© ANAlog, Nov. 18, 1999, all rights reserved.

xecutive Summary:

Approximately 3,200 Americans were among the victims when Lloyd's of London perpetrated the largest admitted fraud in history (approximately $20 billion). These American investors were subsequently deprived of their Constitutional right to due process when they attempted to offset Lloyd's collection efforts with allegations of fraud. When these investors entered claims in U.S. courts, their cases against Lloyd's were sent to be heard in England instead. The British courts, however, sidestepped the substantive issues of fraud and executed summary judgments based on procedural grounds, ruling in favor of Lloyd's for millions of pounds. The British courts denied the US investors the right to present evidence of fraud as a counterclaim, or even the right to force Lloyd's to prove the exaggerated amounts Lloyd's claimed to be due.

Ironically, more than half of those Americans either fought, themselves, or lost close family members, in World War II, which was essentially an effort to defend the very rights now being denied them.

American vs. British Law:

Recent US court decisions have stated that British law is sufficiently comparable to US law to ensure that the rights and interests of US citizens will be properly defended by British courts. What US citizens actually find in English courts, however, is that they have been stripped of their rights and protections as American citizens under US law—that in effect, they have been reduced to being British colonial subjects again.

It is true that some elements of our law derive from British common law. It is more importantly true, however, that our nation, and our rights and freedoms, were created in a rebellion specifically against the injustices of British law, which law to this day has favored vested interests.

The rights and freedoms we enjoy did not exist before our American forefathers created them. Our ancestors revolutionized the spirit, the substance, and hence the very meaning, of the "law" itself. These "revolutionaries" crafted the Bill of Rights and the Constitution to give all US citizens—no longer "subjects"—equal status and equal protection under the law, including equal access to the courts. Our forefathers then had to go to war to defend the creation of these democratic principles. The central issue of the Revolutionary War was whether we could establish our own more fair and equitable system of law and government, or we would continue to be subjected to the inequities of British law.

To those U.S. judges who would abandon U.S. citizens to the mercies of Britain's antiquated legal system, as if it were comparable to our own: those U.S. judges should re-acquaint themselves with some of the crucial differences in both:

  1. the spirit, attitude, and philosophy underlying the laws; and
  2. the specific laws and legal procedures of the two countries.
  • In Britain, the "peerage" refers to a titled and privileged class—the "nobility".
  • In Britain, a criminal case against a Lord could traditionally only be heard in the House of Lords, by his "peers". Commoners have no say in the matter.
  • Under United States law, we are all "peers". Bear in mind that the founders of our nation were not "lords" extending the law "downward" to also cover "commoners"—as the nobility might have done in England, but has not. Our forefathers instead, and intentionally, crafted the Constitution and the Bill of Rights to elevate every U.S. "Citizen" to a legal status under the law that was enjoyed only by the peerage in England.

(This is memorialized in the Bill of Rights, in the statement that every American has the right to trial by a jury of his "peers". The philosophical basis for this was in our forefathers' express conviction that every man is created in God's image, and thus equally noble. To this day, the British see themselves as "subjects" of the Crown, whereas Americans are independent "citizens". The difference is not just a matter of semantics; it is very real.)

  • The British courts are there to carry out the will of the Establishment, protecting the interests of the British social and financial oligarchy. [Hot link to Glossary]
  • Americans, on the other hand, see their courts as a means of keeping the will and power of the "establishment" in check—to protect the citizen from unfairness—be it at the hands of another citizen or the government.

(Our legislature and judiciary are part of our constitutional balance of powers, which was designed to prevent, or failing that, to correct, governmental and/or private abuses of power.)

  • The British do not have our three-way balance of governmental powers: their "Supreme Court" consists of "law lords" in their upper legislative body, the House of Lords, which is made up of "nobility" only. The same people who passed the laws control how their laws are applied.
  • In many cases, the ultimate success and honor for a British judge is to be elevated to the House of Lords as a "Law Lord" and thereby join the privileged nobility. In this small land of Britain, which is run by and for the privileged few, such class titles are given great importance. The government and the Queen's/King's Privy Council use the granting of titles, with their attendant privileges, to keep rising business leaders, public servants, lawyers—and judges—under control.
  • Trial by jury is not an option in British civil cases, except in libel cases, which are based on totally different laws than in the US.

(Those who aspire to the "success" of being granted a knighthood, or being elevated to the "peerage", will rarely stand up for unpopular causes or buck establishment institutions; it would cost them their future title and privileges. In this social context, it is also of course difficult, if not impossible, to find a major law firm in Britain that will take a case against a major British establishment or institution.)

  • All complaints, evidence, affidavits, and other papers filed in British courts are privileged and remain so unless and until they are referred to in actual trial. In a settled case, all allegations, evidence, and other materials are forever sealed. Neither solicitors nor barristers, let alone the public, have access to them. Only the published decisions are available. This minimizes the information available from one case to another in the UK.
  • In the US, court proceedings are public record. Anyone can go to the court clerk's office and look up all the filings in a particular case, from the original complaint onward.

