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Summary

INTRODUCTION

Protective relief concerns judicial orders granted for the purpose of safeguarding the claimant's interests. Such relief takes two main forms: (i) orders for the freezing of the defendant's assets (freezing injunctions, formerly Mareva injunctions); and (ii) orders for the seizure and preservation of evidence (civil search orders, formerly Anton Piller orders). A minor form is the seizure of passports by civil order (21.71 to 21.72).

Injunctions in these procedural contexts are intended to ensure that attempts to vindicate substantive justice are not thwarted by cynical obstructive tactics – most commonly dissipating assets, destroying evidence, or personally absconding from the jurisdiction.

Both freezing relief and civil search orders are more commonly applied before commencement of the main proceedings, and they are nearly always issued ‘without notice’ to the respondent (to use the former terminology, they are awarded ex parte).

The foundation for these orders is the general statutory power to issue injunctions, that is, orders backed by powerful threats. This general power has been a fertile source of judicial creativity. This generic remedy has been adopted to counter many types of misconduct, including wrongs threatening to sap or frustrate the civil process.

FREEZING RELIEF

NATURE OF FREEZING INJUNCTIONS

This is an in personam order (an order addressed personally to the respondent) requiring the respondent to refrain from dealing with his assets.

This relief does not give the applicant any proprietary interest in the defendant's assets. The in personam operation of freezing relief has been noted in numerous cases. The Court of Appeal in Kastner v. Jason (2004) noted this facet of freezing relief, in the context of an arbitration (the court held that, consistent with the operation of freezing relief in court proceedings, an arbitral tribunal could not be regarded as having created a proprietary charge or lien or other proprietary right in respect of assets covered by an anti-dissipation order). It followed that the creditor could not register an effective caution against land which was the subject of the arbitral tribunal's anti-alienation or anti-dissipation order.

The rationale for this English approach is that the creditor should not be entitled to gain priority in the pursuit of the debtor's assets.

Summary

ENGLISH PRACTICE

In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J held that an anti-suit injunction (10.23 ff) should be granted to prevent a party from pursuing a second arbitration designed to undermine and contradict the award in an earlier arbitration between the same parties. The judge held:

‘It is a breach of an arbitration agreement to bring proceedings to make an unlawful attempt to invalidate the award or to make a collateral attack on a binding judgment or award of a properly constituted tribunal.’

This decision is sound because the re-litigation would run contrary to the parties’ implied undertaking to adhere to the result of the arbitration in the first reference. Andrew Smith J noted Lord Hobhouse's statement in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003: see also on this case 18.11 to 18.13): ‘It is an implied term of an arbitration agreement that the parties agree to perform the award’.

The Privy Council in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003) held that issue estoppel can arise in arbitration, and this will be binding on a second arbitration panel seised with a matter on a related topic between the same parties. There had been earlier cases on issue estoppel in arbitration proceedings (see also 16.27, vol I). It should also be noted that issue estoppel is not quite as exacting as cause of action estoppel: unlike cause of action estoppel, issue estoppel can be relaxed in either of these situations: (i) there has been a retrospective change in the law which renders the point covered by issue estoppel ‘plainly’ wrong; or (ii) new evidence has emerged which ‘entirely changes the aspect of the case’, provided that, even if he had displayed ‘reasonable diligence’, the relevant party could not have discovered this evidence at the time of the earlier litigation (see also 15.73, vol I).

In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J assumed that the rule in Henderson v. Henderson (16.55 ff, vol I) will apply if in arbitration X between A and B, B could have readily raised issue P, but did not do so; and then in arbitration Y between A and B, B attempted to raise issue P.

Summary

INTRODUCTION TO THE PRE-ACTION STAGE

The ‘pre-action phase’ covers the period from the occurrence of the contested issue or relevant ground for complaint to when that matter produces formal civil proceedings. Such fees are prohibited in respect of personal injury claims. Compliance with this ban will be monitored by relevant regulators.

When the period of prescription (or ‘limitation of actions’) is generous, the pre-litigation phase will not be short: for example, six years for ordinary contractual claims, or even twelve years if the contract is contained in a formal ‘deed’. Perhaps no other subject so vividly reflects the scope for national difference than the fixing of periods of prescription.

