Bibliography

Civil Litigation: Rules

The Civil Procedure Rules (1998) (‘CPR’) are accessible at the following site: http:// www.dca.gov.uk/civil/procrules_fin/menus/rules.htm. Also at the same site: The Admiralty and Commercial Courts Guide (9th edn, 2011).

Architect’s Drawings of the CPR (1998)

Woolf, Lord. Access to Justice: Interim Report. London: Stationery Office, June 1995. Woolf, Lord. Access to Justice: Final Report. London: Stationery Office, July 1996.

Detailed Bibliography: Commentaries

Blackstone’s Civil Practice (Oxford University Press). Civil Procedure (the White Book) (London: Sweet & Maxwell, regular new editions). Civil Court Practice (the Green Book) (London: Lexis Nexis, regular new editions).

General Books

Andrews, Neil. English Civil Procedure. Oxford: Oxford University Press, 2003. Related works by Andrews:

1. Principles of Civil Procedure. London: Sweet & Maxwell, 1994. (on the pre-CPR system). 2. English Civil Justice and Remedies: Progress and Challenges: Nagoya Lectures. Tokyo: Shinzan Sha Publishers, 2007. 3. The Modern Civil Process. Tübingen, Germany: Mohr Siebeck, 2008. (Translation: O Moderno Processo Civil. Sao Paulo, 2009). 4. Contracts and English Dispute Resolution. Tokyo: Jigakusha Publishing, 2010. 5. Contract Law. Cambridge University Press, 2011. 6. The Future of Transnational Civil Litigation. London: British Institute of International and Comparative Law, 2004. (Re-printed 2006) (with M. Andenas and R. Nazzini, eds).

N. Andrews, TheThreePathsofJustice, Ius Gentium: Comparative 275 Perspectives on Law and Justice 10, DOI 10.1007/978-94-007-2294-1, C Springer Science+Business Media B.V. 2012 276 Bibliography

7. Arbitragem e Poder Publico. Brazil: Editora Saraiva, 2010. (‘Arbitration and Public Power’) (with Cesar Augusto Guimaraes and Eduardo Talamini, and others).

Sir Jacob, Jack. The Fabric of English Civil Justice. London, 1987. (a classic distillation of the pre-CPR (1998) system, its traditions and values, presented as the Hamlyn Lectures for 1986). Jolowicz, J.A. On Civil Procedure. Cambridge University Press, 2000. (comparative themes). Loughlin, P., and S. Gerlis. Civil Procedure (2nd edn). London: Cavendish, 2004. Sime, S. A Practical Approach to Civil Procedure (13th edn). Oxford University Press, 2010. Zuckerman on Civil Procedure (2nd edn). London, 2006. Zuckerman, A.A.S., and Ross Cranston, eds. The Reform of Civil Procedure. Oxford University Press, 1995.

Other Works

American Law Institute and UNIDROIT’s Principles of Transnational Civil Procedure. Cambridge University Press, 2006.1 Andenas, M., N. Andrews, and R. Nazzini, eds. The Future of Transnational Commercial Litigation: English Responses to the ALI-UNIDROIT Draft Principles and Rules of Transnational Civil Procedure. London: British Institute of International and Comparative Law, 2003. (Re-printed 2006) (observations by English lawyers on the CPR in the transnational perspective). Andrews, N. Principles of Civil Procedure. London, 1994. (On the pre-CPR system, before 1999). Bingham, T. (Lord Bingham), The Business of Judging. Oxford University Press, 2000. (Essays on various aspects of procedure and legal development). Cranston, R. How Law Works: The Machinery and Impact of Civil Justice. Oxford University Press, 2006. Genn, Hazel. Judging Civil Justice. Cambridge University Press, 2009. (Hamlyn Lectures for 2008). Zander, M. The State of Justice. London, 2000. (Hamlyn Lecture for 1999). Zuckerman, A.A.S., ed. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. Oxford University Press, 1999. Zuckerman, A.A.S., and Ross Cranston, eds. The Reform of Civil Procedure. Oxford University Press, 1995.

1 The members of the drafting group were: Neil Andrews, University of Cambridge, UK; Professor Frédérique Ferrand, Lyon, France; Professor Pierre Lalive, formerly University of Geneva, sometime Goodhart Professor Legal Science, Cambridge, in practice as an international commercial arbitrator, Switzerland; Professor Masanori Kawano, Nagoya University, Japan; Mme Justice Aida Kemelmajer de Carlucci, Supreme Court, Mendoza, Argentina; Professor Geoffrey Hazard Jr, now Hastings College of the Law, San Francisco, USA; Professor Ronald Nhlapo, formerly of the Law Commission, South Africa; Professor Dr iur Rolf Stürner, University of Freiburg, Germany, and Judge at the Court of Appeals of the German State Baden-Württemberg, Karlsruhe; the assistant to these discussions was Antonio Gidi (USA and Brazil). Bibliography 277

Civil Law Systems: Discussion in English

Asser, D., et al. ‘A Summary of the Interim Report on Fundamental Review of the Dutch Law of Civil Procedure.’ Zeitschrift für Zivilprozess International 8(2003): 329–87. Cappelletti, M., ed. International Encyclopaedia of Comparative Law. The Hague, and Tübingen, 1976, vol. XVI ‘Civil Procedure’. Cappelletti, M., and J. Perillo. Civil Procedure in Italy. The Hague, 1995. Cappelletti, M. The Judicial Process in Comparative Perspective. Oxford University Press, 1989. Chase, Oscar, Helen Hershkoff, Linda Silberman, Vincenzo Varano, Yasuhei Taniguchi, and Adrian Zuckerman. Civil Procedure in Comparative Context. St Paul, MN, USA: Thomson West, 2007. Damaska, M. The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. New Haven, 1986. de Cristofaro, Marco, and Nicolo Trocker, eds. Civil Justice in Italy. Tokyo: Jigakusha Publishing, 2010. (Nagoya University Comparative Study of Civil Justice vol. 8). Deguchi, M., and M. Storme, eds. The Reception and Transmission of Civil Procedural Law in the Global Society. Antwerp: Maklu, 2008. Esplugues-Mota, C., and S. Barona-Vilar, eds. Civil Justice in Spain. Tokyo: Jigakusha Publishing, 2009. (Nagoya University Comparative Study of Civil Justice vol. 3). Ervo, L., ed. Civil Justice in Finland. Tokyo: Jigakusha Publishing, 2009. (Nagoya University Comparative Study of Civil Justice vol. 2). Gottwald, P., ed. Litigation in England and Germany: Legal Professional Services, Key Features and Funding. Biedefeld: Gieseking, 2010. Hodges, C., S. Vogenauer, and M. Tulibacka, eds. The Costs and Funding of Civil Litigation: A Comparative Perspective. Oxford: Hart Publishing, 2010. Jolowicz, J.A. On Civil Procedure. Cambridge: Cambridge University Press, 2000. Kengyel, Miklós, and Viktória Harsági. Civil Justice in Hungary. Tokyo: Jigakusha Publishing, 2010. (Nagoya University Comparative Study of Civil Justice vol. 4). Maniotis, Dimitris, and Spyros Tsantinis. Civil Justice in Greece. Tokyo: Jigakusha Publishing, 2010. Maxeiner, J., G. Lee, and A. Weber. Failures of American Civil Justice in International Perspective. England: Cambridge University Press, 2011. Murray, P.L., and R. Stürner. German Civil Justice. Durham, NC: Carolina Academic Press, 2004. Pellegrini Grinover, A., and R. Calmon, eds. Direito Processual Comparado: XIII World Congress of Procedural Law, 201–42. Rio de Janeiro: Editora Forense, 2007. Rechberger, W., and T. Klicka, eds. Procedural Law on the Threshold of a New Millennium, XI. World Congress of Procedural Law.Vienna:CentreforLegal Competence, 2002. Schmidt, Stephanie. Civil Justice in France. Tokyo: Jigakusha Publishing, 2010. (Nagoya University Comparative Study of Civil Justice vol. 7). van Rhee, C.H. European Traditions in Civil Procedure. Oxford: Intersentia and Hart, 2005. van Rhee, C.H., ed. The Law’s Delays: Essays on Undue Delay in Civil Litigation. Antwerp and Oxford, 2007. van Rhee, C.H., and A. Uselac, eds. Enforcement and Enforceability. Antwerp and Oxford: Intersentia, 2010. Schmidt, S. Civil Justice in France. Tokyo: Jigakusha Publishing, 2010. (Edited by Marco de Cristofaro and Nicolo Trocker, Civil Justice in Italy. Tokyo: Jigakusha Publishing, 2010). Storme, M., ed. Approximation of Judiciary Law in the EU. Dordrecht: Kluwer, 1994. 278 Bibliography

