Content Listing

Summary

The Court of Appeal in National Ability SA v. Tinna Oils & Chemicals Ltd (‘The Amazon Reefer’) (2009)1 noted that there are two ways in which an English arbitration award can be enforced by an English court. The first is the (historically) Common Law route (now recognised by statute), which involves suing in a court on the arbitration award. The second is a statutory mechanism, involving two steps: (i) an application for the award to be converted into a court judgment and (ii) applying the methods of enforcement applicable to court judgments. The court in that case held that it would be unacceptable for the law of limitation to differ in this respect. And so it held that the six year rule should apply uniformly to both these modes of enforcement (on this aspect 8.105, vol I).

In ‘The Amazon Reefer’ (2009), Thomas LJ explained these two modes of enforcement as follows:

‘Enforcement of an award by action is by an ordinary action brought in the High Court. The procedure is not subject to any statutory provision, but it has long been established at common law as an action founded upon the implied promise to pay the award. It is given statutory recognition in s66(4) of the Arbitration Act 1996 (England and Wales). Enforcement of the award in the same manner as a judgment is a statutory process. Section 66 of the Arbitration Act 1996 provides: “(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. (2) Where leave is so given, judgment may be entered in terms of the award.”’

Also in ‘The Amazon Reefer’ (2009), Thomas LJ said:

‘The procedure for enforcement by action is little used in practice. For many years it has been the practice of parties who seek to use the enforcement mechanism of the court in England and Wales to use the procedure under section 66 of the Arbitration Act 1996 to enforce an award. The procedure is straightforward.

Summary

INTRODUCTION

This notoriously arcane body of law concerns the simple question: ‘how long do I have before, not having issued proceedings in time, I must suffer the fate of “having missed the boat”?’ Baroness Hale described this area of law as ‘complicated and incoherent’ in AB v. Ministry of Defence (2012). The author disagrees in part and would suggest that the topic is ‘complicated but pragmatic’.

It is contrary to public policy for stale actions to be brought concerning remote past events. An aggrieved person's capacity to bring civil proceedings in respect of a wrong or some other matter must be restricted, just as there should be no re-litigation of matters already adjudicated. There must be a time-limit to commencement of civil proceedings, just as there must be a bar upon re-litigation of matters which have already been litigated.

The system of limitation of actions is supported by the following elements of policy. First, it is unfair and uncivilised for potential defendants to be threatened by possible proceedings for too long. They should be allowed to get on with their lives, or commercial or governmental activity. Secondly, stale legal claims tend to bring the system of civil justice into disrepute. A long interval between the relevant events and commencement of proceedings reduces the chance of any court penetrating to the factual core of a dispute. In the meantime witnesses might have died, disappeared or forgotten the relevant events. Unfortunately, there have been instances of English civil cases proceeding where the material facts occurred nearly 30 years before. Of these two arguments for limitation, the first is the stronger. In practice, problems of proof are met by the fact that the claimant will bear the burden of proof substantiating the claim.

BASIC CONCEPTS OF LIMITATION OF ACTIONS

FIXED PERIODS

The English limitation rules govern civil proceedings in the English County Courts and High Court, as well as arbitration proceedings governed by the Arbitration Act 1996. These rules operate by reference to fixed periods, normally a number of years. The prospective claimant must issue civil proceedings, that is, issue a claim form, before the relevant period elapses.

Summary

INTRODUCTION

Not all civil disputes or issues are capable of being subject to arbitration. Section 81(1)(a) of the Arbitration Act 1996 (England and Wales) refers to ‘matters which are not capable of settlement by arbitration’. Section 81(1)(c) of the Arbitration Act 1996 (England and Wales) refers to ‘the refusal or recognition or enforcement of an arbitral award on grounds of public policy’.

It is clear, for example, that it would not be possible to use arbitration to determine matters affecting the welfare of children. But an open mind might be taken to questions of matrimonial finance not affecting children. In this context there is in fact a demand for arbitration in England, because this consensual process would be very likely to be both quicker and cheaper than the court process regulating divorce and financial orders. Furthermore, arbitration would be confidential. The legal impediment is that family court's jurisdiction cannot be ousted. And so an arbitration award would need to be clothed as a consent order, requiring the court to ratify. This issue remains to be worked through.

