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8255 results in Intersentia

Page 389 of 413

  • Chapter 25 - The Five Constellations of Procedural Principle

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 683-732

  • Summary

    INTRODUCTION

    The main suggestion in this chapter (developed at 25.07) is that the fundamental and important principles of civil justice can be usefully arranged under these five headings (‘The Five Constellations of Procedural Principle’):

  • (i) Advice and Access: Empowering the Parties;

  • (ii) Conditions for Sound Decision-Making;

  • (iii) An Efficient Process;

  • (iv) A Fair Process;

  • (v) Upholding Judgment.

    • Constitutional procedural principles have become prominent, both at the level of national law (so-called ‘Common Law constitutional rights’) and at within the sphere of international convention.

    As for the latter, in matters of human rights, including fundamental procedural principles, Europe Convention States, including the United Kingdom, must comply with the jurisprudence of the Strasbourg court concerning on the guarantees contained in Article 6(1) of the European Convention on Human Rights (30.02 ff).

    The Human Rights Act 1998, which took effect in October 2000, rendered the European Convention on Human Rights directly applicable in English courts. Article 6(1) of the Convention states:

    Right to a Fair Trial: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

    That important codification of fundamental principle consists of the following elements: the rights to:

    (i) ‘a fair hearing’: this is a wide concept embracing:

  • (a) the right to be present at an adversarial hearing;

  • (b) the right to equality of arms;

  • (c) the right to fair presentation of the evidence;

  • (d) the right to cross-examine opponents’ witnesses; and

  • (e) the right to a reasoned judgment (29.20 ff);

    • (ii) ‘a public hearing’: including the right to a public pronouncement of judgment;

    (iii) ‘a hearing within a reasonable time’; and

    (iv) ‘a hearing before an independent and impartial tribunal established by law’ (on ‘judicial independence’, 26.01 ff ; on ‘judicial impartiality’, 26.19 ff).

    Besides these external influences, there is the internal task of arranging a set of fundamental procedural norms. Such a canon of principles seems indispensable if lawyers are to view procedural justice in a coherent and systematic way. International scholarly discussion thrives on fundamental principle.

    A stimulating examination of procedural principles is the American Law Institute/UNIDROIT Principles9 although these principles are non-binding (25.129 ff).

  • Chapter 14 - The Hearing

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 285-300

  • Summary

    ARBITRAL TRIBUNAL's POWER TO DISPENSE WITH AN ORAL HEARING

    The English legislation provides that, unless the parties otherwise agree, the tribunal's power to dispense with an oral hearing is an aspect of its procedural discretion (before the Arbitration Act 1996 (England and Wales) the position was otherwise).

    However, the LCIA Rules states that a party can insist on an oral hearing.

    PIVOTAL ROLE OF THE CHAIRMAN

    Where the tribunal consists of more than one arbitrator (on the question of appointment of the tribunal, 12.01 ff), problems of joint conduct, administrative convenience, and disagreement, might arise. The chairman's role can be fundamental in smoothing over these problems and ensuring that the hearing remains orderly.

    Although mentioned now in the context of the hearing, these issues arise as soon as the reference is begun. The provisions now cited govern throughout the life of the reference. The Arbitration Act 1996 (England and Wales) provides:

    (1) Where the parties have agreed that there is to be a chairman, they are free to agree what the functions of the chairman are to be in relation to the making of decisions, orders and awards.

    (2) If or to the extent that there is no such agreement, the following provisions apply.

    (3) Decisions, orders and awards shall be made by all or a majority of the arbitrators (including the chairman).

    (4) The view of the chairman shall prevail in relation to a decision, order or award in respect of which there is neither unanimity nor a majority under sub-section (3).

    If the parties have not provided for a chairman or umpire, and if there is no last-ditch agreed criterion for resolving an impasse, so that a majority does not exist, it is suggested that the court might assume control.

    ARBITRATOR CEASING TO HOLD OFFICE

    Section 27 of the Arbitration Act 1996 (England and Wales) governs the situation ‘where an arbitrator ceases to hold offi ce’. An arbitrator (that word presumptively including an umpire) might cease to hold offi ce in various situations: (i) by revocation of his authority; (ii) because he is removed by court order; or (iii) because he resigns, or dies.

