Lord Frost: changes incoming for retained EU law

A major issue for English civil lawyers since Brexit has been making sense of the complex new idea of “retained EU law”.

Sam Cuthbert wrote an excellent summary of the key points in a blog back in January of this year. 2TG have recently released a detailed analysis of the many difficult questions about this area that will need to be answered in future cases.

But Lord Frost, the Government’s former chief Brexit negotiator, has indicated in a statement to the House of Lords yesterday that it is already time to “revisit this huge, but for us, anomalous, category of law”.

There are apparently two purposes of this review.

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Can a defendant who unnecessarily submits to the jurisdiction be an “anchor defendant”?

This is a short blog considering a fairly niche but potentially important issue. The situation is this:

The Claimant brings a claim against a foreign-domiciled D1, who submits to the jurisdiction. In fact, if D1 had not submitted, then there would not have been any valid jurisdictional basis for the claim against D1.

Can D1 be used as an “anchor defendant” for the purpose of the “necessary or proper party” service gateway in a claim against D2?

This might happen in one of two situations:

  • D1 makes a mistake: perhaps it fails properly to assess the jurisdictional position before submitting; or perhaps its representatives accidentally take some step in the litigation that amounts to a submission.
  • The Claimant and D1 collude to bring about a situation where they and D2 are all parties to the same litigation.

D2 suggested that the second situation was occurring in ID v LU & Anor [2021] EWHC 1851 (Comm). D1 could have insisted on being sued in its home courts in Ukraine under art. 4 of Brussels I (Recast), but apparently chose not to in order to engineer a situation where D2 were also before the court.

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Foreign law evidence: think about the practical side

It is one thing to follow the formalities to get expert foreign law evidence before the court in the first place (and all litigants should, of course, make sure that they follow the proper formalities).

But canny litigants need to go a step further and think about the practicalities of how their expert will give evidence and what impact this might have on the judge’s perception of the expert and the evaluation of their evidence.

This factor has always been relevant, but it has become especially important in the context of increasing reliance on remote or hybrid hearings where evidence may be given by individuals who are not physically present in the courtroom.

In Emerald Pasture Designated Activity Company & Ors v Cassini SAS & Anor [2021] EWHC 2443 (Ch), HHJ Kramer made some useful comments showing that considerations of this kind do play an active role in how judges approach foreign law disputes. The take-away from this blog is that litigants need to give real thought to the practicalities well in advance of any hearing.

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Success for pursuer in Scottish fatal diving accident claim

In this blog post, Lois Aldred of 12 King’s Bench Walk considers a new and perhaps conclusive development in the long-running litigation in Warner v Scapa Flow Charters [2021] CSOH 92.

The case is best known for its trip to the Supreme Court on limitation in 2018. Readers may recall that the Supreme Court allowed the claim brought for the benefit of Mr Warner’s son to proceed despite it being issued after the two-year limitation period of art. 16(1) of the Athens Convention.

The law of the forum governing a period of “suspension” or “interruption” of a limitation period under art. 16(3) of the Athens Convention was held to be wide enough to include Scottish legal provisions postponing a limitation period in the claim on behalf of the son, so that it was allowed to proceed.

The trial of the claim has now been heard by the Outer House of the Court of Session, the decision giving some comfort to the family of Mr Warner who sadly died following a diving trip out of the vessel (MV  Jean Elaine) skippered by the Defenders.

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X v Kuoni: Supreme Court unanimously allows Claimant’s appeal

The Supreme Court has handed down judgment in X v Kuoni Travel Ltd (ABTA intervening) [2021] UKSC 34, unanimously finding in favour of the Appellant. It follows the ruling of the CJEU in March of this year.

We previously blogged about the first instance decision, the Court of Appeal’s decision, the interim judgment of the Supreme Court, and the Advocate-General’s Opinion.

The Respondent was represented by William Audland QCNina Ross and Achas Burin of 12 King’s Bench Walk on instructions from Gary Tweddle at MB Law.

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Permission to appeal granted in struck-out Fundão Dam Disaster Litigation

We previously blogged about Turner J’s decision to strike out the Fundão Dam Disaster Litigation. Coulson LJ then refused permission to appeal that decision on paper. The claimants applied for Coulson LJ’s decision to be re-opened on the basis of the court’s exceptional powers to avoid injustice pursuant to CPR r. 52.30.

The Court of Appeal has granted that application and now given permission to appeal following a hearing before three appeal judges.

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Beyond Visual Line of Sight (BVLOS) drone use is coming. What should insurers be doing?

In this blog post, Patrick Vincent QC and Max Archer of 12 King’s Bench Walk explain the imminent challenges for insurers arising out of the rapid rise of drone technology. The proper regulation of drone use and its implications for insurers has quickly developed into a transnational legal issue generating ongoing discussions between lawyers, lawmakers, and insurance industry representatives from around the world.

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Expert foreign law evidence … or judicial roulette?

We have previously blogged about the need for parties to litigation to follow the proper formalities in order to rely on expert foreign law evidence.

In Pescatore v Valentino & Ors [2021] EWHC 1953 (Ch), HHJ Paul Matthews set out the position again:

Before I turn to deal with the application for an injunction, I should say this. There was no direction for expert evidence of Italian law or procedure, and therefore no such admissible evidence before me. Some of what Avvocato Giambrone says in his witness statement might be seen as bordering on expert evidence of Italian law. But even if there had been a direction for such evidence, he as the respondents’ lawyer would obviously not have the necessary independence to give it.

HHJ Paul Matthews was hearing a claim for an anti-suit injunction in the context of related litigation in Italy. An assessment of Italian law was relevant to the question of whether the Defendants would be deprived of a juridical advantage if an injunction were granted against them.

Despite there being no formal foreign law evidence, the judge decided to take “judicial notice” of some of the different features of property and inheritance law in civil law jurisdictions as against England and Wales.

Given that the content of foreign law is generally treated as a fact which must be proved by evidence, why did he do this? And does this approach open the gates for future parties to plug gaps in their cases in this way?

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Post-Brexit edition of Butterworths Personal Injury Litigation Service published

The “Accidents Abroad” Division of practitioner text Butterworths Personal Injury Litigation Service has for some years now been written and edited by members of 12 King’s Bench Walk’s International & Travel Team.

Earlier this year, I worked with cross-border guru Philip Mead on the first post-Implementation Period version of the Division, building on last year’s excellent work by Elizabeth Boulden, Charley Turton, Spencer Turner, and Christopher Fleming, with oversight from David Green.

It is one of the first major personal injury law textbooks dealing with the changes brought about by the Trade and Cooperation Agreement, the new rules on service, and the complex transitional procedural provisions following the UK’s ejection from the Brussels-Lugano system.

The key change we have made is that the Section dealing with “Accidents with a foreign element” no longer includes a structure based on a core division between accidents falling under the Brussels-Lugano regime and accidents falling under the CPR service gateways.

The new structure is instead split into easily identifiable scenarios, with a focus on providing practical advice for lawyers who encounter these claims. The scenarios are:

  • Defendant domiciled in Scotland or Northern Ireland
  • Jurisdiction in relation to consumer contracts and in relation to individual contracts of employment
  • Proceedings against EU and EFTA-domiciled defendants issued and served by 31 December 2020
  • Proceedings against EU and EFTA-domiciled defendants issued but not served by 31 December 2020
  • Proceedings against (i) all non-EU and non-EFTA-domiciled defendants and (ii) EU- and EFTA-domiciled defendants issued after 31 December 2020

The new edition is available online on the LexisNexis website. Any comments or requests for the inclusion of additional content in the next edition are of course always gratefully received.