Our quick summaries in this issue include: Access by non-parties to witness statements; Launch of the Business and Property Courts; What will amount to submission to the jurisdiction of the English Court?; Underpayment of Court fee not an abuse of process
Read the full articles by clicking on the drop downs below.
- Access by non-parties to witness statements
In Blue v Ashley  EWHC 1553 (Comm), the High Court considered whether a member of the public or press should be given access, in advance of a trial, to witness statements which had previously been referred to at a pre-trial hearing, and prepared for the purpose of the trial. Times Newspapers Limited (TNL), which was not a party to the dispute, had applied for access to them pursuant to CPR 5.4C(2). The defendant, Mr Ashley (of Sports Direct International plc (SDI)) opposed the application.
The principle of open justice requires court proceedings to be conducted in public, except where to do so would cause injustice. It is fundamental to the common law system of England and Wales and it has been noted that the courts have an inherent jurisdiction to determine how the principle should apply. TNL's application engaged the principle and the court made clear that whilst it has power to direct that a non-party should be given access to witness statements before a trial, it does not necessarily follow from this that such an order will be granted.
Also of importance, and closely related to this point, is the role of witness statements in the litigation process. Leggatt J held that there are important reasons for witness statements, prepared for the purpose of use in a trial, not being publicly available in advance of the trial, and crucially before the witnesses have given their evidence. The purpose of written witness evidence is to enable the parties to more efficiently prepare for trial, as well as to aid settlement.
It was not disputed that a member of the public has a right to inspect a witness statement once it has been adduced as evidence during trial (CPR 32.13). However, open justice does not extend to a right of inspection before trial – this is not necessary in enabling the public to scrutinise the justice system.
TNL's argument turned on the witness statements having been (tangentially) referred to in a previous hearing in open court. Previous case law established that in such a scenario, the default position should be to permit access. However, in each case the court must consider in particular the nature of the documents in question, their role and relevance and the purpose for which access is sought. Here Leggatt J found that TNL had no legitimate purpose for accessing the documents – an interest in reporting the evidence witnesses will provide at an impending trial does not support open justice and is not in the interest of the parties or the public.
A non-party may not be able to rely on the default position in CPR 5.4C (which applies to statements of case) to obtain copies of witness statements in advance of the evidence they contain being adduced in open court.
- Launch of the Business and Property Courts
Following a series of regional launches in July, the 'go-live' date for all the new courts has been confirmed as 2 October 2017. The Business and Property Courts of England and Wales (Business and Property Courts) will comprise a number of the courts' special jurisdictions and is how England and Wales' international business dispute resolution jurisdictions will be known. The Business and Property Courts will comprise the following Courts and Lists:
- Commercial Court;
- Technology and Construction Court;
- Courts of the Chancery Division;
- Insolvency and Companies Court;
- Admiralty Court;
- Business List;
- Financial List;
- Competition List;
- Intellectual Property List;
- Property Trust and Probate List; and
- Revenue List.
Why the change?
Currently it is thought that cases are transferred unnecessarily from the regions to the Rolls Building in London: London based Judges who have specialist expertise are not readily deployed to hear specialist cases elsewhere. One of the main aims of the new court structure is to encourage more specialist work to be done in the regions. And, as the Court Service has put it 'no case is too big to be tried outside London'.
The new name, a simpler, user-friendly umbrella term for the business specialist courts across England and Wales simplifies and modernises the names of the courts the Business and Property Courts now encompass. This should help maintain the UK's international reputation as a dispute resolution centre – the UK is currently the jurisdiction of choice and the new court structure is designed to enhance this; as the Lord Chief Justice of England and Wales highlighted: "The judiciary is committed to maintaining Britain's reputation as the best place in the world for court-based dispute resolution. These changes will ensure that our courts and judiciary continue to lead the world in this field."
What are the practical implications of the change?
Users will notice an immediate change from 2 October when seeking to issue proceedings electronically in the courts in which Electronic Filing is compulsory: they will be greeted online by the portal for the Business and Property Courts and asked to state in which Court or List (see list above) they wish the case to be assigned. They will then be asked to select in which centre they wish to issue the proceedings – the choice will be, initially, London, Manchester, Leeds, Birmingham, Bristol and Cardiff.
The judiciary have acknowledged that it is crucial that the global commercial community understands the value of English law and the dispute resolution services the UK provides. To that end they have recently produced an overview promotional document. The modernised structure and less-antiquated nomenclature should support this initiative in a post-Brexit world.
- What will amount to submission to the jurisdiction of the English Court?
Anything less than an express and wholly unequivocal intention to contest jurisdiction may be interpreted as a submission to the English jurisdiction.