Storme, M., ed. Procedural Laws in Europe—Towards Harmonization. Antwerpen/ Apeldoorn: Maklu, 2003. Storme, M., and B. Hess, eds. Discretionary Power of the Judge: Limits and Control. Dordrecht: Kluwer, 2003. Stürner, R., and M. Kawano, eds. Current Topics of International Litigation.Tübingen: Mohr Siebeck, 2009. Stürner, R., and M. Kawano, eds. International Contract Litigation, Arbitration and Judicial Responsibility in Transnational Disputes. Tübingen, Germany: Mohr Siebeck, 2011. Stürner, R., and M. Kawano, eds. Comparative Studies on Business Tort Litigation. Tübingen, Germany; Mohr Siebeck, 2011. Trocker, N., and V. Varano, eds. The Reforms of Civil Procedure in Comparative Perspective. Torino: Giappichelli Editore, 2005. Uzelac, A., and C.H. van Rhee, eds. Public and Private Justice. Antwerp and Oxford, 2007. Verkerk, R. Fact-Finding in Civil Litigation: A Comparative Perspective. Amsterdam and Oxford: Intersentia, 2010. Wagner, G. ‘Collective Redress—Categories of Loss and Legislative Options.’ Law Quarterly Review 127(2011): 55–82. Walker, J., and Oscar G. Chase, eds. Common Law, Civil Law, and the Future of Categories. Ontario: Lexis Nexis, 2010. Zuckerman, A.A.S., ed. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. Oxford University Press, 1999.

Transnational Principles

American Law Institute/UNIDROIT’s Principles of Transnational Civil Procedure. Cambridge University Press, 2006

on this project, Kronke, H., ed. special issue of the Uniform Law Review (2002) vol. VI; Andenas, M., N. Andrews, and R. Nazzini, eds. The Future of Transnational Commercial Litigation: English responses to the ALI/UNIDROIT Draft Principles and Rules of Transnational Civil Procedure. London: British Institute of International and Comparative Law, 2006;

Stürner, R. ‘The Principles of Transnational Civil Procedure...’ Rabels Zeitschrift 69(2005): 201–54 Storme, M., ed. Approximation of Judiciary Law in the European Union. Dordrecht: Kluwer, 1994.

Arbitration (The Literature Is Too Large to Be Exhaustively Listed)

Literature on International Commercial Arbitration: Born, G. International Commercial Arbitration, 2 vols. Dordrecht: Kluwer, 2009. Born, G. International Arbitration: Cases and Materials. Aspen, 2010. Buhring-Uhle, C., L. Kirchhoff, and G. Scherer. Arbitration and Mediation in International Business (2nd edn). The Hague: Kluwer, 2006. Bibliography 279

Collier, J.G., and V. Lowe. The Settlement of Disputes in International Law. Oxford University Press, 1999. Craig, W.L., W.W. Park, and J. Paulsson. International Chamber of Commerce Arbitration (3rd edn). Oceana/ICC Publishing, 2000. Fouchard, P., E. Gaillard, and B. Goldman. On International Commercial Arbitration, edited by E. Gaillard and J. Savage. The Hague: Kluwer, 1999. Gaillard, E. Legal Theory of International Arbitration. Leiden and Boston: Martinus Nijhoff, 2010. Greenberg, S., C. Kee, and J.R. Weeramantry. International Commercial Arbitration: An Asia-Pacific Perspective. Cambridge University Press, 2011. Lew, J.D.M., ed. Contemporary Problems in International Arbitration.TheHague: Kluwer, 1987. Lew,J.,L.Mistelis,andS.Kröll.Comparative International Commercial Arbitration. The Hague: Kluwer, 2003. Newman, L.W., and R.D. Hill, eds. The Leading Arbitrators’ Guide to International Arbitration. Bern, Switzerland: Juris Publishers, 2004. Park, W.W. Arbitration of International Business Disputes: Studies in Law and Practice. Oxford University Press, 2006. Poudret, J.-F., and S. Besson. Comparative Law of International Arbitration (2nd edn). London: Sweet & Maxwell, 2007. Redfern, A., and M. Hunter. On International Arbitration, edited by N. Blackaby and C. Partasides (5th edn). Oxford: Oxford University Press, 2009. Schreuer, C. The ICSID Convention: A Commentary (2nd edn). Cambridge University Press, 2009. Weigand, F.-B. Practitioner’s Handbook on International Commercial Arbitration. Oxford University Press, 2010. See also the Montreal 2006 conference papers in International Arbitration 2006: Back to Basics (Dordrecht: Kluwer, 2007) (International Council for Commercial Arbitration Congress No. 13). English arbitration:

Chitty on Contracts (30th edn), London: Sweet & Maxwell, 2010, Chap. 32. Dicey, Morris, and Collins on the Conflict of Laws (14th edn) London: Sweet & Maxwell, 2006, Chap. 16 (and referring to other literature). Joseph, D. Jurisdiction and Arbitration Agreements and their Enforcement (2nd edn). London: Sweet & Maxwell, 2010. Russell on Arbitration (23rd edn), 2007. Mustill, M., and S. Boyd. Commercial Arbitration: 2001 Companion Volume.London: Lexis Nexis, 2001. Tackaberry, J., and A. Marriott, eds. Bernstein’s Handbook of Arbitration and Dispute Resolution Practice (4th edn). London: Sweet & Maxwell, 2003. Merkin, R. Arbitration Law. London: Informa Business Publishing, 2006. Tweeddale, A., and K. Tweeddale. Arbitration of Commercial Disputes: International and English Law and Practice. Oxford University Press, 2005. Dicey, Morris, and Collins on the Conflict of Laws (14th edn), London: Sweet & Maxwell, 2006, Chap. 16 (and referring to other literature); Chitty on Contracts (30th edn), 2010, Chap. 32.