  • Preface

  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp vii-x

  • Summary

    Following Sir Rupert Jackson's report on the costs regime (2010), and the Government's consultation (2010) and final statement (2011), various procedural changes, notably affecting costs, were introduced on 1 April 2013. These are examined at relevant points in this volume.

    One has no right to expect a legal subject to be as much fun as Civil Justice. I hope that readers in the United Kingdom and elsewhere who share this enthusiasm will find this a convenient (at times perhaps stimulating, even provocative) analysis of the main features of English civil proceedings and of mediation and arbitration.

    This book is on Civil Processes and on Civil Justice. Volume I is a study of civil procedure. Volume II concerns mediation and arbitration. But Volumes I and II are complementary. Cross-referencing between these volumes and comparison of fundamental principles are intended to ensure that the wider picture is kept in view.

    The author's first book on civil procedure was an attempt to place the pre- CPR (1998) system of civil procedure within the framework of principles: Principles of Civil Procedure (1994). This sandcastle stood for one year before, in 1995, Lord Woolf wrote his first report on the proposed dismantling of that pre- CPR system. His reports helped to produce the Civil Procedure Rules (1998), which took effect in April 1999. After this blow to the midriff, the author eventually re-gathered breath and returned to the task of trying to state civil procedure from the perspective of (evolving) principles in English Civil Procedure (Oxford University Press, 2003). Modern trends within this vast subject have required me to present a fresh treatment but on a much wider canvas, encompassing not just English civil proceedings, but mediation and arbitration. And so, after a gap of ten years, I am pleased to present this new work.

    In legal analysis, numbers matter, or at least they can assist exposition (although, some ancient civilian numberings have been dismissed as artificial). I am aware that numbered groupings have become a conspicuous feature of these two volumes. Such classification is not only helpful in the exposition of complex material: it can also stimulate debate on the fundamentals of the subject.

  • Chapter 22 - Multi-Party Litigation

  • from PART V - SPECIAL PROCEEDINGS
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 619-658

  • Summary

    FOUR FORMS OF ENGLISH MULTI-PARTY LITIGATION

    English ‘multi-party’ litigation can take one of four forms: (i) test case litigation, supported by the staying of related individual actions; (ii) consolidated litigation or joinder, so that claims are coupled together into a single but long snake of a case; (iii) representative proceedings; and (iv) numerous claims under a Group Litigation Order (GLO). (On use of alternative dispute resolution, notably in the field of consumer grievances, see 21.01 ff, vol II; and for comparative discussion on collective actions, see the Buenos Aires (2012) conference papers). The (then Labour) Government in July 2009 opposed introduction of a generic opt-out class action in England for compensatory claims, etc. This rejection is explained more fully at 22.70 ff below. The scheme of this chapter is as follows: after brief explanations of (i) and (ii), detailed discussion will turn to (iii) and (iv).

    TEST CASE WITH STAY OF RELATED CASES

    Large numbers of related claims might be stayed pending the outcome of a test case to be decided by the High Court. An example is the bank charges litigation, culminating in the Supreme Court's decision in Office of Fair Trading v. Abbey National plc (2009), which concerned alleged over-charging of current account customers who exceed their credit limits. Nearly all citizens have a pecuniary interest in this issue. In this test case a governmental agency responsible for consumer protection and regulation of trading practices, invoked its statutory powers to seek a judicial declaration. The huge financial importance of the issue, and the banks’ determination to defeat the challenge to their charges, led to successive appeals from the High Court to the Court of Appeal and the Supreme Court on a pure point of law. It was hoped (although this hope proved to be misplaced) that this declaration would provide the legal basis for a vast number of bank customers to obtain relief in respect of alleged over-charging on their bank accounts. But the test case failed when the Supreme Court held that the alleged over-charging could not be struck down under the relevant contractual regulations. This was because the contractual conditions fell within prohibited zone of contractual freedom, as defined by the relevant legislation.

