Archive for the ‘United Kingdom’ Category

McAlpine v. Bercow and a New Era of ‘Twitter Chill’

May 24, 2013

The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) [“McAlpine”]  is a stern admonition to Twitter users about the perils of practising comedy without a license.

Seriously, in my view, the UK court’s  judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.

It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots. (more…)

UK Supreme Court Rejects Supreme Court of Canada’s Jurisdictional Test for Enforcing Foreign Judgments

October 30, 2012

The UK Supreme Court has rejected outright the Supreme Court of Canada’s “real and substantial connection” test for recognition and enforcement of foreign default judgments.

The UK decision in Rubin v. Eurofinance [2012] UKSC 46 arises from two appeals:  Rubin v Eurofinance SA (“Rubin”) and New Cap Reinsurance Corpn Ltd v Grant (“New Cap”), both dealing with the issue of whether an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, e.g, preferences or transactions at an undervalue (“avoidance proceedings”), will be recognised and enforced in England.

The appeals also address whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the CrossBorder Insolvency Regulations 2006 (SI 2006/1030)  (“CBIR”)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia.  (more…)

Lili Levi, “The Problem of Trans-National Libel”

September 28, 2012

Lili Levi (University of Miami – School of Law) has published “The Problem of Trans-National Libel”, American Journal of Comparative Law, Vol. LX, No. 2, Spring 2012/ University of Miami Legal Studies Research Paper No. 2012-25. Here’s the abstract:

Forum shopping in trans-national libel cases “libel tourism”­ has a chilling effect on journalism) academic scholarship) and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legisla­tively. In 2070) the United States passed the SPEECH Act) which prohibits recognition and enforcement of libel judgments from juris­dictions applying law less speech-protective than the First Amendment. In Britain) consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defama­tion Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability jour­nalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover) even if Parliament approves reform legislation discouraging libel tourism) such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain’s proposed libel reform legislation and calls for foreign courts) when assessing the significance of contacts to the forum in cases affecting the United States) to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition) the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct.

A copy of the article is available for download via SSRN here.




Enforcing UK Judgments in Ontario

July 12, 2012

 The Convention between Canada and the United Kingdom For The Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 1984, [the “Convention”] [1] [2]   applies to judgments rendered by the Federal Court of Canada and all reciprocating common law provinces and territories. In Ontario, the Convention is called the Reciprocal Enforcement of Judgments (U.K.) Act, RSO 1990, c R.6 [“REJUKA”] which is the only bi-lateral enforcement convention to which Ontario is a party. REJUKA does not apply to the following types of orders or judgments:

(a) orders for the periodic payment of maintenance;

(b) the recovery of taxes, duties or charges of a like nature or the recovery of a fine or penalty;

(c) judgments given on appeal from decisions of tribunals other than courts;

(d) judgments which determine

(i) the status or legal capacity of natural persons;

(ii) custody or guardianship of infants;

(iii) matrimonial matters;

(iv) succession to or the administration of the estates of deceased persons;

(v) bankruptcy, insolvency or the winding up of companies or other legal persons;

(vi) the management of the affairs of a person not capable of managing his own affairs.

REJUKA provides for a “simple and rapid” procedure for registration of the UK judgment, without having to commence a civil action on the original debt. Article IV sets out the various grounds for refusal or setting aside registration of the UK judgment. Article V deals with establishing jurisdiction of the UK court in granting the original UK judgment.

The relative ease of enforcing UK judgments under REJUKA is highlighted in the Court of Appeal for Ontario decision in Tarlo Lyons v. Gauthier, 2012 ONCA 39 (CanLII) (S.C.C. application for leave to appeal denied, (34723) , July 12, 2012). The appeal panel’s brief endorsement reads: (more…)

Asleep At The Switch: Avoiding A Negligent Referral Claim

September 21, 2011

New York: E. T. Paull Music Co., 1897.

Mandatory professional indemnity insurance & a mandatory insurer: A global perspective“, an article by Jennifer Ip (LAWPRO unit director and counsel (Litigation)) and Nora Rock, (LAWPRO corporate/policy writer), in the current issue of LAWPRO Magazine, is required reading for Canadian international law practitioners. The authors provide a comprehensive review of the recent malpractice crisis in the UK and a summary of professional errors & omissions insurance coverage in various jurisdictions.

The LAWPRO magazine also includes a Table summarizing Professional Indemnity Insurance Requirements Around The World. [available here (pdf)]

While many common-law jurisdictions (e.g. United Kingdom, Australia, Hong Kong and Singapore) and most continental European civil law jurisdictions have mandatory professional indemnity insurance coverage requirements, some do not.

The most glaring exception is the United States:

Oregon is currently the only state that requires lawyers to carry liability insurance.

Oregon lawyers must purchase their primary insurance through the Oregon bar’s Professional Liability Fund.19 In an article for Law Practice TODAY, the newsletter of the Law Practice Management section of the American Bar Association, law practice management expert, Ed Poll praised the Oregon program for its affordable premiums and universal coverage, noting that the premiums paid by Oregon lawyers “are much less than the nationwide average [voluntary] payment for malpractice insurance,” and that universal coverage in Oregon means that “[t]he playing field between large and small firms is at least manageable. And the public is truly protected.”20 Jeff Crawford of the Oregon bar’s Professional Liability Fund confirmed that the base premium for the current insurance year is $3,500 (for coverage of $300,000 per claim and $300,000 in the aggregate, plus a defence costs allowance of $50,000), a premium amount that, he notes, “if you consider inflation, has remained quite stable over the past several years.”

The upshot is that a “Google search” of a foreign lawyer’s website, law blog or asking for a “Twitter recommendation” is simply not good enough and the shortest path to a “negligent referral” claim. Due diligence requires that you not only evaluate the foreign lawyer’s credentials diligently (including local bar association status, disciplinary records, etc.),  you must also request confirmation from the foreign lawyer whether he or she carries voluntary E&O insurance with sufficient minimum limits.

Forewarned is forearmed.

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