Theory and fundamental analysis: Gaillard, E. Legal Theory of International Arbitration. Leiden and Boston: Martinus Nijhoff, 2010. Paulson, J. The Idea of Arbitration. Clarendon Law Series; Oxford University Press, 2010. 280 Bibliography

French arbitration law: Delvolvé, J.-L., G. Pointon, and J. Rouche, French Arbitration Law and Practice (2nd edn), Leiden: Kluwer, 2009.

Mediation

Blake, S., J. Browne, and S. Sime. A Practical Approach to Alternative Dispute Resolution. Oxford University Press, 2011. Brown, H., and A. Marriott. ADR Principles and Practice (3rd edn), London, 2011. Centre for Effective Dispute Resolution at: www.cedr.co.uk/library/documents/contract_ clauses.pdf. Mackie, K., D. Miles, W. Marsh, and T. Allen. The ADR Practice Guide. London: Tottel Publishing, 2007. Spencer, D., and M. Brogan. Mediation: Law and Practice. Cambridge University Press, 2006.

Settlement

Foskett, D. The Law and Practice of Compromise (7th edn). London: Sweet & Maxwell, 2010. Leading Contributors to English Civil Justice

1. Tony Allen: After reading English, and then Law, at Pembroke College, Cambridge, he qualified as a solicitor. He was for over twenty-five years a senior litigation partner of Bunkers, an eight-partner firm of solicitors in Brighton and Hove. Tony joined CEDR (the Centre for Effective Dispute Resolution) in 2000. He is a well-known speaker and writer on mediation, and is co-author of K. Mackie, D. Miles, W. Marsh, and T. Allen, The ADR Practice Guide (London, 2007). He has loyally supported the teaching of civil procedure in Cambridge for many years. 2. Professor Mads Andenas: has taught at King’s College, London, the University of Leicester, and in Oslo. He was also Director of the British Institute of International and Comparative Law. Amongst his many publications, he was a co-editor of M. Andenas, N. Andrews, and R. Nazzini, eds., The Future of Transnational Commercial Litigation: English Responses to the ALI-UNIDROIT Draft Principles and Rules of Transnational Civil Procedure (BIICL, London, 2003, re-printed 2006). 3. Neil Andrews: Professor, Faculty of Law, Cambridge University (teaching member since 1983). Fellow of Clare College, Cambridge. Called to the English Bar, 1981. Bencher of Middle Temple, 2007. Member of the American Law Institute. Council Member of the International Association of Procedural Law. Former member of the Civil Justice Council (England), enforcement committee. He also gave advice to the Jackson Report on costs (2009–10). Has taught civil procedure in Cambridge since 1985 (inheriting Tony Jolowicz’s course). Main teaching interests: civil justice and pro- cedure (including court litigation, mediation, and arbitration); and contract law (English and transnational). Main works are: English Civil Procedure (Oxford University Press, 2003); Principles of Civil Procedure (London: Sweet & Maxwell, 1994) (on the pre-CPR sys- tem); English Civil Justice and Remedies: Progress and Challenges: Nagoya Lectures (Tokyo: Shinzan Sha Publishers, 2007); The Modern Civil Process (Tübingen, Germany: Mohr Siebeck, 2008): translation:

281 282 Leading Contributors to English Civil Justice

O Moderno Processo Civil (Sao Paulo, 2009); Contracts and English Dispute Resolution (Tokyo: Jigakusha Publishing, 2010); Contract Law (Cambridge University Press, 2011); The Future of Transnational Civil Litigation (London: British Institute of International and Comparative Law, 2004; re-printed 2006) (with M. Andenas and R. Nazzini, eds); Arbitragem e Poder Publico (Brazil: Editora Saraiva, 2010) (‘Arbitration and Public Power’) (with Cesar Augusto Guimaraes and Eduardo Talamini, and others). Andrews collaborated with leading procedural jurists1 in producing the American Law Institute and UNIDROIT’s Transnational Principles of Civil Procedure (Cambridge University Press, 2006) (project active 2000 to 2006). Has also collab- orated in the Nagoya/Freiburg comparative programme on civil justice, spear-headed by Masanori Kawano,2 and supported by Rolf Stürner.3 Andrews is also collaborating with Shimon Shetreet4 (Israel) on the Mount Scopus Judicial Independence project.5 4. George Applebey: Read Law at the University of Glasgow, and Tulane Law School, New Orleans. Long-standing contributor to civil procedure and contract law teaching at the University of Birmingham, and widely known as an international expert on civil justice, notably in the fields of small claims. Former assistant editor of the Civil Justice Quarterly. Has held visiting positions in three USA law schools. A former Assistant

1 The members of the drafting group are listed in footnote 122. 2 Nagoya/Freiburg project on ‘A New Framework for Transnational Business Litigation’, a project led by Professor Masanori Kawano; the published works in this series (so far) are: R. Stürner and M. Kawano, eds., Current Topics of International Litigation (Tübingen: Mohr Siebeck, 2009); R. Stürner and M. Kawano, eds., International Contract Litigation, Arbitration and Judicial Responsibility in Transnational Disputes (Tübingen, Germany: Mohr Siebeck, 2011); R. Stürner and M. Kawano, eds., Comparative Studies on Business Tort Litigation (Tübingen, Germany: Mohr Siebeck, 2011); national studies: Neil Andrews, English Civil Justice and Remedies: Progress and Challenges: Nagoya Lectures (Tokyo: Shinzan Sha Publishers, 2007); Laura Ervo, ed., Civil Justice in Finland (Tokyo: Jigakusha Publishing, 2009); Carlos Eslugues- Mota and Silvia Barona-Vilar, eds., Civil Justice in Spain (Tokyo: Jigakusha Publishing, 2009); Miklós Kengyel and Viktória Harsági, Civil Justice in Hungary (Tokyo: Jigakusha Publishing, 2010); Neil Andrews, Contracts and English Dispute Resolution (Tokyo: Jigakusha Publishing, 2010); Dimitris Maniotis and Spyros Tsantinis, Civil Justice in Greece (Tokyo: Jigakusha Publishing, 2010); Stephanie Schmidt, Civil Justice in France (Tokyo; Jigakusha Publishing, 2010); Marco de Cristofaro and Nicolo Trocker, eds., Civil Justice in Italy (Tokyo: Jigakusha Publishing, 2010). 3 Peter Murray and Rolf Stürner, German Civil Justice (Durham, NC: Carolina Academic Press, 2004); ALI/UNIDROIT’s Principles of Transnational Civil Procedure (Cambridge: Cambridge University Press, 2006). 4 Mount Scopus International Standards of Judicial Independence. 5 Mount Scopus International Standards of Judicial Independence; The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Shetreet and Forsyth eds), to be published 2011 by Martinus Nijhoff-Brill Publishers: http://www.brill.nl/default.aspx?partid=210%26;pid=43075. Leading Contributors to English Civil Justice 283

