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.
I qualified as a South Korean lawyer in 2015, have been practising since March 2015, and I am now taking a one-year sabbatical in order to study at UCL for a LLM. Prior to starting at UCL I was lucky to have had the opportunity to spend a week at 12 KBW as part of the Bar Council’s Korean Bar Association Exchange Program in September 2018. Prior to starting at 12 I had spent an introductory week (also part of the program) attending various lessons on the English legal system at the BPP Law School and tours to courts including the Royal Courts of Justice, The Rolls Building, and Bristol Crown Court. I then spent a week with William Audland QC and other members of 12, which gave me a fascinating glimpse of litigation in action in England. I attended a few conferences, a court hearing by telephone, a settlement meeting, and a chambers seminar.
These are my impressions of a few significant differences between litigation here and in my country.
First, I found it hard to get to grips with the dual nature of the profession here, and it was not immediately easy to distinguish between solicitors and barristers, nor their different roles, since in Korea we have only one unified legal profession. Once instructed by a client I am personally responsible for all aspects of the litigation in question, be that drafting statements of case or documents for the court, collating and analyzing any necessary evidence, preparing the case for trial, and then representing as the client’s advocate at trial. I initially saw no particular reason why one lawyer cannot do everything but by experiencing the reality of a different system, I appreciated what different roles barristers and solicitors perform and how they work together as a team.
Another legal culture shock for me was the concept of a settlement meeting. I understand that the majority of cases in the UK are settled before trials at either settlement meetings or mediation, highlighting the importance of negotiating skills for the lawyers. In South Korea, negotiations usually happen before lawyers are instructed, and in the majority of cases, the parties instruct lawyers once negotiations have failed. Once lawyers are instructed, the case will normally proceed to trial. Although ADR is an emerging feature of litigation in South Korea it remains rare for a negotiated settlement to be concluded by lawyers before trials. According to a recent report by the Office of Court Administration in Korea, the number of litigated cases in 2017 was 6,742,783. This is one learning experience that I intend to take back to South Korea, and develop in my practice upon my return.
The different attitudes towards settling disputes may be a reflection of the different way in which cases are litigated in our respective jurisdictions. In South Korea a claimant will issue a claim and attach evidence to his claim form; the defendant will then file a response with his evidence; and the claimant will reply again with any further evidence he wishes to adduce. In this way, the exchange of documents continues until the decision of the judge is made. In the meantime, the judge fixes the first hearing date, usually after the defendant replies to the claim form for the first time, and trials then happen over a series of hearings, with adjournments between each one. The same judge deals with the case from start to finish, except in the event of judicial rotation (each judge holds a post for two years before being moved to another post, which can lead to delays if the judge is changed before the case has concluded). This is very different to case management here where the court has a number of hearings before procedural judges before the case is listed for a final trial before a different judge.
I also get the impression that it is less costly to litigate in South Korea for a number of reasons. As here, the winner pays the loser but the amount of cost the loser will pay can be calculated beforehand and it is limited. There is a Regulation which caps lawyer-fee costs by reference to the value of the claim in South Korea and lawyer-fee costs which are capped by the Regulation are under 10% of the value of the claim. There are different bands according to the values of the claims, and different caps apply to each but the higher the band is, the lower the proportion between capped costs and the value of the claim becomes. As the lawyer’s fee comprises the majority of the legal costs in South Korea, the costs which the losing party will have to pay are limited. Even if one party uses experts for a case (which is uncommon), their fee is usually a fixed one so the other party will still know what the rough cost will be. Advantages of this system are not only the limit on costs liabilities, but the fact that a party will have a good idea of his maximum costs liabilities in the event of his losing the case. There is no system like CPR Part 36 and no penalties are imposed for failing to beat an offer. This too makes it easier for parties to litigate to trial rather than to negotiate a settlement.
I spent a splendid week at 12 KBW and learned so much about the English legal system. Many thanks to William and the other barristers who welcomed me most warmly and gave me a fascinating week at 12.