Exam (elaborations)
Summary LPC Notes Advanced Commercial Litigation Revision notes (Distinction) 2022
Summary LPC Notes Advanced Commercial Litigation Revision notes (Distinction) 2022
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Advanced Commercial LitigationPhillips v Eyre - ANS The key case concerning the common law rules relating to
conflict of laws in tort.
Where a tort occurs in a country other than that of the forum, the general rule of double
actionability will apply. This is a two limb test which sets out that the claimant must
show;
i) that the tort would be actionable in the law of the forum (lex fori), i.e. under English
law; and
ii) that the tort was "not justifiable" under the law of the place where the tort occurred
(lex loci delicti).
Boys v Chaplin - ANS Applied a flexible approach to the general rule of double
actionability in relation to the common law rules of conflict of laws in tort.
The second limb of the double actionability test was departed from on the grounds that
the law of the forum has a significantly closer relationship with the occurrence and
parties.
Red Sea Insurance Co Ltd v Bouygues SA - ANS Applied the flexible approach set out
in Boys v Chaplin to the first limb of the principle of double actionability.
The court departed from the first limb of the test and applied only the law of the place
where the tort occurred. This was because of the significant relationship between that
place and the occurrence and the parties.
Jones V Kaney - ANS The case which established that experts may be found liable in
negligence with regards to omissions or error contained in their reports.
Traditionally experts had enjoyed immunity from such liability.
Phillips v Symes - ANS A court may, in specific and particular circumstances, make an
order for wasted costs against an expert who has, through negligence or otherwise,
caused a party to a litigation to incur costs as a result of the evidence provided by the
expert.
, Pearce v Ove Arum Partnership Limited - ANS An expert who is being sued in
negligence as a result of the evidence which he provides may also be reported to any
relevant professional body.
Vasiliou v Hajigeorgiou - ANS Where the court's permission is required to obtain a
report from an expert different to that which was originally instructed by a party, and
where the court grants such permission, it will be likely that conditions will be imposed
on the granting of such permission.
Such conditions will usually include the disclosure of the original expert's report.
NB: The court's permission will be required in cases where a specific expert has been
named at the CMC.
Parkasho v Singh - ANS Adducing foreign law before the English courts is a question
fact.
Bumper Development Corporation v Commissioner of Police of the Metropolis - ANS
When examining evidence in relation to the question of foreign law, the presiding judge
must not conduct his own research but must rely on the expert evidence which is
testified in court.
Turner v Grovit - ANS An anti-suit injunction will not be appropriate where an action
has been brought by a party in a Member State of the EU. This is because, under
Regulation 1215/2012, the Member State in which the action has been brought should
apply Articles 29 and 30 of the Regulation to determine whether it should accept
jurisdiction over the claim, or whether the jurisdiction of another Member State would be
more appropriate.
Key principle = an anti-suit injunction is incompatible with the operation of the
Regulation.
CPR 31.16 - ANS CPR Rule which deals with the court's power to order pre-action
disclosure.
CPR 31.17 - ANS CPR Rule which deals with the court's power to order non-party
disclosure.
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