News

Litigation and things

Court counter service hours slashed to save public money!

HM Courts and Tribunals Service is set to implement permanent changes to public counter services at civil and family county courts, and district registries across England and Wales with effect from April 2012. Proposed changes affect the opening hours of public counters and the type of work they process. Changes are already planned for the North East, London and South Eastern county courts. As well as confining hours of public access to two hours a day, they are going to significantly limit the types of activity that will be carried out by their staff face to face with the public, and certain types of communication will have to go into a “drop box” or via email or other routes (which may become a black hole): general enquiries, lodging papers and issuing are for example to be excluded from the activities that will in future be dealt with face to face by court staff.

Lord Neuberger, the Master of the Rolls, will unveil a new definition of ‘proportionate’ costs later this month, Mr Justice Ramsey said yesterday. Ramsey J is standing in for Lord Justice Jackson during his treatment for cancer.

In his final report, Jackson LJ said the current definition of ‘proportionate’ in the Civil Procedure Rules should be changed and suggested how it should be done, while leaving the detail to the rule committee.

Jackson LJ said costs should only be described as ‘proportionate’ where they bore a ‘reasonable relationship’ to the sums of money involved and the complexity of the litigation, among other things.

Mr Justice Ramsey told the Westminster Legal Policy Forum on 1 May 2012 that the Civil Procedure Rules committee was holding changes required by the Jackson reforms “in escrow” for the implementation date of April 2013.

Ramsey J said there were “already some signs of a change in culture” on costs in the civil courts, but “the change has to come so litigation can be conducted at proportionate cost”.
He said proper case management was “essential” to make the Jackson reforms work, and there was now, at district judge level, a “much greater willingness and ability to provide continuity of case management”.

There was a particular problem at the Queen’s Bench Division, the judge said, where the “volume of cases is so large it is difficult to deal with case management at an early stage in each case”.
He suggested that the solution might be to apply case management only when cases had reached a certain stage.

Ramsey J highlighted the need for improvements to the pre-action protocols.
“Their whole purpose was to reduce the costs of litigation. Some of the ways they have been used has increased costs.”

On mediation, he said lawyers needed more training. “Many people say they espouse it but when it comes to resolving disputes, they avoid it. It is a major way of resolving disputes or at least narrowing the issues to those that really need to be brought to the court.”

So much for Ministry of Justice aiding electronic issue of process, it is another snip and a cut The RCJ’s Electronic Working Scheme (which serves the TCC as well as the other courts), has been closed down, temporarily they say, but with immediate effect until no one knows when. As those of us operating in the TCC have been suspecting for sometime, the system has apparently been plagued with issues to the point where HMCTS has determined that the cost of remediation would be prohibitive. A new project will be initiated through ‘government procurement channels’.

This is a very sad failure for HMCTS and for us as users of the TCC, but hopefully some significant lessons have been learnt and the next iteration of e-Working will be better designed and secure better uptake. Perhaps it will also ensure that the various IT plans outlined by Jackson LJ will be aligned with any new e-working system.

A new edition of Keating arrives!

Yes its the ninth edition of Keating on Construction Contracts (Sweet & Maxwell, 2011) has arrived on your bookshelves.

Published earlier this year, the new edition has been keenly awaited, not least because some of us were impatient to see what polychromatic combination it was going to be (it’s a grey and orange combination this season, decorated with a touch of gold). More importantly, however, Keating has devoted an entire chapter (chapter eight) to delay and disruption claims.

Guarantee via an email exchange!

In its recent decision in Golden Ocean Group Limited v Salgaocar Mining Industries PVT Ltd and another the Court of Appeal confirmed the High Court’s ruling that an exchange of emails can create an enforceable guarantee.

It was perfectly possible for there to be a valid guarantee complying with the Statute of Frauds 1677 even if there were many documents containing the terms.
A guarantee, like any other contract, must satisfy the basic legal requirements for the creation of a contract. These as you know are:

• Offer
• Acceptance,
• intention to create legal relations, and
• consideration.

In addition, in relation to guarantees, section 4 of the venerable Statute of Frauds 1677 provides that in order for a guarantee to be enforceable it (or alternatively some memorandum or note of the guarantee) must be both:in writing, and signed by the guarantor or a person authorised by the guarantor.

If there were said to have been an agreement in writing, the court would look to those documents which were said to constitute the agreement, however many there may be. In a contracts made by an exchange of emails, that involved looking at more than two documents (i.e. the offer and acceptance), partly because there were underlying agreements involved here and partly because the last offer will not be intelligible without reference to preceding offers. The Statute of Frauds (which requires guarantees to be in writing) was concerned to see that guarantees are embodied in an agreement. If on a proper analysis of the documents passing between the parties, there was an agreement, the policy behind the Statute would not be frustrated. As to commercial good sense, it was highly desirable that the law should give effect to agreements made by a series of email communications which followed the sequence of offer, counter offer and final acceptance. 
Again, using email to conclude agreements is no impediment to enforceability. By the same token care should be taken not to create a guarantee unknowingly by exchange of email.

Implications
• Individuals should exercise caution when negotiating the commercial terms of guarantees because surprisingly informal documentation and signatures can create binding guarantees.
• In order to attempt to avoid inadvertently creating a guarantee during negotiations, all correspondence and documentation should be marked “SUBJECT TO CONTRACT”.
• We would always recommend that professional legal advice be sought in connection with the negotiation and entry into of any guarantees.

2012 ICC Rules of Arbitration

Yes, the ICC Rules of Arbitration have been updated and we have the 2012 now to hand. The ICC Rules of Arbitration are the most widely-used institutional arbitral rules in the world, yes really, especially in relation to international construction and energy disputes. London is also gaining more market share than any other centre in arbitration. The new version of the Rules came into force on 1 January 2012. The 2012 Rules apply to all ICC arbitrations that commenced on or after that date, unless the parties have agreed that the previous version of the Rules will apply.

The previous version of the Rules was published 14 years ago in 1998. To a large extent the new Rules simply codify the solutions and approaches that the ICC Secretariat has followed since the last revision of the Rules. Most of the changes are aimed at increasing the efficiency of the arbitration process.
The 2012 Rules explicitly require both the arbitrators and the parties to “make every effort to conduct the arbitration in an expeditious and cost-effective manner”. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process.
The Rules also contain new penalties for behaving in a way that undermines the process’s efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account “the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner”.

Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations apply, so get a copy!

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