Civil Law Reform Bill

This Bill and consultation paper propose changes to the recovery of damages under the Fatal Accidents Act 1976 and reforms concerning the distribution of estates where an inheritance is forfeited or disclaimed. The most wide-reaching proposal is the amendment of s17 of the Judgments Act 1838 so that the post-judgment rate (which has been 8% since April 1993) can be set by reference to the base rate. Responses are sought by 9 February 2010 (http://www.justice.gov.uk/consultations/docs/civil-law-reform-bill-consultation-paper.pdf).

Consent orders and fraud Where a party agrees to a consent order on costs following the determination of liability, the court will set aside the order where a fraudulent claim is presented at the hearing on quantum. The party had no option but to agree to the consent order given that they only had suspicions that the claim might be fraudulent at that stage (The Ariela and The Kamal XXVI http://www.bailii.org/ew/cases/EWHC/Comm/2009/3256.html).

Disbursements and counsels’ fees

According to a recent report in the Law Gazette, solicitors will for the first time be able to profit from instructing barristers following rule changes agreed by the Bar Standards Board. A solicitor’s firm will in theory be able to treat the barrister’s fee as a cost that they can mark up when billing the client to generate a profit. At the moment a barrister's fee is treated as a disbursement.

Freezing order

The Commercial Court granted a worldwide freezing order in terms that went beyond those in the standard form published in CPR Practice Direction 25. The order permitted the defendants to deal with all their assets abroad so long as their assets in (the standard form says in or outside) England and Wales remained above £175 million. This amendment to the standard form was necessary to restrain the removal of assets, many of which were held abroad in an “indirect manner” to a jurisdiction where enforcement of a judgment would be difficult (JSC BTA Bank v Ablyazov http://www.bailii.org/ew/cases/EWHC/Comm/2009/3267.html).

New Lugano Convention

The new 2007 Lugano Convention entered into force as between Norway and the European Community on 1 January 2010. The effect of this is that issues of jurisdiction and enforcement of judgments as between EU member states and Norway will now be governed by the 2007 Lugano Convention. The 2007 Lugano Convention has not been ratified by Switzerland or Iceland. Questions of jurisdiction and enforcement as between EU member states, Switzerland and Iceland will therefore continue to be governed by the 1988 Lugano Convention.

Recommendations for the Bar

The Bar Standards Board has given approval for barristers to supply legal services through the legal structures known as lLegal Disciplinary Practices (LDPs). In particular, barristers will be allowed to become managers of LDPs regulated by the Solicitors Regulatory Authority which include up to 25 per cent non-lawyer managers without having to re-qualify as solicitors. They will be permitted to act both as independent practitioners and managers of LDPs at the same time. The cab-rank rule will still apply (http://www.barstandardsboard.org.uk/news/press/774.html).