Summary
Summary LPC (civil litigation)
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FULL CIVIL REVISION - DISTINCTION LEVEL
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Introduction Civil Litigation S11. Civil Evidence Act 1968: Criminal proceedings can be referred to in a civil proceeding but not vice versa (RTA)
Different standard of proof – Civil = balance of probabilities / Criminal = beyond all reasonable doubt
Woolf Reforms
led to the Justice Act
Civil Procedure Rules
Openness, speed and Pre action protocols
Fairness
efficiency
Changes to expert
duties, control of costs
Case management
Dispute resolution
without litigation
Track system
1. Small Claim Track CPR 27
Under 10,000, PI and housing disrepair (£1,000) CPR 25,31,32,33,35 & 36 don’t apply [CPR 25 – discretion of the judge]
2. Fast Claim track CPR 28
£10,000 - £25,000
Standard directions and trial date within 30 weeks
3. Multi Claims Track CPR 29
Over £25,000
Standard direction of case management of pre-trial review hearings can be held.
Part 1: Overriding Objective
How lawyers and judges are expected to deal with cases.
Fairly, justly, Cost – effectively, Equal footing.
Solicitor should consider this when presenting a case.
Part 3: Case Management Powers
Judge has the power to strike out cases
Adjourn matters
Extend limitation period
Shorten limitation period
Part 7 & 8: Issue of Proceedings
Part 7: begin with where there is a substantial dispute between parties
Part 8: where there is no dispute of facts, but for cost only proceedings unless a CPR specifies. (IHT)
Part 16: Statement of Case
Claim forms
Particulars of a case ALL REQUIRE A
Defence claim
STATEMENT OF TRUTH
Counter claim
Request for further information
Part 20: Counter claims and 3rd Part Claims
Part 24: Summary Judgement
Initiated by either claimant, defendant or judge
Where there is no prospect in the case
This is different from a default judgement CPR 12
Part 31: disclosure of documents
If you believe or know that a document exists and it has not yet been presented.
Part 35: Duties of expert witness
Part 36: Offers to settle
any type of claim, settlement does not need to be cash.
, Intro – Cost and Funding
Civil justice system aims to resolve disputes enabling legal and equitable rights to be enforced.
CIVIL PROCEDURE RULES 1999
Ensure parties are on equal grounds
Cost effective
Dealing with cases proportionately, to the amount of money involved, complexity, importance and financial
position of each party.
Dealt with expeditiously and fairly
Allotting to appropriate share of court’s resources, considering the need to allot resources to other cases.
Court should be the final resort, and they should use alternative dispute resolution.
COSTS AND FUNDING OPTION [SOLICITORS CODE OF CONDUCT 2007]
Solicitors need to give the client a realistic cost estimates and funding options.
Solicitor in breach of code, may be required to pay damages, disciplinary measures, fine, suspension or being struck off.
RULE 2 – solicitors required to give to client information in relation to costs.
2.03(1) – basis of their fees and charges, and any rate increases and payment methods, insurance options.
2.03(2) – CFA; need to explain when the client will be required to pay their costs, right to an assessment of the costs
sought.
2.03(3) – Public funding; solicitor must inform when the client is liable to pay their own costs.
2.03(4) – client informed when the solicitor agrees to split their fees with a charity.
2.03(5) – information in relation to costs must be confirmed in writing.
2.03(6) – whether a case is worth pursuing. Client should be informed about risks of paying the other sides cost.
2.03(7) – solicitor exempt from (1) & (5) if they show it is inappropriate in the circumstances to meet the requirements.
Before the event insurance; covers both the client and other party, client must check the terms of the insurance
Private funds; pay from private funds, solicitor charges in units of time agreed.
Funding by a union or association; unions, associations or membership may include cover legal fees.
Public funding; Legal services commission administers the civil legal aid fund through the community legal service.
Client must pass means and merit test they may be required to contribute a certain amount
CFA; “no win, no fee” client maybe liable for disbursement charges. Agreement must be in writing, not permissible in
criminal or family cases.
DBA; once the damages is recovered by the client, the solicitor will then take their % for the DBA and the client need
not pay anything further.
After the event insurance; supplement to CFA, in case they lose and they’re required to pay winning party.
Award of costs;
- check compliance with pre-action protocols, reasonability, conduct, exaggeration, defence?
- Standard basis; CPR 44.4(2) proportionate costs can be recovered, court will rule in favour of the losing party.
- Indemnity basis; Part 36 offer rejected…etc. simply a formula for calculating actual costs.
, ALTERNATIVE DISPUTE RESOLUTION
Collective description of methods of resolving disputes otherwise than a normal trial process. [voluntary]
Preparations for ADR Generally
1. A realistic appraisal – key issues need to be identified and evaluated.
2. Careful consideration – likely readiness of the opposing side to negotiate realistically
3. Form of intermediary – specialist mediator?
4. Careful planning – submissions
5. Negotiation strategy – must be aware of process or else will be caught out.
Negotiation
First stage of dispute resolution when both parties discuss the issues without prejudice.