Editor of Civil Justice Quarterly and was formerly Executive General Secretary of the International Association of Procedural Law. 5. Lord Bingham of Cornhill, KG: (Thomas Bingham: 1933–2010). He read History at Balliol College, Oxford. Called to the Bar, 1959; appointed to the High Court, 1980; to the Court of Appeal, 1986; Master of the Rolls, 1992–6 (senior judge in civil matters within the Court of Appeal); Lord Chief Justice, 1996–2000 (most senior English judge); Senior Law Lord, 2000–2008 (presiding over the House of Lords, appel- late committee). Renowned as a magisterial and pellucid judgment writer and as one of the most distinguished judges of the modern age. He illuminated many branches of the law, including civil proce- dure, where his notable judgments include: in Brown v. Stott (2001) (2.04); Abbey National Mortgages plc v. Key Surveyors Ltd (1995) (3.58); Customs & Excise Commissioners v. Barclays Bank plc (2006) (7.12); Callery v. Gray (Nos 1 and 2) (2002) (5.12). He also wrote the official report (the Bingham Inquiry, 3.35) concerning the collapse of the BCCI bank: Work of homage: M. Andenas and D. Fairgrieve, eds., Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford, 2009)6 (notably B Rix, ‘Lord Bingham’s Contributions to Commercial Law’, at 665 ff); Lord Phillips, ibid., p. xlvii, rated him one of the three best advocates of his generation, the other two being Robert MacCrindle and Robert Alexander; and for a detailed ‘biograph- ical sketch’, R. Cranston, ibid., pp. li to lxxii. Bingham’s extra-judicial writing includes: The Business of Judging (Oxford, 2000); The Rule of Law (London: Penguin Books, 2010). 6. Sir Henry Brooke: Educated at Balliol College, Oxford (Classics). A former Lord Justice of Appeal (1996–2006); now an accredited medi- ator. An important influence upon the implementation of the Woolf reforms and the CPR system (introduced in 1999). 7. Lord Clarke of Stone-cum-Ebony: He read Economics and then Law at King’s College, Cambridge. Judge of the High Court of Justice, QBD, 1993–98; Admiralty Judge, 1993–98; a Lord Justice of Appeal, 1998–2005; Master of the Rolls, 2005–09; Head of Civil Justice, 2005–09. He has taken a keen interest in civil justice, both lectur- ing and through the Civil Justice Council. His address on the BCCI case (3.11; 3.21; 3.35; 3.44), where he had struck out the case at first instance (but the House of Lords later re-instated the action) is wholly convincing: Sir Anthony Clarke MR, ‘The Supercase-Problems and Solutions’, 2007 Annual KPMG Forensic Lecture: available at http:// www.judiciary.gov.uk/docs/speeches/kpmg_speech.pdf. 8. Lord Collins of Mapesbury, LLD, FBA (‘Lawrence Collins’): educated at Downing College, Cambridge; Honorary Fellow, Wolfson College,

6 Reviewed CJS Knight (2010) 126 Law Quarterly Review 148. 284 Leading Contributors to English Civil Justice

Cambridge; Member of the Institut de Droit International; the first solicitor to hold the highest judicial office as a Lord of Appeal in Ordinary; later a Justice of the Supreme Court; general editor of Dicey, Morris, and Collins on the Conflict of Laws (the leading work on private international law in England); a celebrated jurist of unusual range; he has been a leading practitioner (before joining the High Court bench, he had been a partner with a leading City of London law practice, Herbert Smith), author, editor, lecturer, and as a judge (High Court, Court of Appeal, House of Lords, and Supreme Court, retiring from the latter in 2011); in these various capacities, he has anal- ysed and nurtured private international law, and indeed the science of dispute resolution more generally. 9. Sir Ross Cranston, LLD: educated University of Queensland, Harvard University, and University of Oxford; formerly a professor of law in the University of London; now a High Court judge; a member of the Woolf inquiry (1994–1996) into access to justice; besides his academic expertise in commercial law, notably banking, he has written sub- stantially on civil justice; notable publications are: A.A.S. Zuckerman and R. Cranston, eds., The Reform of Civil Procedure: Essays on ‘Access to Justice’ (Oxford University Press, 1995); How Law Works: The Machinery and Impact of Civil Justice (Oxford University Press, 2006); R. Cranston, ‘Complex Litigation: the Commercial Court,’ Civil Justice Quarterly 26 (2007): 190. 10. Dr Carla Crifò: teaching member of the Law Faculty, University of Leicester; after graduating from the University of Rome, La Sapienza, she spent time at the Centre for the Study of Foreign and Comparative Law at UNIDROIT, in Rome. Her doctorate was on default judgment in England and contumacia in Italy. She is Assistant Editor and book reviews editor for the Civil Justice Quarterly (Sweet & Maxwell) and a member of the International Association of Procedural Law. Cross-Border Enforcement of Debts in the EU (London: Kluwer Law International, 2009), and many leading contributions to the periodical literature, including, ‘La riforma del processo civile in Inghilterra’ in Riv Trim Dir Proc Civ 2/2000, 511. 11. Lord Denning of Whitchurch: (Alfred Thompson, ‘Tom’, Denning; 1899–1999): educated at Magdalen College, Oxford (Mathematics; then Law). In the field of civil procedure, his most notable achievements are the invention of the freezing injunction and civil search orders in, respectively, the Mareva and Anton Piller cases (decisions of the Court of Appeal). On these see N. Andrews, ‘Development in English Civil Procedure: How Far Can the English Courts Reform their Own Procedure?’ Zeitschrift für Zivilprozess International 2 (1997): 3–29. 12. Dr Déirdre Dwyer: Former research fellow, Pembroke College, Oxford. An expert on experts: The Judicial assessment of Expert Evidence Leading Contributors to English Civil Justice 285

(Cambridge University Press, 2008), and editor of an anniversary ret- rospective set of essays on the CPR system: D. Dwyer, The Civil Procedure Rules Ten Years on (Oxford University Press, 2009). 13. Dame Professor Hazel Genn: Dean of Laws and Professor of Socio- Legal Studies in the Faculty of Laws at University College, London, where she is an honorary Fellow. She is a leading authority on civil justice and dispute resolution and has published widely in the field. In 2008 she delivered the Hamlyn Lectures on the subject of civil jus- tice (published by Cambridge University Press, 2009, entitled Judging Civil Justice). Her research focuses on the experiences of citizens and businesses caught up in legal problems and the responsiveness of the justice system to their needs. Her original studies have had a major influence on policy makers around the world. In recogni- tion of her work on civil justice, she was appointed DBE (Dame of the British Empire) in the Queen’s Birthday Honours List in 2006. In 2006 she was also appointed QC (honoris causa) and in 2008 elected an Honorary Master of the Bench of Gray’s Inn. Among her leading publications are: Hard Bargaining: Out of Court Settlement in Personal Injury Actions (1987); The Effectiveness of Representation at Tribunals (1989); Tribunals and Informal Justice (1992); Personal Injury Compensation: How Much is Enough? (1994); Survey of Litigation Costs for the Woolf Inquiry into Access to Justice (1996); Understanding Civil Justice (1997); Central London County Court Mediation Scheme. Evaluation Report (1998); Mediation in Action (1999); Paths to Justice: What People Do and Think About Going to Law (1999); (with A Paterson), Paths to Justice Scotland: What Scottish People Do and Think About going to Law (2001); Court- Based ADR Initiatives for Non-Family Civil Disputes. The Commercial Court and the Court Appeal (2002); Tribunals for Diverse Users (2006); Twisting Arms: Court Linked and Court Referred Mediation Under Judicial Pressure (2007); The Attractiveness of Senior Judicial Appointment to Highly Qualified Practitioners, Report to the Judicial Executive Board (December 2008); Judging Civil Justice (Cambridge University Press, 2009). 14. Professor Cyril Glasser, LLD: A solicitor, and visiting professor, University College, London. He is renowned as a leading commenta- tor on civil justice. He has contributed to the development of civil aid, teaching, scholarship, research projects, and is a former Governor of the London School of Economics (where he was educated). He has been consulted on numerous reforms in this field. 15. Professor Christopher Hodges: Educated at New College, Oxford. Head of the CMS Research Programme on Civil Justice Systems, University of Oxford; after many years in practice as a solicitor in the City of London, during the last deacde he has enjoyed a second career as an academic commentator, specializing in the fields of product 286 Leading Contributors to English Civil Justice

