On the CPR’s Tridentian Fig Leaf and the Commercial Court’s Judicial Veil – Part II

Abstract

In the first section of this two-part article the author expressed the opinion that the domestic (English) judicial system fails to acknowledge the Strasbourg Court’s accepted opinion that, the right ‘ . . . to a fair [ . . ..] hearing . . .’, as per the right of access to Court, should be differentiated as between: (i) ‘physical’; and (ii) ‘remedial’; access to the court. This second section will deal with two cases illustrating the points the author makes regarding access to the court. The first arises from a Spanish domicile (instructing on DPA terms), abattoir hygiene consultant’s claims for: (a) breach of his former English company’s articles of association; and (b) fraudulent misrepresentation, by his then English domiciled business partner. The second arises from a Paraguayan domiciled, international businessman’s claims for breach of a: (c) multi-jurisdictional crossborder credit transfer agreement; and (d) company director’s personal guarantee, secured on two real property mortgages (in Brazil), as well as other UK-based assets.