Does the claimant need to plead and prove an applicable foreign law in cross-border claims?

This blog post is by Max Archer of 12 King’s Bench Walk.

In Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA & Ors [2018] EWHC 2759 (Comm), Baker J held that where a claim was governed by foreign law but the claimant had not pleaded or proved the content of that law, the court would apply English Law as per rule 25(2) of Dicey, Morris & Collins on the Conflict of Laws. Where a claimant has pleaded a viable cause of action and the defendants had not argued that it would be inappropriate to apply English law, it must apply as per rule 25(2). Continue reading Does the claimant need to plead and prove an applicable foreign law in cross-border claims?

Jersey: draft legislation on discount rates gathering pace

This is an update by William Audland QC to his recent blog on the Draft Damages (Jersey) Law 201 (available here).

Following my post earlier this week it now appears that the Draft Damages (Jersey) Law 201 -designed to set a statutory discount rate and to create a statutory power to make a PPO – is being expedited.

The Corporate Services Scrutiny Panel has already started a review of the draft Law. As part of that review, relevant practitioners and experts in Jersey have been invited to submit their views on the draft Law, and to certain specific questions relating thereto, by 9 November 2018.

The Draft Damages (Jersey) Law 201 has been lodged by the Chief Minister for debate on 4 December 2018.

Watch this space.

Periodical payments and discount rates: Jersey now leading the way?

This blog is by William Audland QC of 12 King’s Bench Walk.

Following a trial this summer, judgment is presently awaited on the following questions: (1) whether Jersey customary law permits the making of a PPO; and (2) the determination of the appropriate discount rates in Jersey. Judgment is awaited.

In a surprise development last week, the States of Jersey published the Draft Damages (Jersey) Law 201 which will:

  • set a statutory discount rate;
  • create a statutory power to award damages by way of a PPO to cover future care costs and lost earnings.

The discount rates proposed are expressly stated to have been:

  • informed by the consultation launched jointly by the MOJ and the Scottish Government into the discount rate, and which included detailed analysis by the UK Government Actuary’s Department into investment returns;
  • the product of a review conducted by the States of Jersey’s Senior Economist and the Director of Treasury Operations and Investments concluding that:
    • 15-year inflation data shows no long-term difference between inflation in Jersey and the UK respectively;
    • the UK Government Actuary’s Department’s analysis of investment returns in personal injury cases – to the effect that claimants in fact adopt a “low-risk” as opposed to a “very low-risk” strategy towards investment – was of equal validity in Jersey;
  • designed to fulfil the accepted principle of full compensation but acknowledged that there were differing views which had yet to be taken into account on certain issues (e.g. how to adjust for the management fees paid to investment managers and/or how to account for insurers’ concerns about the economics of the discount rate).

On that basis the appropriate discount rates would be:

  • where the lump sum is to cover a period of up to 20 years, +0.5%; and
  • where the damages will cover a period of more than 20 years, +1.8% (applicable to the whole of the award, not just the costs arising after the first 20 years).

From the date on which the Draft Law comes into force – that date being 7 days after the registration in the Royal Court if adopted by the States and sanctioned by the Privy Council – a court, including an appeal court, will apply the new provisions.

We will be keeping a keen eye on further developments in Jersey.

The Legal Systems of South Korea and England: A Comparison

Jihyun Kim, a lawyer practising in South Korea, recently spent a week at 12 KBW on an exchange programme organised by the Bar Council. In this blog post, Jihyun compares and contrasts the legal systems in South Korea and England, including the very different approaches to case management, costs and ADR. Continue reading The Legal Systems of South Korea and England: A Comparison

12 KBW International & Travel team produces new Accidents Abroad chapter for Butterworths Personal Injury Litigation Service

Members of 12 King’s Bench Walk’s International & Travel team have co-authored a wide-ranging update to the ‘Accidents Abroad’ section of Butterworths Personal Injury Litigation Service – a leading loose-leaf text for personal injury practitioners.

The update covers applicable law and jurisdiction in personal injury claims, the new Package Travel and Linked Travel Arrangements Regulations 2018, up-to-date guidance on gastric illness claims, and the international travel conventions. The new chapter appears in the most recent edition of the hardcopy text and is also accessible online for subscribers to LexisNexis.

Permission to Appeal refused in Kenya Emergency Group Litigation

On Tuesday the Court of Appeal refused permission to appeal the decision of Stewart J in the first judgment on the merits in the Kenya Emergency Group Litigation (Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB)). We wrote about the earlier decision here.

The permission to appeal decision is available on BAILII under the heading Kimathi and Others v Foreign & Commonwealth Office [2018] EWCA Civ 2213. In summary:

  • The judge had concluded that there was no good reason for the delay in bringing the action. But he went on to find that, even if there had been a good reason, on balance the case still could not be fairly tried. His conclusion in that respect could not be impugned [9].
  • There was no need for the judge to identify a specific date by which the action should have been brought in order to deal with prejudice to the defendant. What was crucial was to ‘consider the position as it is now’ [14].
  • The judge was justified in finding that the loss of documents and potential witnesses over time inevitably and seriously affected the cogency of the evidence available [16].
  • The fact that the claim was brought against a background of allegations of abuse requiring scrutiny or investigation did not affect the core issue of prejudice [17].
  • A final allegation that the judge had not been even-handed was simply unjustified [18].

Ultimately, the court determined that the claimant ‘cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible’.

The decision provides a harsh reminder of the difficulty of appealing exercises of a judge’s discretion under s. 33 Limitation Act 1980. The potentially significant implications of this decision for the viability of the remainder of the thousands of claims in the Kenya Emergency Group Litigation remain to be seen.

Asbestos Exposure and Choice of Law – Docherty Revisited

This blog post is by James Beeton of 12 King’s Bench Walk.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

‘Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops. Continue reading Asbestos Exposure and Choice of Law – Docherty Revisited