  • Chapter 9 - Arbitration Agreements

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 195-210

  • Summary

    INTRODUCTION

    It is prudent to draft the arbitration agreement in some detail to avoid the danger of uncertainty and confusion. Russell (2007) supplies a helpful checklist of issues that might be addressed. There are also helpful practical comments on this matter in Finizio and Speller (2010). Lewison (2011) notes various leading propositions established within the case law concerning the interpretation of arbitration agreements. If the parties wish to nominate, for example, the LCIA, its website provides the following standard arbitration clause for future disputes:

    ‘For contracting parties who wish to have future disputes referred to arbitration under the LCIA Rules, the following clause is recommended. Words/spaces in square brackets should be deleted/completed as appropriate.

    “Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

    The number of arbitrators shall be [one/three].

    The seat, or legal place, of arbitration shall be [City and/or Country].

    The language to be used in the arbitral proceedings shall be [].

    The governing law of the contract shall be the substantive law of [].”’

    (This next note cites LCIA's standard arbitration clause for existing disputes).

    The English Arbitration Act 1996 requires the arbitration agreement (including an individual ‘submission agreement’) to be in writing (including procedural amplification of the arbitration agreement during the course of a reference). An unwritten arbitration agreement is not lacking in legal effect; but it will not be governed by the Act.

    The Arbitration Act 1996 contains a broad definition of the phrase ‘in writing’ (‘much wider than the Model Law’, Article 7(2); on the ‘oral option’ under the UNCITRAL Model Law, see Redfern and Hunter).

    In essence, the following elements apply for the purpose of the Arbitration Act 1996 (England and Wales):

    (i) there is no need for the agreement to be signed by the parties, or indeed signed at all;

    (ii) writing includes information ‘being recorded by any means’;

    (iii) the agreement can be:

  • (a) itself made in writing; or

  • (b) formed by exchanging written communications; or

  • (c) evidenced in writing; or

  • (d) made by reference (and see next paragraph) to written terms (containing an arbitration agreement); or

  • Chapter 19 - English Enforcement of English Awards

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 373-376

  • Summary

    The Court of Appeal in National Ability SA v. Tinna Oils & Chemicals Ltd (‘The Amazon Reefer’) (2009)1 noted that there are two ways in which an English arbitration award can be enforced by an English court. The first is the (historically) Common Law route (now recognised by statute), which involves suing in a court on the arbitration award. The second is a statutory mechanism, involving two steps: (i) an application for the award to be converted into a court judgment and (ii) applying the methods of enforcement applicable to court judgments. The court in that case held that it would be unacceptable for the law of limitation to differ in this respect. And so it held that the six year rule should apply uniformly to both these modes of enforcement (on this aspect 8.105, vol I).

    In ‘The Amazon Reefer’ (2009), Thomas LJ explained these two modes of enforcement as follows:

    ‘Enforcement of an award by action is by an ordinary action brought in the High Court. The procedure is not subject to any statutory provision, but it has long been established at common law as an action founded upon the implied promise to pay the award. It is given statutory recognition in s66(4) of the Arbitration Act 1996 (England and Wales). Enforcement of the award in the same manner as a judgment is a statutory process. Section 66 of the Arbitration Act 1996 provides: “(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. (2) Where leave is so given, judgment may be entered in terms of the award.”’

    Also in ‘The Amazon Reefer’ (2009), Thomas LJ said:

    ‘The procedure for enforcement by action is little used in practice. For many years it has been the practice of parties who seek to use the enforcement mechanism of the court in England and Wales to use the procedure under section 66 of the Arbitration Act 1996 to enforce an award. The procedure is straightforward.

  • Chapter 8 - Limitation of Actions

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 145-194

  • Summary

    INTRODUCTION

    This notoriously arcane body of law concerns the simple question: ‘how long do I have before, not having issued proceedings in time, I must suffer the fate of “having missed the boat”?’ Baroness Hale described this area of law as ‘complicated and incoherent’ in AB v. Ministry of Defence (2012). The author disagrees in part and would suggest that the topic is ‘complicated but pragmatic’.

    It is contrary to public policy for stale actions to be brought concerning remote past events. An aggrieved person's capacity to bring civil proceedings in respect of a wrong or some other matter must be restricted, just as there should be no re-litigation of matters already adjudicated. There must be a time-limit to commencement of civil proceedings, just as there must be a bar upon re-litigation of matters which have already been litigated.

