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Enforcing Foreign Judgements in U.K. Courts Part 1

Enforcing foreign judgments can be a minefield. The sheer number of interlinked conventions and agreements that regulate the recognition of judgments between states can be daunting for the uninitiated. In this short series of posts we have attempted to provide a basic outline of the problems faced by our clients when attempting to enforce judgments from abroad in the UK, and the procedures that can be used to ensure that enforcement takes place. In this first post we deal with European Enforcement Orders, an accelerated procedure for enforcing uncontested civil and commercial judgments across EU member states. Our European clients have found it particularly useful for enforcing judgments for unpaid debts.• A European Enforcement Order (EEO) is an accelerated procedure for enforcing uncontested civil and commercial judgments across member states.• It does not apply to Danish judgments, as Denmark has opted out of the process.• An “uncontested” judgment is any judgment wherea) the debtor has admitted or agreed to settle the claim (with those settlement terms being approved by the court)b) the debtor has never raised an objection to the claimc) the debtor defaulted on the claim by not appearing at court or missing another deadline set by the courtd) the debtor has expressly agreed to the claim in an authenticated instrument• In cases involving wills, matrimonial assets, bankruptcy, winding up of insolvent companies, customs and excise, social security, administrative law and arbitration claims an EEO is not available and full registration procedures must be undertaken. It is, however, particularly useful for debt collection claims.• Application is made to the court that granted the judgment and an EEO certificate and will be granted assuming the case is eligible.• The EEO certificate, a sealed copy of the judgment and certified translations of the documents are then provided to the court in the member state you wish to enforce the judgment along with a payment for court fees.• Registration is then usually a formality with very limited possibility that it can be opposed.• It is possible for the court to refuse to enforce the judgment but this is very rare. It can occur where the judgment is unenforceable in the country where it was given, where there has been an intervening decision at another court and enforcement of the earlier judgment would be incompatible with that decision, or if the EEO certificate issued by the originating court does not comply with the prescribed requirements of the European regulation.• The procedures for enforcement of the judgment are then governed by the law of the member state that registered the EEO.• An EEO can be extended to cover any costs order given in the country of origin and can also be granted for the whole or only a part of the claim.• In simple cases the process of certification of the documents is likely to take between 14 and 21 days.• If you wish to enquire about our services in this area then please contact Jonathan Finebaum at This email address is being protected from spambots. You need JavaScript enabled to view it. or San Chima at This email address is being protected from spambots. You need JavaScript enabled to view it., or give us a call on 02077902000.
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Different Styles of Mediation

Mediators have different approaches. There tend to be two broad styles; evaluative and facilitative. This article examines these differences in more detail.Mediators vary in the extent of influence they attempt to exert over the mediation process and also the weight they place on factors such as the substantive issues, matters of procedure and the relationship issues of the parties. One analysis places the facilitative “orchestrator” at one end of the spectrum, and the “dealmaker” at the other. Orchestrators and dealmakers can be thought of as different with regards to (i) the amount of directiveness they bring to the mediation, and (ii) the kind of focus they think a mediation should have.In terms of directiveness, the orchestrator focuses on attempting to put the parties in a position where they can make their own decisions. The thinking that lies behind this approach is that if someone more likely to be content with a decision they have reached without intervention. Any agreement reached this way is more likely to last, they say, because it has been reached voluntarily and has “buy-in.” The orchestrator offers assistance more of a procedural nature and may endeavour to assist with relationship and communication issues as the day progresses. They are generally less directive than dealmakers, and will tend to get more directly involved in proceedings where it seems that the parties will not be able to move forward without intervention.This stands in contrast with the dealmaker who is generally more directive in relation to the mediation process, from the type of forum to be deployed at a particular time to the kind of interventions made. The dealmaker is more likely to articulate an opinion with regard to the substantive issues under discussion. He will generally work pro-actively towards putting a deal together, and perhaps cajole each party along a bit.When it comes to focus, there are also differences. Dealmakers tend to emphasize concrete problem-solving and specific progress on tangible substantive issues. Others tend to place more emphasis on the parties’ relationships, seeking to create empathy and mutual respect between the parties.Each approach comes from quite a different philosophical starting point. A purest from the orchestrator school believes that any form of intervention is inappropriate. The mediator’s function is only to ask questions and communicate information appropriately between the parties, slowly building common ground and then facilitating a negotiation. If there is no common ground, then so be it. According to this view, to be judgmental is to disempower the parties and conversely this school of thought holds that the parties should empowered by making their own decisions under the guidance of the mediator. A purest from the dealmaker school believes that a certain amount of intervention is warranted. The parties have come to the mediator for a solution, and he is going to do his best to provide one. In practical terms, where a party expresses a view which is in the mediator’s opinion untenable, there is a higher probability that he going to let them know. He may also look for ways to apply pressure to a party he perceives to be advancing an unreasonable position on an issue.Of course, any discussion about different schools of thought must recognise that there are a range of approaches which may be workable depending on the situation confronting the mediator. A sophisticated mediator will, hopefully, have transcended a polarised approach and adapt his or her approach to meet the specific needs of the parties on any given day. On some occasions, this may require a more interventionist approach, on others, he or she may be more orchestrative. Of course, at its core, mediation is a non-judgmental process, and the extent to which a mediator brings his or her own judgment to materially bear on the issues, the more he or she is derogating from the benefits of the process.
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Building Trust During a Negotiation

