Exam

Question 1

When do the common law rule apply?

Answer 1

• Cases involving defamation claims falling within the scope of s.13 of the 1995 Act; and
• Any tort committed before Part III of the 1995 Act came into force (1 May 1996).

Question 2

What are the Common Law Rules?

Answer 2

General rule: double actionability. There must be actionability under both the forum hearing the dispute and the law of the place where the tort occurred.

Question 3

What are the cases for common law rules in regulation ii

Answer 3

i. Phillips v Eyre
ii. Boys v Chaplin
iii. Red Sea Insurance Co Ltd v Bouygues SA

Question 4

What are the exceptions to the double actionabikity

Answer 4

i. Phillips v Eyre – The General Rule

Established double actionability rule. The claimant must satisfy a two-limb to succeed with an action in tort in England.

1. The claimant must show that the tort is actionable under the law of the forum; and
2. The claimant must also show that the tort is “not justifiable” (i.e. it gives rise to some form of civil liability) under the law of the place of the tort

ii. Boys v Chaplin – Exception to the second limb

C+D were both normally resident in England. They were both temporarily stationed in Malta. They were involved in a road traffic accident. By the law of Malta, the claimant could recover damages for loss of earnings and expenses incurred as a result of the accident. Under English law, C could recover damages for los of earnings and expenses incurred AND damages for pain and suffering.

Boys v Chaplin established that the second limb could be departed from if there were “clear and satisfactory grounds” for doing so.

iii. Red Sea Insurance Co Ltd v Bouygues SA - Exception to the first limb

Privy Council held that a case (or any particular issue within the case) may be governed by the law of the country which has the most significant relationship with the occurrence and the parties.
Red Sea Insurance Co Ltd v Bouygues SA confirmed that, if there were “clear and satisfactory grounds” for doing so. They will take into account all considerations.

Question 5

1. What are the advantages / disadvantages of commencing proceedings in different jurisdictions?

Answer 5

Remember acronym: DRILL CCC

 Disclosure Obligations (i.e. England has extensive disclosure obligations)
 Remedies available
 Interim orders such as security for costs or injunctions
 Location of documents or witnesses
 Length of proceedings

 Cost of commencing proceedings (i.e. court fees, lawyer fees – in England costs of litigation can stretch into hundreds of thousands of pounds and it has high court issue fees.
 Counterclaim ability
 Conditional fee arrangements availability

If client asks for advice relating to which country is better to commence proceeding:

INSTRUCT A QUALIFIED LAWYER IN THE OTHER JURISDICTION.

*Keep in mind the PCR rules.

Question 6

What are the advantages of commencing a claim in England

Answer 6

Benefits of England:

• English judgements have a worldwide reputation for quality
• Under English law, discussions with lawyer are subject to confidentiality by legal privilege
• English disclosure obligations try to achieve a balance between ensuring key evidence is disclosed while avoiding disproportionate cost
• They offer speedy interim inunction and there is a wide availability of interim injunction available
• English judgements can be enforced in many key international jurisdictions
• Conditional fee arrangements are available in England, but there are limits on them and what can be recovered from opponents.

Question 7

2. Draft a simple choice of law and/or jurisdiction clause.

Answer 7

Clause [ ] Governing law and jurisdiction
1.This Agreement (and any contractual or non-contractual obligations arising from or in connection with it)shall in all respects be governed by and interpreted in accordance with the laws of England and Wales.

2.The Parties irrevocably agree that the Courts of England and Wales are to have exclusive jurisdiction over any dispute or claim (a) arising from or in connection with this Agreement or (b) relating to any non-contractual obligations arising from or in connection with this Agreement.

Question 8

3. What are anti-suit injunctions? When might it be appropriate to apply for one?

Answer 8

An order preventing a party from commencing or continuing foreign proceedings.

These are useful where a claimant commences (or threatens to commence) proceedings in a foreign court.

In Turner v Grovit, the European Court of Justice confirmed that anti-suit injunctions are contrary to Regulation 1215/2012 and cannot be granted in Regulation cases thereby affecting the availability of such inunctions.

