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CONFLICTS BETWEEN JURISDICTION AND PROCEDURE: PRE-ACTION CIVIL PROCEDURE AND JURISDICTION—A POOR FIT

Lloyd's Maritime and Commercial Law Quarterly

CONFLICTS BETWEEN JURISDICTION AND PROCEDURE: PRE-ACTION CIVIL PROCEDURE AND JURISDICTION—A POOR FIT Phillip Morgan * Lawyers often consider legal issues in isolation, without regard to their connection with other areas of law. Civil procedure is no exception. Pre-Action Protocols required by the English Civil Procedure Rules are deficient in that they interface poorly with the European rules on jurisdiction by unnecessarily exposing a party wishing to engage the jurisdiction of the English court to potentially abusive actions on the part of a defendant who wishes to frustrate this intention. This calls into question the future of England as a jurisdiction for major international commercial litigation. However, this situation can be readily remedied by the introduction of a new form of starting process. Pre-action processes/protocols The Civil Procedure Rules (1998) (“CPR”) 1 describe themselves as a new procedural code. 2 They flow from Lord Woolf’s Access to Justice Report 3 and have been described as “the greatest change in civil procedure since the 1870s, when the common law and equity jurisdictions were fused in a combined High Court, or since the withering of civil juries during the last 100 or so years”. 4 Lord Woolf sought a fundamental change to legal culture. 5 The CPR adopt a “cards on the table” approach: 6 litigation is to be viewed as a last resort. 7 The Practice Direction on Pre-Action Conduct is very much a part of this aim. The Practice Direction and associated Pre-Action Protocols are designed “[t]o build on and increase the benefits of early but well * Lecturer, University of Southampton. A draft of this paper was presented at the First Maritime Conflict of Laws Colloquium at Southampton. The author would like to thank the participants for their helpful comments. The author would also like to thank Neil Andrews, Nicholas Baatz QC, and Professor Yvonne Baatz for their helpful advice and comments, and Avv Filippo Lorenzon for his helpful assistance with Italian Civil Procedure. All errors, of course, remain those of the author. 1. SI 1998/3132 (“the CPR”). 2. CPR, r 1(1). 3. Lord Woolf of Barnes MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London, 1996) (hereafter “ Access to Justice ”). 4. N Andrews, “Civil Procedure”, ch 19 of P Birks (ed), English Private Law , 1st edn (Oxford, 2000) (hereafter “EPL 1”), [19.09]. This is not repeated in N Andrews, “Civil Procedure”, ch 22 of A Burrows (ed), English Private Law , 2nd edn (Oxford, 2007) (hereafter “EPL 2”). See also N Andrews, “A new civil procedural code for England: party-control “going, going, gone”” (2000) 19 CJQ 19; this echoes the forward to the CPR, by Lord Irvine of Lairg LC. 5. M Zander, “The Woolf Report: forwards or backwards for the new Lord Chancellor?” [1998] Arbitration 118; noting Access to Justice , [4]. 6. Jackson LJ (ed), Civil Procedure, The White Book 2010 (London, 2010) (hereafter “ The White Book 2010 ”), 2363, C1A-002. 7. Ibid . LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY 276

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