Another context in which arbitration would be problematic, and probably unavailable, is planning law. Such issues, although arising between individual landowners and planning authorities, are not merely bilateral contests: they have an obvious impact on third parties, and affected persons, sometimes the public at large, are given wide scope to participate or intervene and make objections.

Many of these matters can be expressed as a matter of public policy. But there are also issues which lie beyond the competence of arbitrators because they lack the remedial powers to make determinations which will affect third parties. On this basis it is clear that winding-up petitions (in the sphere of company law) cannot be the subject of arbitration. Only the court has power to make such complex determinations.

Mustill & Boyd (2001), whilst acknowledging the principled and legislative fact that there are certain matters not susceptible to arbitration, suggested attractively that:

‘[T]he policy of English law, as of arbitration law worldwide, is to encourage and support arbitration as a means of settling commercial disputes, and particular international commercial disputes. Doctrinaire disapproval of procedures on the margin of arbitrability is not the way forward. If the parties have chosen any method which they intend to be a form of arbitration they should be allowed, and if possible compelled, to affirm their choice.’

Summary

INTRODUCTION

Judicial hearings (including tribunals of inquiry) should be conducted in open court so that the public can directly witness both the majesty and tedium of the legal process. This is a cardinal principle of English law. It has been recognised by case law, statute, and by the CPR. Lord Dyson in the Supreme Court in Al Rawi v. Security Service (2011) and other members of that court strongly endorsed the present principle:

‘There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times…’

Lord Dyson continued:

‘The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v. Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting “a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security.” Viscount Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question “as one of principle, and as turning, not on convenience, but on necessity”.’

RATIONALE

Justice behind closed doors will soon reek to high heaven. This is the procedure of a despotic legal system, not an open and liberal one. Lord Brown, in the Supreme Court in Al Rawi v. Security Service (2011) quoted Lord Atkin's citation of Milton's Areopagitica: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’

And Jeremy Bentham said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.

Summary

INTRODUCTION

It is a requirement of both European human rights law (directly applicable in English law under the Human Rights Act 1998) and of the Common Law that judicial decisions should be reasoned. Failure to supply adequate reasons is both a breach of human rights law, therefore, and a ground of appeal within the domestic system of civil appeals (15.01 ff). The need for reasons is also acknowledged by the (non-binding) American Law Institute/UNIDROIT Principles: 25.129 ff.

In fact most English final decisions, notably those delivered by the superior courts (the High Court, Court of Appeal, Supreme Court, formerly the House of Lords, and the Judicial Committee of the Privy Council), are closely reasoned. Some categories of decision are exempt from the duty to give reasons (notably case management rulings and most costs orders: 15.47 to 15.48).

The main problem in England is not the paucity, or shallowness or oracular nature, of judicial reasoning, but the overloading of judgments with lengthy citation of quotations from precedent decisions, and massive discussion at first instance of complicated factual issues (29.41 ff). There is still much scope for shortening the reserved judgments delivered by the superior courts. By contrast, most county court judgments are unreserved, delivered orally at the conclusion of a case, and they are oft en short.

It remains controversial whether panels of appellate judges should continue to compose individual concurring judgments (29.50 to 29.52). On balance, composite decisions should be adopted, with sensible word-limits. There has been some movement towards greater use of composite (majority) judgments by multi-judge courts. It is also significant that the former Master of the Rolls, Lord Neuberger (see 29.51), favours a qualified approach: composite majority judgments, with scope for individual supplements. It is possible, therefore, that the English tradition of individual concurring judgment writing in multi-judge courts will end. When this happens, the majority judges must shape the court's decision, and not passively acquiesce in others’ reasoning.

dissenting opinion (whether made by an individual judge or more than one dissentient jointly) is a valuable feature of the English judicial tradition (29.37 to 29.39). It enables the individual judge to express his disagreement in a public and rational form.

