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
This chapter first considers the project management approach to resolving civil disputes. Such an approach involves following a single overall plan from the first consideration of the legal dispute up to trial. However, the fact that most cases will not in fact reach trial, and that reasonable use of alternative dispute resolution must now be made at all stages, means that any plan must be sufficiently flexible to include review, and that review needs to include options as to process. The chapter then turns to the process of case evaluation, where lawyers value what a case is worth, assess the chances of winning a case, and conduct a cost-benefit analysis. Also discussed are the importance of proportionality in the conduct of litigation and managing and reducing the risk of losing a case.
Chapter
In recent years alternative dispute resolution (ADR) has evolved from being a fallback in relation to litigation into an important alternative that may be the preferred option in some cases. This chapter outlines the interface between litigation and ADR, and puts litigation into the context of settlement options. ADR is only a complete alternative to litigation where a full adjudicative option such as arbitration or expert determination is used. In most disputes it is more likely that a case will move between litigation and ADR processes, or be subject to both at the same time where an offer has been made and remains open, but the litigation process continues. The chapter discusses the main types of ADR and their fit with litigation; framing an attempt to settle; drawing up terms of settlement; and making Part 36 offers, especially when costs are a major concern in litigation.
Chapter
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
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.
Book
Lucilla Macgregor, Charlotte Peacey, and Georgina Ridsdale
Civil Litigation introduces the processes and procedures involved in making and defending civil litigation claims. Following the chronological progression of a civil litigation claim, the volume offers practical guidance on advising clients whilst ensuring that the principles of the Solicitors’ Regulation Authority Handbook, which includes the Codes of Conduct for firms and for solicitors, are followed. This edition includes commentary and detail of the new rules of conduct that were approved by the Legal Services Board in November 2018. A part of the new Handbook (the Handbook) came into force in December 2018—the SRA Transparency Rules—and the remaining sections came into force in April 2019. Diagrams at the beginning of chapters make clear the way in which the litigation procedure works and help with the understanding of the nature of the process as a whole. Examples provide a realistic context for learning, while issues of cost, best practice, and professional conduct are clearly highlighted. Alternative dispute resolution is given appropriate practical emphasis, and references to the Civil Procedure Rules throughout make sure that students are ready for life in practice. This edition has been revised to reflect the most up-to-date law and practice in all aspects of litigation practice. In addition to the chapters highlighted below, there are additional chapters online on injunctions and other equit-able remedies, a practical guide to court hearings, instructing counsel, and enforcement of judgments.
Chapter
This chapter focuses on funding options for litigation. Expense is one of the biggest issues relating to litigation. The high cost of litigation has perhaps been tolerated to some extent out of respect for the expertise of lawyers and because of problems in finding a consensus on how litigation is best funded. The detailed work of the Jackson Review of Civil Litigation Costs has provided a strong basis for development, and there have been numerous expressions of judicial concern with regard to the high level of costs. The chapter begins by considering the sources of legal expense, the parties that bear the expense, and the problems that arise with regard to the expense of litigations. It then discusses funding options for litigation, including self-funding, insurance, conditional fee agreements, damage-based agreements, third party funding, and public funding. It also presents options for funding alternative dispute resolution (ADR).
Chapter
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
This chapter deals with the methods by which the Civil Procedure Rules (CPR) encourage parties to settle their disputes at an early stage and, ultimately, without proceeding to trial. It also looks at the methods of dispute resolution that may be available. The chapter includes a detailed look at the most common dispute resolution methods. Further, it covers the different types of alternative dispute resolution (ADR); the integration of ADR into the CPR; the philosophy of ADR; and a detailed look at mediation.
Chapter
This chapter examines Court Mediation Schemes and other schemes. Time-limited, fixed-cost mediations can take place through Court Mediation Schemes and the Civil Mediation Online Directory. Some courts also operate judicial mediation schemes. There are many industry- and sector-specific schemes, and mediation is now being employed in some criminal cases to achieve restorative justice. Mediation can be used effectively in multi-party or complex disputes, although modifications may need to be made to the process to take account of the multiplicity of parties and/or issues. It can also be used in public sector and regulatory disputes. There is a move towards mandatory information mediation assessment meetings at which the parties are required to consider but not undertake mediation.
