Reminders that there are rivals to London’s courts

By “London” in my title, I mean “the courts of England and Wales”. Probably, in fact, I mean “disputes business”. This is not one of those “we’re all doomed” articles, just some pointers to the possibility that other jurisdictions may offer more attractive venues both in terms of procedure and facilities.

One of the motivations behind the new disclosure rule, so we were told this week, was a threat by GC100 companies that they will find alternative ways of resolving their disputes if the courts of England and Wales do not address inefficiencies, particularly inefficiencies of procedure and specifically disclosure, in our courts.

A couple of straws in this wind came my way yesterday. Neither necessarily indicate a flight from London in the short-term, but they do add substance to fears of an erosion of London’s position.

The first was an article in the Times with the heading Paris opens English courts to snatch British business before Brexit. The article is behind the Times paywall but in summary it says that the French Justice Ministry has opened an international commercial appeal chamber at the Paris court where English can be spoken instead of French, where judgments will be in both languages, and where international law, including that of England and Wales, may be used in arriving at decisions.

Although this is perhaps part of a wider political war designed to put pressure on Britain as the government flounders through Brexit negotiations, it reminds us that the civil courts exist to serve their users, that geography and systems of law do not have to march in parallel, and that some parties are generally free to agree on both systems of law and the venue for any future fight.

Another example in the news this week is the Dubai International Financial Centre (DIFC) courts which announced that it has become the first court in the Middle East to introduce a new secure cloud-based technology to allow court documents to be uploaded from anywhere in the world. Judges, lawyers and court staff will be able to access case information in various formats, across multiple locations and share them with numerous users. The system comes from UK-based company CaseLines.

Past form indicates that the current initiatives in the same direction in England and Wales will collapse in due course after the spending of a lot of money. I said this in my 2018 predictions for the SCL:

I give it six months until the government cuts the funding promised for the new IT initiatives, before the system specifications change beyond recognition, before the relevant civil servants move on to something less challenging, and before the whole electronic courts plan falls to the ground. That is what has happened with every preceding initiative, anyway.

While on the subject of Dubai and the DIFC, you might like to see a judgment of that court. It is instantly recognisable as being derived in style and form from judgments of England and Wales.

The judge making the order is Deputy Chief Justice Sir David Steel, a former head of the Commercial and Admiralty Courts in England and Wales, and not the only former England and Wales judge to have found a more congenial place to sit in judgment. Those he left behind struggle on with inadequate resources, a revolving door of Lords Chancellor of varying degrees of uselessness, and a Ministry of Justice which seems to have become the place which takes on the civil servants who are not up to working elsewhere.

And what of Singapore? What of Ireland, the neighbour with a first-rate justice system and ambitions to turn Brexit to advantage if it must bear it at all. I will be writing about Ireland soon.

As I said in opening, this is not a prediction of an imminent flight from London. But if the GC100 – “the voice of general counsel and company secretaries working in FTSE 100 companies” thought that the threat of alternatives was an appropriate stick with which to threaten the Lord Chancellor over disclosure, then we have to take notice.

It is not just procedure which is the problem, and not just funding, however serious that is. Lord Justice Leveson, no less, found himself angrily trying to use a broken video link this week – an everyday occurrence for others dependent on MOJ-provided technology. Broken lifts, lights and lavatories are commonplace. Courts close with no discernible thought about the consequences. Cases are put off because no judge can be found to hear them. Few want to be judges now. The whole system is decrepit, run by lazy incompetent pen-pushers at the MoJ for whom whining about funding is an alternative to trying to make the best of what they have.

Most of us don’t have the choice of jurisdiction and are stuck with what is on offer here. The MoJ doesn’t care very much about ordinary users anyway. To the extent that the MoJ paper-shufflers care about anything beyond their pay and pensions, they care about big companies who can choose to litigate here or not. That care does not seem to translate into any form of practical encouragement.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Litigation Support. Bookmark the permalink.

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