PHASE 1: PRE-ACTION PROTOCOLS

The CPR (1998) system introduced an important set of ‘pre-action protocols’. As explained in Andrews (2007), a leading aim of the English scheme of pre-action protocols is to promote early and informed settlement, avoiding the expense and inconvenience of formal litigation. This is rooted in the philosophy that formal litigation, notably trial, is a form of dispute resolution which should be treated as a matter of ‘last resort’.

All civil disputes which are headed for the English courts must comply with this elaborate system of pre-action protocols. They govern the prospective parties’ steps in preparing for commencement of proceedings.

For the purpose of the English civil process, phase (1), the pre-action stage, is the first stage of the civil dispute in the following respects: (i) it forms part of a series of segments; (ii) it is regulated by the CPR system of rules; (iii) this regime of pre-action regulations applies to all prospective claims within England and Wales; and (iv) there are sanctions applicable if a prospective party fails to comply with the pre-action set of rules.

This pre-action regime requires prospective parties, in particular: (i) to communicate among themselves the nature of the claim and defence in advance of commencement of proceedings; (ii) to consider opportunities for settlement and resort to ADR, notably mediation (although the latter is not compulsory); and (iii) to make appropriate exchanges of relevant information, including central documents relevant to the case. It follows that in a large and complicated dispute the parties will be engaged in compliance with these requirements for many months.

Summary

OVERVIEW OF THE PRINCIPLES APPLICABLE TO ARBITRATION OR TO THE JUDICIAL PROCESS

In chapter 25 of Volume I, it was suggested that there are five constellations of procedural principles relating to court proceedings, and the judicial process in general. Not all of these principles apply to arbitration.

For convenience, these major principles will be restated here briefly (those principles, namely II, IV, VI and XIV, which do not apply to arbitration will be marked in bold; as for the principle of finality, which is respected more intensely within arbitration law, when compared with litigation, this is underlined in the text below).

(1) ADVICE AND ACCESS: EMPOWERING THE PARTIES

Summary

MONEY JUDGMENTS

Fundamental to this topic is the axiom that judgment creditors are free to choose from the portfolio of available enforcement methods. Some creditors might already have extensive knowledge of the defendant's assets. Others will remain in the dark; for these, the next two paragraphs might be illuminating.

Judgment creditors can apply for an order compelling a judgment debtor (or in the case of a company, one of its officers) to attend the court and to supply information concerning the debtor's means and financial commitments.

If the judgment debtor is a company, CPR Part 71 enables an order to be made for information to be supplied by the company's officers. But the House of Lords held in Masri v. Consolidated Contractors International Co SAL (2009) that CPR Part 71 does not enable an order for examination to be made against an officer who is outside the jurisdiction, and that CPR Part 6 provides no basis for service out of the jurisdiction of any such order, had it been possible to make one.

Sections 95–105 of the Tribunals, Courts, and Enforcement Act (‘TCE Act 2007’: 17.08) create new methods of obtaining information concerning debtors’ assets and indebtedness.

Money judgments can be enforced by:

Summary

THE FOUR FORMS OF CIVIL JUSTICE

NATURE OF CIVIL JUSTICE

Civil justice comprises the various processes enabling disputants to resolve, or at least terminate or narrow, their disputes. ‘Processes’ should be accorded a wide reference and should not be confined to systems supported directly by national legal systems and national governments. In this wider sense, civil disputes can be adjudicated by courts, resolved by arbitration, settled by mediation, or the parties can spontaneously reach unmediated agreements of settlement. Hence there are ‘four main forms of civil justice’: (i) the judicial process, involving court proceedings; (ii) arbitration; (iii) mediation; and (iv) (unmediated) settlement.

DISTINGUISHING THE FOUR FORMS OF CIVIL JUSTICE

Does the Process Involve a (Neutral) Third Party?

It will be noted that court proceedings, arbitration, and mediation involve the intervention of a neutral third party. Unmediated settlement does not result from, nor need it be in any respect facilitated or induced by, the direct intervention of a judge, arbitrator, or mediator. In that sense it is an autonomous and informal style of dispute-resolution. However, if the settlement occurs aft er commencement of court or arbitral proceedings, it will be common for the parties to seek a consent judgment by the court, or its arbitral equivalent, in order to give (further) effect to the settlement (14.86).