    The system of limitation of actions is supported by the following elements of policy. First, it is unfair and uncivilised for potential defendants to be threatened by possible proceedings for too long. They should be allowed to get on with their lives, or commercial or governmental activity. Secondly, stale legal claims tend to bring the system of civil justice into disrepute. A long interval between the relevant events and commencement of proceedings reduces the chance of any court penetrating to the factual core of a dispute. In the meantime witnesses might have died, disappeared or forgotten the relevant events. Unfortunately, there have been instances of English civil cases proceeding where the material facts occurred nearly 30 years before. Of these two arguments for limitation, the first is the stronger. In practice, problems of proof are met by the fact that the claimant will bear the burden of proof substantiating the claim.

    BASIC CONCEPTS OF LIMITATION OF ACTIONS

    FIXED PERIODS

    The English limitation rules govern civil proceedings in the English County Courts and High Court, as well as arbitration proceedings governed by the Arbitration Act 1996. These rules operate by reference to fixed periods, normally a number of years. The prospective claimant must issue civil proceedings, that is, issue a claim form, before the relevant period elapses.

  • Chapter 7 - ‘Arbitrability’: Public Policy Limitations upon the Scope of Arbitration

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 169-178

  • Summary

    INTRODUCTION

    Not all civil disputes or issues are capable of being subject to arbitration. Section 81(1)(a) of the Arbitration Act 1996 (England and Wales) refers to ‘matters which are not capable of settlement by arbitration’. Section 81(1)(c) of the Arbitration Act 1996 (England and Wales) refers to ‘the refusal or recognition or enforcement of an arbitral award on grounds of public policy’.

    It is clear, for example, that it would not be possible to use arbitration to determine matters affecting the welfare of children. But an open mind might be taken to questions of matrimonial finance not affecting children. In this context there is in fact a demand for arbitration in England, because this consensual process would be very likely to be both quicker and cheaper than the court process regulating divorce and financial orders. Furthermore, arbitration would be confidential. The legal impediment is that family court's jurisdiction cannot be ousted. And so an arbitration award would need to be clothed as a consent order, requiring the court to ratify. This issue remains to be worked through.

    Another context in which arbitration would be problematic, and probably unavailable, is planning law. Such issues, although arising between individual landowners and planning authorities, are not merely bilateral contests: they have an obvious impact on third parties, and affected persons, sometimes the public at large, are given wide scope to participate or intervene and make objections.

    Many of these matters can be expressed as a matter of public policy. But there are also issues which lie beyond the competence of arbitrators because they lack the remedial powers to make determinations which will affect third parties. On this basis it is clear that winding-up petitions (in the sphere of company law) cannot be the subject of arbitration. Only the court has power to make such complex determinations.

    Mustill & Boyd (2001), whilst acknowledging the principled and legislative fact that there are certain matters not susceptible to arbitration, suggested attractively that:

    ‘[T]he policy of English law, as of arbitration law worldwide, is to encourage and support arbitration as a means of settling commercial disputes, and particular international commercial disputes. Doctrinaire disapproval of procedures on the margin of arbitrability is not the way forward. If the parties have chosen any method which they intend to be a form of arbitration they should be allowed, and if possible compelled, to affirm their choice.’

  • Chapter 28 - Publicity and Open Justice

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 763-780

  • Summary

    INTRODUCTION

    Judicial hearings (including tribunals of inquiry) should be conducted in open court so that the public can directly witness both the majesty and tedium of the legal process. This is a cardinal principle of English law. It has been recognised by case law, statute, and by the CPR. Lord Dyson in the Supreme Court in Al Rawi v. Security Service (2011) and other members of that court strongly endorsed the present principle:

    ‘There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times…’

    Lord Dyson continued:

    ‘The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v. Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting “a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security.” Viscount Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question “as one of principle, and as turning, not on convenience, but on necessity”.’