Summary

INTRODUCTION

The courts possess extensive ‘case management’ powers. In his reports of 1995–96 Lord Woolf adopted this technique as the mainstay for actions on the ‘multi-track’, thus including all High Court litigation (this track covers more expensive County Court litigation and all High Court actions). The court must now ensure that matters are properly focused, procedural indiscipline checked, expense reduced, and progress maintained or even accelerated.

To prevent each managerial judge ‘re-inventing the wheel’, and to ensure consistency, Sir Rupert Jackson has noted the need for all judges to have access to soft ware systems providing model directions.

In his lecture, ‘Achieving a Culture Change in Case Management’, Jackson noted the criticism that case management, if not applied efficiently, might itself become a drain on the system and increase the overall cost of litigation. He suggested that the legal system must steer a middle course between Scylla and Charybdis: ‘in this context Scylla is officious intermeddling by the courts, which gobbles up costs to no useful purpose’ and ‘Charybdis is laissezfaire litigation, which leaves the parties to swirl around in uncontrolled litigation – with all the problems which Lord Woolf identified in his Reports’ (on the Woolf reports: 1.06 ff). In April 2013, as part of the Jackson reforms, the following changes were made. On the multi-track, parties must now endeavour to agree appropriate directions for the management of cases and they must submit directions seven days before any case management conference. An electronic menu of standard directions for cases allocated to the multi-track is provided via a link on the Civil Procedure Rules website. Parties will also been given confirmation by the court of the day or week in which the trial will begin following the filing of the pre-trial check list, a listing hearing or a pre-trial review.

This form of procedural organisation enjoys international support. The (non-binding) American Law Institute/UNIDROIT Principles recommend that the court should ‘actively manage the proceedings, exercising discretion to achieve disposition of the dispute fairly, efficiently, and with reasonable speed.’

Summary

INTRODUCTION

The sources of English civil procedure are: (i) primary legislation; (ii) statutory instruments (notably the Civil Procedure Rules – ‘CPR (1998)’); (iii) practice directions (or ‘practice statements’ or ‘practice notes’); (iv) pre-action protocols (on which 5.02 ff); (v) judicial decisions; (vi) court guides to practice (the Chancery Guide, Queen's Bench Guide and the Admiralty and Commercial Court Guide) (these guides supply detail, for example, on the topic of ‘skeleton arguments’, 14.11); and (vii) the inherent jurisdiction (for example, 25.21 concerning vexatious litigation). The author examined these in detail in 2003, and, for reasons of space, it is not possible to recite all these details in this new work. It will be enough to draw out some specific points here.

The ‘six phases of English civil proceedings’ are examined in detail in Chapter 4.

PRIMARY LEGISLATION

Some procedural rules are founded upon primary legislation. Examples are: (i) the Divisions of the High Court; (ii) the power to issue injunctions;(iii) the rule that proceedings must normally take place in public; (iv) the rules of limitation of actions; (v) the legislative power to issue procedural rules governing the county courts, High Court, and Court of Appeal; (vi) introduction and refinement of conditional fee agreements; (vii) abolition of the judicial capacity of the House of Lords and introduction of the United Kingdom Supreme Court.

STATUTORY INSTRUMENTS: CPR (1998) AND THE RULE COMMITTEE

The CPR are by far the largest source of procedural rules. Before the CPR (implemented 26 April 1999), there were separate sets of rules: the Rules of the Supreme Court (‘RSC’) dealing with matters in the High Court and Court of Appeal, and the County Courts Rules (‘CCR’) concerning county court litigation. The CPR code, however, has unified the rules applicable to the High Court and to the county courts, as well as the Court of Appeal. The United Kingdom Supreme Court is governed by its own special practice rules. There is also a separate set of rules for family proceedings. The CPR code was drafted by the Rule Committee, which replaced the former separate rules committees responsible for the RSC and CCR.

