English Civil Procedure Research Articles

The peculiarities of English civil procedure

Each year in Russia, hundreds of thousands of agreements are concluded under the jurisdiction of English law, more precisely the law of England and Wales. Hundreds of transactions are structured in accordance with English law, and thousands of prenuptial agreements are concluded in compliance with English law. What is the reason for such high demand for English law? Is English justice better than Russian – most humane and fair in the world? The aforementioned questions are the subject of this research. The goal is to examine the peculiarities and stages of the English legal procedure, determine its strong sides, as well assess the possibility of their implementation into the Russian procedural realities. The relevance of the selected topic is substantiated by its novelty and insufficient study in the Russian scientific environment (the period from 2008 to the present marks virtually no research dedicated to English legal procedure. Research methodology consists of the theoretical methods, namely the analysis of primary sources of English court rulings, as well as theoretical explorations of a number of English and American authors. The conclusion is made on possibility and desirability of implementation of the experience of English justice into the Russian legal procedure in regard to circumventing the rule of prejudice, abuse of right while filing an appellate complaint, and violations of the arbitration clause by the parties.

Mechanizmy sprzyjające koncentracji materiału procesowego na gruncie angielskiej procedury cywilnej

The paper contains an analysis of solutions conducive to completeness of pleadings and evidence, as adopted in the English civil procedure, and compares them to the mechanisms regulated in the Polish Code of Civil Procedure. The first part is an analysis of the general assumptions of the English civil procedure which emerged under the influence of the Woolf ’s and Jackson’s reforms, oriented towards giving effect to the demand for courts’ greater control over the course of proceedings. In the second part the author moves on to describe the detailed solutions adopted under the English Civil Procedure Rules which help make the proceedings more efficient, while making pleadings and evidence more complete, at various stages of court proceedings. In the last part the author compares the English solutions with those enacted under the Polish Code of Civil Procedure. The paper ends with an indication of the potential direction for amendments of the Polish regulation.

The United Kingdom’s New Opt-Out Class Action

On 1 October 2015, a sea change in English civil procedure occurred, when the UK’s first opt-out class action regime took effect. Its drafting choices occurred against a backdrop of considerable comparative jurisprudence from Australia, Canada and the United States. For example, the regime’s flexible standing provisions avoid difficulties that have arisen in class action regimes in other jurisdictions, by enabling a class action to be brought either by a directly affected class member as representative or by a suitable representative who has no cause of action. On the other hand, the preliminary merits criteria which the class representative will need to prove are far-reaching and more onerous than those implemented elsewhere. In the first certification decision delivered under the regime—a moment of history created on 31 March 2017—the Competition Appeal Tribunal has made it plain that comparative insights will be highly relevant. This article analyses that milestone event, by examining this first decision in light of the drafting choices made under the UK regime, whilst also suggesting further ways in which comparative law may be helpful on key interpretive words and phraseology in cases to come.

English and Indian legal perspective on third-party disclosure in arbitration: it is time to assimilate third party into the family of arbitration

Arbitration is recognized as a trustworthy and reliable way of rendering justice. But, there may be instances in which the cases are not decided on sufficiently required amount of evidence and this will tarnish the reputation of arbitration. This is the case when the evidence required in arbitration proceedings is in the possession of a non-party because in this case, if the party to the arbitration cannot narrate the documents with high specification, the English courts will not only refuse to lend its support for disclosure from the third party, but will also express its inability to fulfil the requests made by arbitral tribunal as well as other courts for such disclosure. The gravity of the situation becomes patent in light of the fact that in most of the cases, the party to arbitration is unable to define the documents in the possession of the third party with required particularity and can only describe them broadly with reference to some transaction or event. It becomes imperative to establish with clarity that the arbitrator has the power under English law to order the third party and to suggest guidelines for it to use while deciding the application for third-party disclosure orders. The situation is not much better in India. Despite the clarity in India's legal regime on the issue of third-party disclosure, the law needs improvements. Arbitration Act 1996 (UK), ss 2, 43 and 44 Indian Arbitration and Conciliation Act (1996) English Civil Procedure Rules (1998) English Evidence (Proceedings in Other Jurisdictions) Act (1975) Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) Bharat Aluminium Co. v Kaiser Aluminium Technical Service , Inc, Supreme Court of India (2005) Tajik Aluminium Plant v Hydro Aluminium AS and Ors , England and Wales Court of Appeal (2005) BNP Paribas & Ors v Deloitte & Touche LLP , High Court of Justice of England and Wales (2003) Bhatia International v Bulk Trading BA , Supreme Court of India (2002)

Austerity’s effect on English Civil Justice

textabstractThis article considers the effect of austerity-induced public spending cuts on the English civil justice system. In doing so it initially examines two fundamental changes engendered by the effect austerity has had on civil court fees and legal aid: first, a challenge to the traditional commitment in English procedure to adversarial process, and a concomitant increase in inquisitorial or investigative processes; and secondly, the growth in use of unqualified individuals to act as advocates in court for individual litigants who are unable to afford legal representation. It then turns to consider what, if any, effect austerity has had on simplified processes available in English civil procedure.

