- Unfair Dismissal Claims - House of Lords rules on
territorial scope
US nationals based in or carrying out work in the UK for US companies
may still be able to claim unfair dismissal in an English Employment Tribunal,
the remedies of which include compensation (up to a maximum of around
Ł67,000) and, more rarely, reinstatement. This may be so even if their
employment contract specifies that the employee is based in the US or
elsewhere or is governed by the law of a US State.
In Lawson v Serco Ltd; Botham v Ministry of
Defence; Crofts v Veta Ltd [2006] 1 All
ER 823, the House of Lords considered three appeals
together which related to the territorial scope of the right of
former employees to bring a claim for unfair dismissal
pursuant to section 94(1) of the Employment Rights Act
1996. Please click here for more details.
- Letters of Request: English court refuses to give effect to Letter of Request from Kansas Court: Daric
Smith v Philip Morris Companies Inc. and Others
In the February 2005 edition of the Transatlantic litigation briefing, we
discussed recent developments relating to obtaining evidence in England in
aid of proceedings in the US, in particular, the use of letters of request. In
that briefing, we reported on the case of United States of America v Philip
Morris Inc. and Others (unrep) 10 December 2003 which,
amongst other things, reinforced the general principle that the English court
will not accede to a wide ranging request since it would amount to an
oppressive, roving enquiry.
Daric Smith v Philip Morris Companies Inc. and Others [2006] EWHC 916 is another recent example of the English court’s reluctance to accede
to wide ranging requests. Please click here for more details.
- English court can stay proceedings in favour of a US court where there is a jurisdiction clause: Konkola Copper Mines Plc v Coromin Ltd
In the last edition of the Transatlantic litigation e-bulletin we reported on the
case of Owusu v Jackson C-128/01 (“Owusu”) in the European Court of
Justice (“ECJ”). The effect of Owusu is that the English court is unable to exercise any discretion to stay proceedings against an English domiciled
defendant in favour of, for example, a US court, even if it is the more
appropriate forum. This is because the ECJ gives primacy to the domicile rule
which is contained in Article 2 of the Brussels Regulation 44/2001 over the uncertainty and alleged unpredictability of the English
doctrine of forum non-conveniens.
Following Owusu questions have been raised as to the extent to which Owusu
will apply to limit the English court's discretion in other cases. In Konkola Copper Mines Plc v Coromin Ltd [2005] EWHC 898, the English court decided that it retains a discretion to stay proceedings where there is a jurisdiction clause in favour of a non-Member State, such as a US State. Please click
here for more details.
- Will US judgments become easier to enforce
in England?
The Hague Convention on Choice of Court Agreements (“Hague Convention”)
was approved by the Hague Conference in June 2005. The English Government
is currently considering whether it should become a signatory.
If the Hague Convention comes into force it will be the first
global convention on the recognition and enforcement of
judgments and will give efficacy to jurisdiction clauses by
providing commercial parties with the confidence that
disputes will be determined solely in the forum of their
choosing. Please click here for more details.
- Update on corporate law reforms
As reported in the last edition of the Transatlantic litigation e-bulletin
comprehensive reform of UK company law is planned and a Bill is currently
going through Parliament. US companies with UK subsidiaries and US
directors who sit on boards of UK companies need to be alert to these
changes. The provisions of the Bill of most interest to litigators concern
codification of directors’ duties, provisions allowing auditors to limit liability,
and a new framework for shareholder litigation. Please click here for more details.
- New Supreme Court and Commercial Court
buildings planned
The Department for Constitutional Affairs has announced proposals for a new
Supreme Court building which is expected to be open for business from
October 2009. The new court will be housed in Middlesex Guildhall, which faces the Houses of Parliament on the opposite side of Parliament Square. It will be
refurbished according to designs developed in consultation with the 12
current Law Lords and relevant stakeholders in the court.
The new Supreme Court was established by the
Constitutional Reform Act 2005 and will replace the House
of Lords Judicial Committee as the highest appeal court in
the UK. It will have its own independent appointments
system, staff and budget. The current Law Lords
will be the first justices of the 12 member Supreme Court.
The new building will also be used to house the Judicial
Committee of the Privy Council.
A new building for the Commercial Court has also finally
been approved following extensive lobbying in which
Herbert Smith has been actively involved. It is to be funded
by a public private partnership and building is to begin next
March. It will hopefully open for business in 2009. The plans
are for a 30-courtroom building which will house the
Commercial and Admiralty Courts, the Chancery Division
and possibly also the Technology and Construction Courts.
The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.
Herbert Smith LLP, Gleiss Lutz and Stibbe are three independent firms that have a formal alliance.
