Britain should take steps to ban complicity in torture, the most senior elected official at Europe’s largest representative body said in London this week. I don’t suppose the government was too worried. It would be cruel to say that Terry Davis is not a household name even in his own household. But, as he admitted at Chatham House on Tuesday, ‘household name’ would not be how anyone would describe the Council of Europe – even though it represents 800 million people across 47 states. Davis, 71, served as a West Midlands Labour MP for 28 years, though he was never rewarded with ministerial office. He is almost at the end of his five-year term as secretary general of the Council of Europe, which had only 10 members when it was founded in London 60 years ago this week. To celebrate its last big anniversary 10 years ago, the Queen gave a reception at St James’s Palace. This time, there was nothing quite so grand. That’s because the mood was rather more upbeat in 1999. Parliament had recently passed the Human Rights Act, allowing our own judges to apply the most important of the council’s 200 or so European conventions. But the act had not yet come into force and ministers were blissfully unaware of the pitfalls ahead. I reminded Davis that, more than five years after the European Court of Human Rights first ruled that Britain’s blanket ban on prisoners voting was unlawful, the government had still not taken steps to amend election law. ‘No doubt the government has a very heavy workload,’ he said, not trying even to persuade himself that this was the true reason. In his speech this week, Davis was rather less diplomatic. He observed that some older European democracies appeared ‘shocked’ at any criticism by Council of Europe monitors of their records on human rights or discrimination. That was in contrast to states such as Azerbaijan, Georgia, Russia, Serbia and Ukraine. When planning new legislation on democracy and human rights, these countries generally volunteered their drafts for assessment by Council of Europe experts. ‘True, they don’t always seek our opinion and don’t always accept our advice,’ Davis said. ‘But, on the whole, this part of our work has a very clear and measurable influence on democracy and human rights in these countries.’ What would really boost these efforts, he continued, would be for countries such as Denmark, France and the UK to let these same experts look occasionally at their own draft laws on immigration or terrorism. ‘I leave you to judge how likely this is,’ Davis said, not holding his breath. He recalled what happened after the Council of Europe discovered that US intelligence agents had been kidnapping suspected terrorists in Europe before interrogating them in a way that was banned by the human rights convention. ‘When I proposed that governments should consider the possibility of measures which would help to make sure that such gross violations of human rights would be prevented in future, they did nothing,’ he said. ‘It has been nearly three years and we are still waiting for them to act.’ Davis sounded let down by the political party he had joined more than 40 years ago. ‘There is nothing more damaging to the cause of human rights than its most vocal advocates acting with inconsistency and double standards,’ he said accusingly. But he is enough of a politician to know that quiet diplomacy is often more effective than feisty speeches. A little-noticed amendment to the human rights convention, due for approval by member states in Madrid next week, is likely to have more impact on people seeking to enforce their human rights than any number of grand speeches. As I noted here last October, the European Court of Human Rights is a victim of its own success. Nearly 100,000 applications are pending, most of them ineligible or otherwise doomed to failure. But applicants must wait up to four years to hear if their case will even be considered – Lord Hoffmann pointed out in March that ‘the court has no summary mechanism for dealing with hopeless cases’. A committee of three judges is needed to declare an application inadmissible and a chamber of seven judges must sit before a case can be dismissed on its merits. Clearly, this is a waste of resources. In 2004, the Council of Europe proposed reforms to the human rights convention aimed at using judges and staff more efficiently. Protocol 14, as it’s called, would have allowed a single judge, assisted by an official, to strike out a case. It would also have allowed a three-judge committee to grant or refuse routine claims. Protocol 14 has been ratified in every country except Russia. Because it requires unanimity, the amendment cannot be implemented. So a new ‘interim’ amendment has been devised. Protocol 14 bis would also reduce the number of judges needed. Unlike protocol 14, though, it does not permit a case to be thrown out merely because the applicant has ‘not suffered a significant disadvantage’. But the big advantage of 14 bis is that it can be implemented on a state-by-state basis. Provided the protocol is approved by member states in Madrid next week, it will bind each country that accepts it. It could begin to take effect in the autumn. Even so, its impact will be limited unless some of the worst offenders sign up. Between them, Russia, Turkey and Romania account for half the outstanding applications. Davis’s successor may need some more radical ideas.
