Academic journal article The George Washington International Law Review

Solution to the Practicum: The United Kingdom Perspective

Academic journal article The George Washington International Law Review

Solution to the Practicum: The United Kingdom Perspective

Article excerpt

I. INTRODUCTION

The Crown may contract with a subject, and the Attorney-general suing on its behalf may enforce against a subject a contract so made. Before the Crown Proceedings Act of 1947 (the Act), there was no right of action against the Crown. The only remedy against the Crown was, with the fiat of the sovereign, by petition of right. This remedy was not available in tort, but did lie to recover debts and damages for breach of contract. There was also some authority for the view that a claimant could sue certain incorporated government departments by ordinary action in contract, and contractual actions could be maintained against departments which, by statute could "sue and be sued." Besides the petition of right, a claimant could and sometimes still can issue a declaration against the Attorney-general in civil proceedings in matters affecting the rights of the Crown.

The system of petition of right was, however, inadequate at a time when the Crown had become the largest employer, contractor, and occupier of property in the country. This led to the enactment of the Crown Proceedings Act 1947. Section 1 of the Act provides:

Where any person has a claim against the Crown after the commencement of the Act, and if this Act had not been passed, the claim might have been enforced subject to the grant of His Majesty fiat, by petition of right, or might have been enforced by a proceeding provided by any statutory provision repealed by this Act, then subject to the provisions of this Act, the claim may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against the Crown for that purpose in accordance with the provisions of this Act.1

By section 13 of the Act, but subject to its provisions, the Act abolished proceedings by way of petition of right and instituted all civil proceedings by or against the Crown in the High Court in accordance with the rules of the court.2 It also provided that the Treasury shall publish a list specifying the government departments authorized to institute or defend proceedings by or against the Crown, but if no appropriate department exists, or in case of doubt, proceedings should be instituted against the Attorney-general.

II. FORUM AND REMEDIES

Strictly speaking, the Act does not apply to liabilities arising outside the United Kingdom. Section 40 of the Act provides:

(2) Except as therein otherwise expressly provided, nothing in this Act shall: (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty's Government in the United Kingdom [or the Scottish Administration], or affect proceedings against the Crown in respect of any such alleged liability as aforesaid . . . .3

Although the alleged liability in this case arises outside the United Kingdom-namely in ALIIENA-there can be no doubt that the English courts would entertain the claim, and judge it in accordance with the ordinary law, under which the Crown enjoys no special advantages.

DOMESTICA could bring the action in the courts of either ALIENA or FIXIT. One could expect to advise FIXIT to institute proceedings in England. The forum would be the High Court, Queen's Bench Division, and, specifically, its specialist court, The Technology and Construction Court (TCC). Recently, the Lord Chancellor announced that all claims by or against government departments should whenever possible be resolved by resorting to alternative dispute resolution. Thus, it is quite likely that the contract with FIXIT will contain an arbitration clause. Whether it does or not, the parties could agree to invoke mediation.

III. DISCOVERY, TRIAL, OR FACT-FINDING

Assuming the claimant institutes proceedings, after exchanging statements of case, the court will allocate the dispute to a track. The court will allocate this case to the Multi-track, which handles more complex and important cases. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.