#15718 - Forum Shopping International Aspects Of Litigation - Advanced Commercial Litigation

Advanced Commercial Litigation

Forum Shopping & International Aspects of Litigation

Deciding Where to Commence Proceedings

When advising a client on where to commence proceedings there are a number of things to consider and compare to another jurisdiction:

Drafting a Choice of Law/Jurisdiction Clause

Anti-Suit Injunctions

An anti-suit injunction is an order preventing a party from commencing or continuing foreign proceedings.

The court will consider the personal jurisdiction of the respondent and any unconscionable (i.e. vexatious or oppressive) behavior of the respondent.

The case of Turner v Grovit (an ECJ case) established that these anti-suit injunctions are contrary to Regulation 1215/2012 (the jurisdiction regulation - i.e. all EU Member State cases) and cannot be granted in Regulation cases.

Proving Foreign Law

Presumption & Evidence

When an English court has to decide a case which is subject to a foreign law (e.g. French law, Japanese Law etc.) then there is a rebuttable presumption that the foreign law is the same as English law. It is for the parties to produce evidence to show that it is not.

Expert evidence will be required to advise the judge, these ‘experts’ can be anyone who is ‘suitably qualified’ in relation to their experience or expertise (i.e. can be a professional specialising in the law or an academic) - see s.4 Civil Evidence Act 1972.

The function of the expert is to inform the courts of the relevant elements of the foreign law, to identify the necessary statues, case law and other sources and to advise the judge as to how to deal with the case/evidence.

Conflicting Evidence

If there is a conflict between the expert’s evidence then the judge must decide the issue based on the facts presented to him. They are not entitled to do their own research/investigations (Bumper Development).

‘Hot-Tubbing’

‘Hot-tubbing’ is also known as concurrent evidence and is allowed under 35 PD 11. It is a procedure which allows the parties’ experts to give evidence at the same time; this discussion will involve the experts, legal representatives and the judge.

This allows for direct responses and an in-depth discussion of complex issues between the experts. It can also help save time and costs as it is an informal process and the judge can become as involved as required to understand the experts’ evidence.

Expert Evidence

Negligent Experts

Experts no longer have immunity and can be sued for negligence if the evidence they give falls below the standard required of them. If an expert is sued then the only damages that can be awarded is the costs of the case pursued on the expert’s evidence (because if the expert had given the correct advice the case against the Defendant would not have been pursued).

Additionally, a wasted costs order can be applied for against the expert in relation to the costs incurred in dealing with the incompetent report/evidence.

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