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Chapter

Cover The English Legal System

18. Remedies and Appeals  

Alisdair A. Gillespie and Siobhan Weare

This chapter discusses the remedies that can be sought from the civil courts and how an appeal is made against a decision. It covers interim and final remedies; route of appeals; leave; the hearing; appeals to the Supreme Court; and examples of appeals. There are many different types of remedies that a court can award to a successful litigant. The most common form of remedy is that which is known as ‘damages’. Appeals in the civil courts follow a slightly more complicated structure than in criminal cases. In order to appeal in the civil cases it is usually necessary to seek permission before proceeding with a civil appeal. Save where it is a final decision in a multi-track case, the usual rule is that the appeal will be heard by the next most senior judge.

Chapter

Cover The English Legal System

18. Remedies and Appeals  

This chapter discusses the remedies that can be sought from the civil courts and how an appeal is made against a decision. It covers interim and final remedies; route of appeals; leave; the hearing; appeals to the Supreme Court; and examples of appeals. There are many different types of remedies that a court can award to a successful litigant. The most common form of remedy is that which is known as ‘damages’. Appeals in the civil courts follow a slightly more complicated structure than in criminal cases. In order to appeal in the civil cases, it is usually necessary to seek permission before proceeding with a civil appeal. Save where it is a final decision in a multi-track case, the usual rule is that the appeal will be heard by the next most senior judge.

Chapter

Cover A Practical Approach to Civil Procedure

8. Part 8 Claims and Petitions  

This chapter discusses Part 8 claims and petitions, which are forms of originating process. Most types of proceedings which have to be brought by either Part 8 claim form or petition are very narrow and specialized, but some are of great importance. The most important types of proceedings which must be commenced by petition are those for divorce, judicial separation, bankruptcy, and the winding-up of companies.

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

33. Hearsay  

This chapter considers the admissibility of and procedural matters relating to hearsay evidence in civil cases. Hearsay evidence is where a witness gives evidence of facts they have not personally experienced for the purpose of proving the truth of those facts. Hearsay may be written or oral, and may be first-hand, second-hand, etc. Evidence is no longer excluded in civil cases solely on the ground that it is hearsay. However, in practice, trial judges give limited weight to hearsay evidence.

Chapter

Cover A Practical Approach to Civil Procedure

35. Experts  

This chapter discusses the principles governing the use of expert evidence in civil claims. It covers the admissibility of expert evidence; control of evidence; choice of expert; privileged nature of experts’ reports; disclosure of experts’ reports; written questions to experts; examinations by experts; experts’ immunity from suit; and use of experts’ reports after trial.

Chapter

Cover A Practical Approach to Effective Litigation

16. Defending an Action  

This chapter focuses on the role of the defendant. The litigation system in England is adversarial, thus on the face of it the role of the defendant is potentially defensive, confrontational, and non cooperative. While the objective of the defendant will usually be to make the claim go away, the perhaps natural desire to take an approach that involves denial, delay, and obfuscation wherever possible must be resisted, or at least carefully considered. The chapter discusses the main types of defence to an action; dealing with the early stages of an action when a claim form is received; rules for drafting a defence; making a counterclaim; claiming a set-off; a general framework for a defence and counterclaim; and strategies and tactics in defending a case.

Chapter

Cover A Practical Approach to Effective Litigation

17. Active Case Management and the Use of Sanctions  

This chapter discusses active case management and the use of sanctions. The Woolf reforms and more recently the Jackson reforms have supported the concept of active case management, the focus of which is to ensure that cases are dealt with ‘justly’ and ‘at proportionate cost’. The objectives of case management are set out in Civil Procedure Rules (CPR) Part 1 and the courts case management powers are in CPR Part 3. The powers of the court in relation to case management are wide and directions given after the issue of proceedings should provide a framework and timetable for dealing with a case right up to trial. The final section of the chapter deals with the sanctions that might be imposed where there is a failure to comply with case management requirements.

Chapter

Cover A Practical Approach to Effective Litigation

26. Challenging a Judgment  

Obtaining a judgment is not always the end of the process. A wholly or partly unsuccessful party in a trial will almost certainly wish to consider appealing. The procedure for appeal will vary depending on the type and level of decision appealed against. This chapter looks in particular at the procedure for appealing from the High Court to the Court of Appeal. The discussions cover the need for the client to decide whether to appeal against all or part of the judgment based on their lawyer's advice; jurisdiction for appeals; appeals from interim decisions; grounds for appeal; procedure for appealing; the position of the respondent to an appeal; presenting an appeal; powers on appeal; the appeal decision; and costs on appeal.

Chapter

Cover A Practical Approach to Effective Litigation

27. Enforcing a Judgment  

The enforcement of a judgment is an issue that must be considered and managed as part of the litigation project from the start. Keeping enforcement in mind at each stage of the litigation process ensures that any possible problems with enforcement are taken into account in any cost-benefit analysis or risk assessment. This chapter first outlines the steps to assist enforcement, which includes deciding who to sue, gathering information, interim orders, settling the case, and drafting orders. It then discusses the methods of enforcing a judgment, including third party debt orders, changing orders, attachment of earnings, winding up and bankruptcy, execution against goods, orders for delivery/possession, receivership, and the use of contempt of court proceedings. The final section deals with the international enforcement of judgements, specifically enforcing a foreign judgment in the UK and enforcing an English judgment in another country.

Chapter

Cover Casebook on Tort Law

12. Breach of statutory duty  

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.

Chapter

Cover A Practical Approach to Civil Procedure

7. Renewal of Process  

After proceedings commence by issuing a claim form or other originating process, they must be brought to the attention of the defendants or respondents by service. Generally, originating process remains valid for the purpose of service for a period of four months. Service of proceedings marks a watershed in the litigation process. It is at this point that the defendant is put on formal notice that legal proceedings have been brought, and the time limit on service of proceedings is one which is relaxed with extreme caution. This chapter discusses periods of validity; power to renew; claims in respect of cargo carried by sea; multiple defendants; effect of stay; procedure on seeking an extension; and challenging an order granting an extension.

Chapter

Cover A Practical Approach to Civil Procedure

12. Responding to a Claim  

This chapter discusses the procedure for defendants responding to the claim. A defendant who intends to contest proceedings must respond to the claim by filing an acknowledgment of service and/or by filing a defence. Defended claims become subject to the court’s case management system, with the court making provisional track allocation decisions, followed by the parties filing directions questionnaires. If a defendant fails to make any response to a claim a default judgment is usually entered within a relatively short period after service.

Chapter

Cover A Practical Approach to Civil Procedure

13. Default Judgment  

Judgment in default may be entered where the defendant fails to defend a claim. It produces a judgment in favour of a claimant without holding a trial. This chapter discusses when default judgment may be entered; cases excluded from judgment in default; entering default judgment; final judgment and judgment for an amount to be decided; deciding the amount of damages; setting aside default judgments; and stay of undefended cases.

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

34. Admissions and Documentary Evidence  

This chapter discusses the rules relating to the proof of admissions and documents at trial. It covers the nature of admissions; pre-action admissions of liability; permission to withdraw an admission; notice to admit facts; and proving documents.

Chapter

Cover A Practical Approach to Civil Procedure

39. Trial  

This chapter discusses the issues that need to be addressed in the period leading up to a trial. These include contacting witnesses to ensure their availability; obtaining witness summonses where appropriate; briefing trial counsel; agreeing and compiling trial bundles; and counsel preparing speeches, examination-in-chief, and cross-examination of witnesses.

Chapter

Cover Cross & Tapper on Evidence

XIII. Hearsay in civil proceedings  

This chapter discusses the hearsay rule in the context of civil proceedings. It begins with a consideration of Section 1 of the Civil Evidence Act 1995 (CEA). Doubts have been raised as to whether the Act is compatible with the ECHR, and on any basis, there are procedural differences between the methods of adducing different forms of hearsay under the provisions of the act. Consideration of the effect of the act in changing the law thus constitutes the first, and more important, section of this chapter. The chapter then turns to how the provisions of the act indicate that some of the existing rules relating to the admissibility of hearsay in civil proceedings remain in force.

Chapter

Cover A Practical Approach to Effective Litigation

24. Presenting a Case in Court  

This chapter discusses the process of presenting a case in court. It begins with an overview of the trial process, covering the timetable, the claimant's case, the defendant's case, closing speeches, and judgment. It then explains the importance of good presentation and advocacy in winning a case. This involves focusing on the issues on which the judge needs to reach a decision; presenting the case clearly, coherently, and concisely; developing and presenting an overall theory for the case — a single story can be more convincing than a lot of separate arguments; and developing persuasive arguments that pull elements of the case together and deal with any gaps. The remainder of the chapter covers the judgment of the case; the drawing up of orders; and the form of orders.