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BILA is a lively association mainly of English solicitors and barristers (and some judges) and Italian avvocati with an interest in the laws and culture of both Italy and England, but not all of the members are part of the legal profession.

We organise a full programme of events to complement our Italian and British heritage and roots in law. We hope that through these events members will make valuable connections, debate and learn about current legal issues as well as having fun!

The association provides an opportunity to learn more about, or simply enjoy aspects of, the Italian and the British culture. For example previous events have included Italian wine tasting or a seminar on the double tax treaty and dinner debates.

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BILA 2013

Annual Dinner 25 January 2013

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English Civil Litigation, Case Management & Sanctions

English Civil Litigation, Case Management & Sanctions

Sanctions for failure to comply with rules, practice direction and court orders on case management can be drastic or out and out catastrophic – a lively topic for Italians, involved in English litigation, to be informed about, as their own civil procedure culture is very different, and in which adjournments and an unfettered right to appeal make English norms quite alien.

An Italian litigant in England needs to absorb the following principles and accept them, otherwise he risks walking into a minefield.

The English court can strike out a party’s statement of case where that party is not compliant with a rule, practice, direction or order CPR r 3.4(2)(c).

There is a recently revised civil procedure rule CPR r 3.9 which provides

1.     On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a)   for litigation to be conducted efficiently and at proportionate cost; and

(b)   to enforce compliance with rules, practice directions and orders.

2.     An application for relief must be supported by evidence.

English practitioners in contentious matters have been sobered by the hard decision in the case of Mitchell v News Group Newspapers Ltd [2013]EWCA Civ 1537.  This decision made in respect of a failure of lawyers to file a costs’ budget – the opportunity to claim costs was effectively lost at the outset of the litigation by the failure to submit the costs’ budget – is the touchstone for legal advisers and their clients in understanding the attitude of the courts to failure by a party to adhere strictly and accurately to the requirements of case management set out in the rules, practice directions, and the tailored orders of the court in the individual case.

To be in the position of needing to beg for the court’s mercy is something to be avoided, as indulgence is not to be presumed on.

Lord Justice Jackson who instigated the reform wants value for money, efficient litigation: effective case management is at the core of this aim. The merits of the case are not decided at the case management stage, and a party unseated from the judgment seat will find it most hard to persuade a court, that because it says it would have won that there should be relief.  Parties who underestimate the strict need to adhere to the purpose of the Jackson reforms will simply be annihilated, where their non-compliance with proper case management

(1)   is more than trivial – any non-compliance that is of substance rather than form e.g. filing and serving a document late is an omission of substance rather than form, if the non-compliance is anything worse than a narrow missing of a deadline to carry out a particular case management direction, where the party in default has otherwise been timeous and exact in carrying out its duties.

 (2)   unless, there is a good excuse e.g. ill-health of the party or its lawyer, or involvement in an accident.  In other words, a good excuse is likely to be one that demonstrates default was beyond the control of the non-compliant party; an excuse based on issues such as workload, other business commitments whether of the party or its lawyers is unlikely to cut much ice with the Court – parties to litigation must make the litigation their first priority, if they are intent on pursuing their case, and their lawyers must have a firm mastery of their professional diary;

 (3)   unless a case management direction turns out, in the course of the litigation, to have been unrealistic and unreasonable as to its timing or perhaps implementation, especially if a timely application to vary the direction before time for compliance expires is made, in which case the non-compliant party may attract the court’s mercy – however litigation is not supposed to be left to slide ineffectively out of close control, and timely applications to vary are essential.

 (4)   Deliberate ignoring of a case management obligation will usually be impossible to justify; an act of carelessness, which does not upset the Court timetable or the other side’s preparation of the case is less likely to be totally unamenable to a discretionary act of mercy on the part of the court, though Mitchell limits the ambit of this mercy enormously. Carelessness can have grave consequences on other court users through loss of trial dates, cluttering of the judicial diary – NB every case is fact specific, in terms of the judicial perception of a party’s conduct; weak excuses of the type “I didn’t mean to become non-compliant” may be the subject of stringent criticism.  There is no place for nonchalance in dealing with case management issues, precision is required.

Where non-compliance is in relation to an Unless Order (which should only be made after a history of cavalier attitude on the part of one or other of the parties to the litigation has emerged) it will usually be most difficult to invoke circumstances that will gain relief from the Court.  An Unless Order is an order that tells a party in clear and certain terms that it must comply with specified directions or face the stated consequences.

In the light of the Mitchell case, the safer course is to comply with all case management obligations as though they were unless orders.

Legal Representatives need to be given timely instructions so that they can comply on their clients’ behalf with all case management obligations.  A lay party that does not take this on board risks catastrophe, and in that event no criticism attaches to their lawyers.

