Pre-emptive Remedies in Commercial Litigation by Heather Mahon

• Date: 01 January 2020

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Pre-Emptive Remedies in Commercial Litigation

PAUL HUTCHINSON*

Pre-emptive Remedies in Commercial Litigation by Heather Mahon (Round Hall –

omson Reuters 2019)

e 17th century Dutch jurist, statesman and diplomat, Hugo Grotius, had no

doubt about the value, and the fundamental natural legality, of the pre-emptive

strike. In De Jure Belli ac Pacis (e Rights of War and Peace),1 Grotius explains that

it is the imminence of a perceived threat of violence which is key in justifying the

preventative measure, albeit with due regard for the risk of mistakenly inferring

malice to the intentions of the would-be assailant:

For Time gives us frequent Opportunities of Remedy, and there may many

ings happen, as the Proverb has it, betwixt the Cup and the Lip. ere are

however both Divines and Lawyers, who are a little more indulgent in this

Aair[.]2

Mercifully, these days solicitors and barristers practising in the area of commercial

litigation give their tactical advice far removed from the tumult of the irty

Years’ War. Notwithstanding, the strategic importance of timing remains of

vital importance to commercial litigators. While certain developments in court

procedure aim to achieve the speedier overall resolution of disputes,3 it remains

* Paul Hutchinson is a practising barrister and lectures Land Law and Jurisprudence at the Honorable

Society of King’s Inns. Any opinions expressed in this article are those of the author alone.

1 In Book 2, Chapter 1, Section IV, Grotius writes: ‘[I]t was well observed of omas Aquinas, if

apprehended rightly, that in our own Defence we do not purposely kill another; not but that it

may be sometimes lawful, if all other Means prove ineectual, to do that purposely by which the

Aggressor may die; but we take this Course, as the only Means le to preserve our selves, and not as

the principal End proposed, just as in the Judgment of Criminals condemned to Death: For he that

is actually attacked, ought even then to chuse rather to do any ing else, that may stop the Fury of

the Aggressor, or disable him, than to secure himself by killing him.’ (English translation hosted by

Liberty Fund, Inc. accessed 28 May

2020). See also Scott Horton, ‘Grotius on Pre-Emptive War’, Harper’s Magazine (1 October 2007),

accessed 28 May 2020.

2 Hugo Grotius, De Jure Belli ac Pacis (e Rights of War and Peace) (1625), Book 2, Chapter 1,

Section V.

3 Recent and welcome changes to the procedural environment in the High Court include: SI

255/2016 – Rules of the Superior Courts (Chancery and Non-Jury Actions: Pre-Trial Procedures)

2016 which introduced the new Order 63C to the Rules of the Superior Courts (albeit in

circumstances where the associated listing arrangements have not yet been fully implemented); and

SI 254/2016 – Rules of the Superior Courts (Conduct of Trials) 2016 which introduced a more

diuse range of procedural adjustments, including in relation to procedural rules concerning expert