liability law and civil justice, notably multi-party litigation. His major publications include: Multi-Party Actions (Oxford University Press, 2001); The Reform of Class and Representative Actions in European Legal System (Oxford: Hart, 2008); C. Hodges, S. Vogenauer, and M. Tulibacka, eds., The Costs and Funding of Civil Litigation: A Comparative Perspective (Hart Publishing, 2010). 16. Lord Hoffmann of Chedworth: (Leonard Hoffmann: born South Africa, 1934): educated at University of Cape Town; Queen’s College, Oxford; Gray’s Inn. Called to the (English) Bar, 1964. He had partly overlapping careers (Oxford to London train) as an academic and as a barris- ter. He was an Oxford law don (University College, Oxford, 1961–73), becoming Reader in Evidence. And he was a barrister, specialis- ing in Chancery work, QC, 1977 (earlier in South Africa, 1958–60). Appointed to the High Court, 1985, to the Court of Appeal, 1992, and to the House of Lords, 1995, from which he retired in 2009, having for several decades been widely respected as an unusually brilliant legal mind. Notable contributions to civil procedure include: Taylor v. Serious Fraud Office (1999, HL) (1.36); the Morgan Grenfell case (2002) (2.11); Mercantile Group (Europe) AG v. Aiyele (1994, CA) (3.21); Arthur JS Hall v. Simons (2002, HL) (3.75); Callery v. Gray (Nos 1 and 2) (2004) (4.05); Arab Monetary Fund v. Hashim (No 5) (1992) (Ch D) (7.07); Re First Express Ltd (1991, Ch D) (7.09); Fiona Trust and Holding Corporation v. Privalov (2007, HL) (10.13); and Hoffmann, ‘Changing Perspectives on Civil Litigation,’ Modern Law Review 56 (1993): 297. 17. Senior Master Peter Hurst: the Senior Costs judge. He has written a major work on Costs (4th edition, London, 2007, 865 pp). Peter has generously supported the teaching of civil procedure in Cambridge for many years. He is recognized as a leading authority on all facets of costs and funding in civil matters. 18. Sir Jack Jacob, QC: (1908–2000): educated at the London School of Economics; University College, London; called to the Bar, Gray’s Inn. In the Dictionary of National Biography Michael Zander contributes this interesting cameo of Jacob’s early life, and of his family: ‘born on 5 June 1908 in Timtang Road, Shanghai, the third of ten children of Jacob Isaiah Jacob (1863–1935) and his wife, Aziza, née Abraham (1887–1976). His father, a Sephardic Jew, had moved from Baghdad to Shanghai to work as an accountant for the wealthy merchant fam- ily the Sassoons. He was educated at Shanghai Public School for Boys (1920–25) and emigrated to England at eighteen. From 1927 to 1930 he read for a law degree at London University—initially at the London School of Economics (LSE) and then, on getting a schol- arship, at University College (UCL). He obtained first-class honours, and in 1930 was called to the bar at Gray’s Inn, which awarded him the Cecil peace prize and an Arden scholarship. Jacob married Rose Leading Contributors to English Civil Justice 287

Mary Jenkins, née Samwell (1904–1995), a secretary, in the sum- mer of 1940; they had two sons, both of whom had legal careers [Sir Robin Jacob, now a retired Lord Justice of Appeal, and Professor of Intellectual Property Law, University College, London; and Joe Jacob, formerly of the London School of Economics]. [Sir Jack’s] legal prac- tice at the bar was interrupted for five years by the war. He served in the ranks from 1940, then was commissioned in the Royal Army Ordnance Corps (1942); in the following year he was moved to the War Office, as a staff captain, and there was involved in planning for D-day.’ After practice at the Bar, Sir Jack became Senior Master of the Supreme Court, at the High Court, London, and contributed in Herculean fashion to the practice, remoulding, and glossing of the Rules of the Supreme Court (the pre-CPR rules in the High Court). Michael Zander in the Dictionary of National Biography concludes: ‘Civil procedure was unknown as a subject for university study in England until the early 1960s, when Jacob co-founded a course in the subject for the LLM programme at London University. He gave the lectures on Monday evenings at UCL for nearly thirty years. His seminars at LSE, accompanying the lectures, were famous for the lead- ing judges, practitioners, and civil servants who participated. From the 1960s he also taught civil procedure at Birmingham University and was actively involved in the foundation and administration of the univer- sity’s Institute of Judicial Administration. In 1978 he became the first general editor of the Civil Justice Quarterly, published by Sweet and Maxwell from the institute at Birmingham, and he served on the insti- tute’s committee of management.... After he had retired [from the High Court] in 1980, Jacob was appointed Director of the Institute of Advanced Legal Studies at London University (1986–8). ...He was a much-loved figure in the law, with an enormous range of friends from many countries. He was appreciated for his engaging personality, for the vast scope of his knowledge of his subject, for his amaz- ing industry, and for his passion for justice.’ Sir Jack Jacob became the doyen of English procedural lawyers, and he was also revered in the international community of civil proceduralists. His magisterial Hamlyn Lectures explain the rules and principles of the pre-CPR sys- tem: The Fabric of English Civil Justice (London, 1987). Work of Homage: I.R. Scott, ed., International Perspectives on Civil Justice (London, 1990). 19. Sir Rupert Jackson: (a Lord Justice of Appeal since 2008): Educated at Jesus College, Cambridge (President of the Cambridge Union 1971). Called to the Bar, Middle Temple, 1972. Appointed QC 1987, and Bencher of Middle Temple, 1995; appointed to the Queen’s Bench Division, 1999, becoming presiding judge in the Technology and Construction Court, 2004–7. Editor of Jackson and Powell on Professional Negligence 1982, and successive editions. His report on 288 Leading Contributors to English Civil Justice

