The European day of civil justice is an opportunity to shine the spotlight on important areas of law that are often overshadowed, writes Julia Bateman


Today (25 October) is European Day of Civil Justice, and the Law Society is hosting a high-level conference to mark the occasion. As the Law Society President Andrew Holroyd will set out, the perennial concern is that civil law is all too often in the shadows of criminal law. With that in mind, a specific day of civil justice was established to shine the spotlight on this issue and free up some column inches from the day-to-day media diet of serious crime and terrorism in Europe.



The perception has long been that cross-border litigation is the realm of the commercial City practitioner. However, it is becoming clear that in terms of small-claims litigation or cross-border debt recovery in Europe, the high street practitioner dealing with a claim for a product or property bought 'on holiday' is equally likely to be touched by developments in EU litigation procedures. Moreover, increasing mobility also adds to an ever-increasing number of accidents abroad and the consequences that flow from that.



Indeed, the purpose of the conference is to raise awareness among practitioners as to the tools available to them in cross-border cases. A number of legislative instruments are in force, or soon to be in force, designed to improve access to justice and facilitate dispute resolution across borders. For too long, high costs, lengthy delays and the confusion of a foreign system have prevented people from seeking a remedy in another country.



This should be about to change. The European enforcement order, which allows an uncontested judgment from one country to be automatically enforceable around the EU, is already in place. The European payment order, which sets up a quick and effective debt recovery system, will be in our Civil Procedure Rules and ready for use by the end of next year. Also, the ink has just dried on the Small Claims Regulation, which establishes a Europe-wide regime for low-value claims ready for use in 2009.



I say that this should be about to change for the very reason that little is known about these instruments. There is concern that solicitors are missing out on ways in which to enforce their client's rights or using traditional methods that are time-consuming and costly. Practitioners need to be informed of these developments to ensure they are giving the right advice and exploring every avenue of redress for their client. This is one of the reasons that we are hosting this third European Civil Justice Day event to draw attention to these instruments and prepare practitioners to use them.



In addition to highlighting the new tools in the litigator's tool box, one key item to be discussed is alternative dispute resolution (ADR) and the proposal for an EU instrument on mediation. The availability of ADR mechanisms at European level is regarded as an essential element in addressing the problems inherent in resolving disputes where there is a cross-border angle. As a result, the proposal seeks to establish minimum common rules on suspension of limitation periods, confidentiality, and enforcement of settlement agreements, among others. This proposal has had a tough time during its legislative passage. This is principally due to the question of whether the provisions of the directive should set down minimum standards in national law that will apply to all cases or just cross-border ones.



The question of the scope of European proposals is a difficult one. This has long been debated at European level with disagreements between the EU institutions themselves. For now, the legislative instruments set out above only apply to cross-border situations. This is something the UK government pushed for and the Law Society supported. The problem comes in some countries where the EU model provides swift and effective remedy and the national system does not - levelling arguments of 'two-speed' or 'two-tier' justice.



These questions formed the subject of a lively discussion at the dinner held on the eve of European Civil Justice Day. With Shadow Justice Secretary Henry Bellingham MP, Lord Mance, a member of the House of Lords' European select committee, and Sir Anthony Clarke, Master of the Rolls, as guests of honour, the UK's relationship in Europe was heavily debated. Given that EU leaders have reached an agreement on the new Reform Treaty just last week, questions of whether the common law system had been defended and the UK's red lines were at the fore.



The new Reform Treaty makes little difference to the provisions on civil justice and judicial co-operation in civil matters. The UK and the Republic of Ireland maintain their right to chose whether to opt-in to a specific piece of legislation in this area, and unless they make this declaration are not bound by the proposal. The innovation comes in the fact that this opt-in arrangement is now extended to legislation in the field of criminal justice and police co-operation for these two member states.



It appears therefore, that for much of the EU, the Reform Treaty really is just a slim-line version of its predecessor. For the UK and its additional opt-in privileges, it is a different thing altogether.



Julia Bateman is acting head of the Law Society's Brussels office. Email brussels@lawsociety.org.uk