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Procedure

Cross-border – Rome II

Deciding which courts have jurisdiction in a cross-border trading dispute can be difficult. From 1 January 2009, new EU Regs (Rome II), come into force.

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Documents – confidential

It is often thought that commercially sensitive and confidential documents are not discloseable and are therefore safe from production in court. A recent case shows that is not always so.

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Service – on solicitor

A claim form must now be served on the defendant’s solicitor if the defendant, or his solicitor, has given the business address of the solicitor (within the jurisdiction) in writing as the address for service.

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Service – ‘last known address’

Under the old rules it had been held that the words ‘last known address’ when serving an individual were plain and unqualified – thus, it did not matter that the defendant was no longer living there.

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Service – non-claim form

There are now new rules on fax and e-mail service of documents other than claim forms; transmission will be deemed to have taken place provided it is sent before 4.30pm on that business day (any later and it will have been sent on the next business day).

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Service – personal service

By new Rule 6.5(3) a claim form is served personally on:

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Service – new rules

The rules on service were radically overhauled on 1 October. The key points are:

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Mediation – forced

Detailed dispute resolution procedures are a common feature of many commercial contracts (especially those in the IT and construction sectors). Typically, there will be clauses providing for an escalation process (ie meetings with representatives in increasing seniority); a mediation; and an agreement to arbitrate under specified rules, or to litigate in an agreed court.

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Service – weekend

In Anderton [2002] the CA held that deemed service could take place on Saturdays and Sundays. Note that is no longer possible under the new rules introduced in October. A claim form can only be deemed to be served on a ‘business day’ (ie ‘any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day’).

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Privilege – commercial clients

There are two main types of legal privilege: legal advice privilege, and litigation privilege.

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Page 46 of 48

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