In conducting civil litigation, expert evidence may be required to assist the lawyer in understanding the circumstances of the case, identifying a potential cause of action, evaluating the case and the potential remedies, understanding expert evidence provided for another party, and identifying weaknesses in their case. This chapter first considers the roles of experts in civil litigation. Experts can be involved in capacities such as conducting early neutral evaluation, decision-making, negotiation or mediation, as a witness in court, or as an assessor. When searching for an appropriate expert, lawyers can turn to relevant professional associations for guidance; and some professions also provide support to members who work as professional experts. The remainder of the chapter discusses the procedure for admitting expert evidence in litigation; the requirements for an expert report; and the contents and review of expert reports.
Chapter
21. The Potential Roles of Experts
Chapter
1. The Growing Focus on ‘Effective’ Litigation
This chapter briefly sets out the purpose of the present text, namely to outline how a civil dispute may be dealt with in the most effective way, using litigation in a modern context. The text offers a sound guide to all the rules and principles that are most important at each stage of the litigation process, and what skills and practical considerations are relevant. The chapter then considers changes relating to the litigation process brought about by Sir Rupert Jackson' Review of Civil Litigation Costs: Final Report published in January 2010. This is followed by discussions of the meaning of ‘effective’ litigation, the overriding objective of litigation, the changing legal environment, and the time and financial aspects of litigation.
Chapter
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
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
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
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.
Chapter
5. Legal Practitioners and the Developing Professional Context
This chapter provides an overview of the roles that different types of legal practitioners traditionally take in the litigation process. In England and Wales, it remains the norm that a client will initially approach a solicitor, who may then brief a barrister to provide specialist advice, to carry out key functions such as drafting statements of case, and to appear in court if litigation proceeds. The chapter goes on to discuss the main provisions in the codes of conduct that are relevant to litigation; professional privilege and confidentiality; professional negligence; options for clients dissatisfied with the standard of work done by a lawyer; the use of alternative business structures (ABS) for the delivery of legal services; and the regulation of an ABS.
Chapter
11. Standing: litigation and the public interest
This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not need to assert a right to a remedy, but must have a ‘sufficient interest’ in the matter in dispute. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing for public authorities, and standing to intervene.
Chapter
4. Funding ADR Procedures
This chapter discusses the issue of funding alternative dispute resolution (ADR) procedures. Costs are a major motivation for undertaking ADR, but the costs position can be quite complex. Indeed, the separate elements of costs must all be considered. It is government policy to make more use of ADR, including online ADR, for lower-value cases so that dispute resolution is cost effective. Although a process like arbitration can be expensive, most ADR processes are relatively inexpensive, and information on costs is quite easily available from ADR providers. Ultimately, it is important for the lawyer to make an overall analysis of the financial position and risks to assist the client in taking an informed decision about litigation and ADR options. Costs may be considered as part of a negotiated or mediated settlement.
Chapter
9. Recovery of ADR Costs in Litigation
This chapter addresses the recovery of alternative dispute resolution (ADR) costs in litigation. The court have power to make an order that the costs of interim applications in connection with ADR should be borne by one party if that party has acted unreasonably, otherwise the usual order will be ‘costs in the case’. If the parties embark on an ADR process and make a clear agreement as to their respective liabilities for the costs of that process, the court will not look behind it. Meanwhile, if the parties make no agreement about the costs of an ADR process, the court can determine liability for the costs of the ADR process. If the parties reach agreement on the main issues by an ADR process and agree that ADR costs should be determined by the court, the court is likely to make no order for costs (meaning each party will bear their own costs) unless it can determine, without trying the case, who would have won at trial.