I see from your story ‘Compensation fund levy set to treble?’ that the SRA is trying to justify a large increase on the basis that, if the Law Society had accepted their advice last year, the rise would have been less this year (see  Gazette, 21 May, 1). When the 2008/09 compensation fund contribution was set by council, the decision was based on the lower of two recommendations from the SRA (£150 rather than £300) to maintain the level of reserve that the SRA recommends. Council’s decision was proved right because the extra money the SRA was seeking was not needed. The picture for 2009/10 may be different because of the difficult economic circumstances and so the contribution might be higher. This approach, reacting to the realities of the market, might mean that the contribution goes up and down from year to year, but in this case the profession will have had the benefit of the £150 in their pockets for a year, and it is surely better there than in an SRA account. Desmond Hudson, Chief executive, the Law Society
It’s no secret that not all members of the Lords were desperately keen on upping sticks and moving to some new fangled Supreme Court. But former lord chief justice, Lord Phillips (pictured), was always in favour. He was conscious of the importance of a visible separation between the parliamentary chamber and the judicial court, of course. But in a speech at Gresham College last week, Phillips shed some light on a few of the other perks that have been garnered from the move. ‘Working conditions were not ideal in the law lords’ corridor, even if they were the envy of other members of the House, and our judicial assistants had to be housed in the attic, their numbers restricted by constraint of space,’ he said. But in the new court, ‘the justices are well accommodated in spacious rooms, albeit that most of these are in the attic. There is an excellent open plan office for our secretaries and judicial assistants. We have a handsome library, a well-proportioned dining room and a sitting room’. It is always good to know that the senior judiciary has been provisioned with suitable creature comforts. But was there perhaps just the slightest hint of envy in Phillips’ observation that: ‘The grandest accommodation has been allocated to the lawyers, consisting of a suite of panelled rooms.’ More pleasant amenities are not the only improvement on the old gaff, however. Phillips also approves of the new, more media-friendly setup of the court. And it turns out he has quite a flare for playing to the gallery. He explained: ‘Where a judgment is delivered… the judge delivering [it] will prepare a short oral statement of its effect. Where the case is one of general public interest this is likely to be broadcast as part of the news.’ With uncharacteristic immodesty, he added: ‘I have become quite good at this and am at risk of turning into a TV personality.’ Quite so. Obiter looks forward to Phillips’ forthcoming jungle appearance in the next series of I’m a Celebrity, Get Me Out Of Here.
The Legal Services Consumer Panel has made a call for evidence from solicitors and others in an investigation launched today into whether will-writing should become a regulated activity. The Legal Services Board has asked the panel to provide evidence of what problems consumers encounter in making a will, and whether they need more protection. The panel’s findings will inform the board in making a decision next year on whether will-writing should be regulated. The panel is seeking evidence of badly written wills containing drafting errors; instances where will companies have put pressure on consumers to name them as executors of the estate; inappropriate cross-selling; and fees charged that are much higher than the original quote, as well as other issues. Panel chair Diane Hayter said: ‘The case for regulating will-writers may rest on whether there are abuses across the industry, or just a few rogues who can be dealt with under existing laws.’ Law Society president Linda Lee said: ‘The Law Society will be responding to the call for evidence from the panel, because it is clear that consumers need greater protection against inaccurate and badly written wills prepared by people with little or no legal training. ‘The Law Society has been highlighting this problem for some time. There is strong evidence that unregulated will-writers provide a substandard service for clients, leading to wills being lost or beneficiaries losing out. In some cases there is even dishonesty. As a result, the testator’s wishes may be ignored and their families or other executors have to pick up the pieces. ‘This is not the case when people use solicitors, who are regulated by the Solicitors Regulation Authority and who are fully insured in case of any mistakes. We are deeply concerned that members of the public use will-writers thinking that writing a will is a simple and straightforward task, or that there is protection should anything go wrong, when neither is the case.’