the Costs system in England, final report January 2010, seems destined to set the agenda of procedural change for several years. He has loyally supported the teaching of civil procedure in Cambridge for many years. 20. Adam Johnson: Educated at Churchill College, Cambridge (Law, first class BA); rose swiftly to become partner of Herbert Smith, London (see also Lord Collins). Adam Johnson has contributed to the Cambridge course on Civil Procedure for the last decade, and he has published leading articles on aspects of commercial procedure. He is especially interested in the transnational aspects of commercial litigation and arbitration. 21. Professor ‘Tony’ (JA) Jolowicz, QC: Emeritus Professor of Compa- rative Law, Trinity College, Cambridge. He is celebrated not just as a major author on tort law (Winfield & Jolowicz on Tort) but as a profound contributor to comparative civil procedure: notably, his mag- isterial On Civil Procedure (Cambridge University Press, 2000). He pioneered the teaching of civil procedure in Cambridge and con- tributed a great deal to the international study of this subject, notably through the International Association of Procedural Law. With Marcel Storme, he collaborated on a common law/civil law fusion of procedu- ral principles: M. Storme, ed., Approximation of Judiciary Law in the European Union (Gent, 1994). 22. Master John Leslie: Educated at Clare College, Cambridge. He has sup- ported the teaching of civil procedure in Cambridge for many years. He is a full-time civil law judge in the Royal Courts of Justice. He has been an editor of The Green Book and was a member of both the Woolf Committee and the Rule Committee. 23. Sir Anthony May: Educated at Worcester College, Oxford; President of the Queen’s Bench Division. The Right Honourable Lord Justice May (Anthony Tristram Kenneth May) was called to the Bar (Inner Temple) in 1967 and was made a Bencher in 1985. He took Silk in 1979, and was a Recorder from 1985 until 1991. He was appointed a Judge of the High Court (Queen’s Bench Division) in 1991 and promoted to the Court of Appeal in 1997. Lord Justice May was Deputy Head of Civil Justice from 2000 until 2003 and has been Vice-President of the Queen’s Bench Division of the High Court since 2002. 24. Professor Rachael Mulheron: Professor at Queen Mary College, London; she is a prolific writer on the topic of multi-party litiga- tion, for example, R. Mulheron, The Class Action in Common Law Systems: A Comparative Perspective (Oxford: Hart, 2004), and she has contributed massively to the recent debate in the UK concern- ing proposals for an ‘opt-out class action’, as the following list makes clear: ‘Some Difficulties with Group Litigation Orders—And Why a Class Action is Superior,’ Civil Justice Quarterly 24 (2005): 40; ‘From Representative Rule to Class Action: Steps Rather Than Leaps,’ Civil Leading Contributors to English Civil Justice 289

Justice Quarterly 24 (2005): 424; ‘Justice Enhanced: Framing an Opt- out Class Action for England,’ Modern Law Review 70 (2007): 550–80; Rachael Mulheron’s 2008 paper on ‘Reform of Collective Redress in England and Wales’ www.civiljusticecouncil.gov.uk/files/collective_ redress.pdf; ‘A Missed Gem of an Opportunity’ (2011) Euro Business LR (forthcoming); ‘Recent Milestones in Class Actions Reform in England: A Critique and a Proposal,’ Law Quarterly Review 27 (2011): 288–315. 25. Lord Mustill, LLD, FBA: (Michael Mustill): Educated at St John’s College, Cambridge (Natural Sciences, and Law) (Hon Fellow, 1992); Gray’s Inn. Called to the Bar, 1955; practised in commercial law; QC, 1968; appointed to the High Court, 1978; to the Court of Appeal, 1975; to the House of Lords, 1992, retiring from appeals in 1997. Goodhart Professor of Legal Science, University of Cambridge, 2003–4. With Stewart Boyd, QC, Middle Temple, Trinity College, Cambridge, author of the leading English work on commercial arbitration: The Law and Practice of Commercial Arbitration in England (1982; 2nd edn, London, 1989; companion volume, 2001). Renowned as a leading expert on arbitration (for example, his judgment in the Channel Tunnel case, 11.14). Since judicial retirement, he has enjoyed a career as a commercial arbitrator. 26. Lord Neuberger of Abbotsbury, MR: Educated at Christ Church, Oxford. Called to the Bar, Lincoln’s Inn, 1974. Judge of the High Court, Chancery Division, 1996–2004; Lord Justice of Appeal, 2004–06; Lord of Appeal in Ordinary, 2007–09. Now Master of the Rolls, sitting in the Court of Appeal, where he is Head of Civil Justice. He is interested in all aspects of civil justice, frequently giving lectures on the topic. 27. Professor John Peysner: Educated at Queens’ College, Cambridge. Professor of Civil Justice, Lincoln Law School, University of Lincoln. An important commentator on (among other things) funding, legal aid, legal services, and costs. Member of the Civil Justice Council (2002–6) and chair of its Costs Committee. Member of the Civil Committee of the Judicial Studies Board (2000–8). 28. Professor Ian Scott: Barber Professor of Law, 1978–2000, Professor of Law (personal chair), 2001–05, University of Birmingham, Emeritus Professor, since 2006; called to the Bar, Gray’s Inn, 1995. Director of the Institute of Judicial Administration, University of Birmingham, 1975–82. Member of the Lord Chancellor’s Civil Justice Review Body, 1985–88, and of the Alternative Dispute Resolution sub-committee, Civil Justice Council, 1998–2002; an editor, and since 2007 the gen- eral editor, of Civil Procedure (the White Book). I.R. Scott, ed., International Perspectives on Civil Justice (London, 1990) (Essays in Honour of Sir Jack Jacob). 29. Lord Scott of Foscote (former Lord of Appeal in Ordinary): Educated at Trinity College, Cambridge. Recognised as a judge with a mastery of a remarkable range of legal areas. He was prominent in the Woolf inquiry 290 Leading Contributors to English Civil Justice

into access to justice (1994–1996). Lord Scott gave many important court decisions both before and after the new procedural code (since 1999). 30. Professor Shimon Shetreet: Greenblatt chair of public and inter- national law, Hebrew University of Jerusalem, Israel. Awarded the 2010 International Jurists Award for maintaining the highest stan- dards of legal education. Has been in recent years been Herbert Smith Visiting Professor at University of Cambridge, UK and Senior Academic Visitor at Clare College, Cambridge; and has been visiting professor of numerous USA law schools, and elsewhere. Called to the Israeli Bar, 1969, he has appeared before the Supreme Court of Israel in landmark cases. As a Minister he held high public offices: 1988 to 1996, and was a Member of the Knesset, the Israeli Parliament. Main works: Judges on Trial A Study of the Appointment and the Accountability of the English Judiciary (1976) (relied upon by the House of Lords in the Pinochet Case in January 1999; this and other works have also been relied upon as well in numerous highest court cases in Canada, Australia, New Zealand and India); Judicial Independence: The Contemporary Debate (1985); The Role of Courts in Society (1988); National Security and Free Speech (1991; Justice in Israel (1994), Women in Law (1998), The Good Land between Power and Religion (1998 Hebrew), Law and Social Pluralism (2002) and On Adjudication (2004) (Hebrew); forthcoming publications are: Uniform Civil Code: The Challenge of Implementing Uniform Civil Code for India, to be published 2011 by Oxford University Press (with Hiram Chodosh); The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Shetreet and Forsyth eds), to be published 2011 by Martinus Nijhoff -Brill Publishers. See link http://www.brill.nl/default.aspx?partid=210%26;pid=43075; Judges on Trial, 2nd edition, with Dr Sophie Turenne (from Cambridge University), to be published 2012 by Cambridge University Press. He is responsible for the (continuing) project on judicial independence, Mt Scopus International Standards of Judicial independence.7 31. Dr John Sorabji: Educated at the Queen’s College, Oxford; Legal Secretary to the Master of the Rolls, having served under Sir Anthony Clarke (now Lord Clarke) and Lord Neuberger. In this role he fre- quently contributes to leading speeches on a range of topics. Sorabji gained an Oxford D Phil in 2009 entitled ‘Paradigms of Justice and the Overriding Objective: Woolf’s Copernican Revolution’. He is an assis- tant editor of Civil Justice Quarterly and has contributed regularly to the literature on civil justice.

