In this first section of a two-part article the author expresses the opinion that the domestic (English) judicial system fails to acknowledge the Strasbourg court’s accepted opinion that, the right ‘ . . . to a fair [ . . ..] hearing . . .’, as per the right of access to Court, should be differentiated as between: (i) ‘physical’; and, (ii) ‘remedial’; access to the court.
The second section will deal with two cases illustrating the points the author makes regarding access to the court. The first arises from a Spanish domicile (instructing on DPA terms), abattoir hygiene consultant’s claims for: (a) breach of his former company’s articles of association; and, (b) fraudulent misrepresentation, by his then English domiciled business partner. The second arises from a Paraguayan domiciled, international businessman’s claims for breach of a: (c) multi-jurisdictional crossborder credit transfer agreement; and, (d) company director’s personal guarantee, secured on two real property mortgages (in Brazil), as well as other UK based assets.
A jurisprudence-based analysis of the potential justice deficit resulting from the judiciary’s seemingly automaton perceptions of their common law and statutory obligations under the Civil Procedure Act 1997 and the consequential Civil Procedure Rules. Accordingly, it is suggested that the premature applicability of (1) the CPR 3.4(2) Strikeout and CPR 24(2) Summary Judgment procedures, as well as (in the domestic litigation context), (2) the CPR 11(1) (including CPR PD 6B para. 3.1(6)) Challenge to Jurisdiction procedure, not only (a) fetter and wrongfully infringe the Respondent’s right to fully test the Applicant’s evidence contrary to Articles 6(1), 6(3) and 13 ECHR, as the astute Applicant acts before disclosure, but also (b) flouts the court’s and judiciary’s section 6(3)(a)-(b) Human Rights Act 1998 public authority duties, failing to note that they: ‘ . . . must consider all matters capable of having a bearing on that judgment, must act equitably as between [the parties], and must [find] accordingly.’ Thus, the court and judiciary acting as decision makers must not follow rules blindly: (i) irrespective of the weight of (I suggest misconstrued) precedent; and, (ii) in light of the degree of discretion purportedly given by Parliament.Business Law Review