Taking on the media is never a good idea if you happen to be a member of the judiciary. While judges are required to be fair, logical and impartial, reporters and commentators are often inaccurate, opinionated and driven more by commercial needs than by lofty ideals. That much seems well understood by the Lord Chief Justice, Lord Judge, who is currently discouraging his senior colleagues from giving media interviews on sensitive topics. But he seems to have felt the need to make up for this judicial reticence by agreeing to give off-the-cuff responses to media questions last Friday at the launch of Lord Neuberger’s report on super-injunctions. This was a measured and sensible report, apparently drafted by John Sorabji, legal secretary to the master of the rolls, and printed on recycled, austerity-style paper to show how frugal the judges now are. And the two senior judges might have assumed that media organisations would have welcomed the report’s conclusion that restrictions on the media’s right to report court hearings should be allowed only when strictly necessary. But that assumption ignores two media imperatives. First, the newspapers’ commercial interests are best served if there are no restrictions at all. Second, a story along the lines of ‘judges agree that newspapers should be allowed to publish quite a lot really’ won’t attract many readers. So, reporters looked around for a conflict to generate, settling first on the idea of a row between the judges and parliament. It looked a promising source of disharmony. Only a day earlier, the recently ennobled Lib Dem peer Lord Stoneham had used parliamentary privilege to complain that a ‘super-injunction’ had been used to hide ‘the alleged relationship between Sir Fred Goodwin and a senior colleague’, this allowing the nature of the injuncted information to be reported for the first time. Stoneham was wrong, of course. As the Neuberger committee patiently explained, a super-injunction is one that bans reporting of its very existence; there were never any restrictions on reporting the Goodwin injunction or the judge’s reasons for granting it, provided the former RBS boss was not identified as the person who had obtained it. Asked for a quote, the lord chief justice told reporters dryly that it was ‘wonderful’ for them if an MP or peer stood up in parliament and breached a court order on anonymity. ‘But you do need to think,’ Judge continued, ‘whether it is a very good idea for our law-makers to be, in effect, flouting a court order just because they disagree with the order — or, for that matter, because they disagree with the law of privacy which parliament has created.’ Quite right, of course, but perhaps not the most tactful thing that Judge could have said. The media’s second line of attack involved Twitter. I had asked Neuberger why newspapers should respect injunctions that were widely flouted on the internet. The master of the rolls accepted that this was a problem for the print media. It was Judge, though, who allowed his frustrations to show through. ‘Modern technology is totally out of control,’ he said. ‘Anybody can put anything on it.’ Again, true; but inconsistent with the lord chief’s warning that ‘people who, in effect, peddle lies about others by using modern technology may one day be brought under control.’ The real problem is that Judge allowed himself to be portrayed as someone with a personal interest in restricting freedom of speech. That’s not the case, of course, but the newspapers seem to have got it into their heads that every victory for the press in getting the terms of an injunction relaxed is a defeat for the judiciary. By the start of this week, it had all got a whole lot worse. First, a Scottish Sunday newspaper identified Ryan Giggs as the married footballer who had been granted an anonymised injunction banning media reports of his alleged relationship with Imogen Thomas, described as a ‘reality TV star’. Next, just as Judge had predicted, an MP decided to name Giggs in the Commons. One by one, the mainstream media organisations decided that they were safe to use the footballer’s name. By then, it might have been wise for the courts to have lifted the court order. But Mr Justice Tugendhat concluded that the injunction was needed, more than ever, to protect the claimant and his family from intrusion into their private and family life. That might be true, but allowing Giggs to be identified could not have made matters much worse for him. Maintaining the injunction also gave the newspapers an excuse to depict the judges as out of touch. John Hemming’s identification of Giggs came in response to an announcement by the Attorney General, Dominic Grieve, that a joint parliamentary committee would be established to advise the government on how ‘current arrangements can be improved’. This could mean anything. Instead, parliament should decide whether footballers and other entertainers who cheat on their wives may have their names kept out of the newspapers. My own view is that we are too generous to these people, although I can see stronger arguments if blackmail is involved. I am not impressed by the argument that privacy is necessary to protect miscreants’ children: you can’t claim anonymity if you are convicted of murder, rape or getting your wife to take your penalty points. Privacy is a fundamental right and deserves to be respected. So does freedom of expression. But the judges would benefit from some parliamentary guidance on where to draw the line.
Campaign groups have pleaded with the government to climb down over ‘no fee, no fee’ changes after publishing new research. A survey of recent claimants using the conditional fee arrangement (CFA) found that more half of respondents had an income below the national average of £25,000. Nearly half of the cases involving CFAs had a compensation value below £5,000, with almost three-quarters winning a payout of up to £10,000. The Access to Justice Group (AJAG) and Association of Personal Injury Lawyers (APIL), who jointly commissioned the research, say ‘huge numbers’ of the three million claimants in the last five years would have lost their right to compensation under government proposals. The Ministry of Justice wants an overhaul of the civil justice system amidst fears of what it describes as a ‘compensation culture and an unwieldy justice system’. AJAG co-ordinator Andrew Dismore said: ‘The government must think again and not give in to the special pleading of the fat cat multinational insurance companies, who are the sole beneficiaries of their plans. ‘They will save millions of pounds at the expense of ordinary people who have been hurt on the roads or at work. The government’s plans are Draconian and will end access to justice for the less well off. ‘The system we have now works well and has huge satisfaction rates from those who use it.’ Both groups say they will ‘redouble efforts’ to fight proposals before they are formally debated in Parliament this summer. The Ministry of Justice wants to raise the small claims limit and abolish the recoverability of success fees and associated costs in ‘no win no fee’ claims. Claimants will have to pay their lawyer’s success fee, rather than the additional cost being charged to defendants, a move which opponents claim will restrict some people’s access to justice if they have been injured.