7 http://law.huji.ac.il/upload/InternationalStandardsofJudicialInd2008.doc. Leading Contributors to English Civil Justice 291

32. Professor Robert Turner: Educated at St Catherine’s College, Cambridge; formerly Senior Master and Queen’s Remembrancer, Queen’s Bench Division, Royal Courts of Justice, London. He partic- ipated in the Woolf inquiry into access to justice (1994 to 1996). He has generously supported the teaching of civil procedure in Cambridge for many years. He has been an editor of Civil Procedure (‘The White Book’) and Atkin’s Forms. He was a member of the Woolf Committee on access to justice (1995–6). 33. Professor Keith Uff: Read Law at Lincoln College, Oxford; called to the Bar by Gray’s Inn. He then practised at the English Bar; in 1972 became a Lecturer in the School of Law at the University of Birmingham where he is now a Professor. Uff has held visiting appoint- ments at the University of Mauritius, the University of Stockholm, and the University of Bayreuth. He is a former Assistant Editor of Civil Justice Quarterly and was formerly Executive General Secretary of the International Association of Procedural Law. 34. Lord Woolf: Educated at University College, London; architect of the CPR system (effective since April 1999). His reports are Lord Woolf, Access to Justice: Interim Report (1995); and Access to Justice: Final Report (1996). Formerly, Treasury Counsel; High Court judge; Lord Justice of Appeal, Lord of Appeal in Ordinary, Master of the Rolls (senior judge in civil matters within the Court of Appeal), and Lord Chief Justice of England (most senior English judge). 35. Professor Michael Zander, QC, FBA; Emeritus Professor of Law, London School of Economics; a great expert on the administration of both criminal and civil justice; he took a Double First Honours Degree at Jesus College, Cambridge, obtained a First Class in the LLB (now the LLM) and was awarded the Whewell Scholarship in International Law. He took a LLM at Harvard and worked for a year with Sullivan and Cromwell on Wall Street. He then returned to Britain, qualified as a solicitor and practised for a period before joining the Law Department of the London School of Economics in 1963. He was appointed to a Chair in 1977. He was Convenor of the Law Department from 1984 to 1988 and 1997–98. He was made an Honorary QC in 1997 and was appointed a Senior Fellow of the British Academy in 2005. He retired from full-time teaching in 1998. In 1999 he gave the Hamlyn Lectures under the title The State of Justice (Sweet & Maxwell, 2000). He was a member of the Runciman Royal Commission on Criminal Justice (1991–1993), and conceived and conducted the Commission’s main research project—The Crown Court Study—the biggest study ever carried out in the English courts. For twenty-five years (1963–1988) he was also Legal Correspondent of The Guardian (newspaper) for whom he wrote over two thousand articles. He has been a frequent broadcaster on both radio and television. Of his many contributions to civil justice, perhaps his most notable are: The State of Civil Justice 292 Leading Contributors to English Civil Justice

(London, 2000) and his major contributions to the periodical litera- ture concerning: (1) the merits of the Woolf reforms (for example, ‘The Government’s Plans on Civil Justice,’ Modern Law Review 61 (1998): 383 and ‘The Woolf Report: Forwards or Backwards for the New Lord Chancellor?’ Civil Justice Quarterly 16 (1997): 208) and (2) the con- ditional fee agreement system and the general topic of funding (‘Where Are We Heading with the Funding of Civil Litigation?’ Civil Justice Quarterly 22 (2003): 23–40; ‘Where Are We Now on Conditional Fees? Or why this Emperor is Wearing Few, If any, Clothes?’ Modern Law Review (2002): 919–30; ‘Will the Revolution in the Funding of Civil Litigation in England Eventually Lead to Contingency Fees?’ DePaul Law Review (2002): 259–97. 36. Professor Adrian Zuckerman: Professor of Civil Procedure, University of Oxford, and a long-standing Fellow at University College, Oxford. An outstandingly rigorous, fundamental, and versatile legal writer and thinker, and a pedagogic pioneer within Oxford (teaching civil pro- cedure as an academic subject). He is a leading expert on both civil justice and on criminal evidence (having studied evidence under Sir Rupert Cross). Zuckerman on Civil Procedure (2nd edn, London, 2006) is his major study. Other works include: A.A.S. Zuckerman and R. Cranston, eds., The Reform of Civil Procedure: Essays on ‘Access to Justice’ (Oxford University Press, 1995); A.A.S. Zuckerman, ed., Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (Oxford University Press, 1999); Oscar Chase, Helen Hershkoff, Linda Silberman, Vincenzo Varano, Yasuhei Taniguchi, Adrian Zuckerman, Civil Procedure in Comparative Context (Thomson West, 2007). He is also editor of Civil Justice Quarterly. He was an adviser to the Lord Woolf inquiry on access to justice (1994–1996) and to the Jackson Report on costs (2009–10). He teaches for the BCL/MJur degree, Oxford University, and runs the Civil and Public Litigation (Procedure) course for the LLM degree (University College, and Kings College, London). Index

A damages for breach of an arbitration Accelerated Relief, 50 agreement, 235–236 Access to Justice, 27, 44–45 enforcement and recognition of See also Conditional Fee Agreements, expert determination (clause “CFAs”; Costs; Jackson, Sir combining this and arbitration), Rupert: “Civil Litigation Cost 261 Review” evidence, 259–260 “ADR”, alternative dispute resolution, finality, 237–238 5, 7, 12, 43, 64, 154, 188–195, foreign awards, 241, 261 197, 199, 201, 203–206, 209, freezing relief, 240–241, 253–254 211, 215, 217, 240, 247, 250, mediation before arbitration, 264 264 mediation role combined with arbitral varieties, 188–195 role, 267 See also Arbitration; Expert mediation role not combined with Determination; Mediation; arbitral role, 265–267 Settlement mediation while arbitration pending, 265 American Law, 2, 74, 131, 137 protective relief, 240–241, 253–259 American Law Institute/UNIDROIT’s settlement facilitation combined with “Principles of Transnational arbitral role, 271–273 Civil Procedure”, see UNIDROIT West Tankers case (European Court of (Principles of Transnational Justice, 2009), 231 Civil Procedure, 2006) Assessors, see Experts Anti-Suit Injunctions, 228–231, 251–253 B Appeals, 22, 107–115 Blair (“Tony”), 29 factual issues, 112 Burden and Standard of Proof, 16, 147 permission to appeal, 107–115 See also Evidence Arbitration, 219–221, 249–251 annulment of award, 262–263 C anti-suit injunctions, 228–231, Case Management, 12 251–253 Commercial Court, 14 appointment of arbitrators, 251 sanctions and procedural discipline, arbitration clauses 15 anti-suit injunctions, 228–231, Civil Procedure Rules: “CPR (1998)”, 1, 5, 251–253 23, 81 damages for breach of arbitration case management, 12 clauses, 236 See also Overriding Objective, Part 1, confidentiality, 221–225 CPR; Woolf, Lord

