in the face because the claimant thinks haha we're sitting on a defendant's part so he thinks we can always accept the defendant's part 36 and the poor mugs will have to pay our costs but the longer that goes on the more they will have to pay your costs because if the claimant wakes up and smells the coughing goes oh well it's not going so well and then decides to cave in then they'll have to pay your costs now i know it's a close run thing between a calder bank and a part 36 as a defendant i agree but i do like that boomerang effect when suddenly it wallops the claimants in the back of the head when they realize that they owe you more than they are going to recover in damages for their clients so you know again i'd say always i think we will remember the answer with always and strictly that's that's gonna stick in the mind isn't it that one for that so the next question is uh of the pre-submitted ones is how useful is non-financial relief in a damages claim is that one mine actually or yours do you want do you want to take that one helen okay and then you come in uh this is why i think we went out of um yes we jumped sorry it's me again folks um do you know what um and now you're going to don't don't chat and and poll in to see if i get the figures right but if you you know how expensive it is in court fees but i have to say the best value relief i've ever got and we get it a lot because we do contract stuff is non-financial relief which is something like martin might know it he's googling it now it's something like 540 quid if you're in the high court is it it's 320 or 380 if you're in the county court mark martin will know the exact figures but it's a load less than the high court or the county court fees for damages and it's so worth the money because you can get a declaration you can get specific performance you can get an order for relief which is equivalent to an injunction you could get an account i've often got an account um and still got the money you know so it's a legitimate form of of really pushing a remedy to to maximize the bang for your buck so for 500 and something in the high court and 300 and something in the county court non-financial relief is my top tip um you don't have to pay you don't have to pay it if you've just got further another relief because that's just you know what i can think about at the time when i stand up and ask but if you've got something in mind like declare what the contract means or just do it in the words of nike or this idea of account to me for money you've had that i don't know about that that can that can make a really big difference to the result of a case and you know it's always worth thinking actually is this is it damages or do i need something else as well martin did we get those fees it is it's 528 in the high court and it's only 308 pounds in the county court so and for that obviously that as you say that covers all sorts of things like um you know an account a declaration um specific performance potentially all sorts of other useful and exciting remedies that that fall out of it or as opposed to what can be five percent of uh of a damages claim which is obviously which can stack up considerably up to a thousand so bargain basement bargaining so um okay great thank you both for that and i'm going to leave it to you to uh books yourselves as to who answers the next one which is would you recommend early nearly evaluation and if so in what type of cases i think it's early neutral actually we might have i beg you i think it's very neutral the question should perhaps i think the question meant that um dna martin well i think hmm so sorry just let's have the question again early neutral evaluation or and and if so would you recommend early neutral evaluation and if so in what types of cases i think it can be really really helpful particularly where you've got um two especially intransigent lay clients i think it can really help break the log jam where there are good points to be taken on both sides but nonetheless sometimes sometimes mediation doesn't work so well just simply because lay clients are keen just to feel like they've been heard an early neutral evaluation i think can be really helpful in having a judge sit people down and say well there are good points here and there are good points here and i'd probably go this way and actually at the end of the at the end of the matter as much as anything the lay client can feel heard and i think that's really useful and that can be really helpful and it can bring an end to things where ultimately you've got cases which are narrow they they could be determined on the toss of a coin it could you know it's very fine one way and the other and actually really what what people are looking for is actually the the sense of feeling heard the lay client that is and i i think in those circumstances that can be really really helpful um to sort of break through through the log jam okay great actually we've got a follow-up to to that question which is can you explain the term early neutral evaluation so early neutral evaluation is where the it's a bit like in family proceedings where you have a um fdr um a judge it's effectively like judge-led mediation um so you will sit down it will be without prejudice um the judge that hears the early neutral evaluation will go through a little bit like in a mediation for uh both sides they'll hear submissions from both sides and they won't give a definitive outcome it's not that they will make a judgment but but often the the judge will say well there's these points and there's zero points and i would probably conclude it's slightly stronger on this side than that side and this is probably what i might do the judge will also help um explain to the parties what it is that's actually you know they won't they won't