After the turbulent few years which have seen the U.K. leave the European Union and previously unthinkable disruption caused by the COVID-19 pandemic, what has happened to London’s litigation crown? Has London held onto its title as the top centre of choice for the world’s biggest disputes?
Our view is, overwhelmingly, yes. Throughout these tricky periods, the courts of England & Wales have demonstrated their flexibility and creativity which has avoided the backlog which has happened in many other jurisdictions. Furthermore, London is still clearly a popular disputes forum, and we consider it unlikely that that will change in the near future.
On January 31, 2020, the U.K. left the European Union.
The U.K. has applied to join the Lugano Convention, but it has not been admitted and is unlikely to be any time soon. As such, the U.K. finds itself in the position whereby parallel proceedings may arise in other jurisdictions and English judgments may not be recognised or enforced, or at least not as quickly or easily.
But has Brexit affected London’s position as a premier destination for dispute resolution? In our view, no. London has long been the forum of choice for international litigants for a multitude of reasons, not just because the U.K. was a member of the European Union or its previous ability to quickly enforce judgments in other European countries. Indeed, the latest 2021 statistics from the Commercial Court show that 802 claims were issued in 2020–2021 which remains comparable to 2019-2020.
International litigants come to London because of the quality and independence of the judiciary and the legal expertise of law firms and barristers’ chambers. Furthermore, English common law is predictable and flexible, as evidenced by the Court’s willingness to grapple with crypto asset disputes and apply long-standing principles of law to innovative crypto products. The English courts are able and willing if the circumstances require, to provide interim remedies including worldwide freezing orders.
Arbitration also continues to occupy an important place in London’s legal landscape, particularly considering the post-Brexit challenges of enforcing judgments in other European countries. As a signatory of the New York Convention, English arbitral awards can be enforced with ease in other New York Convention signatory states.
Response to the Pandemic
The pandemic posed a serious challenge to legal systems everywhere. Fortuitously, the U.K. court system had already started to digitise its services as part of its reform programme. For example, as early as March 2018, some video hearings were on trial in certain parts of the country and e-filing had started to become accepted practice.
The courts were therefore well placed, in March 2020, to move online rapidly, which accelerated the existing plans to digitise the court system. As a result, after the initial few weeks of uncertainty, High Court and Appeal Court business largely continued as before, albeit electronically.
The Coronavirus Act 2020 amended existing legislation to allow the courts to use video and audio links across a wide range of hearings. The public was able to join a wide array of hearings notwithstanding the fact they were confined to their living room or home office. In that sense, ironically, the principle of open justice was at its height during the pandemic, with courts and judicial proceedings being the most accessible they have ever been. Of course, it would be remiss not to note that the benefits of the digitisation of the court system overwhelmingly benefited the senior civil courts and represented litigants. Research suggests that the lower courts and unrepresented litigants did not experience the same positive experience.
Finding the appropriate balance between remote and in-person hearings is something that the courts will need to work through over the coming years.
New Court Guides
The specialist courts within the High Court also regularly review their practice and develop rules to meet changing business needs and provide clarity to court users. For example, earlier this year, an updated Commercial Court Guide was published which reimposes clear boundaries on areas where the rules have not always been followed to the letter. For example, the new Guide sets out that pleadings must be confined to primary allegations and that PD57AC must be followed to prevent parties from using witness statements as opportunities to argue the case.
Alternative Dispute Resolution has also been renamed “Negotiated Dispute Resolution” to make it clear that settlement outside of Court is not an alternative course of action but something which should be always considered. The overarching consideration of the new Guide is to ensure that limited judicial resource is used efficiently.
Furthermore, the new Chancery Guide was published in July 2022, providing up-to-date guidance on electronic bundles and remote hearings.
London as a European Litigation Trailblazer
The London courts are also leading the way for collective actions in Europe: for example, the Court of Appeal recently allowed a £5 billion group claim against the mining giant BHP to proceed in the jurisdiction even though the facts giving rise to the claim, and the damage, occurred in Brazil from the collapse of the Mariana dam in 2015. Additionally, consumers can seek redress in competition claims through the establishment of an opt-out collective action regime.
The London courts’ readiness to open the jurisdiction to victims of foreign disasters and consumer victims of competition infringements will ensure that London remains an enduring destination of choice for litigants, notwithstanding the political or financial storms which continue, and will continue, to trouble the world.
James Morgan QC is with Radcliffe Chambers and John McElroy is on the executive committee of the London Solicitors Litigation Association and head of the commercial disputes team at Hausfeld.