    RATIONALE

    Justice behind closed doors will soon reek to high heaven. This is the procedure of a despotic legal system, not an open and liberal one. Lord Brown, in the Supreme Court in Al Rawi v. Security Service (2011) quoted Lord Atkin's citation of Milton's Areopagitica: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’

    And Jeremy Bentham said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.

  • Chapter 29 - The Duty to Give Reasoned Decisions

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 781-804

  • Summary

    INTRODUCTION

    It is a requirement of both European human rights law (directly applicable in English law under the Human Rights Act 1998) and of the Common Law that judicial decisions should be reasoned. Failure to supply adequate reasons is both a breach of human rights law, therefore, and a ground of appeal within the domestic system of civil appeals (15.01 ff). The need for reasons is also acknowledged by the (non-binding) American Law Institute/UNIDROIT Principles: 25.129 ff.

    In fact most English final decisions, notably those delivered by the superior courts (the High Court, Court of Appeal, Supreme Court, formerly the House of Lords, and the Judicial Committee of the Privy Council), are closely reasoned. Some categories of decision are exempt from the duty to give reasons (notably case management rulings and most costs orders: 15.47 to 15.48).

    The main problem in England is not the paucity, or shallowness or oracular nature, of judicial reasoning, but the overloading of judgments with lengthy citation of quotations from precedent decisions, and massive discussion at first instance of complicated factual issues (29.41 ff). There is still much scope for shortening the reserved judgments delivered by the superior courts. By contrast, most county court judgments are unreserved, delivered orally at the conclusion of a case, and they are oft en short.

    It remains controversial whether panels of appellate judges should continue to compose individual concurring judgments (29.50 to 29.52). On balance, composite decisions should be adopted, with sensible word-limits. There has been some movement towards greater use of composite (majority) judgments by multi-judge courts. It is also significant that the former Master of the Rolls, Lord Neuberger (see 29.51), favours a qualified approach: composite majority judgments, with scope for individual supplements. It is possible, therefore, that the English tradition of individual concurring judgment writing in multi-judge courts will end. When this happens, the majority judges must shape the court's decision, and not passively acquiesce in others’ reasoning.

    dissenting opinion (whether made by an individual judge or more than one dissentient jointly) is a valuable feature of the English judicial tradition (29.37 to 29.39). It enables the individual judge to express his disagreement in a public and rational form.

  • Chapter 9 - Case Management and Procedural Discipline

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 195-212

  • Summary

    INTRODUCTION

    The courts possess extensive ‘case management’ powers. In his reports of 1995–96 Lord Woolf adopted this technique as the mainstay for actions on the ‘multi-track’, thus including all High Court litigation (this track covers more expensive County Court litigation and all High Court actions). The court must now ensure that matters are properly focused, procedural indiscipline checked, expense reduced, and progress maintained or even accelerated.

    To prevent each managerial judge ‘re-inventing the wheel’, and to ensure consistency, Sir Rupert Jackson has noted the need for all judges to have access to soft ware systems providing model directions.

    In his lecture, ‘Achieving a Culture Change in Case Management’, Jackson noted the criticism that case management, if not applied efficiently, might itself become a drain on the system and increase the overall cost of litigation. He suggested that the legal system must steer a middle course between Scylla and Charybdis: ‘in this context Scylla is officious intermeddling by the courts, which gobbles up costs to no useful purpose’ and ‘Charybdis is laissezfaire litigation, which leaves the parties to swirl around in uncontrolled litigation – with all the problems which Lord Woolf identified in his Reports’ (on the Woolf reports: 1.06 ff). In April 2013, as part of the Jackson reforms, the following changes were made. On the multi-track, parties must now endeavour to agree appropriate directions for the management of cases and they must submit directions seven days before any case management conference. An electronic menu of standard directions for cases allocated to the multi-track is provided via a link on the Civil Procedure Rules website. Parties will also been given confirmation by the court of the day or week in which the trial will begin following the filing of the pre-trial check list, a listing hearing or a pre-trial review.

    This form of procedural organisation enjoys international support. The (non-binding) American Law Institute/UNIDROIT Principles recommend that the court should ‘actively manage the proceedings, exercising discretion to achieve disposition of the dispute fairly, efficiently, and with reasonable speed.’

Page 389 of 413