The failings of lawyers to understand case management directions will not usually excuse their clients from the duty to comply.  A party will not be excused usually for the failings of its lawyers.

A litigant in person may obtain relief from sanctions more readily than where lawyers are instructed.  But any litigant in person should actively consider whether he or she is up to the mark to conduct litigation, because should his inexperience lead him into “non-trivial” non-compliance with case management directions and the court nevertheless gives him relief – and this is no foregone conclusion – the terms of that relief may well be expensive. The justice of the case is always fact specific.

The Courts look at all the circumstances in deciding the question of relief from sanction, far better never to have to seek the court’s discretionary relief or mercy.

This article does not intend to be exhaustive but to be cautionary and give Italian litigant readers, and ideally others, a hint at the problems that the Jackson reforms can cause them, as the English litigation “climate” is so very different from the Italian.

Paul Dipré

Barrister

p.dipre@counselschambers.co.uk

This article is a summary of recent developments and, whilst every care has been taken to ensure the accuracy of the information provided, it should not be regarded as a substitute for advice in any particular case. Every case is different and you must not act solely on the basis of information contained here. BILA and the article’s author make no warranties as to the accuracy of the information contained in the article and are not responsible for the content of external websites. Where opinions have been expressed, they are the personal opinions of the author and do not constitute professional advice on any level, nor do they represent the opinions of BILA.

 

 

Lessons from Intesa San Paolo v Regione Piemonte – Dexia Crediop Spa v Regione Piemonte – Message to Foreign Defendants: “Ignore the English Court at your peril!”

18th July 2013

Lessons from Intesa San Paolo v Regione Piemonte – Dexia Crediop Spa v Regione Piemonte – Message to Foreign Defendants: “Ignore the English Court at your peril!”

The recent decision in Intesa San Paolo v Regione Piemonte leaves no room for doubt that even if a party disputes the jurisdiction of the English Court, care must be taken to comply with its procedures and time limits. This is particularly the case in relation to a foreign public authority.

The case concerned claims brought by Intesa San Paolo S.p.A. and Dexia Crediop S.p.A. against the Defendant Regione Piemonte, an Italian local authority, in relation to certain derivative transactions connected with bonds issued by the above named Italian Region.

In the eyes of the English court, the fact that a Defendant is a public body in Italy with special privileges such as the self redress procedure within that state, carries an additional duty upon it, to adhere to English Civil Procedure Rules even more so than they would where an action would lie only before Italian courts.

In his decision to grant summary judgment in favour of the Claimants, in the above named conjoined matters, Mr Justice Eder leaves no room for doubt that judges in England take pre trial conduct very seriously indeed and will regard a “snub” by foreign parties, even public authorities, as a direct offence to the authority of the English court.

In his judgement, Mr Justice Eder regarded “any defendant who deliberately ignores proceedings duly instituted in this court and properly served does so at its peril particularly where the parties have expressly agreed English law and jurisdiction to govern their relationship; and whatever merits might exist in the self redress process instituted by Piedmont in Italy provide no justification whatsoever for the decision by Piedmont effectively to ignore” the English proceedings

Judgement as to Declaratory relief in this case was delivered to Piemonte over 12 months before the case for summary judgement was heard. Despite the fact that Piedmont had notice by September 2012 it did not proceed with an application to set aside the judgment before the end of June 2013. Further, it did so without at this time serving a defence following up its application even in draft form as envisaged in equity in the English jurisdiction. The court in its judgement regarded that delay as sufficient, of itself, to justify the dismissal of the application to set aside.

Moreover, an Italian public authority seeking to shield itself behind the authority of the Italian courts to shut out the jurisdiction of the English courts may indeed be very unpleasantly surprised as was the case here where the Italian Regional Administrative Court of Piedmont refused jurisdiction in the above named cases in favour of the English courts, a fact taken into account in the judgement of the English court in the application for summary judgement as further justification for its decision. .

As a result of the above conduct of the Regione Piemonte, any merits as to substance that its application might have had were not only looked upon in a negative light due to the delay in bringing the application before the court but were also not evidenced sufficiently due to the failure to serve a defence. Even a draft defence would have probably sufficed. Without any pleading, Piedmont lost the opportunity of putting its defence forward. The witness statement filed by the Region was also not sufficient to replace a defence.

It is interesting to note, that Mr Justice Eder would have probably found in favour of Piemonte in respect of its capacity to enter the transactions, if this issue was properly put forward in a defence. Clearly Piedmont lost a great opportunity.

This case should serve as a warning to foreign defendants and particularly local authorities to seek early advice whenever confronted with a claim involving the English Courts.

