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8305 results in Intersentia

Page 391 of 416

  • Chapter 7 - Counterclaims and Set-Off

  • 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 125-144

  • Summary

    INTRODUCTION

    The present chapter examines, first of all, counterclaims made by the defendant against the claimant, especially if these exceed the value of the main claim. Secondly, set-off will be explained. This is a complex body of law, the essence of which is the possibility that a money action might be met successfully by a counter-plea that the claimant owes the defendant a sum of money, and that these cross-claims should result in an action for the ‘balance’ or ‘difference’.

    COUNTERCLAIMS AND OTHER ‘ADDITIONAL CLAIMS’ UNDER PART 20

    ‘Additional claims’ under Part 20 cover a wide class of claims collateral to the main claim, notably: (i) counterclaims by defendants against claimants or against a claimant and another; (ii) claims by defendants against any person (whether or not already a party) for contribution, or an indemnity; or (iii) for some other remedy. In general, an additional claim under Part 20 must be treated as though it were a primary claim. The party bringing an additional claim is known as an ‘additional claimant’: this party cannot be the main claimant. However, the rules add special qualifications concerning service, case management, admission, and default judgment, and these detailed provisions must be studied closely. Service of an additional claim under Part 20 on a person renders him henceforth a party to the proceedings. ‘Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example, “Third Party” or “Fourth Party”, whatever their actual procedural status.’

    This topic can be summarised in three propositions:

  • (i) there is no need for the court to grant permission for most types of additional claims under Part 20 made by a defendant, provided the defendant makes the claim when he files his defence;

  • (ii) however, a counterclaim against a person other than the original claimant requires the court's permission and the intended target of that counterclaim will need to be added as a new party;

  • (iii) permission to bring a Part 20 claim is not required if a defendant seeks a contribution or indemnity against an existing defendant provided the defendant makes the claim when he files his defence or within 28 days of the date when the relevant new defendant files his defence.

  • Chapter 5 - Fundamental Features of English 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 143-154

  • Summary

    GENESIS OF THE ENGLISH ARBITRATION ACT 1996

    Arbitration in England substantially rests on the Arbitration Act 1996 (England and Wales). This statute reflects the sequence of topics in the UNCITRAL Model Law. However, the English Act covers a wider range of matters than the Model Law. The main deviation from the Model Law is section 69 of the Arbitration Act 1996, which permits appeals (subject to the High Court's permission) from awards where there is alleged to have been an error of English law: 18.67 ff.

    The Court of Appeal in Cetelem SA v. Roust Holdings Ltd (2005: 13.18 to 13.21) noted that the Departmental Advisory Committee's report (notably the 1996 report) provides a valuable source of guidance when construing the Act, although the fact that a particular matter is not mentioned in that report does not prevent the court from deciding that this matter is in fact compatible with the Act.

    The 2006 ‘Report on the Arbitration Act 1996 (England and Wales)’ reveals that the English legislation is perceived as effective. No changes were recommended.

    MAIN ELEMENTS OF THE ENGLISH ARBITRATION ACT 1996

    The five main elements are:

  • (i) respect for the parties’ freedom of contract in procedural matters;

  • (ii) the arbitral tribunal's duty to promote efficiency speediness, and fairness in the conduct of the submission;

  • (iii) the principle of procedural co-operation between the parties;

  • (iv) the minimalist role of the courts;

  • (v) judicial support and supervision.

    • These points will now be developed.

    RESPECT FOR THE PARTIES’ FREEDOM OF CONTRACT IN PROCEDURAL MATTERS

    The parties’ consensual autonomy (‘freedom of contract’) is a leading feature of the Act (as noted in section 1 of the Arbitration Act 1996 (England and Wales): the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest). This freedom enables them to determine, or at least influence, how the repertoire of procedural measures should be applied in their particular case. Parties to arbitration can shape their ‘alternative’ to ordinary court procedure.

  • Chapter 26 - Judicial Independence and Impartiality

  • 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 733-752

  • Summary

    JUDICIAL INDEPENDENCE

    INTRODUCTION

    The Constitutional Reform Act 2005 seeks to enshrine respect for judicial independence in the United Kingdom, including the ‘tribunal judiciary’. Article 6(1) of the European Convention on Human Rights also requires courts and other tribunals to be ‘independent’.

    On this Lord Hope commented in Porter v. Magill (2001) that ‘there is a close relationship between the concept of independence and that of impartiality’ (on the latter, 26.19 ff), and he quoted from the European Court of Human Rights in Findlay v. UK (1997):

    ‘The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked…’

    Lord Hope added in Porter v. Magill (2001):

    ‘In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities.’

    And Lord Bingham wrote, in The Business of Judging (2000):

    ‘[I]mpartiality and independence may not be synonyms, but there is a very close bloodtie between them: for a judge who is truly impartial, deciding each case on the merits as they appear to him or her, is of necessity independent.’ (On this ‘blood-tie’ in the context of arbitration, see 4.16 ff, vol II).

    The (non-binding) American Law Institute/UNIDROIT Principles recommend: ‘The court and the judges should have judicial independence to decide the dispute according to the facts and the law, including freedom from improper internal and external influence.’ And: ‘Judges should have reasonable tenure in office.’

  • Chapter 3 - Commercial Arbitration: What Is It and Why Choose It?

