The best-kept secret in commercial litigation

Posted On: 27 April 2010

Author: Richard Aird

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The best-kept secret in commercial litigation

Richard Aird investigates the benefits of forum dipping into Scotland

European regulation, in the form of the Brussels and Lugano Conventions (now largely succeeded by Council Regulation 44/2001 (the Jurisdiction Regulation)), often presents important choices for those bringing proceedings.  At the highest level, good litigation practice now involves a comparison of legal regimes and the remedies of candidate jurisdictions to determine which suits the situation best.  Article 31, which introduces cross-border security measures, is an important part of this, and was introduced into UK law by Part IV of the Civil Jurisdiction and Judgements Act (CJJA) 1982.  In an exercise of gold plating, Part IV now extends beyond the member states to litigants from any jurisdiction in most types of case (see SI 1997/3020, 1997/2780, 2001/3929).

Paradoxically, for nearly three decades, one by-product of this movement has largely gone unnoticed by UK practitioners.  Part IV also introduces, within the constituent parts of the UK, the possibility of 'forum dipping', a manoeuvre which is well understood in cross-border litigation.

One reason why the opportunities within Part IV have remained largely unused by the profession is that little analysis has so far been published on the comparative criteria and effectiveness of the respective interim or security measures of the two principal UK jurisdictions - England and Scotland.  An understanding of what remedies lie on the other side of Hadrian's wall is the obvious first stage, and when gained it is likely that a change in litigation tactics will occur.