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Matteo Vricella - One of the best experts on this subject based on the ideXlab platform.

  • fundamental rights and the judicial search for truth a comparative analysis of illegally obtained evidence in civil law proceedings between the italy and england
    Social Science Research Network, 2013
    Co-Authors: Vito Breda, Matteo Vricella
    Abstract:

    This article provides a comparative analysis of the Italian and the English & Welsh regimes of improperly or illegally obtained evidence (hereafter IOE) in civil law cases. We will use the term ‘regime’ to indicate the system of rules and juridical practices that regulate IOE. In the past decade, the Italian and the English & Welsh regimes of IOE have been adapting to new institutional and economic demands. Till recently, the Italian civil justice system mechanically assumed that IOE was inadmissible. In contrast with the Italian regime, IOE was normally allowed in English & Welsh courts. However, a series of court decisions has changed the assumption of inadmissibility of IOE. In England & Wales, the introduction of civil procedure rules 1998 (hereafter CPR) and Human Rights Act 1998 (hereafter HRA) has instead imposed a duty to exclude an IOE that has been obtained as a result of outrageous violation of the European Convention on Human Rights. This article will contend that the regimes of IOE are moving into an untested terrain, albeit from different starting points, and that a comparative analysis might help clarify the relation between admissibility of an IOE that engages protected rights such as article 8 of the ECHR and the functioning of the civil justice system. The article is divided in three sections preceded by an introduction and followed by a conclusion. The first two sections discuss the English & Welsh and the Italian regimes of IOE. The third section focuses on how the two legal systems sought to strike a balance between the violation of rights and the compelling demands of efficient civil trial.

Vito Breda - One of the best experts on this subject based on the ideXlab platform.

  • fundamental rights and the judicial search for truth a comparative analysis of illegally obtained evidence in civil law proceedings between the italy and england
    Social Science Research Network, 2013
    Co-Authors: Vito Breda, Matteo Vricella
    Abstract:

    This article provides a comparative analysis of the Italian and the English & Welsh regimes of improperly or illegally obtained evidence (hereafter IOE) in civil law cases. We will use the term ‘regime’ to indicate the system of rules and juridical practices that regulate IOE. In the past decade, the Italian and the English & Welsh regimes of IOE have been adapting to new institutional and economic demands. Till recently, the Italian civil justice system mechanically assumed that IOE was inadmissible. In contrast with the Italian regime, IOE was normally allowed in English & Welsh courts. However, a series of court decisions has changed the assumption of inadmissibility of IOE. In England & Wales, the introduction of civil procedure rules 1998 (hereafter CPR) and Human Rights Act 1998 (hereafter HRA) has instead imposed a duty to exclude an IOE that has been obtained as a result of outrageous violation of the European Convention on Human Rights. This article will contend that the regimes of IOE are moving into an untested terrain, albeit from different starting points, and that a comparative analysis might help clarify the relation between admissibility of an IOE that engages protected rights such as article 8 of the ECHR and the functioning of the civil justice system. The article is divided in three sections preceded by an introduction and followed by a conclusion. The first two sections discuss the English & Welsh and the Italian regimes of IOE. The third section focuses on how the two legal systems sought to strike a balance between the violation of rights and the compelling demands of efficient civil trial.

Keith J B Rix - One of the best experts on this subject based on the ideXlab platform.

Duryana Mohamed - One of the best experts on this subject based on the ideXlab platform.

  • discovery and inspection of documents under the malaysian and english civil procedure a study on cases against the internet service providers isps
    2012
    Co-Authors: Duryana Mohamed
    Abstract:

    In civil procedure, parties are allowed to gather relevant documents before the trial. The parties may use any of the four methods namely, Discovery and Inspection of Documents, Interrogatories, Admission and Anton Piller Order. These methods are provided by the rules of Court 2012 (Malaysia). While in the UK civil procedure rules 1998 methods of gathering documents include depositions and exchange of witness statements. However, in choosing the most appropriate method the parties need to consider whether they are able to satisfy the requirements for method to be used. In discovery process, the plaintiff or the party needs to satisfy the court that the documents to be discovered are relevant and they are in the possession, custody or power of the opposite party. Meanwhile the opposite party is expected to comply with the court order for discovery by providing relevant documents or information. This paper attempts to discuss the process of discovery in Malaysia and United Kingdom by studying how the process works against the Internet Service Providers (ISPs) in both countries. The discussion will also include types of documents or information, which are discoverable and not discoverable from the ISPs and the effect of non compliance with the court order. For this purpose, the author will refer to the relevant laws, procedures and decided cases available in both countries.

  • Discovery of electronically stored information (ESI) or e-discovery: The law and practice in Malaysia and other jurisdictions
    2012
    Co-Authors: Duryana Mohamed
    Abstract:

    Discovery or disclosure involves a process whereby parties to the action disclose to each other documents in their possession, custody or control as a pre trial preparation. This process has been adopted in England since the Nineteenth Century by the English equity procedures and followed by several amendments to the civil procedure rules (CPR). Prior to 1980 the English rules of Supreme Court (RSC) 1965 were applied in Malaysia but now there are several rules from the subordinate court level to the Federal Court. The rules of High Court 1980 (RHC) and the Subordinate Court rules 1980 (SCR) govern discovery process, respectively. However, unlike the UK CPR the rule on discovery under both court rules remains unchanged until this date, even with the development in information and communication technology (ICT). There is no specific provision in the RHC 1980 or any Practice Direction that contains guideline on e-discovery of electronically stored information (ESI). Hence, this paper will analyse on how discovery of ESI is implemented in the UK and other countries, the challenges to e-discovery and the possible changes or updates that need to be done on the rule of discovery in Malaysia.

Ardavan Arzandeh - One of the best experts on this subject based on the ideXlab platform.