Refining the System of “Expert Evidence” in English Civil Procedure

The civil procedure system in England requires the court to give permission for expert evidence to be used by a party. The expert owes an overriding duty to the interests of justice and to the court. This article considers the different forms of expert evidence (including the single, joint expert, who is shared by the parties) and the increasing degree of judicial management of such evidence.

Tradiciones europeas en el procedimiento civil: una introducción

In the introduction of the book ´European Traditions in Civil Procedure´Professor C.H Van Rhee makes an historical analysis of the European civil procedure developments in countries like France, Belgium, Germany, Austria, Switzerland, The Netherlands and England from the XIX Century onward. He specially emphasizes thre ecrucial moments, the introduction of the French 1806 Code of Civil Procedure in 1807, the 1895 Austrian Zivil prozessordnung in 1898 and the 1998 English Civil Procedure Rules in 1999, which changed the perspective on the subject in a decisive manner. This ishow this book rises as a contribution to the studies for an eventual harmonization of civil procedure in Europe, and also as material that helps to understand civil procedure as a system in constant evolution and the way these models have influenced each other across the centuries.

Analyse Comparative / Comparative Perspectives

This article concerns the processes available in English and Welsh civil procedure through which evidence is obtained prior to trial. It provides an account of both the compulsory and voluntary pre-issue processes for exchange of documentary evidence between parties to putative litigation. It then goes on to outline the trans-substantive nature of documentary disclosure post-issue; a process that was subject to structured reform in 1999 and again in 2013 to ensure that the extent of such disclosure is linked to the nature and value of the dispute. Finally, it looks at the process through which witness evidence that would once only have been given at trial is available in the form of written statements exchanged by the parties during the pre-trial phase of litigation. It notes how this differs from the deposition process in US litigation, while setting out how a form of deposition process plays a limited role in securing witness evidence for trial.

Adjudication on Patent Validity and Prevention of Repeat Allegation of Invalidity: Suggestions from the UK to Japan

For adjudicating patent validity, UK patent law treats litigation as the primary route so that the court can essentially adjudicate the issues of infringement and revocation in the same proceedings. When the court makes a decision to dismiss an application for revocation of the patent and to adjudicate the patent to be valid, estoppel arises based on the theories of finality of judgments under English civil procedure law, and the attempt to contest the validity of the patent a second time in the subsequent litigation shall be precluded. On the other hand, under Japanese law, the court may examine grounds for invalidity alleged as a defence in an infringement lawsuit (Patent Act of Japan [JPA], art. 104-3); nevertheless the court does not have the authority to invalidate the patent. Only an invalidation trial conducted by the patent office can formally invalidate the patent, and it has historically been the primary route for patent invalidation. Where the patent office dismisses a request for an invalidation trial and upholds the validity of the patent, a repeat request shall be prohibited if it is based on the ‘same facts and evidence’ (JPA, art. 167). As long as the expression ‘same facts and evidence’ is narrowly construed to keep the balance with res judicata, a repetition of a dispute over patent validity should be restricted by means of the theory based on the good faith principle for precluding the subsequent litigation, which shares its background concept and function with the principles of estoppel under English civil procedure law.

The Controversial Application of Collective Consumer Redress Judicial Procedures in the UK Context: Terminological and Conceptual Inconsistencies, Overlaps and Ambiguities

The aim of this paper is to illustrate the controversial application of judicial procedures for collective consumer redress with reference to the English Civil Procedure Rules (CPR-Part 19 II-III: Rule 19.6- Representative Parties; Rule 19.10, 19.11, 19.12 Group Litigation) as well as to the UK primary legislation. An analysis based on the language of the official documents taken into consideration will reveal terminological and conceptual inconsistencies, overlaps and ambiguities which do not contribute to establish a clear distinction between different procedures and ensure the application of these procedures in order to provide consumers with clear, adequate means of judicial redress.

Class Actions: Are We Moving Towards an Opt–out Regime?

