Maintaining Enforcement of Uk Judgments in Brexit Negotiations Seen As Central to Ensuring

FRIDAY 28 JULY 2017

PRESS RELEASE

MAINTAINING ENFORCEMENT OF UK JUDGMENTS IN BREXIT NEGOTIATIONS SEEN AS CENTRAL TO ENSURING LONDON’S LITIGATION PRE-EMINENCE

Concerns over the recognition and enforceability of UK judgments in Europe post-Brexit is seen one of the biggest threats to London’s position as the forum of choice for resolving the world’s biggest disputes, according to a survey of the capital’s litigators out today.

Respondents to the latest Litigation Trends survey conducted by the London Solicitors Litigation Association and New Law Journal have flagged that with the terms of the Brexit deal still up in the air and no clear statements from the UK Government about the position that it intends to take in its negotiations with the EU27, there are significant concerns over the recognition and enforceability of judgments in the UK’s courts.

Last year the LSLA and other leading professional associations identified a range of steps that the Government could and should take to support the ongoing mutual recognition and enforcement of English Court judgments, and the parties’ choice of law and forum. Some of those steps will require the consent of the EU, but others not. If such measures are neither sought nor secured in Brexit negotiations, litigants could turn to alternative jurisdictions.

38% of respondents foresee a significant flight of work from the UK to other jurisdictions or tribunals post-Brexit. Of that 38%, one quarter cited specifically Germany as a jurisdiction that could benefit at the expense of the UK, and another quarter felt Singapore and the Far East were potential alternatives, especially relating to arbitration. Singapore is a signatory to the Hague Convention on Choice of Court Agreements 2005, and therefore where parties resolve that their disputes should be heard before a court or tribunal in that state alone (or in another Convention state), any resulting judgment will be recognised throughout the EU.

However, the wide range of alternative options mentioned by respondents indicates there is no single contender set to win out in a similar way to London’s current leading position. A party’s agreement to have their disputes resolved by English law will still be recognised by the EU27 post-Brexit. Commercial parties are unlikely to abandon English law, a fact which is recognised by France’s decision to establish a Court in Paris that will hear English law cases. Whether parties will be happy for an English law dispute to be determined by a French court remains to be seen.

The other main threat to London’s pre-eminence as the forum of choice of the world’s disputes cited was control of costs in litigation, for which the UK’s approach to disclosure received the greatest criticism. Over 70% of respondents felt that the current disclosure regime was ineffective in controlling the burden and costs involved in the process, with many pointing to greater use of technology as a way forward. Others highlighted a lack of engagement by parties to find ways of narrowing the scope of disclosure in appropriate cases and equally said that they would like the Courts to be more proactive in controlling current excesses in relation to disclosure. A solution, cited by many, was greater use of technology to process and review the mountain of data resulting from e-disclosure. Clearly, technology is part of the problem but also presents part of the solution. For technology to be used to its full, it requires co-operation and engagement between the parties, which presently is lacking in many cases.

This is not to say that the LSLA Members would like to get rid of full disclosure all together; far from it. Many see the option of seeking an order for standard disclosure with an obligation to carry out reasonable and proportionate searches as being a key attraction of the Courts in London; many jurisdictions elsewhere on the Continent do not allow for this.

Nonetheless, LSLA members expressed optimism about the London litigation market. Respondents expected the market in dispute resolution, both domestic and international, in London to stay strong – 74% believed that the market will grow or remain stable. The impact of Brexit – and the market depression and instability associated with it – was the most oft-cited reason.

Ed Crosse, President of the LSLA and partner at Simmons & Simmons, commented: “There is much cause for optimism for the London litigation market in the short term, though if it is to keep its crown in the future, neither the courts nor the profession should be complacent.

“The survey highlights that there is a demand for procedural reforms, notably in relation to disclosure. Parties have welcomed the introduction of fast track procedures, such as the Shorter and Flexible Trials Scheme, and the establishment of the specialist Financial List. But more needs to be done if we are to compete in the longer term with the likes of Singapore. Ensuring that Brexit does not deter parties from choosing English law or courts in England and Wales needs to be treated as a priority. There are some easy wins.

“Similarly, we need to be bold in the steps that we take to modernise our procedures with a view to minimising costs and delay. If we do this, London can be confident of continuing to enjoy its unique status as the world’s pre-eminent litigation centre, long into the future.”

Survey highlights:

· More than 70% of respondents came from firms with teams of more than 21 litigators.

· Over 50% felt there wasn’t sufficient engagement between parties before the first Case Management Conference, for the purposes of finding ways to reduce the burden and costs of disclosure and to discuss the use of technology

· Despite the reforms to the CPR in 2013, Standard disclosure is still the default approach taken for most cases. There is insufficient use of the other menu of disclosure options under CPR rule 31.5 (7). To the extent that alternatives are used, issue-by-issue disclosure was the option most commonly used.

· Two thirds of respondents disagreed that there should be a fixed cost regime for commercial cases where the amounts at stake are less than £250,000 to control costs in lower value claims.

· Nearly 60% of respondents see the cost of litigation increasing over the next five years (assuming no other changes to the costs regime).

Ends

Notes to Editors:

LSLA: London Solicitors Litigation Association represents the interests of a wide range of civil litigators in London. It has 2,400 members among all the major litigation practices, ranging from sole practitioners to large international firms. It provides a strong and effective voice for litigators in law-defining consultations and debate. http://www.lsla.co.uk/

New Law Journal: New Law Journal is the leading weekly legal magazine keeping practitioners up to date with the latest news and developments in the legal sector and keeping them abreast of all changes in case law. http://www.newlawjournal.co.uk/

The Survey: The Survey was conducted in the Spring of 2017. Results are based on responses from 286 individuals.

For further information, please contact:

Tim Wells or Amelia Jones at

Kysen PR on: 020 7323 3230