A Cumbrian solicitor is taking on a different type of trial as he leads a world competition later this year. Nigel Davis (pictured) is the chair of the organising committee for the 2011 World Sheepdog Trials being held in September. The event is expected to attract far more than simply one man and his dog, with crowds of 40,000 anticipated for a contest involving 240 dogs from 23 different countries. Nigel, who works as a farmer as well as being a director at his agricultural law firm, has long been involved in sheepdog trials and predicts possible home success during the tournament. ‘This will be the fourth time it’s been held, and the first in England,’ he said. ‘We have as good a chance as anyone – I’d certainly expect us to finish in the top three. ‘Sheepdog trials are growing in popularity all the time and have been ever since One Man and His Dog was on television – plus there are more young people getting involved now, which is great to see.’
Gill Phillips is director of editorial legal services at Guardian News & Media Ltd As we all now know, News International last month settled 37 of the civil claims brought against News Group Newspapers (NGN), the publisher of the now defunct News of the World (NoW). The total declared damages (not including costs) was £645,000, although the actual figure is certain to be higher as a number of people have not revealed the details of their settlements. These follow a number of earlier high-profile settlements with celebrities such as Sienna Miller, Andy Gray and Kelly Hoppen. In October, Milly Dowler’s family accepted £2m in compensation over revelations that their daughter’s phone was hacked by the NoW. What is stunning about last month’s High Court proceedings is the sheer breadth and impact of hacking on its victims. It seems, by all accounts, to have been a systemic approach to doing journalism at the newspaper over a long period. In June 2008, after the convictions of Glenn Mulcaire and Clive Goodman in 2007, NGN settled, on confidential terms, a number of civil claims for breach of privacy, with large sums being paid to Gordon Taylor and Max Clifford. The NoW said at the time: ‘From our own investigation, but more importantly that of the police, we can state with confidence that, apart from the matters referred to above, there is not and never has been evidence to support allegations that News of the World journalists have accessed the voicemails of any individual.’ The Press Complaints Commission also investigated and concluded that phone hacking was a minority activity, confined to one rogue reporter, and that the practice had been thoroughly investigated and stamped out. Continuing the legal paper trail, in 2009 a group of claimants issued proceedings against NGN. In early 2010, applications for disclosure were made in the case of Sienna Miller, forcing NGN to reveal evidence, which referred to another senior journalist on the NoW. The cat was out of the bag. In April 2011, Mr Justice Vos – who presided at last month’s hearing – decided that all the claims should be heard together with certain lead claims being treated as test cases. NGN continued to defend almost all the claims. By October 2011, more than 60 claims had been issued and 12 firms of solicitors were working together as a coordinated group. This group obtained a number of crucial disclosure orders from the court. As a result, documents relating to the nature and scale of the alleged conspiracy, cover-up and destruction of evidence (including email archives) by NGN came to light. Last month’s announcements have been carefully worded. NGN agreed to compensation being assessed ‘as if’ senior employees and directors of NGN knew about the wrongdoing and sought to conceal it by deliberately deceiving investigators and destroying evidence. NGN made no formal admissions of guilt. The sums paid are higher than the usual range of compensation payments for misuse of private information, reflecting the aggravating features in these cases and the strong public revulsion they engendered. The statements were made by NGN, as the first defendant, and not by Mulcaire, who has said that he was not involved in agreeing to these statements. While this might be the end for a considerable number of the victims, it is in reality only the tip of the iceberg. While the High Court was told that a number of other victims are also close to settling, some, including singer Charlotte Church, Liberal Democrat MP Simon Hughes and sports agent Sky Andrew are still intending to pursue their actions to trial, due to start on 13 February. The trial is expected to give guidance on damages for current and future lawsuits and out-of-court settlements. The ongoing police investigations will continue. The Leveson Inquiry, currently engaged in an analysis of the culture, practices and ethics of the media, still has to look at the relationship between the press and the police, and the press and politicians. What Leveson has heard to date has turned the heat up on demands for reform of the PCC, not least when it comes to policing the conduct of journalists. There is an emerging consensus for reform, with a reshaped PCC, independent of the press and government, and recognised by statute. The idea of the reformed body acting as a tribunal to adjudicate in the first instance on defamation and privacy claims is also gaining ground, and has been floated by the commission’s new chairman, Lord Hunt of Wirral. There is, indeed, much more of this story to come.