Therefore, anti-suit injunctions to prevent cases proceeding before EU Member States’ courts are not available in Regulation cases

Question 9

Case relating to anti-suit injunctions

Answer 9

They are contrary to regulation

The ECJ judgment in Turner v Grovit holds that the English court shouldtrust the foreign European court to do this, there is no need for an anti-suit injunction to prevent such proceedings, and it is impermissible to grant one. So anti-suit injunctions to prevent cases proceeding before EU Member States’ courts are not available in Regulation cases

Question 10

5. What are the disadvantages to anti-suit injunctions? Are there alternatives?

Answer 10

There are very large costs involved in obtaining anti-suit injunctions.

Alternative: Consider disputing the foreign court’s jurisdiction and applying for a stay of the foreign proceeding. This should be done instead of or before applying for an anti-suit injunction

Question 11

6. How will foreign law be proven in English court proceedings?

Answer 11

Once it has been decided that a foreign country’s law will apply to a tortious dispute, the law will be proved as a matter of fact.
The evidence can only be presented by witnesses who have a certain degree of expertise in the foreign law per s. 4 Civil Evidence Act. Note that s.4 states that the expert does not need to be a legal practitioner, he can, for example, be an academic.

Question 12

What if the experts do not agree on the way that the foreign code/law would be interpreted or implied?

Answer 12

The judge must decide the issue as well as he can based on the conflicting testimony. He must, however, base his decision on the expert witness evidence alone – he can’t investigate the matter for himself.

Question 13

What is hot-tubbing / concurrent evidence?

Answer 13

Pursuant to CPR 35 PD 11 (35 pd 11.4), the court can direct the parties’ separate experts to give ‘concurrent evidence’.

The experts will both give evidence from the witness box together at the same time.
This enables the court to contrast the experts’ views and allow the experts to respond directly to questions/points raised by the other expert. This therefore saves time and costs, thereby assisting the overriding objective.

Question 14

What CPR deals with hot tubbing

Answer 14

CPR 35 PD 11

Question 15

Where are the court’ powers with regards to expert evidence found?

Answer 15

CPR 35 (CPR 35.1 and 35.4)

These are used to:

• ensure that the parties only adduce evidence which is reasonably required for the resolution of the claim
• Control the costs incurred by the parties
• Ensure that parties are not expert shopping

Question 16

How will the experts explain to the judge what the foreign law is

Answer 16

Foreign law is a question of fact, but it is a factual issue “of a peculiar kind” Parkasho v. Singh.

On this basis, expert evidence is adduced to the court relating to the foreign law. The judge must bear in mind the purpose for which the evidence of foreign law is being adduced: “This is to predict the likely decision of a foreign court, not to press upon the English judge the [expert] witness’s personal views as to what the foreign law might be” MCC Proceeds Inc v Bishopsgate Investment Trust plc.

If the experts do not agree on the way in which a foreign law would be interpreted, the judge must decide the issue as well as he can, based on the conflicting testimony. The judge must, however, base his decision on the evidence taken from the expert witnesses. The text of the foreign law (i.e. the underlying code or statute, as put in evidence by the parties and/or the experts) may of course be considered by the judge

The judge is not required to agree with the experts and accept the evidence presented to him.

Question 17

When is the proof of foreign law an issue?

Answer 17

When an English court is deciding a case which is subject to a foreign law. On this basis, an English court could be required to decide a case pursuant to (for example) French law, Japanese law or the lawof New York

Question 18

How is the foreign law adduced?

Answer 18

The starting point is that there is a (rebuttable) presumption that the foreign law is the same as English law.

It is accordingly for the parties to adduce evidence rebutting this presumption. In theory a judge can appoint a single joint expert (pursuant to CPR 35.7) although this is done rarely when issues

Question 19

Case relating to negligence for experts

Answer 19

Jones v Kaney

Question 20

What if your client wants to obtain a report from a different expert that was NAMED in the court’s directions?

Answer 20

The client will be in a tactically weak position. It will be obvious to the other party (and the court) that the report by the expert named in the court’s directions is adverse to your client’s case. Therefore, there might be difficulties in obtaining the court’s permission to adduce a second expert’s report

While the court can permit a party to adduce evidence by a different expert, it will only usually do so in exceptional circumstance. Further, it is likely to impose conditions such as:

• Waiving privilege over the original (adverse) report and allow inspection of it per Vasiliou v Hajigeorgiou
• Meet any costs incurred as a result of the change