Co-written by:

Germana Lo Iacono-Smith, a partner at Seddons Solicitors, germanal@seddons.co.uk 

Konstantinos Konofagos, a lawyer and partner at www.bankingcode.gr

 

This article is a summary of recent developments and, whilst every care has been taken to ensure the accuracy of the information provided, it should not be regarded as a substitute for advice in any particular case. Every case is different and you must not act solely on the basis of information contained here. BILA and the article’s author make no warranties as to the accuracy of the information contained in the article and are not responsible for the content of external websites. Where opinions have been expressed, they are the personal opinions of the author and do not constitute professional advice on any level, nor do they represent the opinions of BILA.

 

European Harmony in Practice – Brussels IV

EUROPEAN HARMONY IN PRACTICE – BRUSSELS IV

For a client who owns property, or who has certain strong connections, in more than one country, the succession rules governing the inheritance of his or her estate can be very complicated.  The main question to be answered is which country’s succession law applies, and the answer can be found in the Private International Law (PIL) rules of the respective countries.  Unfortunately, two countries’ PIL often differ and do not provide the same answer.  For example, in some cases it is the law of the nationality of the individual that applies, whilst in others it is the law of where the person is resident.

In England, our PIL for succession matters looks to the law of where a person is domiciled, meaning where they consider to be their true home, and also to the law of where the assets are located.  That is, the distribution of moveable property on death is determined by the law of the owner’s domicile, but for immoveable property it is determined by the law of the location of the property.  English law allows the law of different countries to determine the succession of different parts of the same estate.

To make things more complicated, the reference by the law of one country to the law of another can sometimes include that country’s PIL, but on other occasions it does not include the PIL.

What does this all mean?   As one can imagine, these situations often lead to confusion, which in turn can lead to dispute, delay and expense.

An object of the European Union is to simplify cross border relations and movement of goods and persons between EU member countries.  In order to try and harmonise the rules regarding succession within the EU the European Commission has been considering this issue for a long time.  The result is an EU Regulation, known as Brussels IV (“the regulations”), which came into force on 17 August 2012.  Most of the provisions, however, do not become effective until 17 August 2015.

The regulations re-set and unify the PIL of almost all EU countries on the questions of which law applies, which Court has jurisdiction and the recognition of Court decisions on most succession matters.  There is also provision for a European Certificate of Succession which seeks to simplify the authority needed to administer EU wide estates by having one certificate which will be recognised in all the participating countries.   I refer to ‘almost all’ rather than ‘all’ the EU members as the UK, Denmark and Ireland have decided not to sign up (for reasons I do not propose to discuss here).

The regulations will still be of great significance, however, to those who are connected both to the UK and to any of the 24 EU members who have signed up.  And, furthermore, one of the provisions can be taken advantage of now.

The central theme of the regulations is that it will generally be the law of the place of the deceased’s habitual residence that will control the succession of the estate for deaths after 17 August 2015.  The relevance of this can best be seen with an example.  Giovanni has been living in London for several years.  At the moment Italy will look to the law of his nationality (Italy) to govern his succession (unless specific conditions apply, which we will presume is not the case).  Civil law countries, such as Italy, protect the rights of the deceased’s family members in succession by giving them entitlement to a set proportion of the estate.  England, on the other hand, has only very minor protective measures reserved for limited occasions, and individuals generally have complete freedom to leave their estates to whomsoever they wish.  After 17 August 2015, Italian law will instead look to the law of where Giovanni is habitually resident (England) to govern the succession.  This would seemingly allow Giovanni much more freedom for deciding his succession and remove the family’s entitlement.  It may, therefore, become desirable for someone from an EU civil law country to come and live in England if he or she does not want to be restricted in terms of the succession of their estate.

There is also provision for UK nationals living in EU countries to be able to elect that the law of their nationality controls the succession of their estate, and not the law of where they are resident.  Again, this may benefit those UK nationals who wish to completely control the succession of their estate but continue to live in a civil law EU country.   Such an election can be made now in a Will and becomes effective for deaths after 17 August 2015.

It is clear that, despite the UK not signing up to the regulations, the effect will be very important for some clients and they need to be understood now.  What we do not know is how the Courts of jurisdictions which have traditionally protected the family’s succession rights will respond if that protection is removed.  There is provision for certain effects of the regulations to be ruled out on public policy grounds, but opinion is divided as to whether the breach of a family member’s protected inheritance would be sufficient to invoke this.  It will certainly be an interesting aspect of the regulations to follow.