During a mediation the mediator will look to act as a conciliator in order to build trust and cooperation during a mediation. Doing so increases the probability of achieving the joint objective of a settlement satisfactory to both parties.Conciliation is the creation and development of a positive relationship between the parties, replacing where possible unnecessary conflict with a positive psychological framework. Acting as conciliator the mediator will endeavour to surmount obstacles such as poor communication and lack of trust.It barely needs stating that communication is key to an effective negotiation. A more subtle point is that just talking is generally not enough and in fact unless it is done effectively may make things worse and the prospect of a settlement more remote. One commentator has said: “typically a competitive process tends to produce the following effects: communication between the conflicting parties is unreliable and impoverished. The available communication channels and opportunities are not utilized or they are used in an attempt to mislead or intimidate the other...” This has the tendency to produce misunderstandings and misinformation which only reinforce existing preconceptions and positions.To address these kinds of issues, a mediator may structure communication. This may include what exactly is communicated, how it is communicated, by whom the message is communicated and to whom. The timing of delivery may also be important.Regarding what is said, a mediator may have a role in coaching a party in what information it would be useful to share in a joint session with the other party. The mediator in this situation will be informed by his knowledge of the other party’s attitudes. He may also reframe information in a way that may diffuse potential tension and misunderstanding. When the mediator himself is in control of what is being communicated, while shuttling between the parties in their private rooms, he may filter what he passes on to only allow information which constructively builds towards an agreement.Trust is a person's capacity to depend on the accuracy of another's statements or behaviour. In the mediation setting trust may be partially or wholly absent. In this situation, the mediator will look to build trust using a variety of means.Trust in relationships is usually built in increments. Through a succession of promises and consistent actions that reinforce the belief that commitments will be carried out, mediation participants may gradually build a relationship of trust. Mediators may assist them build a trusting relationship by encouraging them to take actions designed to improve their credibility in the eyes of the other. These include:• Make consistent and logical statements which do not contradict what has been said previously;• Perform actions that symbolise good faith such as providing for the other party’s physical comfort;• Place themselves deliberately in a weaker position in relation to the other party so that they incur a minor risk. This demonstrates trust because it places a party's well-being in the hands of an opponent;• Ask for help, and in so doing, acknowledging the need for assistance from other participants;• Refrain from making threats to an opponent or making promises which are unrealistic; and• Show empathy towards the other side's concerns, even if they do not agree with those concerns.For further details please e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.
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Landlord and Tenant – Getting the Lease Right