In two volumes Neil Andrews (University of Cambridge) examines civil processes in England and Wales. One of the leading legal jurisdictions in this area of law as many non-resident parties choose to conduct arbitration in London or bring proceedings before the English High Court, notably the Commercial Court. Written in a clear and well-ordered style, Andrews on Civil Processes therefore discusses the most important styles of civil dispute resolution: court proceedings (volume 1), mediation and arbitration (volume 2).Neil Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, but the two volumes are of course complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references.Volume 1: Court ProceedingsIn England there has been a sustained effort to control court proceedings and render them more efficient. The author explores common legal principles and connections between the court system and the alternative techniques of arbitration and mediation. For example, there is discussion of: the four forms of civil justice (chapter 1: mediation, settlement without mediation, arbitration, and court proceedings); the six phases of court proceedings (chapter 4); the four forms of English multi-party litigation (chapter 22); and the five constellations of procedural principle - advice and access, empowering the parties, conditions for sound decision-making, an efficient process, a fair process, and upholding judgment (chapters 25 to 29).Most recently, reform of costs was examined by Lord Justice Jackson's inquiry in 2009-10. This 2013 publication takes the complex set of reforms and changes introduced in April 2013 into account and provides detailed discussion where relevant (inter alia. qualified one way cost shifting, damages-based agreements, and the changes to conditional fee agreements and the system of settlement offers). A convenient survey of these changes is also set out in the introductory chapter of volume 1.'English civil procedure has undergone significant changes over the past few years. The Jackson reforms were the final piece in the jigsaw in what had already been a significantly changed procedural landscape. Against this background it is of a paramount importance to keep reference works up-to-date in order to give one a clear picture of where we stand. The new book, Andrews on Civil Processes, published in 2013, was designed to fill in the gap between recent developments and scholarly works in the field. This goal was squarely achieved. The book consists of two volumes, the first devoted to court proceedings while the second one deals exclusively with Arbitration and Mediation. It is a one-stop book for all those who want to resolve their disputes in England, be it through courts or ADR. Last but not least, Professor Neil Andrews is a respected authority in the realm of civil procedure and contract law, and his book should be warmly received by all contentious lawyers. 'Dr Roman Khodykin, partner in the law firm Berwin Leighton Paisner LLP (London)

Summary

GENERAL REGIME CONCERNING SECURITY FOR COSTS

Defendants can seek an order for security for costs against claimants. The purpose of such an order is to protect the defendant against the risk that the claimant might not pay the defendant's costs if the claimant eventually becomes liable, or agrees as a term of a settlement, to pay the defendant's costs (as for security for costs in the context of appeals, see discussion in the chapter on appeals at 15.41).

In fact, security for costs is aimed at meeting one of three problems: that the claimant lacks sufficient funds; that he is a shift y litigant manifestly disposed to avoid liability for costs; that the procedural chase against the claimant might be difficult because the foreign jurisdiction where he resides does not provide a dependable or straightforward system for enforcing an English costs order.

The security might take the form of a payment into court, or a banker's guarantee, a charge over property, or some other undertaking.

In Michael Phillips Architects v. Riklin (2010) Akenhead J held that the claimant's legal expenses insurance policy could not be used as security for costs because that policy might be cancelled and the payee was not the opponent but the insured, the claimant.

A claimant who fails to comply with an order for provision of security for costs will find that the action is stayed until security is given, or even that the action is struck out.

There is no general right to security for costs; grant of security for costs order is discretionary: it is never available automatically. CPR 25.13(1) states: The court may make an order for security for costs… if (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.

An impecunious claimant resident in England or in one of the EU Member States or Lugano Convention States cannot be made to provide such security simply on the basis of his inability to pay costs.

Summary

MATTERS OF ARBITRAL PROCEDURE IN GENERAL

Party autonomy extends to procedural matters.

The arbitrator has considerable freedom to organise the proceedings to ensure fairness, efficiency and speediness (Russell supplies a helpful checklist of procedural matters which can be considered in advance). Subject to the parties’ contrary agreement, the arbitrator can fix the nature of the proceedings in a wide range of respects. He can determine: its place and language; use of witness statements; disclosure of documents; examination of parties; whether to apply formal rules of evidence on questions of admissibility, relevance and weight; whether to take ‘the initiative in ascertaining the facts and the law’; use of oral or written evidence as submissions; as well as issuing ‘directions’ concerning matters of timing for all these steps and measures.