The First and Second Respondents were companies incorporated outside of England. The Applicant intended to issue an application for a prohibitory injunction against all the Respondents in the English courts.
Prior to issue, the Applicant's solicitors contacted the Respondents asking them to provide details of solicitors in London who were authorised to accept service on their behalves. The London solicitors for the First and Second Respondents each responded that they had not been instructed to accept service of the application and reserved all their client's rights by letter, including as to jurisdiction.
The First and Second Respondents' solicitors later requested draft copies of the injunction application, with the First Respondent's solicitors writing to the Applicant's solicitor again reserving all their client's rights.
In November 2016, the application was issued. The Respondents submitted witness evidence opposing it. It was dismissed.
In December 2016, the Applicant issued a further application seeking an order that he be treated as having effected good service of his previous application in the English jurisdiction on the First and Second Respondents. This was opposed by the First and Second Respondents.
The Applicant's case was that the First and Second Respondents had submitted to the jurisdiction through their engagement in the first injunction proceedings.
The First and Second Respondents' case was that they did not submit to the jurisdiction for the following reasons:
- their solicitors had reserved their position as to jurisdiction in the correspondence prior to the first injunction application being issued;
- as a matter of law there could be no submission to jurisdiction as there was no process to which they could have submitted; and
- they had no real alternative but to defend the injunction application and they had argued that the Applicant had failed to establish a triable issue: that any reasonable observer would assume they had not accepted that proceedings would continue in the English jurisdiction.
The application was allowed. The First and Second Respondents had voluntarily submitted to the English jurisdiction:
- In the initial correspondence the despite purporting to reserve their position on the issue of jurisdiction, the First and Second Respondents had not definitively stated that jurisdiction would be contested
- To reserve the position is not the same as informing the Court or the other party that we are not properly here (Boyle v Sacker) or that the jurisdiction is in dispute (Williams & Glyn's Bank Ltd v Astro Dinamico Compania Naviera S.A); nor is the language sufficient to inform the Court that the Respondents intend to challenge (Esal (Commodities) v Pujara) or leave little doubt that jurisdiction is in issue (Global Multimedia v ARA Media)
- The Respondents failed to argue that the injunction should not be granted for want of jurisdiction.
- Underpayment of Court fee not an abuse of process – Wiseman v Marston's plc & Lewis and others v Ward Hadaway compared
Overview of the two decisions
Wiseman v Marston's plc
The claimant's solicitors issued proceedings stating the value of the claim on the claim form was £50,000 and the corresponding court fee was paid. The Judge's view was that the true value of the claim was at least £200,000 and a higher court fee was due.
The claimants' solicitors, Robinson Murphy (RM) had stated on all but one of several similar claims issued that they were seeking £15,000 or less in damages and the corresponding court fees were all paid. All the claims were subsequently amended post issue (and in some cases after limitation had passed) and just prior to service, to claim larger sums. Subsequently, the larger corresponding court fees were paid. Click here for an article that includes analysis of Lewis v Ward Hadaway.
In the case of Wiseman, the claimant's solicitors' conduct was not held to be abusive. As soon as they had received Counsel's advice on quantum an application for permission to amend the claim form was promptly made so the proper value would be entered and the correct court fee paid. The initial value entered on the claim form was a genuine, albeit incorrect, attempt to value the claim.
In sharp contrast, the conduct of RM was determined to be an abuse. The court held that RM deliberately undervalued the claims in order either to avoid/defer payment of the appropriate court fee. It was also held that RM always intended to amend their claims as shown by the pre-action letters which stated that the claims were expected to run into the hundreds of thousands of pounds.
RW's actions deprived the court system of fees which were rightly due and unnecessarily increased the Court's workload in relation to having to amend the claims. This conduct was not in keeping with the parties' duty to assist the court in the overriding objective of dealing with cases in a just, proportionate and cost effective manner. Further, RM had repeated conduct that they had been criticised for in previous cases.
A further finding was that some of the claims were issued as a cynical protective step due to the imminent expiry of limitation. The sole objective was to buy RM's clients an additional 4 months (the period of validity of the claim form after issue) to consider their positions.
Where there is no evidence of deliberate wrongdoing, errors in misstating the value of the claim on the claim form and the payment of the wrong court fee are capable of correction. This was the case in Wiseman.
But where a claim has been deliberately undervalued for a party's own convenience and there is evidence that the party always intended to pursue the claim to full value by amending it at a later date then such conduct may be held to be an abuse of process, as in Lewis.
Wiseman v Marston's plc (unreported), 21 December 2016, (County Court at Sheffield) & Lewis and others v Ward Hadaway (A Firm)  EWHC 3503 (Ch)