Adams’ Litigation Department is where clients come to when things go wrong and their legal rights have been breached - our landlord and tenant lawyers in East London have a great deal of experience in acting for a number of commercial landlords who have come to us for help to resolve disputes between them and their tenants. In several of these cases the landlords have not consulted with a solicitor when preparing the lease for their tenant, either basing it on a previous lease or a template found on the internet. The danger with this approach is that it may include or omit provisions in the final lease which were not intended by the landlord and his tenant, leading to the disputes which solicitors then have to step into to rectify. Common problems I have seen in my work recently are as follows: 1. Forfeiture Unlike with residential leases, commercial landlords are able to change the locks and evict their tenants if they fail to pay the rent or breach their other obligations without having to get a court order for possession of the property. However, the landlord’s right to forfeit the lease must be contained in writing in the lease document, and the necessary notice procedure then followed. If this is not dealt with in the lease, then it could result in expensive court proceedings whilst the landlord attempts to get the tenant out and the tenant continues to not pay rent or cause other damage to the property. 2. Rent review Commercial leases are often granted over a number of years and it is important if the landlord is to get a good return from the property that he is able to periodically increase the rent to take account of inflation and other market influences. If a properly-worded rent review clause is not included in the lease then the landlord will be unable to do this and he may find himself making a real loss on the property if he is stuck with the same rent over a period of 20 years or more. 3. Repairing Obligations It is very important that the lease clearly defines who has responsibility for repairing and maintaining the property. It is the tenant who has exclusive possession and use of the property and normally the landlord will want the tenant to keep the property in good repair and return it to the landlord in the same condition at the end of the lease as at the start. However, if the lease does not explain this in the correct language then this can again lead to a lengthy and expensive court claim whilst the property continues to deteriorate in condition with no-one taking responsibility for its upkeep. 4. The Landlord’s Costs Another perk of being a landlord is that you can put it in the lease that the tenant has to cover your legal and other costs incurred on a variety of consents and variations to the lease, and even your bailiff’s fees if you need to recover rent arrears or evict the tenant. However, you are again only entitled to these costs if the lease expressly provides for this and we have seen numerous situations where the landlord has missed out on recovering these fees because of a missing or poorly-drafted costs clause. 5. Security of Tenure A special characteristic of commercial tenancies is that the law says the tenant is usually entitled to remain in the property and request a new lease from the landlord once the old lease has come to an end. The landlord can still seek to avoid granting a new lease, but only on limited grounds by following a formal notice procedure which the tenant can object to, resulting in lengthy proceedings whilst the court decides which party is entitled to possession of the property. This can all be avoided at the outset if the landlord states that such security of tenure is not to be a condition of the lease, but again this involves a formal procedure which many landlords do not know how to carry out correctly without legal advice. The above issues go to show why you should obtain competent legal advice from a solicitor before leasing out your business premises to a tenant – for the sake of saving a few hundred pounds on a properly-drafted lease you could expose yourself to thousands of pounds of unnecessary legal costs or damage to your property. Our Conveyancing Department is on hand to provide you with full advice at every step of the way in preparing and executing your lease, to help you avoid crossing the corridor to see our litigation team later on! For all enquiries please contact our Ruhel Alom or San Chima.

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Adams Win in the Court of Appeal

The litigation department at Adams Solicitors is very proud to announce successfully defending a client in the Court of Appeal; Alfa Laval & Ors. v. Separator Spares & Ors. [2012] EWCA Civ 1569. Adams was instructed in late 2011 to defend an application to add our three Polish clients as Defendants to a pre-existing ‘anchor claim’ in the English High Court. An unfavourable first instance decision was successfully appealed by our clients in November 2012. Working together with experts in Poland as well as our in-house Polish lawyer, this result is a triumph for Adams’ litigation department and our Polish Client Services.The Court of Appeal’s decision will have ramifications for any EU national attempting to sue any other EU national outside of his/her domicile jurisdiction. The cases of Swithenbank Foods Ltd v Bowers [2002] 2 All ER (comm.) 974 (HHJ McGonigal) and Glaxosmithkline v Rouard (C-462/06) [2008] ICR 1375 were both considered by the Court of Appeal in this case. In Swithenbank, HHJ McGonigal explained “legal relevance” as “The contract of employment is relevant, and there is a matter relating to an individual contract of employment only if the employee is seeking to rely on that contract of employment in order to bring his claim against the employer”.In the immediate case, the Court of Appeal held that it was impossible to apply this test as it failed to prevent an EU national being sued in a foreign jurisdiction where an agile pleader was able to formulate the pleadings in Tort rather than contract. Consequently, the Court of Appeal held that where a relationship of employer and employee exists between the parties and the basis of a claim relates to that contract of employment (even where it is not pleaded in this manner) the claimant cannot apply the special jurisdictional exceptions within Article 6 of the Judgments Regulation 44/2001 and therefore, the defendant must be sued in his/her domicile as per Articles 2 and 18. Moreover, CEF v Munday [2012] FSR 35 and Sibir Energy Ltd v Tchigirinski & ors [2012] EWHC 1844 should no longer be considered authoritative to the extent that they followed the decision at first instance in this case.
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