The need for arbitrators to avoid the lazy instinct simply ‘to copy the CPR’ (or Commercial Court Guide) is echoed in the 2006 report on the operation of the Arbitration Act 1996. But arbitration agreements seldom prescribe detailed matters of procedure. There is also the sceptical view that rather than seeking customised procedural refinement, the better way to secure speediness and efficiency is simply to appoint the best tribunal or solo arbitrator.

There are three ways in which the procedure might be established: (i) by express agreement, the parties might have chosen a procedure prescribed by a trade association; or (ii) by an arbitration association or institute (in cross-border arbitration this is a common arrangement); (iii) (by default) the arbitrator will himself select the appropriate procedure (on ad hoc and institutional forms of arbitration, 3.69 to 3.70).

As for this last possibility, the architects of the 1996 Act exhorted arbitrators to take the initiative, where appropriate, to suggest or adopt a process to suit the particular case. They should not slavishly mimic the settled procedures of High Court litigation. For the most part, these items of ordinary civil procedure are ‘on the menu’ for the parties to select, or for the arbitrator to suggest or adopt. But for arbitrators to plagiarise wholesale the High Court procedural rules would be excessive, disproportionate, unnecessarily time consuming, and certainly unimaginative. It would also probably defeat the expectations of the parties themselves.

Summary

INTRODUCTION

The preceding chapter concerned the first two stepping stones for the opening stages of the case: issue of the originating process (a document formerly known, within the pre-CPR High Court practice, as a ‘writ’, but now known, both in the County Courts and in the High Court, as a ‘claim form’); and service of the claim form on the defendant.

The present chapter continues the sequence, examining:

Summary

COMMENCEMENT

In the absence of special agreement defining when arbitral proceedings are ‘to be regarded as commenced’, section 14 of the Arbitration Act 1996 (England and Wales) states that (i) when the arbitrator is ‘named or designated in the arbitration agreement’, commencement occurs when a party serves notice in writing requiring the other party to ‘submit that matter to the person so named or designated’; (ii) if the parties are to appoint the arbitrator(s), the date is when one party servers notice in writing requiring the other party to appoint an arbitrator or to agree to one's appointment; (iii) when a ‘person other than a party to the proceedings’ is to appoint the arbitrator(s), the date of commen cement is when a party give notice in writing to that person requesting such an appointment.

TIME ISSUES

‘The Limitation Acts’ apply to arbitral proceedings. The relevant limitation statute might be the (English) Limitation Act 1980 (8.04, vol I), or ‘any other enactment (whenever passed) relating to the limitation of actions’, or it might be the Foreign Limitation Periods Act 1984.

As noted at 8.107, vol I, the court has a power to decide not to apply a foreign limitation period if it will lead to undue hardship.

The general rule of limitation is a six-year period. More precisely, that rule applies when English law is applied to the substance of a dispute which is, or is to be, referred to arbitration in England (the seat being England and the Arbitration Act 1996 (England and Wales) then governing the arbitration). In this situation the general rule is that a contractual claim must be brought within six years from the date when the cause of action accrued. But this is subject to these qualifications: (i) if the claim is based on a deed, the period is twelve years; or (ii) the six year rule might also be affected by one of the special factors specified in section 32 of the Limitation Act 1980 applies; or (iii) (in the case of a debt), the creditor might have acknowledged the debt or made a part payment (provided the action has not already become barred under the limitation rules) and the relevant proceedings are brought within six years (twelve, if the debt arises under a deed) from the date of that acknowledgment or part payment.

Summary

INTRODUCTION

The purpose of this chapter is to note two trends. Neither trend is peculiar to England. First, there has been a sustained attempt to control court proceedings and to render them more efficient. In England the four main manifestations of the struggle to control court litigation and render it more efficient are: (i) an institutional bias against trial (avoidance of trial and promotion of settlement and mediation); (ii) greater use of pre-trial case management by judges; (iii) expanding the ‘no-win, no-fee’ system of remunerating litigation lawyers, and curbing public civil legal aid; and (iv) restrictions on appeals.