293 294 Index

Commercial Court, 14, 153, 204 witness statements, 79 “Admiralty and Commercial Courts See also Privileges Guide”, 14 “ADR orders”, 204 E case management, 14 Enforcement, 22, 141–149, 241–246, Conditional Fee Agreements, “CFAs”, 4, 261–262 130–135 court judgments, 22, 141–142 contingency fees in the USA compared, enforcement of arbitration clauses 131, 137–138 anti-suit injunctions, 228–231, See also Access to Justice 251–253 Confidentiality, 70, 221–225 damages for breach of arbitration arbitration, 221 clauses, 235–236 disclosure of documents, 68–69 enforcement and recognition of foreign “implied undertaking” (disclosure awards, 241–246, 261–262 process), 68–69 See also Contempt of Court; Striking See also Privileges Out; Stay of Court Proceedings Consolidation of Litigation, 168 Evidence, 16–17, 103, 112 Contempt of Court, 145 arbitration and court support, freezing injunctions, 158 259–260 injunctions, 145–146, 151 burden of proof, 16–17 search orders, 161 standard of proof, 16–17 Costs, 121–140 See also Privileges; Witnesses costs capping, 126 Expert Determination, 190 costs sanctions (mediation), 193, combined with arbitration, 258 206–211 interaction with English court’s costs-shifting rule, 3, 122, 127 jurisdiction, 258 discretion, 127–128 nature, 190 high cost of English civil litigation, Experts, 18, 80–81 122, 194 assessors, 18, 87 indemnity basis, 128, 207 non-parties, cost orders against, discussions between experts, 94–99 128–129 expert reports, 91–94 protective cost orders, 126–127 expert witness immunity abolished, security for costs, 123–124 97–99 settlement offers, 7, 128 “joint statements”, 97 standard basis, 128, 207 party-appointed experts, 18, 88 “wasted costs orders”, 129 “single, joint experts”, 18, 84–87 See also Conditional Fee Agreements; “wasted costs orders”, 99, 129–130 Jackson, Sir Rupert: “Civil See also Privileges Litigation Cost Review” “CPR”, see Civil Procedure Rules: “CPR F (1998)” Finality, 107 appeal, 115 D arbitration, 237–238 Disclosure, 19, 62 Henderson v. Henderson rule, assets disclosure orders, 145, 154 118–119 expert reports, 79, 91–92 res judicata, 115–118 “implied undertaking”, 19–20, 69 See also Res Judicata main proceedings, during the, Freezing Injunctions, 152–161 68–69 arbitration, 160–161, 240–241, non-parties, against, 65–67 253–254 pre-action disclosure, 64–65 contempt of court, 157 “standard disclosure”, 68 worldwide freezing injunctions, 158 Index 295

G mediation role not combined with Group Litigation Orders (GLOs), 178 arbitral role, 265 See also Multi-Party Litigation settlement facilitation combined with arbitral role, 271–273 H costs sanctions, 193, 206–211 House of Lords (abolition of), 29–30 EU directive, 190, 214–215 Human Rights Act 1998, 4, 26–27, 110 judicial encouragement, 204 freedom of expression, 53 mediation agreements, 201 preliminary injunctions, and, 57 mediation privilege, 211–214 “stays” of court proceedings, 202, I 205–206 Injunctions, 52–55 See also “ADR”, alternative dispute enforcement, 145–146 resolution; Settlement See also Anti-Suit Injunctions; Search Multi-Party Litigation, 168–169 Orders; Freezing Injunctions; “opt out” system, 169–178, 184 Interim Injunctions “opt in” system, 169, 178–184 Interim Injunctions, 52–55 See also Consolidation of Litigation; cross-undertaking, 52 Group Litigation Orders (GLOs); Interim Payments, 50–52 Representative Proceedings Interim Relief, 50 See also Interim Payments; Interim N Injunctions “Norwich Pharmacal” Orders, 65–66 Irvine, LC, Lord, 29–30 O J Overriding Objective, Part 1, CPR, 5, 12 Jackson, Sir Rupert: “Civil Litigation Cost Review”, 3, 27, 43, 45, 64, 122, P 136, 138–140, 195 Passports, civil order for custody of, 165 Joinder, 169 Phases of Litigation, 8–23 Judgment, 55–59, 141–149 Pleadings, 11–12 default judgment, 55–57 See also Statements of Case reasoned, 27–29 Pre-action Phase, see Phases of Litigation; Jury, 20–21, 100–102 Pre-action Protocols See also Trial Pre-action Protocols, 8–9, 64–65 Preliminary Issues, 57 L Pre-trial phase, see Phases of Litigation Lawyer, 72–73 Principles of Civil Procedure, 25–48 See also Legal Advice Privilege Privileges, 70–71, 164 Legal Advice Privilege, see Privileges confidentiality, 70 Limitation of Actions, 57–58 experts’ discussions, 95–99 Litigation, see Phases of Litigation in-house counsel, 33–36 Litigation Privilege, see Privileges legal advice (attorney-client) privilege, 71 M litigation privilege, 75–80, 93 Mediation, 187–217, 265 mediation privilege, 211–214 ADR: varieties, 187–191 self-incrimination, privilege against connections with arbitration: and European Human Rights law, mediation before arbitration, 264 37 mediation while arbitration main exposition, 163 pending, 265 “without privilege” communications, mediation role combined with 211–214 arbitral role, 267–271 Protective Relief, 151–165 296 Index

R summary judgments, overlap with, Representative Proceedings, 169–178 60–61 See also Multi-Party Litigation Summary Judgments, 58–59 Res Judicata, 115–118 striking out, overlap with, 60–61 issue estoppel and arbitration, 233–236 See also Finality T Tracks, 9–11 S Trial, 20–21, 100–103 Search Orders, 161–164 civil jury’s virtual disappearance Security for Costs, 123–126 (England), 20–21, 103 Settlement, 197–200, 271–273 sequence of stages of trial, 21, 102–103 judicial encouragement of mediation, “trial bundle”, 101 204 See also Jury mediated settlements and connections with arbitration U mediation before arbitration, 264 UNIDROIT (Principles of Transnational mediation while arbitration Civil Procedure, 2006), 18–19, pending, 265 21, 26, 40–43, 67, 88, 105, 154 mediation role not combined with United Kingdom Supreme Court, 108–109 arbitral role, 265–267 mediation role combined with arbitral role, 267 W settlement facilitation combined Witnesses, 21, 65 with arbitral role, 271–273 expert witnesses, see Experts mediation, 11, 24, 187–1888 factual witnesses, 16–18, 103 pre-action protocols, 8, 64–65 perjury, 104 settlement offers, 7, 128 “statement of truth”, 103 See also “ADR”, alternative dispute witness immunity, 95–100 resolution; Mediation witness statement, 17–18, 103 Small Claims, 9–10, 196 witness summons, 103 Statements of Case, 12, 59–60 Woolf, Lord, 1, 3–4, 12–13, 19, 58, 63, 86, See also Pleadings; Striking Out 89, 106, 237 Stay of Court Proceedings, 201, 205–206 Woolf reforms (1998), 1 Striking Out, 59–62 Woolf reports (1995, 1996), 1, 4, 12 “BCCI” case, 62, 73 See also Civil Procedure Rules: “CPR compatibility with Human Rights law, (1998)”; Overriding Objective, 32–33 Part 1, CPR