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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.

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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

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

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.

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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 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 The Modern Law of Evidence

23. Admissibility of previous verdicts  

This chapter examines the circumstances in which a verdict is admissible in subsequent proceedings as evidence of the facts on which it was based. It analyses the rule in Hollington v Hewthorn & Co Ltd, which has been widely criticized, that judgments are not admissible as evidence of the facts on which they are based. Its effect, in both civil and criminal proceedings, has been largely removed by the Civil Evidence Act 1968 and the Police and Criminal Evidence Act 1984, respectively. Concerning civil proceedings, consideration is given to previous convictions generally, previous convictions in defamation proceedings, previous findings of adultery and paternity, previous acquittals, and other previous findings. Concerning criminal proceedings, consideration is given to previous convictions of the accused, previous convictions of persons other than the accused, and previous acquittals.

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.

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Cover A Practical Approach to Civil Procedure

6. Issuing and Serving  

Civil proceedings commence with the issuance of a claim form. Issuing a claim involves the court sealing the claim form with its official seal. This chapter discusses issuing and serving proceedings. It covers the claim form; jurisdictional endorsements; particulars of claim; specialist claims; issuing a claim form; service of the claim form; deemed date of service of the claim form; service of documents other than a claim form; deemed date of service (non-claim form documents); certificate of service; irregular service; and filing of documents at court.

Chapter

Cover A Practical Approach to Civil Procedure

11. Service Outside the Jurisdiction  

This chapter deals with jurisdiction in England and Wales. Proceedings generally have to be served within the jurisdiction. There always has to be a sound basis before proceedings can be served outside the jurisdiction. Where the parties have an exclusive jurisdiction clause in favour of the courts of England and Wales, proceedings may be commenced against a defendant who is outside the jurisdiction pursuant to the Hague Convention 2005, and served on the defendant without seeking court permission. In other cases, if jurisdiction can be established against a defendant who is outside the jurisdiction under the CPR, r 6.36 and PD 6B, para 3.1, proceedings can be served outside the jurisdiction only with the permission of the court. The times for responding to claims served outside the jurisdiction are extended.

Chapter

Cover A Practical Approach to Civil Procedure

16. Costs Management  

Costs management refers to the procedures used by the courts to manage the steps to be taken in civil proceedings while also managing the costs to be incurred by the parties in taking those steps to ensure that litigation is conducted at proportionate cost. This chapter discusses the elements of costs management; cases governed by costs management; costs management orders; costs budgets and case management; judicial control of costs budgets; and impact on costs orders.

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Cover A Practical Approach to Civil Procedure

30. Striking Out, Discontinuance, and Stays  

This chapter discusses striking-out orders, discontinuance, and stays in civil proceedings. Rule 3.4(2) of the Civil Procedure Rules 1998 (CPR) allows the court to strike out a statement of case if it appears to the court: that the statement of case discloses no reasonable grounds for bringing or defending the claim; that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. A party who realizes their case is doomed is often best advised to discontinue to prevent the accumulation of further costs, but often has to pay the costs of the other parties to date. Stays are temporary halts in proceedings, and can be granted for a range of reasons. A stay is normally lifted once the reason no longer applies.

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.

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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 Effective Litigation

14. Pursuing Appropriate Remedies  

The main purpose of most litigation is to secure a remedy or relief. That is the reason why the claimant starts the action, and it should be the focus of many decisions relating to the case. From the first contact with the client, lawyers must be clear about what the client really wants to achieve, and decisions about causes of action, evidence, and interim applications should focus on the remedies and relief being pursued. This chapter discusses the remedies a court can and cannot order; claims for damages; quantification of damages; and claims for interest on top of claims for the payment of a sum of money or damages. The final section covers the importance of taking a proactive approach to claiming and quantifying damages.

Chapter

Cover Evidence

11. Hearsay Evidence  

Chapter 11 discusses the law on hearsay evidence. It covers the admissibility of hearsay evidence in civil proceedings, now governed by the Civil Evidence Act 1995; other proceedings in which the hearsay rule is inapplicable; and the admissibility of hearsay evidence in criminal proceedings.

Chapter

Cover The Modern Law of Evidence

13. Hearsay admissible by statute in civil proceedings  

Under the common law rule against hearsay, any assertion, other than one made by a person while giving oral evidence in the proceedings, was inadmissible if tendered as evidence of the facts asserted. The Civil Evidence Act 1968 constituted a major assault upon the common law rule in civil proceedings by making provisions for the admissibility of both oral and written hearsay subject to certain conditions. In June 1988 the Civil Justice Review recommended an inquiry by a law reform agency into the usefulness of the hearsay rule in civil proceedings and the machinery for rendering it admissible. The subsequent recommendations of the Law Commission were put into effect by the Civil Evidence Act 1995. This chapter discusses the admissibility of hearsay under the Civil Evidence Act 1995; safeguards; proof of statements contained in documents; evidence formerly admissible at common law; and Ogden tables.

Chapter

Cover A Practical Approach to Effective Litigation

11. Making Strategic Use of the Pre-Action Stage  

This chapter focuses on the pre-action stage of the litigation process. Most civil disputes are settled prior to the issue of any proceedings. Save where a pre-issue application is appropriate, no court will be involved. Nonetheless the approach taken to resolving the dispute will be shaped to a significant extent by the view a court might take if proceedings were to be issued. The chapter discusses the Practice Direction Pre-Action Conduct, which seeks to enable parties to settle disputes without the need to start proceedings, and to support the efficient management by the; pre-action protocols, which set out the steps that the parties should follow before issuing proceedings; steps in preparing a case; forming the relationship with the other side; deciding when to issue proceedings; and portal claims.

Chapter

Cover A Practical Approach to Effective Litigation

15. Issuing Proceedings, Track Allocation, and Directions  

This chapter begins with a discussion of court selection. The issue of proceedings, and to some extent the choice of court, is increasingly being streamlined, with the procedure for County Court money claims and bulk claims being moved online. For the larger multi-track cases, however, the High Court and the County Court have concurrent jurisdiction for many types of proceedings. The chapter then explains the issuance of the claim form, which marks the start of formal litigation; the service of proceedings, i.e. the formal process by which the defendant is notified of the claim; the claimant's selection of the court in which the claim is brought; and the court's allocation of the case to a particular ‘track’. The final section deals with the directions questionnaire (form N180), which should not be seen as a formality but as a key step in defining how the case should move forward.

Chapter

Cover A Practical Approach to Civil Procedure

19. Parties and Joinder  

This chapter first looks at the rules relating to different classes of party and then considers the rules governing multi-party litigation. Topics discussed include description of parties; particular classes of party; vexatious litigants; joinder; representative proceedings; representation of unascertained persons; intervention; consolidation; stakeholder claims; assignment; and group litigation.