Summary There appears to be a growing momentum toward the introduction of an “opt–out” regime for pursuing litigation on behalf of a number of parties who share similar grievances: so–called “class actions”. A Research Paper by Professor Rachael Mulheron,which was commissioned by the Civil Justice Council (CJC) and published on 8 February 2008, has concluded that: (a) there is a need for reform of collective redress mechanisms in English civil procedure; and (b) this need should be filled by the introduction of an “opt–out” regime, whereby an action can be pursued on behalf of a class of unnamed, or even unidentified, claimants who are deemed included in the action unless they have specifically opted out. The Paper has however consciously avoided consideration of either: (i) the actual design of such a regime; and (ii) importantly, how litigation conducted pursuant to such a regime should be funded and how costs should be dealt with, including to what extent the current costs shifting rules should be retained. The CJC commissioned the Paper as part of its investigation into whether initiatives should be proposed to improve collective redress mechanisms. The CJC is expected to make recommendations to the Ministry of Justice on this matter during 2008.

Justice Enhanced: Framing an Opt‐Out Class Action for England

This article contends that the absence of an opt‐out class action remains a yawning gap within English civil procedure. Various recent reform proposals have favoured opt‐in procedural vehicles as the way forward. However, key features of these proposals – an opt‐in approach and the use of a representative claimant – are subject to considerable reservations in jurisprudence from both England and elsewhere. Following a critique of these features, the article proposes that an ‘opt‐out regime with brakes’ should be introduced, taking into account both the requirement for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the established Commonwealth statutory class actions regimes.

New Carrots and Sticks: Proposals for Reform of CPR Part 36

Part 36 of the Civil Procedure Rules is an important component of English civil procedure's costs apportioning mechanism and its primary means of encouraging early settlement. Two changes to make Part 36 more attractive to defendants have been proposed. Firstly, public and insured defendants would be exempted from the requirement of payment into court. Secondly, the costs protection given to a claimant that betters its Part 36 offer at trial – indemnity costs assessment and enhanced interest – would apply to defendants' offers. It is argued that the payment into court requirement should be abolished. Claimants do not reject settlement offers over doubts as to the defendant's solvency as this risk remains throughout the litigation. The requirement only deters defendants from using Part 36. Awarding indemnity costs under Part 36 creates perverse incentives. Where bettering a Part 36 offer weakens costs scrutiny there is an additional incentive to expend disproportionate resources in achieving a better result.

ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN DUTCH, ENGLISH AND GERMAN CIVIL PROCEDURE

Introduction. 1. Obligations and Structure of the Directive 2. Structure of Directive 2004/48 EC. 3. The implementation of Directive 2004/48 into Dutch Civil Procedure. 4. Implementation of Directive 2004/48 EC in English Civil Procedure. 5. Implementation of Directive 2004/48 EC in German Civil Procedure. 6. Conclusion. Bibliography. Selected Websites.

Civil litigation in twentieth century Europe

AbstractThe present article adresses one of the many topics on which Raoul van Caenegem has focused during his long career: the history of civil procedure. It concentrates on the twentieth century and offers a comparative perspective. The year 1898, in which the influential Austrian Zivilprozessordnung (öZPO) of the 1st of August 1895 took effect, forms the starting point of the article. This Code inaugurated a new era in civil procedure since it introduced a judge with extensive case management powers. The final part of the article discusses the English Civil Procedure Rules, which came into force in 1999. In 1999, even the English judge, who until that time had acted as a mere 'umpire', acquired extensive case management powers. Case management by the judge is now a common European phenomenon.

Quality and Economy in Civil Procedure

That time is a dimension of justice is widely accepted and reflected in the legal aphorism 'justice delayed is justice denied'. One of the most prominent devices of English civil procedure for ensuring that justice is not denied by delay is the interlocutory injunction. The philosophy behind this procedure is that in cases of urgency the court may issue an interlocutory injunction which is intended, not to determine the parties' rights, but to preserve stability while the parties follow the full procedural course. Further, it holds that any harm that may be caused to rights following a decision to grant or withhold interlocutory relief will be put right in final judgment. Central to this philosophy is the notion that the court could take urgent and timely measures to ensure that its ability to do justice is not undermined by delay and, at the same time, could maintain the normal procedural safeguards considered essential for obtaining correct judgments. Thus the philosophy of the interlocutory process presupposes that the measures taken to promote timely resolutions need not compromise the prospect of giving the party who is in the right his due. This philosophy will be shown to be flawed. The need for timely decisions cannot always be satisfied without some sacrifice in the quality of the procedure and a consequent diminution in the level of accuracy. It shall be argued that the present interlocutory strategy conceals the real costs in terms of procedural

Orality and Inmediacy in English Civil Procedure

Orality and Inmediacy in English Civil Procedure

An American Lawyer in the Queen's Courts: Impressions of English Civil Procedure

An American Lawyer in the Queen's Courts: Impressions of English Civil Procedure

Service and Evidence Abroad (Under English Civil Procedure)

Service and Evidence Abroad (Under English Civil Procedure)

Studies in English Civil Procedure. III. The County Courts

Studies in English Civil Procedure. III. The County Courts