Practitioners are concerned about the impact of Brexit on the global reputation of English law, according to the 2017 NLJ/LSLA Litigation Trends Survey
Some 38% of respondents to the annual survey fear that other jurisdictions such as Germany and Singapore could benefit at the English and Welsh courts’ expense. They also worry about its impact on forum, choice of law and enforcement of judgments.
Writing in NLJ this week, Ed Crosse, LSLA president, says: ‘The uniform rules under the Recast Regulation, which the UK did so much to shape, will fall away in March 2019, leaving such issues to be determined at the discretion of member state courts or on a common-law basis in the UK.
‘This is potentially a huge problem for England and Wales as a litigation hub.’
However, Crosse says there are ‘obvious steps’ that the UK government can take to avoid this outcome. It could sign up again to the Hague Convention on Choice of Court Agreements, without the need for EU consent, or seek the EU’s agreement to allow us to sign up again to the Recast Regulation by way of international treaty, as Denmark has done.
Crosse says: ‘An early statement from the UK government that it intends to pursue such measures is essential to provide reassurance to commercial parties.
‘The longer the UK’s position remains unclear, the more likely it is that clients will start to vote with their feet by choosing alternative jurisdictions, courts and tribunals to resolve their commercial disputes.’
The survey uncovers concerns about disclosure—more than 70% of respondents think the current disclosure regime is ineffective in controlling the burden and costs involved in the process.
More than half the respondents say there is insufficient engagement between parties before the first case management conference.
And two-thirds of respondents oppose fixed costs for commercial cases below the value of £250,000. Crosse says: ‘Imposing cost budgeting or caps will not change the actual costs that have to be incurred, only their recoverability, and that in turn may result in meritorious claims not being pursued at all.’
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