Term
| Issues to consider when commencing proceedings |
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Definition
1. Costs
2. Procedure
3. Evidence
4. Remedies/enforcement |
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Term
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Definition
- What is the availability of CFA
- How much does it cost to commence court proceedings?
- Is SOC available (CPR 25.12/13)
- How long will it take to obtain judgment – consider the party’s financial position
- Costs recovery – CPR 44.2 |
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Term
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Definition
- How will the court deal with foreign law – will this be expensive
- Availability of interim applications – can parties apply for injunctions/stay proceedings
- Can the trial be heard in private? |
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Term
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Definition
- Disclosure – what is the extent of duties under CPR 31. Is pre-action disclosure available?
- Privilege – what are the types of privilege available
- What expert evidence will be allowed (CPR 35.4) – are they privileged? |
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Term
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Definition
- How are damages dealt with – what are the rules on quantification, mitigation, causation and remoteness
- What currency would the Court order (i.e. sterling, euros)
- Will it be easy to enforce an English judgment against an foreign company
- What methods of enforcement are available in the forum (i.e. taking control of goods, third party debt orders) |
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Term
| What should you always mention to client before taking them on |
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Definition
When advising client, the following provisions must be discussed with the client so that they can reach an informed decision:
- SRA Principle 5 – You must provide a proper standard of service to clients
- O (1.4) – You have the resources skills and procedures to carry out client’s instructions
- O (1.5) – You must provide competent service to client
- O (1.12)-(1.13)
- IB (1.13/1.15) |
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Term
| What is an anti-suit injunctions |
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Definition
| Court order which seeks to prevent a person from commencing or continuing with foreign proceedings. Injunction will only be granted with caution |
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Term
| Grounds for granting anti-suit injunction |
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Definition
- There is no single test for granting an injunction, instead the Court will take into account factors such as:
1. whether the English court has personal jurisdiction over the respondent (i.e Can the court served English documents on the party seeking to continue foreign proceedings)
2. whether the respondent has
i) Behaved (threatened to behave) in a manner which is unconscionable or
ii) Invaded the legal or equitable rights of other party
unconscionable conduct includes conduct which is vetaxoius (i.e. the foreign proceedings is a sham/bound to fail, neither party has substantial connection with the country where the foreign proceedings have been commenced, proceedings have been brought before a country which will disregard an express, binding English choice of law |
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Term
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Definition
| Court cannot grant anti-suit injunctions before the courts of another Regulation MS |
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