Andrew Godfrey

Penningtons Solicitors LLP, Abacus House, 33 Gutter Lane, London  EC2V 8AR

Andrew.godfrey@penningtons.co.uk

Tel: +44 (0)20 7457 3074

This article is a summary of recent developments and, whilst every care has been taken to ensure the accuracy of the information provided, it should not be regarded as a substitute for advice in any particular case. Every case is different and you must not act solely on the basis of information contained here. BILA and the article’s author make no warranties as to the accuracy of the information contained in the article and are not responsible for the content of external websites. Where opinions have been expressed, they are the personal opinions of the author and do not constitute professional advice on any level, nor do they represent the opinions of BILA.

 

 

 

Procedure for dealing with the English Estate of an Italian National or Italian domiciliary having no English Will

Summary

In the event that the client dies resident in England but domiciled in Italy with an Italian Will which appoints no executors, an application to a District Judge or Registrar will be required to obtain a Grant of Probate in England.

The application would have to first be made by the person who is entrusted with the administration of the estate in Italy.  Where there is no such person, then the beneficiaries will be entitled to apply for the grant.

If the Will was written in English and appointed executors, or if the Will referred to someone and described their role in the capacity of an Executor, this would enable a Grant of Probate to be obtained without an application to the Court.  In addition, where the whole or substantially the whole of the English estate consists of immovable property, a Grant in respect of the whole estate may be made in accordance with law which would have been applicable if the deceased had died domiciled in England and Wales.

Details

By virtue of S.1 Wills Act 1967, “a will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.”

It is normally necessary that the will should dispose of an estate in England and Wales or contain a valid appointment of an executor.  This would suggest that providing the English estate is specifically disposed of in the Will itself, it is not essential that the Will appoints an executor.

The procedure for making grants where the deceased died domiciled out of England and Wales, is governed by the Non-Contentious Probate Rules 1987 – Rule 30.  This provision is copied out below.

Rule 30 sets out two main circumstances in which the Grant of Probate will be issued.

The first involves an application to the Court in which a District Judge or Registrar may order that a Grant be issued to a number of people.

The first eligible person is the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled.  A Grant in this capacity is made only where there is a Grant, Decree or other Order of a court clothing some person with authority substantially similar to that conferred upon an English Personal Representative, ie empowering him to collect in and administer the estate.  A decree or order merely declaring who are the heirs of the deceased is not normally accepted as sufficient to enable such persons to be treated as entrusted with administration.

An Order which simply declares who are the heirs may however be sufficient to show who are the persons beneficially entitled to the estate.

Under Rule 30(1)(b), where there is no person in authority, the Grant may be issued to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the District Judge or Registrar may direct.  Therefore, the beneficiaries under the Will may well be in a position to apply for the Grant.

The alternative position under Rule 30 does not involve an application to the Court.  Instead, Probate of any will which is admissible in proof may be granted to the executor named if the will is in English.  However, Probate would still be granted “if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person” (Rule 30(3)(a)(ii).  Therefore, the provision of person in an executor-type role in the Italian will would make the application for a grant of probate on the client’s death an easier one.

As regards the procedure required for the Court application, the original Grant or Decree issued by the court of domicile, or an officially certified copy of it, including an official copy of the will, if any, should be lodged and this will be retained in the registry.  If the document is in a foreign language, a notarial or other sufficient translation is also required.  The translation must be identifiable with the document translated and usually is annexed to the foreign documents.  The translation should, if possible, be verified by the certificate of an English notary public or a British consul.

Please note that the Grant is in all cases one of letters of administration, with or without will as the case may be, and consequently the usual rule is that the Grant may not issue to a single individual if a life or minority interest arises under the law of the domicile.

Non Contentious Probate Rules

Rule 30 Grants where deceased died domiciled outside England and Wales

(1)        Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, a distribute judge or registrar may order that a grant, limited in such way as the distribute judge or registrar may direct, do issue to any of the following persons-

(a)        to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or

(b)        where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the district judge or registrar may direct; or

(c)        if in the opinion of the district judge or registrar the circumstances so require, to such person as the district judge or registrar may direct.

(2)        A grant made under paragraph (1)(a) or (b) above may be issued jointly with such person as the distribute judge or registrar may direct if the grant is required to be made to not less than two administrators.

(3)        Without any order made under paragraph (1) above –

(a)        probate of any will which is admissible to proof may be granted -

(i)         if the will is in the English or Welsh language, to the executor named therein; or

(ii)        if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; or

(b)        where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales.

Roy Campbell

Druces LLP  22.05.13

R.Campbell@druces.com

This article is a summary of recent developments and, whilst every care has been taken to ensure the accuracy of the information provided, it should not be regarded as a substitute for advice in any particular case. Every case is different and you must not act solely on the basis of information contained here. BILA and the article’s author make no warranties as to the accuracy of the information contained in the article and are not responsible for the content of external websites. Where opinions have been expressed, they are the personal opinions of the author and do not constitute professional advice on any level, nor do they represent the opinions of BILA.