  • 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 85-112

  • Summary

    COMPARATIVE DISCUSSION

    There are many references in this chapter to reports submitted to the author by distinguished English and foreign experts (the author was fortunate in 2010–11 to receive national reports from various jurisdictions concerning arbitration, in preparation for his General Report on Arbitration at the International Association of Procedural Law's world congress in Heidelberg in 2011). The author also expresses gratitude to these contributors for this material. For reasons of space, it has not been possible to cite verbatim more than occasional fragments from these national reports.

    THE NATURE OF ARBITRATION

    Arbitration is a means by which two or more parties (including sovereign States) can refer a dispute to a neutral decision-maker for a final decision (an ‘award’).

    An arbitral tribunal's power to reach a binding decision on the merits is to be contrasted with mediation (or conciliation) (generally, 1.01 ff). A mediator, although neutral, is not empowered or expected to give a binding decision. A mediator is instead mandated to facilitate a consensual resolution of the parties’ dispute.

    The arbitral process displays the triangular configuration of a ‘lis’, that is a juridical dispute between at least two persons. There will be a claim, defence, and factual or legal arguments within the framework of those outline contentions. Supporting material will be marshalled, opposed, and tested. The tendency is for the matter to be considered in an intense and focused way.

    The decision-making capacity of the arbitrator is similar to the judgment-delivering capacity of a (public) court or judge. The adjudication of arbitral disputes should be no less procedurally pure and scrupulous than the judicial process of state courts (here the emphasis is on the procedural duties of arbitral tribunals; by contrast, see 3.38 on the general inability within commercial arbitration to examine the tribunal's findings of fact, or even application of substantive legal norms – except in England under section 69, Arbitration Act 1996, which permits the High Court to grant permission in exceptional cases for matters of English law to be re-opened on appeal by the court, 18.67 ff).

  • Chapter 15 - Final Remedies, the Award, and Correction of the Award by the Tribunal

  • 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 301-312

  • Summary

    REMEDIES AVAILABLE TO THE ARBITRAL TRIBUNAL

    The parties can agree on the remedies that can be granted.

    It might be assumed that this means that they can draw from the portfolio of remedies available under English law, if that is the law governing the substance, or from the range of remedies recognised under any relevant foreign applicable law. But the Departmental Advisory Committee's Report (1996) suggested that party autonomy could have a larger creative function in this context: ‘there is nothing to restrict such remedies to those available at Court’. This comment by the Committee is curiously tantalising and opaque. Indeed it is an irresponsible throw-away line, because the arbitral tribunal is offered no guidance in determining which ‘new’ remedies are acceptable, and which are beyond the pale of English and foreign acceptance.

    A more orthodox exercise of party autonomy will be an agreement to exclude a particular type of remedy.

    Under the English legislation the arbitral tribunal can grant monetary relief in any currency, including interest (which can be compound). Interest can be awarded in respect of the principal sum(s) mentioned in the award, or the sum(s) claimed and which were only paid after commencement of the proceedings; post-award interest can also be awarded, and this can be compound.

    In the Lesotho case (2005) (see also on that case, 18.46 ff) the House of Lords held that the power to make awards of interest is unconstrained. Lord Phillips noted that the phrase ‘as it considers meets the justice of the case’ confers a broad discretion.

    But what if the parties’ agreement contains an express exclusion of the power to award compound interest and yet the arbitral tribunal goes on to make an award of compound interest? This would involve an error by the tribunal, because section 49(2) states that the default discretion to award compound interest can be excluded by the parties’ (written) agreement.

  • Chapter 15 - Appeals

  • from PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 415-460

  • Summary

    INTRODUCTION

    A system of civil appeals has five main functions and just ifiations: (i) correcting wrong decisions; (ii) maintaining the faith of the public in the judicial system; (iii) keeping trial judges up to scratch; (iv) enabling teams of senior judges to develop and ref ne judicial doctrine; (v) promoting a unified and consistent application of the law. And there is a further argument: providing an incentive to lower-tier judges to progress up the judicial ladder. These points will be developed now.

    First, recourse to appeal enables an aggrieved litigant to rectify a perceived judicial error, of law or fact. Machinery for appeals from decisions is an official acknowledgement of judicial fallibility. A court will allow an appeal when it concludes that the lower court's decision was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. On matters of law, appellate courts are fully prepared, indeed obliged, to make corrections. However, in general, the courts are most reluctant to hear appeals on ‘academic’ or ‘hypothetical’ points, namely matters which are of no immediate and direct concern to the parties. But an exception to this can arise if the point of law is of general public importance.

    Secondly, the system of civil appeals also promotes the public interest in correcting judicial mistakes since such errors might otherwise undermine public faith in the administration of justice.

    Thirdly, the potential scrutiny on appeal keeps trial judges up to scratch by exposing their decisions to rigorous scrutiny. The author is aware of the horror experienced by some first instance judges, ambitious to be promoted to the Court of Appeal, who feel that their decisions have been unjustifiably reversed by the appeal court. In one instance, the overturned judge later sought to repudiate the authority of the appellate court (but this is an unusual response).

    Fourthly, the appellate system enables senior and experienced judges, working as a team rather than isolated trial judges, to develop and refi ne legal doctrine. The ‘team’ here (for details, 29.10) refers to the panels of Lords Justices of Appeal in the Court of Appeal.

  • 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

Page 391 of 416