Litigation in the UK

LITIGATION IN THE UK8 MAY 2014, SEOUL

Helen Tung Barrister, One Temple Avenue ChambersAdapted from London & New York 2013/2014 seminars

A. WHAT ARE BARRISTERS

Specialist advocates Advisory lawyers Represent Clients- Higher Courts- Arbitration- Alternative Dispute Resolution (mediation,

conciliation)- Sole practice/ share chambers- Self-employed consultants

A. WHAT ARE BARRISTERS

Training Specialist Profession: 3000 applicants – 450approx

pupillage Low overheads Integrity ‘Cab Rank’ rule Flexibility

A. WHAT ARE BARRISTERS

Solicitors = c 150,000- Non contentious work- Alternative Business Structure- Continous client relationship

Barristers = c 15,000 Traditionally referral Direct Access Sole practice

B. BARRISTERS & FOREIGN CLIENT

Barristers can advise overseas clients directly Can be instructed to appear in international, foreign

courts, tribunals and arbitrations When? Dispute governed by English law Strategic advice: on dispute, success, evidentiary

requirements

How? Phone call/email/ contact Work sharing Flexibility

3. UK LEGAL SYSTEM

1. UK of Great Britain and Northern Ireland (UK)

2. 4 Sources of UK law Legislation- Common law- European Union Law- European Convention of Human Rights

3. UK LEGAL SYSTEM

3. Civil law enforced? County Court, 200 locations Less than £25,000 Claims for less than £50,000 that involve personal injury

High Court- Chancery Division: Patents Court→ IP- Companies Court→ company disputes including insolvency

Queens Bench Division (QBD): Commercial Court: e.g. shipping, insurance, banking,

specialised financial issues Technology and Construction Court→ information technology,

engineering and construction disputes Administrative Court→ applications to challenge decisions by

governmental bodies

3. UK LEGAL SYSTEM 4. Criminal law enforced? Crime → police→ investigation→ charged If CPS considers reasonable prospect of success & public

interest →criminal proceedings begin CPS bears the burden of proving beyond reasonable

doubt

Minor offences: e.g. speeding, heard in Magistrates More serious offences, Crown Court 90 centres e.g. rape & murder Jury of 12 people chosen at random usually jury’s decision is unanimous, but Judge may

decide that an 11:1 or 10.2 majority is sufficient sentences include fines, imprisonment and community

punishments

3. UK LEGAL SYSTEM

5. Senior Appellate Courts of the UK Only hear appeals from other courts Court of Appeal Supreme Court

Court of Appeal Encompasses only England and Wales Civil Division→ hears appeals against decision of the High

Court Criminal Division→hears appeals about errors of law in the

Magistrates’ and Crown Courts Some matters may be referred to the European Court of

Justice for a decision Cases heard by 3 Lord Justices of Appeal, each may reach an

individual decision –lengthy speeches Court’s decision may be either unanimity or by a 2:1 majority

3. UK LEGAL SYSTEM

6. Appeals from Court of Appeal Civil appeals from all 4 countries Criminal appeals from England, Wales and Northern

Ireland Permission to appeal to the Supreme Court only if a case

raises a point of general public importance Heard by 5, 7 or 9 of the 12 Justices of the Supreme

Court Each who reaches an individual decision Unanimity or by simple majority

Decisions by Court of Appeal and Supreme Court (and predecessor, Appellate Committee of the House of Lords) → precedents that must be followed in all future cases

3. UK LEGAL SYSTEM 7. Lawyers Barristers v Solicitors Barristers → specialist advocates Right to appear in the higher courts Draft documents Give opinions Direct Access Senior Barristers= QC, all other= juniors 

8. Civil Procedure Rules Overriding objective Dealing with cases proportionate to amount involved,

complexity and financial position of each party

http://www.justis.com/support/images/court-structure.gif

4. PRE-ACTION

Parties are required to reasonable exchange information and documents

Attempt to settle dispute

Sanctions may be imposed against parties who fail to comply with requirements

A number of ‘pre-action protocols’ e.g. construction and professional negligence

5. JURISDICTIONAL ISSUES (INCLUDING CHALLENGES TO JURISDICTION)

1. Part 11 Disputing the Court’s Jurisdiction

Disputes under agreement

2. How to choose jurisdiction? Convenience Preferred judicial system Enforcement Exclusive jurisdiction Non-exclusive jurisdiction Formalities ‘battle of forms’ Art. 23 of Brussels Regulation – requires consensus to

the jurisdiction clause

5. JURISDICTIONAL ISSUES 3. Reform of Brussels Regulation 20 November 2012 European Parliament voted in favour

to ‘recast’ Brussels Regulation 06 December 2012 EU Council approved the text of the

recast Regulation (EU Regulation 1215/2012)