Is a Decision Imposed or Instead an Agreement Reached?

Mediation (1.01 ff, vol II) differs from court proceedings and arbitration because the mediator does not (unlike the court or arbitral tribunal) impose a solution or decision. Instead the mediator merely endeavours to assist parties to reach accord.

Is It a Public or Private Process?

Information confidentially disclosed during settlement negotiations, whether or not involving mediation, is protected by the ‘without prejudice’ privilege. This imposes an external shell of protection and an internal bond of secrecy: thus the parties’ discussions enjoy a high level of protection from outside scrutiny (12.49), and neither party enjoys the unilateral right to disclose or make use of that information. To do so he must instead obtain the other party's consent.

Summary

A TIME OF CHANGE

Lord Justice Jackson's ‘Civil Litigation Costs Review’ (2009–10) placed the whole topic of costs and funding under scrutiny. The ‘Woolf reforms’ were expected to alleviate the problem of the high cost of civil litigation. But the situation has not improved. The topic of costs has become highly technical. English civil justice is perhaps unusual in providing specialist judges, known as ‘costs judges’, to decide certain costs matters. Furthermore, as noted by Lord Neuberger MR, a Costs Council is proposed to monitor the complicated system of costs in general.

LAMENTATIONS

In a lecture (2012) Lord Neuberger MR concluded:

‘Over the last ten years, civil litigation costs have continued to increase. In that respect the Woolf reforms, one of the main aims of which was to provide a cure for excessive litigation cost, failed. Indeed, I regret to say that the Woolf reforms are generally thought to have increased litigation costs. Certainly, the reforms… have front-ended costs, which is particularly unfortunate given that the great majority of cases settle before they get to trial.’

Lord Neuberger MR also quoted the distinguished practitioner, Geoffrey Bindman, whose pre-CPR remarks remain relevant:

‘The secret, perhaps half-perceived at the time, was the open-endedness of litigation. The more work one did, the more one got paid: and there was no limit to the amount of work one could do, and even justify it. Barristers were encouraged (if they needed encouragement) to join in the fun. More recently the tail started to wag the dog. The litigation machines in the large firms had to be fuelled. Every case had to be expanded to fi ll the resources available to work on it. The pattern set by the larger firms had to be followed by everyone else. However many letters came from one side, the other had to reply… just as one barrister cannot afford to leave unanswered a point taken by his opponent. However much money one side chose to invest in the case, the other had to match it or go to the wall.’

Summary

A NEW SOCIAL AND POLITICAL CONTEXT

Some observers have suggested that the Spanish transition was rather unique, which would somewhat confirm the old adage that “Spain is different”. Political actors have been, to a greater or lesser degree, proud of a model of making pacts without transitional justice. Most of these attempts have then been examined within a narrative of heroic consensus. However, the sacralised culture of the “consenso” did not allow the development of a “culture of transitional justice” that is based on a set of beliefs and practices grounded in the rejection of impunity, challenging the past, prioritising the accountability of the State and seeking the broader social inclusion of the victims of the previous regime. But, if Spain was viewed as a model of “pacific” transition, it is now a pioneer again, but this time for “showing the way for “pacted democracies” to pursue justice after, and apart from, the moment of transition; in other words, it provides an example of the movement from transitional culture towards “post-transitional justice” politics”. However, since it is a process that took thirty years to get started, which implies a delayed response, it can be better described as a case of late transitional justice. The discovery of a “late transitional justice” leads us to question whether we find ourselves before a devalued form of transitional justice, a sort of “last resort”, or if we can conclude that transitional justice is a powerful social and political force capable of emerging in different temporal and spatial contexts.

At the beginning of the 21st century, there remained a “pending debt” with the Spanish population. According to De la Cuesta, the three main factors which formed the basis of this argument were that: (a) many families still did not know the details of what happened to their missing and dead and felt the need to exhume their remains for reburial in their own cemeteries and family graves; (b) in some parts of Spain, Francoist symbols and memorials remained on display; and (c) there was an increasing demand for a revision of sentences and the overturning of legal judgments, including death sentences, passed against the political opponents of Franco.