But the second trend is that there has been greater resort to non-judicial modes of dispute resolution, notably mediation and arbitration. It is perhaps ironic that despite intense activity aimed at reforming, improving and refining civil proceedings, the demand for alternative sources of civil justice has not abated, but in fact has grown. It does not appear pessimistic, but rather a realistic conclusion rooted in long experience, to declare that modern court systems (sources of ‘public justice’) are unlikely to improve to the point that mediation and arbitration (sources of ‘private justice’) cease to be attractive alternative forms of justice. The pragmatic and positive modern perspective is to accept that the public and private systems are complementary and mutually supportive. It makes sense to speak of a ‘binary system’ of public and private justice. The challenges are to continue to improve all elements of the binary system: enabling the court system to perform better; ensuring that arbitration and mediation are conducted fairly and efficiently; and promoting the harmonious co-existence of – a happy marriage between – the public and private systems.

THE LANDSCAPE OF CIVIL JUSTICE

The Four Forms of Civil Justice: Disputes can be adjudicated by courts, or resolved by arbitration, or settled by mediation, or the parties can spontaneously reach unmediated agreements of settlement. These are the ‘four forms of civil justice’: courts, arbitration, mediation, and (unmediated) settlement.

Mediators, Arbitrators and Judges: Of these ‘four forms’, the first three involve reference to a neutral third party or panel of third parties.

Summary

INTRODUCTION

This chapter concerns the first two stepping-stones for the opening formal stages of the case: (i) issue of the originating process (a document formerly known, within the pre-CPR High Court practice, as a ‘writ’, but now known, both in the County Courts and High Court, as a ‘claim form’); and (ii) service of the claim form on the defendant. As noted at 4.01, the pre-action stage is a precursor to commencement of formal proceedings.

PRE-ACTION PROTOCOLS

ISSUE OF THE CLAIM FORM

Under the CPR the main form of commencement is by issue of a ‘claim form’. The rules preserve the claimant's right to elect to include the particulars of claim in the claim form or whether to serve these later, within 14 days of service of the claim. Accompanying the particulars of claim, the claimant must serve ‘response pack’ forms enabling the defendant to defend the claim or to admit the claim, and to acknowledge service. The claimant's failure to use the correct form when commencing process will not be fatal. In Adams v. Ford (2012) the Court of Appeal held that a claim form was not a nullity even though the claimants’ solicitor's statement of truth was deliberately false because it contained names of claimants who had not in fact authorised the relevant solicitor to issue proceedings on their behalf. In this case a large collection of claimants had been bundled together in a single claim form. Proceedings had been issued in a rush in order to beat the limitation deadline. It would have been better for the claimants’ solicitors to have made clear which clients had authorised proceedings. But it would be disproportionate to strike out the amended claim form, in which the truly authorised set of claimants was now properly listed.

DATE OF COMMENCEMENT OF PROCEEDINGS

The time of commencement of civil proceedings is the date entered by the court on the claim form. For limitation purposes, a claim is ‘brought’ as soon as the claim form is ‘received in the court office’.

PART 8 PROCEDURE

A ‘Part 8 procedure’ replaces the originating summons. This mode of commencement is used where the claimant seeks ‘the court's decision on a question which is unlikely to involve a substantial dispute of fact’.

Summary

INTRODUCTION

All these procedures precede trial. Interim relief exists to supply short term relief, pending the case's final resolution at trial, whereas the aim of summary judgment, striking out and default judgment is to dispose speedily of the entire case. Protective relief (21.01 ff) does not concern the substance of the case but instead preservation of assets or evidence in order to keep open the prospect of achieving eventual full justice.

Interim Relief: An interim judgment can take one of two main forms. If the claimant is seeking an injunction or specific performance at trial, the court can order a pre-trial interim injunction (or an ‘interlocutory injunction’). If the claimant is seeking pecuniary relief at trial, the court can make an interim order for the payment of a debt or a proportion of the damages likely to be awarded at trial.

Accelerated Final Judgment: The two main cases of accelerated final judgment are judgment by default and summary judgment.

Judgment by default takes place when the defendant fails to defend or indicates that it is unwilling to defend.

Summary judgment (under CPR Part 24) is awarded if the claimant or defendant has ‘no real prospect’ of success at trial. And when the court strikes out a party's defence or claim, the result is that this party has effectively lost the case, and so this process is tantamount to ‘final judgment’, even though in some situations a claimant remains free to bring a fresh action concerning the same cause of action. For this reason, striking out procedure is included within this chapter.