necessarily come up with a conclusion but they'll point out sometimes quite helpfully these are the strengths of your cases and these are the weaknesses of your cases to both sides so it's like a hearing in that sense and and as lawyers we can kind of test run the argument and the client gets to see they client will get to see how it is that that pans out and how that that sounds in reality um but the the judge that hears that the the papers that are on the file don't aren't retained with the court the judge that hears it won't be involved in the case subsequently and actually as i say it can be a really helpful way of moving things forward where simply having a mediator it isn't isn't sufficient um okay so it's a it's yeah it's a bit like a test run and as you say can be useful when for claimants to um get themselves heard and feel like they've had their say or equally defendants where where sometimes an extra measure of an extra dose of reality is needed as to the strength or this of a particular case yeah okay great a member of the judiciary you can have a judge um as anybody really you can have you know anybody can neutrally evaluate so long as the both parties agree obviously and as smart as it's not binding but it's i like it's a jolly good test run it's a jolly good test run great so next question what is the most common problem you're seeing at the moment when you're litigating conduct contractual disputes just like take that one um i think probably for me the most the one of the most common problems i've seen in the last little while is a lack of attention to the formalities and i think the takeaway from this one is pay attention to the formalities um so we had the case a couple of years ago of briggs and gleaves which reminds us that there is no equity to rectify um bad execution and i think so many times recently i have seen this where that just the fund is so easy to get fundamentals wrong so if we if we're thinking about um executing something as a deed have we marked that it is being executed as a deed signed as a deed if it's being witnessed um it's being signed by an individual is it being witnessed if it's being executed by a company have we got a director plus a witness have the formality the basic formalities been complied with and we remember that a witness can't be a party to the deed um is it and this one i come across i've come across very regularly on some really surprisingly large contracts what does is it clear on its face that it's supposed to be a deed um and it it's not it won't be clear on its face that it's a deed simply because it's um inten it won't be clear that it's a deed simply because it's been signed under seal it's it's got to say on its face this this deed you know it's got to use the word deed somewhere on the front page it's got to be clear and again things like um there's a rebuttable presumption of delivery for a company not so for an individual have we completed the the formalities in terms of just basically getting it um executed correctly and so i'd come back to i'd say pay attention to the formalities get the simple stuff done well because i i think that's probably one of the most common problems i i come across i've come across certainly recently with uh with contractual disputes is there anything you'd add to that helen yeah i mean i i think whenever i'm allergic to a few things and one of the things i'm allergic to is terminating a contract and i've acted for people who are have been absolutely incompetent and hopeless and we've still won because the other side have got really fed up with us and they've terminated the contract but the contract was badly drafted and the termination was wrongful they didn't have the right to do that and so we've been able to turn the tables and say just stuck with me i'm doing my incompetent best but you can't get rid of me and what you've tried to do is to get rid of me in a way that you think is is the right way but it isn't and i i do love those zombie movies don't you you know die and they go coming back you know like as if they kind of die and they come back again and and i always think that this problem is you just just don't terminate a contract just don't do it drive the other side to do it but don't do it yourself and one of the big problems at the moment with the covent epidemic is that people believe that they have the right to terminate because of covid and the impact that that's had on all of us when you really look at it they don't and i was chatting to a sister recently he said well they've tried to cancel the contract for covet uh they've tried to terminate it and i said well so but they failed because it doesn't say this in the contract and i said well it's rather worse than that it's not that the contract is still going it's that they have wrongfully terminated i've got somebody who served notice in a way that you shouldn't have served no you've wrongfully terminated and then that that gives you that right to go back against them for damages even though one is the incompetent party one is the the one who's let everybody down but you terminated and you didn't have the right to terminate and that of itself gives that party the the right to to sue them for damages so don't turn back to drive the other side to it but don't terminate stop delivering stop purchasing but don't terminate okay thank you for that um actually this is a another question on early evaluation so we can just go back to that um how do you go about arranging for one and is there a court form oh good question i i the only if i'm honest the only ones i've come across um tend to be it tends to arise at directions hearings i i think there's it's standard on the certainly on some of the bpc um standard directions certainly out of birmingham and in a couple of other places um and so it's included on the standard directions as to do you want a direction for early neutral evaluation um other than that i'm not actually aware of i i unless helen hello might be but i can't think of a form that you would fill in i mean it's wp so you you shouldn't be um i mean the fact it's like it's like mediation isn't it the fact of this is is in open but you shouldn't be showing showing it off as a it's without prejudice so you know it's it's the same sort of alternative dispute resolution privilege as mediation what goes on in vegas stays in vegas yeah so i doubt that there'll be a form i think you've got it it is it is directed by the court though so it early neutral evaluation will be directed as a matter of an order and it's just a question i suppose in safaris you might have a form um it's it can you could apply to the court for a direction but for early neutralization but normally it will arise or at least in my experience it will arise or be queried at direction sort of subsequent to dqs the directions that point i think i would just get a stay um and you could just say for the purposes of adr you know get it all and then either fire your tomlin or or crack back on but um get a consent order and and faff around behind the scenes then okay right going back to what we were talking about in between the early um the neutral evaluation i've got a question on um covid um and it's so do you um agree that force uh force maya martin well i think there's a it's a it's a really interesting question um and i think there's no generic answer i mean ultimately every contract will turn on the terms of the contract but what we are thinking about with covid um are things to do i mean generally the the question of covid raises questions around things like frustration so frustration will occur when we've got um the the contract's been entered into and then there is a completely unforeseen event occurs and that could you know covet could easily be that completely unforeseen event um and it it makes the contract either physically or commercially impossible or illegal um and it transforms it into something that's radically different so that's that's not something that anybody is going to be particularly shocked at that's just the the notion of frustration in contract and the question the sorts of questions that we're then asking ourselves are ones of was the frustrating event unforeseeable is or was the contract impossible to perform has the performance been made illegal is the performance of the contract and again we're radically different and so if you've got a forced measure clause within a contract it can be that actually that triggers it may be that actually the the framing the interpretation of that clause means that actually covid wasn't totally unforeseeable because it depends on the framing of the clause if the if yeah it depends on how that clause is is worded how it's framed um on the other hand if you haven't got a a a well encompassing a very wide force measure clause it can be that actually sometimes it falls through that and it actually just becomes that because the contract is radically different frustration occurs at which point actually the the contract is ended uh it terminates it's it acts totally and acts without um the election of either party so at which point the contract is at an end and then it's question of working out uh where we're going so even if there is a forced major contra clause within a contract it's not always a given that actually it hasn't become frustrated but as as is ever the way these things they're too specific to be able to give a generalized answer really so it is it falls to what is the scope of the the clause and and specifically what is the circumstances is it like for example is it a contract where you've got travel involved is it is there is time of the essence and you're looking for a particular performance at a particular time and actually you've got a lockdown within that and you can't move you know it's yeah so you have to you would have to look at it based on on on the facts and an an interpretation of the contract uh construction of the clause yeah can i just add to that that that probably the answer is yes i think probably the answer is yes because even if you don't have coronavirus epidemic pandemic if you have something called an act of god that is pretty much going to cover it really or you have at the end of the clause any other event beyond the reasonable beyond the control of the parties that's going to cover it so i if i were a gambling one i completely endorse what martin has said you've got to read you've got a rapid town read it carefully but if you're if you're asking the question because it's not clear to you that it does include code then look for act of god or any other cause beyond the control of the party so catch all and put it in there the issue is probably not so much does it i bet it does but how long does it stop the contract for and if you think of the force measure clause as an umbrella then there's going to be a point at which the umbrella the broly comes back down telescopes back in and put it back in the back so if you're at that point now where things are moving again you know we're all working around it this is the new normal maybe you do have it as false measure but we looked at this in one of our seminars the new case from the court of appeal called classic maritime and i love this test i'm ready willing and able to perform but for covid19 and you know look at us here look at look look at the solicitors group you know we're here we're doing it we are ready willing and able to launch the conference despite covet 19 is not going to give you false measure do you see what i mean you've really got to get yourself right under that broly and if you can just do what we're all doing which is keeping calm and we're carrying on then you know it's you probably had it but not anymore you might have had it in boris's big lockdown but not anymore and i do agree with martin if if you're if your client's got a wedding planned and they keep saying oh you can have it next thursday in 2022 or something you know that's canceled that's frustrated that's gone that no nonsense no it hasn't happened when i wanted it when i invited everybody to come this was a time sensitive contract i was going on holiday or to do you know i i live in devon as well as in london we have three piano cruise ships in in the bay and i think what they're doing subliminally is saying look at us we're we're a cruise ship come on a crew because you know subliminally for all these people in devon who are sort of watching the sea there so that when life gets back in into gear again somewhere in their subconscious they'll think oh cruz you know i expect i'll get a bournemouth next um anyway but uh yeah i i think look no nonsense i agree with martin you know it's it's frustration is difficult to use but you know it if you've hit it if the moments passed you know and that the holiday is gone then that contract is frustrating no nonsense that yeah that's an interesting point you might as well at the end about possibly before in in full lockdown but maybe maybe you know things things are changing aren't they so i mean you're an example of that tsg aren't you you know that this is this is the conference despite yes yeah absolutely i'm going to read out the next question i'm not sure that it doesn't make that much sense to me so i'm hoping it makes sense to you i'm going to read it out as it's been put to me so on terminating a contract reasonable behavior by terminating party doesn't enter into it even with covid i'm terminating a contract well like if i if i just go in safari's um reasonable behavior if the contract is frustrated then then it a frustration operates totally and without election so reasonable behavior is is an irrelevance because once it's frustrated it's gone but generally speaking if you've not if it's not frustrated then and i i'm not sure i've maybe fully understood the question but if it's not frustrated then then we we are we are we do need to think about our behavior and whether or not it is reasonable i think okay there was a lovely stinger she did now um she was whitney houston and she had a tune well i won't sing it it's all right one moment in time you can hear it in your hand you know and it was in the it was in that bodyguard anyway one moment in time and i think what what you've got to work out is when you measure the termination that will be one moment in time and the questioner is right anything after that point is too late yeah if they've wrongfully terminated at that one moment in time when they terminate the contract if they've been unreasonable up to that point making that termination wrongful then reasonableness does come into it but i agree once they've terminated you okay i'll give up you've terminated i'm off now i'll pick up my tools and go you can there's no it's over it's done you've had that one moment in time and after that after is too late whitney whit houston properly the the delegate can get back in touch and and reframe it and i'll put it to you both again um so next question when should i use subject to contract and is without prejudice enough um shall i take that one um so i think that the takeaway point here is it's just really important to be crystal clear about what we are expecting to have happen next don't leave it to chance so if it's going to be with a signature and there's going to be a signature on a piece of paper i think it's important that we are clear about that um if it's going to be that there is uh it's a particular action is subject to client approval then we need to be clear about if it's if we're dealing with a company it's subject to a board approval then we should say so and it's that the takeaway here is just be crystal clear about what it is that needs to happen next um and as a side point i suppose i mean i've come across a number of tomlin orders recently and it's important to remember that actually a tomlin order is a is a contractual document you know you're uh compromising a claim based on on a contract uh you're contracting out and the don't leave interpretation to chance you know put put everything in there but in terms of subject to contract i mean there was a a case very recently in manchester where his honor judge pierce was hearing a claim for specific performance and it was it was a claim which um it still it sends a shutter down your spine when you kind of think about it um but i i think the case was uh neoclass and anor and reese and his honor judge pierce as i say was uh dealing with this claim for specific performance and the defense within the claim it was a claim in relation to a contract of land and the defense was there was no signature had been provided so a section two of the law of property miscellaneous provisions act requires that uh there's a uh a signature and a document incorporating his signature or uh contracts where there's a disposition of land and and the the question was whether a solicitor's signature the the signature block with the you know your sincerely kind regards uh name and you know uh was sufficient to to to be a signature for the purpose of um a contract involving the dispositional land and he's honored looking at it he said it looked objectively the presence of the name indicates his clear intention to associate one with self oneself with the email to authenticate it or to sign it and in that case what was actually held was that it was sufficient there was it was sufficient to to to become a contract because the the in that case the formalities have been