Lost In Translation: Countries separated by a common – or different – language. International litigation at the sharp end.

“Oh to be in England” – Robert Browning:
Home thoughts, from abroad (1845)

For more than 20 years, I have been privileged to act for banks, other financial institutions, corporate monoliths, filmmakers, musicians, and even pension schemes.  Amongst those clients I have found some of the cleverest, interesting and talented individuals I have ever met.

In addition to that, however, I have always felt a particular affinity for what one might term the “sexy stuff” – international civil fraud. Cases where the clients are every bit as clever, talented and interesting as one finds in the other parts of my practice, but where different, additional challenges lie.

It was not so terribly long ago that I obtained a search and seize order here, a back to back like order in New South Wales, together with simultaneous temporary restraining orders in Virginia and California.  All that over a royal public holiday weekend.  Now that is litigation.

In this sphere, therefore, I have acted in most of the leading arenas in the universe of dispute resolution, from Russia, throughout Europe, into South and North Africa, The Americas and the Middle East.

Having done so, I am a hawkish advocate of this country being the very best jurisdiction for any litigant, properly advised, looking to maximise his potential as a winner (or, minimise the extent to which he might “lose”) in any commercial courtroom fight. Courts here have tools at their disposal that no other jurisdiction can come close to – the worldwide freezing injunction an obvious example.  It has some of the best advocates in the world, and some of the best judges.  It has a procedure which – when compared internationally – works efficiently; and whilst litigation always feels more expensive than it should be, it remains less so here than many other jurisdictions.  It is, for example, cheaper than the arbitration option. It does, however, have its own intricacies, peccadillos and nuances.

Clients who come here (perhaps even more so, if they are brought here) usually have pre-conceived views as to how litigation should work, and how it should be run.  Their views will no doubt have been honed by their own previous experiences at home, whether actual or anecdotal.  Such views will be firmly, and perfectly properly, held.  This will need to be addressed and be corrected.

Accordingly, in order for the client to be in a position to properly take advantage of the treats which can be laid upon their table here, there is one absolutely vital requirement: he must understand that litigating in the UK requires a specific type of touch and feel; a particular approach.

In short, there must be a total understanding and acceptance that litigating here is different, and that to navigate those differences successfully requires the right lawyer.

That, needless to say is the not so meta–subject of this article.

To begin, some anecdotes and some observations.

“Most of what follows is true”  – William Goldman:
Butch Cassidy and the Sundance Kid (1969)

I should stress at the outset that particular views of the “English way” versus others’ “home” courts are not restricted only to certain foreign jurisdictions and individuals. For example, it is invariably necessary to explain to US lawyers why it is that polite letters often play better here than nakedly aggressive communications.

In addition, it is sometimes useful to show why it is that the split profession here is actually akin to the concept of specialist trial lawyers in the US.

That said, the following are not really US-centric.

I cut my teeth as a junior lawyer on an alleged fraud concerning oil in the Gulf and significant sums of money which appeared to have gone missing. I learnt at the knee of a practitioner for whom I have very significant respect.  Needless to say, the matter kicked off with the client on the wrong end of a worldwide freezer.  Imagine trying to explain the effect of such an order to a multi-millionaire oil baron – a person whose financial arrangements are, of necessity, complex.  The issue of restricting the use of assets is one thing; of more concern (and this is very often the case) is the need to disclose assets.

The client, likely as not, will be resistant to producing documents which it will – quite properly – consider confidential. He will be upset, but perhaps more than that, angry and indignant. He may well be used to being surrounded by individuals who only give him good news. He will, however, be fully engaged, and you will have his undivided attention. Therefore, right from the get go, there is the need for the lawyer to assert his authority, and the opportunity for him to do so.

This will require a level of trust to already have been established.  There are a number of ways in which this can be done. In essence, however, they boil down to: first, demonstrate that you are an expert in the area; secondly, convince him that being open and honest with the court will make the court happier than not being (particularly in circumstances when any claimant will inevitably end up finding any assets accidently “overlooked”); thirdly, explain that is possible to limit the damage if one controls disclosure rather than having to be reactive by being seen to have had documents dragged out of you. It is therefore advantageous to provide the appropriate amount of disclosure to the other side promptly and voluntarily – although, where possible, in a context most positive for the client; and, finally, lay out the various ways in which you intend to turn around the tanks currently parked on the lawn, and then chase them over the bluff. One needs always to be able to produce a positive message.

Back to my junior lawyer case. Having been upfront from the beginning, the client had cause only a couple of months later to smile, as we made successive, successful, specific disclosure applications against the other side, resulting in the poor associate in charge of documents for the claimant having to spend weeks in offices in the gulf – a location which the associate ignorantly referred to as “a car park” – only to have to travel back there shortly after he next returned to London, due to another order sending him in search of further documents.

As I note, foreign jurisdictions often export their own pre-conceptions of the justice provided by their home courts when litigating here. The strength of feeling in this regard should never be underestimated.

