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As all elements of business activity face increasing scrutiny as to their environmental impact, so is litigation. That impact is often heightened with Commercial Court litigation which often involves multiple jurisdictions, expert evidence on foreign law along with significant disclosure and witness evidence phases.
Acting for the Claimant, Punjab National Bank (International) Limited (the Bank), and in what we understand to be the first examples of their type, TLT has secured directions orders in two related Commercial Court claims which include a specific set of directions on sustainable conduct. These directions orders could provoke further thought and discussion around conducting litigation in a more environmentally sustainable way.
The proceedings relate to a suite of outstanding loan and overdraft facilities provided by the Bank to Mauritian and German entities, which were guaranteed by (among others) individuals and entities based in India. The Bank successfully opposed challenges by various of the Defendants to jurisdiction of the English court in the summer of 2020 and a joint case management conference was held in March 2021. The Directions Orders were sealed in May 2021, with trial currently set for late Spring 2023.
Sustainable Conduct provisions can be included alongside more traditional directions to trial that are set at a typical case management hearing (CMC). At the time of the CMC, a significant element of the work needed to prepare a matter for trial remains to be done, including arguably the more emissions-intensive exercises of disclosure, witness evidence and trial. There is therefore still great scope for reducing the environmental impact of the proceedings.
In the present sets of proceedings, the sustainable conduct provisions confirm the parties agreement to have regard to the environmental impact of the proceedings and take all reasonable steps to reduce them. The orders go on to list more specific directions such as:
Service of documents and correspondence between the parties will be via email
Legal representatives will endeavour to work from electronic documents and encourage witnesses and experts to do the same
The parties will consider (in consultation with the Court) whether any particular hearing can be heard remotely
The parties will consider whether witness and expert evidence can be heard remotely at trial
The parties will seek to minimise travel related to the proceedings
Those specific provisions are tailored to address the particular areas in civil proceedings which present the biggest opportunity to reduce their environmental impact, for example where experts and witnesses are based in other jurisdictions.
We hope these sustainable conduct provisions can have a positive environmental impact on several levels.
First, in the present sets of proceedings, the provisions are a set of guidelines and directions for the parties to manage the claims to trial in a way that minimises their further environmental impact. Of course, it remains to be seen as to the efficacy of the directions (there is no explicit sanction set out in the event of a breach), it is largely dependent on the parties’ and the Court’s cooperation in this regard. That said, the parties have confirmed their agreement to manage the proceedings having regard to their environmental impact and recent indications from the Judiciary that environmental sustainability should be increasingly taken into account when considering the Overriding Objective of the CPR (for example, see our last article on Brooke Homes (Bicester) Limited V Portfolio Property Partners Limited And Others) perhaps gives the Court a good basis to use its powers to help achieve that shared aim.
Second, we hope that the directions can act as a novel example of how to build sustainability into litigation in the Commercial Court (and wider) and set a precedent for similar directions in other sets of proceedings going forward.
Lastly, we hope that these directions orders provoke further thought and discussion around conducting litigation in a more environmentally sustainable way. There is (rightly) much conversation about how to encourage firms to reduce their environmental impact and longer term ambition to improve sustainability credentials. These directions supplement that wider approach with immediate and direct action in proceedings which are already going through the Commercial Court. They will, it is hoped, act as a catalyst for wider efforts in developing even more effective methods of building sustainability into the litigation world, from, for example, agreements as to data storage requirements in disclosure exercises, standard form precedents including sustainable conduct provisions or even changes to the Civil Procedure Rules and relevant Court guides.
TLT is an active member of the Greener Litigation Project, a group of legal professionals seeking to improve the environmental performance of litigation and promote positive change. Alongside that, our firm has an ambitious sustainability strategy, including achieving carbon neutrality by 2025.
If you would like to know more, please contact Jack Hargreaves, Senior Associate, (firstname.lastname@example.org) in TLT’s Financial Services, Disputes and Investigations team.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.
23 June 2022