INTERIM PAYMENTS

Interim payments were at first confined to protecting claimants in personal injury or fatal accident claims. In 1978 the system of interim payments was expanded to cover all damages or debt claims. An interim payment order enables the claimant to obtain advance payment, oft en well before trial.

The payment will be a ‘reasonable proportion’ of the claim. The court can order an interim payment if the defendant has admitted liability, or judgment on the question of liability has already been obtained, or the court ‘is satisfied’ that, if the case went to trial, the claimant would obtain judgment for a ‘substantial’ monetary award against the defendant, other than costs.

Summary

THE COMMERCIAL COURT: A MAJOR

‘BUSINESS COURT’

This court, which sits in London, is part of the Queen's Bench Division within the High Court. The Commercial Court has its own ‘list’. And it has its own detailed procedural code: The Admiralty and Commercial Courts Guide, a document of surprising richness, amounting to almost a free-standing procedural code for ‘big ticket’ commercial litigation. The Commercial Court deals with the top tier of commercial High Court business. The court's case load consists of familiar commercial transactions, such as charter parties, commodity sales, insurance, and re-insurance. The court also hears appeals from arbitration falling within the scope of the Arbitration Act 1996. There has been substantial investment in the Commercial Court in central London. The new Rolls Building in Fetter Lane in London is a substantial court centre dedicated to High Court litigation, especially in the field of commercial law. It is hoped that improving such facilities will maintain the English legal system's competitiveness in the global market for sophisticated civil dispute resolution. The need to promote English law in the global market-place was the theme of a High Court judge, Sir Geoff rey Vos, in his 2011 KPMG lecture, ‘The Role of UK Judges in the Success of UK PLC’.

Distinct from the Commercial Court is the London Mercantile Court. The latter also deals with business disputes, national and international. But its cases are of lesser financial value and complexity. There are also Mercantile Courts at seven provincial venues. Another court, the Technology and Construction Court, also based in London, has jurisdiction over building construction contracts and transactions concerning information technology. There is also a Patents Court. But here the focus is on the Commercial Court.

Commercial Court judges hear all pre-trial applications, including case management hearings. This contrasts with the general pattern in the Queen's Bench Division where full High Court judges (‘puisne judges’) are generally involved in civil litigation only at trial and Masters hear many pre-trial matters.

The court recognises that there is a global market for commercial litigation. It aims to stay at the ‘cutting edge’ of techniques and to provide a high-quality service to its users.

Intersentia

Refine listing

Refine listing

Actions for selected content:

7719 results in Intersentia

Index to Volumes I and II

Chapter 19 - English Enforcement of English Awards

Summary

Chapter 8 - Limitation of Actions

Summary

Chapter 7 - ‘Arbitrability’: Public Policy Limitations upon the Scope of Arbitration

Summary

Chapter 28 - Publicity and Open Justice

Summary

Chapter 29 - The Duty to Give Reasoned Decisions

Summary

Chapter 9 - Case Management and Procedural Discipline

Summary

Chapter 2 - Sources of English Civil Procedure

Summary

PART I - INTRODUCTION TO THE FORMS OF CIVIL JUSTICE

Andrews on Civil Processes

Chapter 19 - Security for Costs

Summary

Chapter 13 - Pre-Hearing Proceedings

Summary

Chapter 6 - Pleadings and Parties

Summary

Chapter 11 - Commencement of the Submission and Time Issues

Summary

Chapter 3 - The Big Picture’: Interaction of the Court System and Other Forms of Dispute Resolution

Summary

PART II - ARBITRATION

Chapter 5 - Commencement and Service

Summary

Chapter 10 - Pre-Trial Termination of Actions Without Settlement: Interim, Summary, Default, Preliminary and Striking Out Procedures

Summary

PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT

Chapter 24 - The Commercial Court

Summary

Intersentia

Refine listing

Refine listing

Actions for selected content:

Save Search

7719 results in Intersentia

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Andrews on Civil Processes

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary