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Chapter

Cover A Practical Approach to Civil Procedure

20. Additional Claims under Part 20  

This chapter discusses the rules for additional claims under Part 20 of the Civil Procedure Rules 1998 (CPR). An additional claim typically will seek to pass any liability established against the defendant to a third party. This is achieved by seeking indemnities, contributions, or related remedies against the third party. A third party may in turn seek to pass on its liability to a fourth party, and so on. Permission to issue an additional claim is not required if the additional claim is issued before or at the same time as the defendant files its defence. An additional claim operates as a separate claim within the original claim.

Chapter

Cover A Practical Approach to Civil Procedure

27. Small Claims Track  

The Civil Procedure Rules 1998 (CPR) provide for the allocation of claims with a limited financial value to what is known as the small claims track. This is intended to provide a streamlined procedure with limited pre-trial preparation, with very restricted rules on the recovery of costs from the losing party, and without the strict rules of evidence. It is appropriate for the most straightforward types of cases, such as consumer disputes, accident claims where the injuries suffered are not very serious, disputes about the ownership of goods, and landlord and tenant cases other than claims for possession. This chapter discusses provisions of the CPR that do not apply; standard and special directions of the court; determination without a hearing; final hearings in small claims track cases; cost restrictions for claims allocated to the small claims track; and rehearings.

Chapter

Cover A Practical Approach to Civil Procedure

31. Disclosure  

The Civil Procedure Rules 1998 (CPR) require the parties to give advance notice to their opponents of all the material documentation in their control. This is done in two stages. At the first stage the parties send each other lists of documents, a process called ‘disclosure’. The second stage is ‘inspection’, which is the process by which the other side can request copies of documents appearing in the list of documents, typically with photocopies being provided by the disclosing party. This chapter discusses these processes. It covers lawyers’ and clients’ responsibilities; the stage when disclosure takes place; disclosure orders; standard disclosure; menu option disclosure; duty to search; list of documents; privilege; inspection; orders in support of disclosure; documents referred to in statements of case, etc.; admission of authenticity; and collateral use.

Chapter

Cover A Practical Approach to Civil Procedure

32. Witness Statements, Affidavits, and Depositions  

This chapter discusses the rules relating to the use of written evidence in civil proceedings. Under the Civil Procedure Rules 1998 (CPR), evidence given in civil trials is given primarily from the witness box, but with witness statements exchanged well before trial standing as the evidence-in-chief of the witnesses. The parties are required to exchange their witnesses’ statements in order to save time and costs at trial, and to enable the parties to evaluate the merits of their dispute with a view to settlement. Written evidence in support of interim applications can be given by a variety of different methods, but the principal means is by way of signed witness statements.

Chapter

Cover A Practical Approach to Civil Procedure

36. Offers to Settle  

Part 36 of the Civil Procedure Rules 1998 (CPR) provides a means for a party to make a formal offer in settlement of the claim which will be treated as without prejudice for the purposes of liability and remedies, but which can be disclosed to the court on the question of costs. This chapter discusses offers to settle before the commencement of proceedings; making a Part 36 offer; acceptance of a Part 36 offer; rejections, counter-offers, and subsequent offers; withdrawal and amendment of Part 36 offers; failing to obtain judgment more advantageous than a Part 36 offer; advising on Part 36 offers; non-disclosure to judge; and Part 36 offers in appeals.

Chapter

Cover A Practical Approach to Civil Procedure

41. Judgments and Orders  

This chapter discusses the rules on judgments and orders. Although there is likely to be a delay between judgment being pronounced and the judgment being sealed and served, r 40.7(1) of the Civil Procedure Rules 1998 (CPR) provides that judgment in fact takes effect from the day it was given. After a judgment or order has been pronounced by the court, the next step is to have it drawn up. This chapter discusses settlements; orders made at hearings; form of judgments and orders; general rules relating to drawing up orders and judgments; and register of judgments.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

1. Introduction  

This introductory chapter provides a background on alternative dispute resolution (ADR), which refers to the full range of alternatives to litigation that might be available to a lawyer and client for resolving a civil dispute. In 1998, ADR was formally acknowledged by the Civil Procedure Rules (CPR) as being potentially relevant to all civil actions. Indeed, there is strong government support for the use of ADR in providing cost-effective options for civil dispute resolution. Over the last few decades there has been fast and increasing growth in the use and variety of forms of ADR. ADR options offer many potential advantages in terms of saving time and costs, providing confidentiality, and increasing client control. However, ADR also has some potential disadvantages, especially if it is not used appropriately, and some of the strategic opportunities available in litigation may be lost.

Chapter

Cover A Practical Approach to Civil Procedure

4. Overriding Objective and Human Rights  

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

Chapter

Cover A Practical Approach to Effective Litigation

13. Joining the Right Parties  

The accurate identification of parties is vital in an adversarial system. There must be a clear cause of action by the party named as claimant against the party named as defendant or the action will fail. Loss and damage must be also shown to have been caused to the named claimant by the named defendant or damages will not be recoverable. This chapter first discusses the selection of claimants and defendants, and other types of involvement (agency, vicarious liability, the role of insurance, substitution of parties). Where a business is a party to an action, it may be run by a sole trader, by a partnership, by a company, or by a public limited partnership. The correct legal personality must be used for the proper service of documents, for success in the action, and for enforcement of judgment. The remainder of the chapter covers the rules for specific types of parties; additional claims and additional parties under Civil Procedure Rules (CPR) Part 20; and the drafting of the Part 20 claim.

Chapter

Cover A Practical Approach to Effective Litigation

2. An Overview of the Litigation Process  

This chapter provides an overview of the main stages of the litigation process. It first describes the Civil Procedure Rules 1998 and the accompanying Practice Directions, which provide a basis for civil litigation, as well as the adversarial approach and the right to a fair trial. It then explains the various stages of the litigation process, beginning with the pre-action stage, which involves gathering appropriate information, evaluating the case, taking key decisions about framing the case, and building a working relationship with the other side. This is followed by discussions on starting an action; statements of case (i.e. defining the parties, the issues between the parties, and remedies sought); interim stages and case management; options for interrupting or ending litigation; preparations for trial; trial and judgment; and cases with an international element.

Chapter

Cover A Practical Approach to Civil Procedure

15. Track Allocation and Case Management  

Judicial case management of civil litigation is one of the central planks of the Civil Procedure Rules 1998 (CPR). In exercising their powers to manage cases, the courts will be seeking to secure the overriding objective of the CPR of ensuring that cases are dealt with justly and at proportionate cost. This chapter discusses procedural judges; docketing; provisional track allocation; filing directions questionnaires; track allocation rules; notice of allocation; allocation directions; ADR and stays to allow for settlement; transfer to appropriate court; trial in the Royal Courts of Justice; changing tracks; and subsequent case management.

Chapter

Cover Evidence Concentrate

10. Public interest immunity  

This chapter first explains exclusion of evidence on the grounds of the public interest immunity (PII) doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. The difference between PII and closed material procedures (CMPs) is outlined. The chapter, concentrating on civil cases, lists the landmarks in the evolution of the common law doctrine. It considers the extent which it has been influenced by the Strasbourg jurisprudence. Attention is given to the role of national security matters in the evolution of the law.

Chapter

Cover Evidence

Introductory remarks on the law of evidence  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This introductory chapter discusses the origins of a ‘law of evidence’ and the properties of the law of evidence. The law of evidence is rapidly evolving and, particularly in criminal cases, the Criminal Procedure Rules have transformed the environment within which they operate. Since it determines the critical issue of which particular items of proof parties are permitted to produce before a court in support of their contentions, it would be hard to exaggerate the subject’s importance and relevance.

Chapter

Cover Legal Skills

21. Drafting skills  

This chapter introduces drafting skills. It explains the differences between legal drafting and legal writing. Using a statement of case as an example of a document with a specific legal purpose, the chapter develops the skills of writing in concise, plain, and contemporary language, maintaining formality or legal accuracy and structuring a clear and logical draft which complies with the key parts of the Civil Procedure Rules 1998. It concludes with a worked example of improving the first draft of a set of particulars of claim.

Chapter

Cover English Legal System

15. The civil process  

This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or the High Court. It provides an overview of the major case management powers in the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included. Some of the basic principles of civil evidence are discussed and the methods of enforcement of civil judgments are set out.

Chapter

Cover Cross & Tapper on Evidence

XV. Documentary evidence  

This chapter deals with documentary evidence. It first discusses the authentication of documents, by looking at proof under the new provisions of statements in documents generally; proof of business, and public, records; procedure under the Civil Procedure Rules; and some special considerations applying to public documents and to bankers' books. Next, the chapter turns to the proof of the execution of private documents. Here, the chapter considers the proof of handwriting and attestation, alongside the special provision permitting the use of electronic signatures. Finally, this chapter concerns whether, once a transaction has been embodied in a document, evidence may be given of terms other than those it mentions, and, second, the extent to which evidence may be given of the meaning of the terms used in the document.

Chapter

Cover Commercial Law

Additional Chapter Aspects of Commercial ADR  

Although there is no formally agreed definition of alternative dispute resolution (ADR), it is generally accepted as including all methods of resolving disputes other than through formal litigation. The use of ADR has developed significantly over the past few decades and despite the use of the word ‘alternative’ it is now very much part of mainstream thinking in modern-day dispute resolution. The importance of ADR to civil actions was reinforced by the Civil Procedure Rules in 1998, which emphasized it as part of the overriding objective, encouraged at all stages of the dispute process, from pre-action to after litigation has commenced. This is reinforced by sanctions that a court can impose on a party which fails properly to embrace the process. The Review of Civil Litigation Costs carried out by Jackson LJ further promoted the importance and use of ADR. There are many different forms of ADR, both adjudicative and non-adjudicative. This chapter will focus on the use of mediation as a non-adjudicative form of ADR and the steps the courts take to require (rather than compel) the parties to attempt to resolve their disputes.

Book

Cover Evidence

Andrew L-T Choo

Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (sixth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, or the significance of which has become clear since then, including: • Addlesee v Dentons Europe llp (CA, 2019) (legal professional privilege) • Birmingham City Council v Jones (CA, 2018) (standard of proof) • R v B (E) (CA, 2017) (good character evidence) • R v Brown (Nico) (CA, 2019) (hearsay evidence) • R v C (CA, 2019) (hearsay evidence) • R v Chauhan (CA, 2019) (submissions of ‘no case to answer’) • R v Gabbai (Edward) (CA, 2019) (bad character evidence) • R v Gillings (Keith) (CA, 2019) (bad character evidence) • R v Hampson (Philip) (CA, 2018) (special measures directions) • R v K (M) (CA, 2018) (burden of proof) • R v Kiziltan (CA, 2017) (hearsay evidence) • R v L (T) (CA, 2018) (entrapment) • R v Reynolds (CA, 2019) (summing-up) • R v S (CA, 2016) (hearsay evidence) • R v SJ (CA, 2019) (expert evidence) • R v Smith (Alec) (CA, 2020) (hearsay evidence) • R v Stevens (Jack) (CA, 2020) (presumptions) • R v Townsend (CA, 2020) (expert evidence) • R v Twigg (CA, 2019) (improperly obtained evidence) • R (Jet2.com Ltd) v CAA (CA, 2020) (legal professional privilege) • R (Maughan) v Oxfordshire Senior Coroner (SC, 2020) (standard of proof) • Serious Fraud Office v Eurasian Natural Resources Corpn Ltd (CA, 2018) (legal professional privilege) • Shagang Shipping Co Ltd v HNA Group Co Ltd (SC, 2020) (foundational concepts; improperly obtained evidence) • Stubbs v The Queen (PC, 2020) (identification evidence) • Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (PC, 2019) (privilege against self-incrimination) • Volcafe Ltd v Cia Sud Americana de Vapores SA (SC, 2018) (burden of proof)