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LPC Law Notes Advanced Commercial Litigation Notes

Forum Shopping International Aspects Of Litigation Notes

Updated Forum Shopping International Aspects Of Litigation Notes

Advanced Commercial Litigation Notes

Advanced Commercial Litigation

Approximately 25 pages

A collection of the best LPC Advanced Commercial Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Advanced Commercial Litigation notes available in the UK this year. This colle...

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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:

Costs

  • Conditional fee arrangements? Levels of fees charged?

  • Cost to commence proceedings? Costs throughout? Court fees?

  • How are costs recoverable (CPR 44.2)?

  • Promotion of ADR/settlement (CPR 36/44.2(5))

  • Security for costs (CPR 25.12)?

Evidence

  • Burden of proof? Hearsay evidence (CPR 33)?

  • Disclosure (CPR 31)? Standard disclosure and inspection? Pre-Action disclosure (CPR 31.16)

  • Common interest privilege availability?

  • Expert evidence (CPR 35.4)? Privilege for instructions (CPR 35.10(4))

Procedure

  • Pro-active judges (CPR 1, 3.1-3.4)?

  • Ability to join parties to the case (CPR 19-20)?

  • Court’s approach to foreign law (s.4 CEA 1972)?

  • Availability of interim applications?

  • Case management hearings? Length of trial/case?

Remedies/Enforcement

  • Interim injunction for confidentiality issues (CPR 25)?

  • Limitation issues?

  • Rules on quantification, mitigation, causation and remoteness of damages?

  • Judgment in Sterling or Euros? Conversion/exchange rate?

  • Rules on interest (CPR 40)?

  • Time for paying damages (CPR 40.11)?

  • Methods of enforcement (e.g. taking control of goods (CPR 83-86) or third party debt orders (CPR 72).

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...

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