Litigation in the UK Overview of the UK legal system Structure Expert Witnesses Costs

1. LITIGATION IN THE UK
8 MAY 2014, SEOUL
Helen Tung
Barrister, One Temple Avenue Chambers
Adapted from London & New York 2013/2014 seminars

2. 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

3. A. WHAT ARE BARRISTERS
 Training
 Specialist
 Profession: 3000 applicants – 450approx pupillage
 Low overheads
 Integrity
 ‘Cab Rank’ rule
 Flexibility

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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

13. 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

14. 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

15. 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

16. 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

17. 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).

18. 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.’

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

20. 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

21. 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

22. 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

23.  Thank you
 http://helentung.blogspot.co.uk/
 onetempleavenue.co.uk/barristers/helent.html