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.
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Chapter
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.
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Collecting and analysing evidence is often one of the most expensive elements of litigation. The approach to dealing with disclosure of evidence has been modified as part of the reforms introduced following the review carried out by Lord Justice Sir Rupert Jackson. The norm of standard disclosure has been replaced by options for the level of disclosure designed to ensure that disclosure is proportionate, which presents opportunities for saving costs and opens up some tactical considerations as regards the level of disclosure to seek and to offer. This chapter focuses on general principles and approaches that are most likely to be effective in preparing a case. It discusses the key rules of admissibility; questions of weight and reliability on the evidence presented; identifying what needs to be proved in a case; types of evidence; collecting evidence; disclosure of evidence; electronic disclosure of evidence; and reviewing and advising on evidence.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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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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.
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For litigation lawyers, interim applications will be much more numerous than full trials. There may be several interim hearings for each case before trial, and many cases will have some interim hearings to deal with specific issues and then proceed to settle without trial. A key strand of effective litigation is to make strategic and cost-effective use of interim applications. It is important to be familiar with what orders can be sought, what is needed to make a successful application, and what tests the courts will apply. This chapter discusses the general procedure for applications; making applications before a case starts; ways of cutting short an action; tactical considerations when involving people as parties and witnesses; gaining access to information held by the opposing side and non-parties; and money strategies.
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This chapter focuses on the management of legal costs. In principle, when assessing costs on a standard basis the court considers the receiving party's last approved or agreed budget, not departing from it unless there is good reason. In several cases the courts have indicated that an approved budget should normally be followed. However, an amount spent will not necessarily be reasonable and proportionate just because it was included in an approved budget. The chapter then discusses orders for costs, covering the principles for costs orders, powers relating to costs, and costs at the interim stage. The final section deals with quantifying costs, including fixed costs and agreed costs, as well as the court's summary assessment of costs and detailed assessments.
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Alternative dispute resolution (ADR), particularly mediation, plays a key role in reducing the costs of civil disputes by fomenting the early settlement of cases. This chapter discusses ADR processes; advantages or disadvantages of ADR and litigation; the cost of ADR; reference to ADR; and court involvement in ADR. Adjudicative ADR results in the third party neutral deciding the dispute or difference between the parties. Non-adjudicative ADR processes involve moving the parties towards reaching a compromise agreement between themselves. Rules of court require parties to consider using ADR. Sanctions may be imposed on parties who act unreasonably.
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Statements of case are formal documents used in litigation to define what each party says about the case. This chapter discusses forms of statements of case; particulars of claim defence; counterclaims and set-offs; reply and defence to counterclaim; subsequent statements of case; dispensing with statements of case; Scott schedules; interrelation with case management; and use of statements of case at trial.
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.
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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.
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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.
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