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Monday, 23 January 2017

English Law - our £25bn a year service asset

I'll bet that if I mention Carlill -v- Carbolic Smoke Ball Company at least half of you will get the reference. For any that don't, it's one of the first contract law cases that English professionals from all sectors learn when first at the teat of contract law & tort. I aced law, and kept up with it all through my professional career, through both the Times law reports and those in Estates Gazette. Over the years I've come not only to respect but to regard with a deep affection the wonderful, elegant and self-evolving way in which the corpus of civil law works in England and Wales. No other nation could have developed a separate, parallel stream of law such as Equity - a shield, not a sword - to use when the mainstream was lacking. And the Chancery barrister from whom I first learnt my law was equally in love with it all. My final act before I retired was to wholly resist a claim of £1m under NEC3 at adjudication with the law supplied by an eager young chap from one of the big city firms. I thoroughly enjoyed myself. There ain't nothing so elegant as a 300-item Scott schedule with our column totalling to zero. 

Anyway, that little encomium apart, the Standard recognises the importance of it all both to the City and nation;
The Justice Secretary, Liz Truss, identifies one of them today in her summit with leading law firms. She promised to protect Britain’s status as the world’s biggest legal capital — a status which is worth some £25 billion a year. More importantly, it adds to the country’s historic reputation for probity, integrity and fair dealing. English contract law has evolved over centuries and it is used in contracts between individuals and countries which have little to do with England or the UK. Then there is the  reputation for professionalism of the English legal profession and the independence and quality of the judiciary — however much the judges may occasionally irritate us. And if England is the centre of the legal world, London is the centre of the centre.

Our justice system could of course be improved, notably the efficiency of the courts. But the Government is right to do what it can to safeguard the lawyers’ position. It should sign up to the Hague Convention on Choice of Court Agreements immediately after Brexit — it cannot do so while we are in the EU — and seek a replacement for Europe’s “Recast” rule. This is crucial. Let’s look to our strengths; right now we must make the most of them.
With English law, rather than Euro Napoleonic codes, forming the basis of North American and much of Asian-Pacific law, we are wise to pull it away from the perversion and debasement of inferior European jurisdiction. It is self healing, and the Euro errors of the last 40 years can be healed and absorbed. With TTIP dead in the water, and CETA peculiar to the Euro Napoleonic 27, we stand in good stead to continue as the world's tribunal capital. In relation to 'recast', Allen & Overy have published an opinion, but it can be summarised in their graphic 

Brussels Regulation: Article 23 Brussels Regulation (recast): Article 25
"If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise." "If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise."


barnacle bill said...

Don't forget Radders our Admiralty Court plays an important part in the judging and settlement of many international maritime related cases.

Raedwald said...

Bill - I posted this in 2007 but for some reason can't link. My favourite ever Admiralty Court case -

"Things that make you proud to be British

The Admiralty Court is rarely as dull and dusty a place as some other seats of justice, but seldom have I seen such a perfectly titled, stated, judged and reported case as Sea Tractor - v - Tramp. And never to my knowledge has the phrase 'Lovely jubbly' been admitted as evidence in an Admiralty Court before. The law report itself is a succinct delight that paints as clear a picture of that event off the Kent mainland as if one had been on board.

Heard on the 18th of January before Mr Justice David Steel sitting with Captain Iain Gibb of Trinity House as Nautical Assessor, the judge limited the case to half a day, surely an act of wisdom and mercy in preserving the seamen on both sides from the folly of legal costs. The facts of the case can be stated baldly here, but if you have just a few more minutes I commend you to the full law report at

Sea Tractor is a small workboat / tug. Tramp is a small coaster. The value of the Tramp would not exceed £400k. Tramp had made two previous trips to Washer Wharf on the Swale. On her third trip she tried to leave the wharf without tug assistance. While she was coming off, the wind turned her head upstream and she was unable to come about. Sea Tractor was called and rapidly put her right. Sea Tractor claimed salvage, but Tramp held that it was commercial towage worth about £625.

Judge Steel patiently heard the strongly argued evidence for both sides. He concluded "I have come to the conclusion that the vessel was in an unhappy predicament and was clearly in need of tug services on salvage terms.......In brief this was a relative straightforward service to a vessel in modest danger from which she could not extract herself safely. The services were rendered by a small tug which had responded promptly but which has no claim to professional status. I have come to the conclusion that a fair but encouraging award would be in the sum of £12,500."

'Lovely jubbly,' as Sea Tractor no doubt said, 'reee-sult Rodney!'"

Mr Ecks said...

We'll see if British Lawdogs come through with the Brexit caper.

Otherwise the noose for the lot of them as far as I am concerned.

barnacle bill said...

Thanks for the link Radders, that brought back some memories of my time running in/out of the Swale to Ridham.

We used to run in on the flood tide, one blustery night with about a 4knot tide running, I'm doing about 6knots to keep steerage on her. Just got up to the lifting bridge at Kingsferry about a ship's length (100m) off, When the bridgeman told me he was going to lower the bridge for an oncoming ambulance.

I told him he had better order another ambulance for the two of us if he did!

Luckily he saw reason and kept it open for us. Medway VTS's only comment on the whole incident was not to be so forceful with my language on the port's working VHF channel in future!

Getting back to the Admiralty Court, my father was once there as an expert witness on Bideford Bar. The opening question from the defendant's barrister was he didn't recognize this chambers my father was from?

The judge had to point out if he had looked at the chart being used he would quite clearly see where Bideford Bar was!

English Pensioner said...

British commercial law is probably one of the reasons why so many foreign companies are based here and why the predicted exodus due to Brexit will not take place. In commercial contracts all feel far happier with our laws than those of many other countries, an asset which Britain should guard with care.

John Dub said...

One of the best reasons for leaving the EU, is that we can dispose of the EU imposed "Supreme Court"

Anonymous said...

good stuff R.#

"One of the best reasons for leaving the EU, is that we can dispose of the EU imposed "Supreme Court"

23 January 2017 at 15:29"

John Dub, I do not, couldn't summon enough emphasis, allotted the word power to tell you how much, that, I agree with those few words.

G. Tingey said...


I wonder, could we re-enter, or not leave the EU ... on one very important condition.

That they dump all this code Naploeon fuckwittery & absolutism & go over to Common Law?

Could be good for a laugh or two.

dustybloke said...

Blimey, that takes me right back to 1972 in an instant.

Sadly, the Carbolic (Climate Change Division) Smoke and Mirrors Company triumphed in the end.

mike fowle said...

You probably remember the scene from Brothers in Law by Henry Cecil when Roger Thursby is landed with a case about which he has no knowledge. "Anyway", went on Sir Hugo "isn't there anything to be done in this case? is there a Scott Schedule, Mr Truebland?" and he turned pleasantly and inquiringly to Roger. Roger was still standing and the relief when the Official Referee started to address his opponent was so great that he had begun to feel the warm blood moving through his veins again. But at the mention of 'Scott Schedule' it froze again. What on earth was a Scott Schedule? He thought of Sir Walter Scott and Scott the explorer. He thought of Scotland. Perhaps Sir Hugo had said Scotch Schedule.