met and so although it was without uh prejudice and although it was subject to contract it was sufficient to be a contract now in that case the solicitor was saying well no actually we're intending or there to be a signature on a bit of paper and um i think it was a couple of years ago there was the there was a rosalina investments and new balance athletics shoes yeah and there was uh it was uh in relation to one of the man united players and there there'd been a previous contract a 2016 contract there was a new um one which had been signed by one of the parties but it wasn't i think it had only been signed by one side and the it would the the question in in that matter was a question of whether or not um objectively looking through the communications it was clear whether or not the parties had um had formed a concluded contract and again i would just come back to this point of be crystal clear about what it is that you're intending to happen next so in that case it was held that there was no objectively concluded agreement and there were various things that were held as being as being significant factors so there were in in correspondence it was saying you know still needs rosaline the uk signature we had things like in relation to executing the agreement we have uh sending all the originals to the other side of the counter signature um and in that particular case they were also they were talking about amendments and changes not variations now ultimately there was a really significant point that actually um uh fellini had said he wouldn't make any more personal appearances until this agreement had been signed and so it's just really important that we're really clear in our correspondence about what is it that needs to happen next where do we where are we up to because it's it's easy to look back on things and go oh i didn't really mean that but yeah it's just really important to be clear i think i think there's other there are different aren't they without prejudice just puts it behind the curtain and subject to contract stops being a contract really so one doesn't replace the other you need both there's a case this this two weeks ago where um sister got into a mediation with a litigant in person which is very difficult to achieve isn't it and um i was asked to advise as we often are as to whether what they did was a contract or not whether they reached agreement and they had reached agreement but then she'd gone to see a solicitor and changed her mind but we couldn't pin it to her and i think that was probably because you know you do you do have to as martin says you've got to try and sort it all out at the mediation and the mediator said this person's in their in person they don't have a lawyer i must let them get advice well if you're you're not are you you're not there yet you're still you're still working on a subject basis so she went she got advice she didn't like what she'd done she rode back nothing we could do and actually just picking up on mediation we've had a question in um how much uh involvement have you had in online mediations as a result of the current situation the pandemic and any general observations regards pros and cons love it again you know sitting still um fantastic nobody has to move and and actually from from a drafting perspective i like the fact that you know i i did quite a complicated i mean a lot of our stuff is quite complicated and we were there for 18 hours i have to take my back the next day since i've done the garden um but you can get a document going back and forth and back and forth while the media you can copy so you've got the email going you've got whatsapp going with your little group you know because you never know who's listening in and great and and it was a very complicated agreement which i would never have attempted to have done if we were in a hotel room or in a conference center or something but because we were online you know one could draft send it over get the version back draft again send it over and that's all it was was a kind of five or six hour drafting session and the clients got a bit bored but they can go and have a cup of tea can't they you can put a little thing up saying back soon you know gone fatigue right i agree it's worked i think i think things being online has worked really well i mean it's more from a from a practical point of view from my point of view because as someone says you know you can be in one place you yeah i found it actually works really well but um it is important to have the the video you know to have the facility the technical facilities set up and just to be clear with um just knowing when you're when the video cameras on when the when you know who's tight and having a private space within you know that's separate usually to the to the mediation so that you can communicate i mean i suppose that comes down to a little bit of um just just just good kind of home working tips generally really insofar as um i think having the for the certainly for the remote hearings i've done i find it worked really well having a separate system so the lay client or the solicitor can you know pass notes virtually speaking or kind of talk to you while stuff's going on so they feel like they they're still in control of what's what's going on even though there's physical distance in the mix of it but yeah yeah so i think really saying if you've got the tech it's a thumbs up to online definitely keeping it topical next question what do you see the growth areas that are likely to arise as a result of covid i would i would throw my tuppence in and say i think the the whole issue the the whole issue that we were just talking about in terms of the forced major clauses and frustration of contracts i think there's um i think there are there is there is a growing swell i i you know