Summary

THE LEGAL DESCRIPTION OF CRIMES AND THE PROBLEM OF RETROACTIVITY

CRIMES AGAINST HUMANITY UNDER SPANISH CRIMINAL LAW

The Spanish legal system is a pure example of a civil law model, where the principle of legality is an absolute limit to the State's power to impose criminal sanctions. Legality is conceived in strict terms of a Statutory Law passed by Parliament which must fulfil all requirements of a lex praevia et certa. Retroactivity is strictly prohibited and only feasible when the Law that must be applied is a “favourable law”, as it is stated in Article 9 of the Spanish Constitution and in Article 1 of the Penal Code. According to the prevailing criminal law doctrine, this prohibition constitutes a final obstacle to prosecute the crimes of Francoism. There is no doubt that during the repression acts were committed that were described as murder or unlawful detention according to the criminal law in force at the time of commission, but the attempts to prosecute in recent years have been based on the classification of the facts as crimes against humanity, in order to highlight the massive scale and the deep social impact of the crimes and more easily avoid the effects of amnesty law and prescription. What occurred in Spain during the Civil War and the first years of the dictatorship was obviously a systematic and generalised attack against the civil population or against a part of it, since the aim of the perpetrators was to eliminate and terrorise their opponents. Therefore, pursuant to the current law in force, it would not be a problem to classify the facts as crimes against humanity in the form of murder, torture or enforced disappearances. However, a first limitation the prohibition of retroactivity then appears, since crimes against humanity were enacted in the Spanish Penal Code (CPE) in the Act of 25 November 2003, which came into force in 2004.

The definition of crimes against humanity included in the CPE was inspired by the Statute of Rome, although there are some differences.

Summary

The Spanish transition from the Franco regime to democracy has not been a very popular subject amongst researchers examining transitional justice at the international level. This impression can be easily supported by conducting a search through the list of countries in which the attention of publications and/or scientific activities have focused on this subject. However, Spain presents certain peculiarities that make it an interesting case in which to explore comparative law and sociology. It has sometimes been seen as a model of peaceful transition, but has also been labelled as an example of an “amnesic” transition to a democratic system in which victims’ rights, justice and truth were forgotten. During the Spanish transition, some of the decisions taken were very different from those made in Europe and in certain Latin American countries.

As Huyse pointed out, post-Franco Spain could be seen as an example of a “third route towards impunity”. It was not impunity derived from a unilateral decision taken by the old authoritarian regime (self-amnesty) and it was not even impunity accompanied by a process in which the truth concerning the atrocities of the past was declared. Almost all of the democratic forces agreed to confer immunity on individuals who had committed crimes either defending or opposing the authoritarian regime; there was a conscious decision not to look back to the past and to forgive without setting any kind of conditions. As in post- War France, post-Franco Spain was an example of a policy of forgetting. Nino, and later Elster, presented the Spanish case as one of the transitions that took place in Southern Europe during the 1970s. However, the similarities in the situations of Spain, Greece and Portugal were little more than a coincidence. Spain was the only case in which a decision was taken to avoid transitional justice. This has sometimes been praised, but never copied.

The first Act that included an explicit condemnation of the Franco regime was not passed until 2007, more than thirty years after the dictator's death. We should therefore ask ourselves whether Spain's lack of memory has, in fact, really come to an end and whether transitional justice itself has been anything more than just a time bomb.

Intersentia

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Chapter 21 - Protective Relief

Summary

PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL

Table of Statutes

Chapter 17 - Arbitration Awards: Issues of Finality and Res Judicata

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Chapter 4 - The Six Phases of Court Proceedings

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PART IV - COSTS AND FINANCING OF LITIGATION

Chapter 4 - The Major Principles of Arbitration and Litigation: A Comparison

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Table of Statutory Instruments

PART I - MEDIATION

Chapter 17 - Enforcement of Court Judgments and Orders

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Chapter 1 - Introduction

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PART VI - PRINCIPLES OF CIVIL LITIGATION

Chapter 18 - Basic Costs Principles

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Table of Cases

Bibliography

Chapter 6 - Questioning the Transition: Late Transitional Justice?

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Frontmatter

Chapter 9 - Is Criminal Prosecution Viable? The Theoretical Debate

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Contents

Chapter 1 - Introduction

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