4. Key changes Changes to lis pendens where there is a jurisdiction or

‘choice of court’ clause To rules relating to jurisdiction agreements; New rules to third state; New text on arbitration exclusion; Abolition of exequatur (need to obtain a court order before

enforcing a foreign judgement) and changes on recognition and enforcement of Member State judgements

5. JURISDICTIONAL ISSUES 5. Scope Applies to civil and commercial matters and excludes wills, succession and

matters relating to the liability of states for acts and omissions in the exercise of state authority (Art 1(1))

6. Revision of lis pendens rules ECJ ruled seeking to injunct a party from pursuing proceedings : Gasser GmbH

v MISAT srl (Case C-116/02) [2003] ECR I-14693 and Turner v Grovit (Case C-159/02) [2004] ECR I-3565);

New lis pendens rule (Art 29 to 34) seek to free the chosen court to decide jurisdiction and progress the litigation, regardless of whether or not it is first seised;

Art 31(2) provides that any other chosen court ‘shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement’;

Recital 19 (repeats Recital 14) refers to autonomy of the parties. Recital 22 - enhance the effectiveness of exclusive choice of court agreements and avoiding abusive tactics;

Garvey, Sarah. Reform of the Brussels Regulation: are we nearly there yet? 26 April 2013. http://www.allenovery.com/publications/en-gb/Pages/Reform-of-the-Brussels-Regulation-are-we-nearly-there-yet.aspx

5. JURISDICTIONAL ISSUES 7. Choice Art 25(5) ‘shall be treated as an agreement independent of the

other terms of the contract’; Greater flexibility: removal of ‘at least one’ party domiciled in a

Member State (Art. 23) not extended to cover jurisdiction agreements in favour of third (non-EU) courts;

Recast Regulation -10 January 2015.

8. “Third state” proceedings Recast provides for Member State courts the discretion to stay

proceedings to take into account of proceedings pending in non-EU third state;

Recital 24- an assessment: other factors, issues of recognition, enforcement and proper administration of justice;

Art 34 allow for Member State courts to dismiss proceedings where proceedings in third state ‘are concluded and have resulted in a judgement capable of recognition and, where applicable, of enforcement in that Member State.’ (Art. 34(3).

5. JURISDICTIONAL ISSUES 9. Controversial Arbitration exclusion at Art 1(2)(d); Context of decision of ECJ in Allianz SpA v West Tankers Inc (Case C-

185/07) ECJ held, English court could not issue anti-suit injunction to protect

London arbitration agreement , where proceedings started in Italy, Court found Italian proceedings came within scope of regulation.

New Art 73(2) expressly states that the Regulation shall not affect the application of the New York Convention

10. Dispute jurisdiction Google (August 19, 2013 The Register news) - disputing a lawsuit brought by UK-based apple users whose

users’ online browsing habits were leveraged to serve personalised ads

- Sept 2011 to Feb 2012 Fined $22.5 million over the incident Register reports that ‘Google continues to insist that alleged

privacy breaches in Britain do not apply to the company because its software resides in California.’

6. ENFORCEABILITY

1. CPR Part 74 Application Evidence in support Security for costs Registration orders Applications to set aside registration Appeals Enforcement Recognition

7. EXPERT WITNESSES Part 35 Duty to restrict expert evidence Overriding duty Court’s power to restrict expert evidence Written request to experts Instructions to single joint expert Contents of report Use by one party to expert’s report disclosed by

another Discussion between experts Consequence of failure to disclose expert’s report Expert’s right to ask court for directions Assessors

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35

8. COSTS- JACKSON REFORMS

1. 1 April 2013, Lord Justice Jackson’s reforms: Impact on costs Success fee in ‘no win no fee’ cannot be recovered Costs must be proportionate Allowing Judges greater role to cut down on high costs Previously, ‘no win no fee’- success fee= 100% solicitor’s

costs→fee paid for by Defendant, as of 1April 2013, no longer recoverable from Defendant

2. Possibilities Damages-based agreements (DBAs) Permitted Fees determined as a percentage of damages recovered by

client Personal Injury limited to 25% of damages

9. POPULARITY OF COMMON LAW?

Flexibility Predictability Liberalisation of market – Legal Services Act

2007 English Court 80% at least one foreign party;

50% no domestic parties Rolls Building

Thank you

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