i can't tell you how many inquiries we've had and how many matters have come through which are really i mean ultimately it comes down to a question of construction of contract but really it's arising out of the question of you know covert has has prevented this that the other and looking at does this actually prevent has it actually uh prevented it is it out is it fully outside the scope of what what was agreed so that the whole thing of frustration and covered and i mean i was gonna i was gonna say insolvency but actually if i'm honest i haven't i'm not sure that insolvency actually will come up as i think in due course it will be unfortunately it will be a it will be a feature of of the world as it you know as things evolve but actually i think in the next 12 months or so we'll see a lot more cases coming forward with people litigating whether effectively the expectation of what they were hoping for hasn't come about and there's a question of what's you know what does the contract say about this what right do i have what what what do we need to do next so i think that would be my right hand's worth where where where is the growth well you just decide from from the contract side of things which you know where we come from but just in general litigation terms i i we are seeing um defendants disappearing because they haven't got any money and that choice is easier do i just kind of pull a plug and just disappear into insolvency and that's it we're seeing that and i i always feel that the security for costs application is unfortunately only against the claimant and it ought to be the other way around really but it's a very difficult decision you have to you have to call it with your client i mean i sent somebody away and i said look this is a jobbing building company the minute you issue he will liquidate it you know that it was almost a boast on the other side come on then come on come on i'll just pull the plug and getting people into costly litigation without coverability is is a bad scene really though you know but it's picking your battles isn't it the other thing i think people will do is they will enforce what is owed to them whether it's a will or a you know or a possibility of a will or a some sort of um testamentary uh benef uh benefit or it's debt it's old debt or they'll pick over the bones we're seeing a lot of you know the kind of liquidator legislation litigation where it's nowhere no fear if they can get some money off a director or you know all that sort of thing i think people will will see what they can achieve um but the recoverability issue really concerns me um yeah i agree with that i would agree with that there's there are there are an unfortunate groundswell of too many cases where you you see um it's a reasonable cause of action but you have to sit down and say where where is this going is there going to be any money at the end of it yeah i think as you say it's about picking the battles isn't it otherwise um yeah you're not going to end up with anything at the end of it all um so time for just a couple more questions probably the next one is i heard there are some the disclosures yes we're all suffering aren't we with the disclosure pilot um a good place to look at those changes i have to give it um is the herbert smith's um website they've got a good summary of the commercial court that um we did quite a lot of work on disclosure in one of our sessions uh we're going to get a better definition of known adverse documents we're going to murder clients who don't preserve documents much more successfully and we're also going to um make sure that we've got model c under control so that it's not an ending list goes on and on and on you know like a lifetime questionnaire of can i have your swimming certificates as well please and um finally um the whole e disclosure is going to be simpler so it's going to be the same but less than it was before so that's good news isn't it but it's it's not going away that drd pilot gang it'll go to the county court as well but they haven't told us when okay martin anything to add on that or no i would that's uh hopefully it doesn't come to the county court too soon right well i think that hour well the 55 minutes or two has flown by hasn't it so um unfortunately that's all we've got time for today thank you for attending your auntie online civil litigation the debate thank you to our expert speakers helen swaffield martin langston thank you both thank you great i'm gonna take away which is always part 36 and i love the mention of strictly and whitney in the same hour loving that i think it dates us both doesn't it well you know i'll get onto the spice girls in a bit with tell me what you want what you really really want which is another one which is another good tip for litigators isn't it when dealing with their clients but anyway we must we must stop there so don't forget to join the solicitor group law 2020 online community on linkedin to continue the debate after the live session and to be included in exclusive offers for next time um as i mentioned at the beginning a recording of today's live q a will be sent out within 48 hours by email there's still time to watch the pre-recorded content the expiry date will be displayed next to the webinar and feedback forms for the event will be sent out when the event closes and by completing this you will receive your cpd certificate please don't forget to visit the online exhibition at www dot the solicitors group dot co dot uk and by visiting that exhibition you can access a free one-hour cpd webinar from the 2020 distance learning catalog and we'll stay on for um i think that's it actually i was going to say we will stay on for a couple of minutes but we are up to time and um so thank you again and i hope you all have a great day bye bye all bye