Working in Eastern Europe on an arbitration sited in middle Europe, but involving parties in England and Cyprus, I was warned that any attempt to enforce a proposed freezing injunction granted by the English Court would likely run into problems in the particular eastern European country in issue. When I enquired as to why this might be so in a “convention country”, I was informed that there was a crisis brewing within the judiciary there – which culminated in the court of appeal being accused of taking bribes.

On more than one occasion, I have been challenged on my advice that a hearing, once lost, can usually only be appealed to a higher court. The client explained that, at home, if the wrong decision was given, a party merely went to the court next door, and kept on going until they found a judge who got it right.

Acting for an oligarch based in a part of the ex – USSR, one of my partners once took a telephone call at 3am in the morning from the client. He had been mulling over what he perceived to have been a less than convincing performance by his silk in court the previous day.  Having pondered long and hard, the client could think of only one realistic explanation: his counsel had been bribed to throw the fight.

The response to this – a genuinely held view – is to explain gently why it is that members of the English bar are too English to behave in such a way. Stress also that this does not necessarily mean that English lawyers are any “better”, merely different; and that the lack of judicial corruption here has the advantage of the system being able to give litigants more certainty.

A standard reaction, of course, from foreign lawyers (never mind lay clients), on receipt of a worldwide freezing order which purports to bite in a number of jurisdictions beyond England and Wales, is to demand to know the basis upon which the English court asserts jurisdiction over a defendant not domiciled here, and how on earth the English court can seek to impose to freeze assets located outside its territorial jurisdiction. Explaining that the Court asserts its jurisdiction over the individual defendant, making it their problem to make sure that the assets do not move, on pain of contempt sanctions is not the easiest of tasks.

These questions, and the upset which underlie them, are all, of course, rational – and there are usually good, and definitive answers. It is at this stage that the experienced lawyer will understand the need more than anything for sensitivity and empathy. There are some occasions when there is no alternative but to fall on one’s sword and acknowledge that Britain retains certain elements of her imperialist past and views of the world.

There are many more direct, though perhaps unorthodox, ways in which the lawyer can demonstrate the extent of his willingness to put his body on the line for his clients. I for one have been hauled off a private jet at the far end of a deserted African airport after a flight curfew had come down, and required to spend longer than I would have wished alone in an isolated hut with members of the local security services.

I have received mysterious calls warning me that my assigned seat number is known and that I will be tracked through an airport and instructions would be given to customs officials – that, on a dispute involving a sovereign state (not the UK).

There was also the time when I and my partner and counsel were tear gassed inside a court – again, not in the UK.

I have had my telephone bugged and, with counsel, been electronically monitored in an international airport in Eastern Europe.

I survived all of these little challenges, and, on each occasion, my bond with the client was strengthened yet further.

“Lawyers are seldom loved but often needed” – Robert B McKay:
What Lawyers Really Do (1971)

What can we take from all this?

First, it is perhaps the most important distinction of the English Court that, more than any other jurisdiction, it takes a fully rounded world view. This must be a positive, and should be seen as such.

Next, understand as a lawyer that the ways of the English courts, and what they offer, are not universal.

Thirdly, this will inevitably need to be explained to the client – who will have their own expectations of how things should work; and whose expectations are almost inevitably incorrect.

Fourth, explaining this to the client is not a one shot deal – the process will be one of almost constant education, certainly at the outset.

Fifth, dealing with corporate entities is one things. Dealing with certain individuals can be quite another. Billionaires are not used to be told “no”. Being able to say that to them requires trust, firmness, and self-belief.

Some of those aspects which set the English court apart will be a function of it being empowered (or empowering itself) with a range of relief options not available elsewhere. Depending on which side the client is on, this will either be received as very good news, or as bad.  To the client, it will be binary, and, if the latter, come up with an answer.

Finally, there will be cultural differences.  Do not under estimate the importance of them.

Whilst, these issues are exacerbated when acting for foreign parties, and for individuals in particular, the job still comes to this: the client is entitled to service, service, service. It is not enough merely to diagnose problems, you have to explain what you are going to do to address them – and do it. After all, as litigators, we are about providing solutions. Whatever the geographical niceties, and the nature of the individual client.

Tim Beale

Tim Beale

Email: [email protected]
Tel: +44 (0) 20 7842 1650

Tim Beale is a commercial litigator of more than 20 years standing. His reputation is built principally on his multi-jurisdictional expertise, often with a commercial fraud element. He has headed disputes throughout all major jurisdictions in the world – including Eastern Europe, Africa, the Gulf States and Northern America.
He also has extensive experience in complex institutional finance disputes, including significant advice for and against banks.
In keeping with his cross-border expertise Tim has led numerous “bet the bank” arbitrations – including individual matters worth in excess of $10 billon.


About Tim Beale

Email: [email protected]
Tel: +44 (0) 20 7842 1650
Tim Beale is a commercial litigator of more than 20 years standing. His reputation is built principally on his multi-jurisdictional expertise, often with a commercial fraud element. He has headed disputes throughout all major jurisdictions in the world – including Eastern Europe, Africa, the Gulf States and Northern America.
He also has extensive experience in complex institutional finance disputes, including significant advice for and against banks.
In keeping with his cross-border expertise Tim has led numerous “bet the bank” arbitrations – including individual matters worth in excess of $10 billon.