(Under US law, the allegations in a case are available to everyone, and may be published by the news media. The attendant threat of bad publicity has a significant deterrent effect on potential wrongdoers.)

  • Besides having no access to previous court case material, groups who have been wronged in Britain find it more difficult to organize for lack of public information. The press and media, and the public, are muzzled by stringent libel laws, which require the person who publishes allegations about someone else to prove beyond a doubt that the allegations are true.
  • In U.S. law, the burden is on the person who claims to have been libeled to show reasonable proof the published statements were false.

Business law in the UK is much different than it is in the US. The following are some examples:

  • British business law is based on the principle of caveat emptor—"let the buyer beware".
  • The US Securities Acts of 1933 and 1934 include investor protections that are the equivalent to the covenant of good faith and fair dealing in US contract law. Provisions in both the 1933 and 1934 Acts unambiguously state that any agreement that waives those protections and the jurisdiction of U.S. courts is null and void.
  • The Financial Services Act in England does not apply to companies exempted by Act of Parliament. Those businesses are "self-regulating".
  • In the U.S., in stark contrast, a covenant of good faith and fair dealing is included in every business agreement and transaction as a matter of law.

(An American entering into any transaction with a British entity should be aware of this difference. A clash of business cultures arises when a British transaction is offered in the U.S. If a British/US transaction violates U.S. full disclosure and fair dealing laws, the U.S. citizen can only find recourse if the case is tried in U.S. courts under U.S. law. Depending on the "proper law" of the contract, British courts are unwilling to apply the stricter standards of American law to their own nationals, no matter how justified the American's complaint may be in terms of United States law.)

  • There is no English equivalent to a U.S contingency case. They are beginning to permit partial contingency fee arrangements for some British subjects, but a "20 percent contingency" is of no practical use to the ordinary person. Even assuming he found counsel willing to work his side of the case on "contingency", the money to pay opposing counsel if the case is lost still has to be deposited in advance.
  • If foreigners wish to sue in UK courts, they must put up enough money to cover the anticipated court costs and legal fees of both the defendant and themselves. An American or other foreign plaintiff thus has to deposit, in advance, roughly twice the amount required of a British subject in the same circumstances. If you don't have that much money, you cannot get into British civil court. You have to, in effect, "buy" your way into court in England. Law Society aid is not available in Britain to US citizens or residents.

(In a major case these required deposit amounts can easily reach £2 million sterling ($3+ million) or more. In the event of an extensive case brought by a foreigner, these required amounts can be in the tens of millions of dollars.)

  • The legal team required by law in the UK is far more extensive, and expensive, than in the U.S. One must hire a solicitor, who then hires a barrister, both of whom must be guaranteed payment, in the form of an advance deposit, by a U.S. plaintiff. In major cases, the barrister must be a "Queen's Counsel".

(Queen's Counsel ("QC") is a small "club" of privileged barristers, who charge as much as one thousand pounds an hour (approximately $1600). Some charge less, but if the other side hires a high-priced Queen's Counsel, the loser of a case may find himself paying an inflated bill, and could be financially ruined on the spot just by his opponent's legal fees.)

  • If one has a criminal complaint against a business in the City of London, one cannot complain to the world-famous Scotland Yard. The businesses in the "City" have conveniently established their own police, the London City Fraud Squad.
  • Under British law the plaintiff must have a complete case before starting a lawsuit:
    1. Examinations (depositions) before trial are not permitted; and
    2. Documents cannot be subpoenaed to help establish grounds for suit.

(If the plaintiff does not have all the proof at the outset, the case will not survive the inevitable motion to dismiss, and he/she will be charged with court costs, all legal fees, and sanctions.)

  • In British courts, anyone contributing to the legal fees of a losing litigant may be held liable for any fees not paid by the litigant, if it can be shown that the donor could somehow have benefited from the success of the litigant. (British law does not require that the donor be warned of this in advance.)
  • One cannot sue for what American law ordinarily treats as civil fraud in business dealings. In British civil law, the word "fraud" is reserved for provable criminal-type fraud, and the plaintiff must have evidence at the same level of proof as in a criminal trial.
  • In Britain it is possible to exempt a business from suit by its investors (Lloyd's Act of Parliament of 1982 did just that) without even creating much of a stir.
  • In the US, such an exemption would be a violation of the Bill of Rights and the Constitution, and certain to be challenged in courts throughout the country. It would amount to an exemption of that business from the covenant of good faith and fair dealing that is the foundation of the US Commercial Code.

In sum, sending Americans to have their case heard in a British court:

  1. Requires the American to put up a fortune to get into court at all;
  2. Jacks up the court costs and legal fees to outrageous levels;
  3. Denies the plaintiff the right to examine witnesses and subpoena documents in preparation for trial;
  4. Denies them their right to trial by a jury (of their peers); and
  5. Strips them of their protections under the US securities laws, and under the covenant of good faith and fair dealing in the US Commercial Code.

In simplest terms, sending Americans to English courts effectively strips them of their "peer" status and rights as a US citizen. In effect, it reduces them to the status of a British colonial subject. Americans sent to UK courts are subjected again to the very same "legal" injustices that our forefathers rebelled against.

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