‘Over hundreds of years London has built up a reputation for impartiality and excellence that other countries are unable to match’ More business There are other aspects to UK justice that foreign litigants find attractive. For example, says Ted Greeno, senior partner in the dispute resolution department at Herbert Smith, claimants appreciate the adversarial approach, whereby both parties must disclose the documents that may favour the other party as well as the documents that support their own case. ‘While this may seem counterintuitive, claimants tend to believe that this approach ensures fairness and that a reasonable judgment is more likely, as it is based on all the evidence at the judge’s disposal and has been cross-examined by both parties.’ English procedural rules are helpful in other ways. For example, privilege is respected in English courts and judges are generally prepared to hear any dispute – even where the parties have no connection with England – and will also apply foreign law, if appropriate. English litigation is also relatively cheap, with no trial or hearing fees. It is also, since the advent of the Civil Procedure Rules (CPR), relatively quick and there are options available such as summary judgment. While not perfect, say practitioners, it compares favourably with many other jurisdictions. There is one other major factor in London’s favour: judgments can be readily enforced. Jeremy Cole, head of the investigations and fraud team at Hogan Lovells, says that the UK has the best armoury of interlocutory ‘weapons’ – such as freezing and search orders – anywhere. There is also the flexibility to restrain an individual from leaving the country by taking their passport. ‘In an extreme case you can go to the judge in the middle of the night and get an order to freeze the defendant’s assets. This ensures that there are assets available to enforce against if, at the end of the case, you are successful,’ says Cole. Philippsohn agrees that enforcement tools are easier to access in the UK. ‘You can get court orders from a UK court that you might not be able to get in other jurisdictions. For example, we’re involved in a number of cases where victims of fraud have been able to get worldwide freezing orders against a company so that the assets are secured for possible financial redress. These kinds of legal weapons are not always available – or at least not as readily – in other jurisdictions.’ There are other dispute resolution centres around the world, of course. Some litigants prefer to use local courts wherever possible, particularly if based far from the UK, such as Asia or South America. Singapore is fast emerging as the preferred destination for Indian companies seeking arbitration services, for example. The Singapore International Arbitration Centre (SIAC) has also recently tried to attract a wider caseload by introducing its ‘expedited procedure’, which allows for a more efficient and simplified arbitration route. The new model clause is used where parties agree at the time of making their contract that their disputes – regardless of the financial sums being contested – will be managed by the SIAC under this procedure. The clause allows for a complete arbitration to take place in a time period of six months from the appointment of arbitration tribunal, thereby saving time, reducing costs and potentially mitigating the losses for both parties. Other existing dispute resolution centres are also trying to boost their own attractiveness. Scotland is promoting its new arbitration centre, the Scottish Arbitration Centre, as a forum for parties involved in arbitration disputes in England and Wales. Its founders hope it will be seen as a credible international alternative to London, for example when a ‘home turf’ conflict prevents London being chosen as the seat of arbitration. Elsewhere meanwhile, the Hong Kong government has signalled its intent to confirm the island as a leading arbitration centre in the Asia-Pacific region by providing more office facilities. But the consensus is that these centres do not have the breadth of experience, expertise or resources at hand to enable them to carry out the range of dispute litigation that the UK can carry out. ‘They just don’t have the history or the numbers to carry out the same kind of legal work that is available in the UK,’ says one lawyer. ‘The centres based in Asia, for example, are geared towards arbitration, not litigation, and so can’t compete,’ he adds. Some lawyers believe that UK courts are more ‘predictable’ in their behaviour, which means that foreign litigants are taking less of a gamble in terms of time and costs, particularly when compared to other litigation-friendly jurisdictions like the US. As John Sykes, partner at Charles Russell, says: ‘Non-US parties tend to be very reluctant to use US courts because of the risk of civil jury trials, excessive damages awards, lengthy court dockets, extensive deposition procedures and no ability to recover legal fees from the opposing party.’ In addition, the US does not have a specialist commercial court for dealing with disputes, says Tim Strong, partner in the financial disputes practice at Taylor Wessing, and that country’s wide-ranging discovery process can slow proceedings down and dramatically increase their cost, as both parties try to locate documents and supportive evidence in their opponent’s possession. As a result, says Strong, there are two other reasons why litigants favour the UK court over the US – one is the wider use of juries in civil cases that the UK generally does not employ, and another is punitive damages. ‘Parties bringing a dispute to court want predictability about how the case is going to be conducted and so juries and the issue of punitive damages awards – which may bear no resemblance to the actual costs of the case losses suffered – may be seen as too big a gamble,’ says Strong. ‘For many litigants faced with an ability to influence where a case is heard, there is just too much to lose by bringing a dispute to a US court.’ London has long been regarded as one of the most popular venues for resolving international disputes, but the government – and the legal profession – hope that the opening of the Rolls Building as the world’s biggest commercial court will help cement the UK’s reputation as the key jurisdiction in which to bring commercial litigation. The unveiling of the new £300m state-of-the-art law court complex last October coincided with a wider move to market the UK’s legal services sector as effectively as the country’s financial services. The sector is already a significant earner: law firms generated £19.3bn in 2010 – equivalent to around 1.8% of GDP – while legal services exports totalled £3.6bn, triple the level of a decade ago. When the project was launched five years ago, it was claimed the Rolls Building would develop into ‘the biggest dedicated business court in the world’. Consequently, the Ministry of Justice and UK Trade and Investment have been promoting British courts as the gold standard for resolving international disputes, hoping to profit from their excellence. Justice secretary Kenneth Clarke said: ‘The provision of modern, high-quality services for all parties will present the opportunity to market the facility at a global level in order to maintain the unrivalled work of the high court and English law.’ The government is not the only one to trumpet the achievements of the UK’s legal sector. Coinciding with the new court’s opening, the Law Society joined with the Bar Council and financial services industry lobby group TheCityUK to launch ‘Unlocking Disputes’, a campaign to promote London as the world’s leading centre of excellence for dispute resolution. This initiative highlights, for example, that more international and commercial disputes take place in London under English law than in any other city in the world, and that 90% of commercial disputes handled by London law firms now involve an international party. Furthermore, the volume of dispute resolution work has nearly doubled in the past five years: in 2009, more than 35,000 disputes were resolved through arbitration or mediation in the UK, up from fewer than 19,500 in 2007. Some jokingly refer to the Rolls Building as ‘the court for eastern Europe’ given that so many litigants are from the former Soviet bloc, some of which cite a lack of impartiality in their own jurisdictions as being one of the reasons why they favour London. Philippsohn says: ‘There is certainly a well-recognised belief that at least 60% of the work in the Commercial and Chancery divisions is Russian and eastern European-based, and that that figure is unlikely to go down.’ In fact, the first case to be heard in the new building is the high-profile £3.2bn ($5bn) lawsuit between Boris Berezovsky, Russia’s best-known political exile, and Roman Abramovich, owner of Chelsea Football Club and friend of Russian prime minister Vladimir Putin. For many, the UK is the safest place for many litigants to bring a case. Katie Papworth, solicitor in the commercial dispute resolution group at Thomas Eggar, says that English courts have a strong reputation and long history of adjudicating litigation cases, and that foreign litigants will continue to choose England as their jurisdiction of choice due to the popularity of English law when drawing up business contracts. ‘English law has long been established as the law of business, and English jurisdiction clauses are very popular when foreign companies go into business with one another,’ says Papworth. ‘An English law jurisdiction clause in a commercial agreement can provide additional assurance for both parties, because it is likely from the outset to enable either party to seek recourse in an English court where foreign jurisdiction would normally take precedence.’ Lynne Gregory, associate at Charles Russell, agrees: ‘It is common for parties of different nationalities who are entering into commercial contracts to specify English law and jurisdiction as their chosen dispute resolution option. The reasons for this include the fact that English is still one of the most widely spoken languages in the world, which makes proceedings conducted in English easily accessible. ‘English law has a lengthy provenance. It contains guidance on most conceivable areas and is based on the fundamental principle of freedom of contract, which is attractive to parties from jurisdictions that take a more interventionist and paternalistic approach. The English common law has been exported throughout the world and parties therefore tend to be familiar with its underlying principles.’ Cold war Neil Hodge is a freelance journalist Yet not everyone believes that the UK’s attempt to lure more international disputes to London is good news. Dimitry Afanasiev, chairman of Russia’s largest law firm Egorov Puginsky Afanasiev & Partners, says: ‘Currently, we have the bizarre situation whereby English law is often selected as the operative law in Russian business transactions. Even purely domestic transactions are governed by foreign law, to such an extreme that, when one Russian is selling a house in Russia to another Russian, that is often an offshore company transaction that is governed by English law.’ In the mid- to long-term this is not good for Russia, says Afanasiev. ‘Unless Russian law is going to apply to business transactions here, Russian lawyers and judges are not going to gain the experience and sophistication.’ But Afanasiev is also clear why Russians opt to take their disputes abroad. ‘The problem with Russian law is enforcement: people are reluctant to have deals governed by Russian law because they fear having to appear before a Russian judge who could be unsophisticated and/or possibly corrupt and I’m not sure which is the worst of those two options,’ he says. But UK lawyers think that the fact that so many foreign litigants will still favour taking their case to England will force other countries to examine their legal systems and push for appropriate reform to boost confidence. ‘If the Russians were able to create a greater degree of confidence in their own legal systems then parties would be more comfortable litigating there,’ says Philippsohn. ‘At the moment, parties feel more comfortable resolving their disputes in the English court rather than their own domestic courts.’ Timothy Dutton QC, head of Fountain Court Chambers and former chair of the Bar Council, also believes that one of the best ways to push reform and move towards greater judicial impartiality in other jurisdictions is for them to reflect on the fact that London is settling their cases for them. ‘If word gets back to litigants’ domestic courts that disputes have been resolved fairly and to very high standards in England then courts in other countries will want to find out why and may embark upon a process of reform,’ he says. ‘There are already examples of this occurring. One example is Kazakhstan, where the judiciary has positively tried to adopt English process in commercial cases.’ Other states such as Dubai and Qatar have taken what they think will work from the UK system too, says Dutton. Both are trying to build financial services centres that have a similar type of regulatory oversight as in the UK. ‘As a consequence of modelling their financial regulation and compliance on the English system, they are also adopting a broadly English legal model,’ says Dutton. ‘In Dubai, the former Court of Appeal judge Anthony Evans has helped to establish the Court and a local London Court of International Arbitration so that the country has the skills and expertise to resolve local commercial disputes, while Lord Woolf has carried out similar work in Qatar,’ he says. He adds that companies doing business in Dubai and Qatar have also been prepared to arbitrate there. Lawyers are in no doubt that London will continue to thrive as the dispute centre of choice for most litigants – ‘there’s no real alternative,’ says one. There is also enormous belief that the UK is in this enviable position by right. As Philippsohn says: ‘When litigants come to the UK to resolve a dispute, they know the process will be fair and independent; that it will be presided over by an impartial judge, and that it will be based on hundreds of years of case law. It is by far the best place to have a court hearing.’ Full disclosure Michael Todd QC, chair of the Bar Council, says that the Rolls Building ‘cements the UK’s reputation as the world’s pre-eminent centre for litigation’, and will therefore attract more business to London. ‘The integrity of our judicial system, the impartiality of our judges, our long experience of commercial law, and the expertise of our legal practitioners should not be undervalued,’ says Todd. ‘London has a unique standing in terms of dispute resolution and legal services, and we should promote these facts more readily.’ John Wotton, president of the Law Society, agrees. ‘London is already recognised as a leading international financial and business centre, but the launch of the Rolls Building provides a great opportunity for the UK to market itself as the leading centre for litigation as well.’ The Rolls Building – which brings under one roof the Chancery Division, the Admiralty and Commercial Court and the Technology and Construction Court – is the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world. It has judicial expertise in areas such as asset recovery, banking and financial services, company law, construction, insolvency and reconstruction, intellectual property and patents, professional liability, property, shipping, technology and trusts. It will also be used for mediations and arbitrations, both of which are increasingly popular alternatives to traditional litigation. The 11-storey building in Fetter Lane, close to the Royal Courts of Justice in central London, contains 31 courts, including three ‘super-courts’ designed to accommodate big, multi-party disputes and four courts set out in ‘landscape’ format for multi-party cases. The building also has 55 consultation rooms that clients can use – a facility sorely lacking in the old premises, say lawyers. The MoJ is also keen to trumpet the building’s investment in cutting-edge technology, such as full WiFi connectivity throughout, in-court facilities for parties to use their own IT (including electronic presentation of evidence and cabled broadband), in-court video conferencing facilities and a new electronic filing system intended to make it mostly paperless. Few regret leaving its predecessor St Dunstan’s House, also on Fetter Lane. Lord Gold, head of legal consultancy David Gold Associates and formerly a senior litigation partner at Herbert Smith, says that the facilities there were ‘unacceptable and an embarrassment to lawyers and their clients’. ‘For the first time in many years the Rolls Building will demonstrate to the clients we are bringing into England that we actually care about them,’ he says. Others agree. ‘The former premises were run-down and not fit for purpose,’ says Steven Philippsohn, senior partner at PCB Litigation. ‘If we are going to conduct major dispute cases here, the least we can do is offer clients decent facilities.’ Yet while lawyers praise the new facilities and much-needed investment, most believe that it is London’s long-established reputation as a leading litigation centre that will continue to attract clients rather than the new building and its ‘modcons’. They also point out that London has a great network of expert witnesses, shorthand note-takers, translators and so on, which the city has built up over a long time. Litigants therefore have the reassurance that everything they need to conduct their case can be found in one place. ‘The Rolls Building enhances the UK’s reputation as being the leading centre for commercial dispute resolution cases,’ says Owen Williams, head of commercial litigation at law firm Clarke Willmott. ‘No other jurisdiction comes anywhere near. Over hundreds of years London has built up a reputation for impartiality and excellence that other countries are unable to match, and it now provides the largest concentration of judicial expertise for finance, business and property anywhere.’ Lawyers believe that the UK has good Commercial and Chancery judges coupled with a sound and robust system of law. And there is a substantial amount of case law relating to litigation cases in England which makes it very appealing for litigants to bring cases here – even more so if the rule of law in their own countries is unpredictable or if judges are inexperienced in handling these types of cases. They also highlight the fact that the Commercial Court is ‘unique internationally’ – as already noted, four out of five cases that are dealt with there have one party that is based outside the UK – and that the court’s appeal is that it is widely regarded as a neutral forum with all the necessary expertise and experience to conduct complex dispute litigation cases. The ‘court for Eastern Europe’
Philip Coppel QC and Andrew Sharland (instructed by Bates, Wells and Braithwaite LLP) for the claimants; Jason Beer and Rachel Kamm (instructed by the Charity Commission) for the Commission; Ben Hooper (instructed by the Information Commissioner) for the Information Commissioner as first intervening party; Karen Steyn (instructed by the Treasury solicitor) for the Secretary of State for Justice as second intervening party. Exempt information – Disclosure prohibited by or under enactment The claimant journalist made a request under the Freedom of Information Act 2000 (the 2000 act) for information in relation to inquiries which the defendant Charity Commission (the Commission) had made under section 8 of the Charities Act 1993. The Commission stated that it held information about the inquiry but that it was withholding the information on the ground, inter alia, that it was exempt from disclosure under section 32 of the 2000 act. The Commission reviewed, but upheld, its decision. Consequently, the claimant made a complaint to the first intervening party, the Information Commissioner (the IC). The IC rejected the claimant’s complaint and stated that all of the requested information was exempt by virtue of sections 32(2)(a) and (b) of the 2000 act. The claimant appealed to the Information Tribunal (the tribunal) which held that, although some of the material fell outside the section 32(2) exemptions, the bulk of the material fell within it. The claimant’s appeal to the High Court was unsuccessful ( All ER (D) 156 (Jan)). The claimant appealed. He contended, inter alia, that if, on a conventional interpretation, the exemption contained in section 32(2) of the 2000 act continued after the inquiry had concluded, then article 10 of the European Convention on Human Rights was engaged and, pursuant to section 3 of the Human Rights Act 1998 (the 1998 act), section 32(2) of the 2000 Act had to be read and given effect so as to limit the exemption to the duration of the inquiry. That argument had not previously been raised. Consequently, the Court of Appeal remitted that matter to the tribunal and stayed the appeal until the tribunal had prepared its report. The Court of Appeal dismissed his other submissions in respect of section 32(2) of the 2000 act ( All ER (D) 104 (May)) The tribunal found in favour of the claimant. The Commission cross-appealed against that decision. The claimant’s appeal was restored. The commission submitted, inter alia, that, pursuant to Sugar v British Broadcasting Corp ( All ER (D) 108 (Feb)) (Sugar), article 10(1) of the Convention had never been engaged. The appeal would be dismissed. The cross-appeal would be allowed. Applying Sugar, article 10(1) of the Convention had had no application in the instant case (see , , , ,  of the judgment). Sugar v British Broadcasting Corp  All ER (D) 108 (Feb) followed; Leander v Sweden (Application 9248/81) (1987) 9 EHRR 433 considered; Gaskin v United Kingdom (Application 10454/83)  12 EHRR 36 considered; Guerra v Italy (Application 14967/89)  4 BHRC 63 considered; Roche v United Kingdom (Application No 32555/96) 20 BHRC 99 considered; Kenedi v Hungary (Application No 31475/05) 27 BHRC 335 considered; Tarsasag a Szabadsagjogokert v Hungary (Application No 37374/05)  ECHR 37374/05 considered; Independent News & Media Ltd v A (by his litigation friend the Official Solicitor)  3 All ER 32 considered; British Broadcasting Corporation v Sugar (No 2)  1 All ER 101 considered. Kennedy v Charity Commission: Court of Appeal, Civil Division (Lord Justices Ward, Etherton and Sir Robin Jacob): 20 March 2012