Lawyers may attend to represent or advise their client.
This can be conducted in person or by phone
Legal representative for each party carries out telephone negotiations.
Round table meetings involve each party attending with their legal representative and possibly counsel
Breaks are allowed during negotiation for each party to have confidential discussions with its legal team.
Mediation
Confidential and conducted without prejudice to impending or continuing litigation between the parties.
Can be set up on short notice.
Parties appoint a neutral intermediary who endeavours to facilitate a settlement.
Mediator does not judge or comment on the merits of each sides case
Mediator refrains from making their own suggestions as to how best to resolve the matter.
Mediator moves between parties, helping them define their positions and assisting them to identify areas of common
ground from which a settlement may be reached.
Gloves off approach – can successfully complete mediation without hard feelings.
Parties can walk away from mediation at any time, although court may investigate their behaviour & attitude during
mediation,
Settlement does not have the force of law, therefore not legally binding until an agreement is signed by both parties.
Even if mediation is unsuccessful, both parties are likely to benefit by knowing more about the strengths and
weaknesses of each others positions.
Conciliation
Neutral third party interacts with each side
The conciliator is proactive and is able to suggest ways to resolve their dispute
Not legally binding unless an agreement is signed by both parties
Executive tribunal
Usually for commercial disputes
Panel of senior representatives of the parties who are not involved in the dispute.
Representatives sit together with a neutral adviser.
Process similar to a mini trial, parties present their cases to the executives, who have an opportunity to evaluate the
respective claims.
Rather than making a determination, the panel members then retire and endeavour to negotiate a settlement.
If executives struggle to come to an agreement, the independent adviser issues a non – binding advisory opinion.
Early Neutral Evaluation
A third party usually an independent legal representative or a judge who has been released by the judiciary for this
purpose considers the issues and advises on likely outcome.
If judge is selected to provide an evaluation, he will not determine the action if it goes ahead.
This will enable the parties to re-evaluate their cases or appreciate the critical issues and the likely outcome if they do
not settle.
Judicial or expert determination
Parties jointly instruct and make written submissions to a senior judge or Queens Counsel, who then makes a written
appraisal.
Parties must agree the form and extent of the instruction in advance, and whether the appraisal is to be binding or not.
Important that the client understands the nature and extent of the instruction, especially if binding.
, Decisions cannot be appealed but can be challenged on limited grounds. (expert has materially departed from his
instructions)
Arbitration
Commercial and construction contracts include an arbitration clause which binds the parties to undertake arbitration in
the event of a dispute
Practical effect – if a party attempts to litigate a matter where there is a valid contractual arbitration clause, then the
opponent can apply to the HC under s9 of AA 1996 to stay proceedings whilst the arbitration continues.
Governed by Arbitration Act 1996; arbitrator will be appointed and will have the final decision in the matter.
Arbitrator will conduct arbitration on a private basis according to a timetable set by the parties.
Process; meetings between the arbitrator and the parties, presentation of statements case, written submission and
documentary evidence.
Once award has been made, the arbitrators does not release it until he has been paid by the parties.
The award can be enforced in the High court if not paid, or set aside by a High Court Judge on the application of the
disgruntled party to a specialist division of the High Court,
The arbitrator’s decision will be legally binding and can be enforced or appealed in the high court. [Final award]
This is expensive as litigation as an expert arbitrator is used, and is fairly long running as a dispute resolution process.
Advantages of Arbitration
Civil Justice System is slow and expensive.
ADR resolution can be found far more quickly than it would through the court system.
Whilst not cheap, it is usually cheaper than litigation.
Tailor made solution, unlike trial when there can only be a winner and a loser. (flexible)
Benefit to maintain relationships where parties need to have continued contract.
ADR parties working together to reach a mutually accepted solution.
If ADR is tried but is ultimately unsuccessful. It is still open to the parties to proceed with litigation.
Adjudication
A party serves on their opponent a notice of intention to proceed to adjudication and nominates an adjudicator.
Adjudicator will issue directions on paper as to when full written submissions are made to him. [referral notice], the
defending party will respond. [response to referral]
Adjudicator mat wish to inspect the site or directions hearing.
Strict time limits imposed under AA 1996, which regulates the principle of adjudication.
Contract must be a construction contract
There must be a dispute not a mere difference. This dispute can arise only once the subject matter of a claim, issue or
other matter has been brought to the attention of the opposing party, and that party has had an opportunity to
consider, admit, modify or reject it.
The adjudicator must come to his written decision within 28 days of the service of referral notice.
Limited jurisdiction on costs, dependent on whether the parties have agreed to confer jurisdiction on the adjudicator to
award costs, therefore each party must bear its own costs, no matter who is successful
The adjudicators decision is binding until it is appealed. If he does not, then an application for a CPR 24 summary
judgement can be made.
Benefits of ADR
Litigation can be more expensive in comparison to ADR and time consuming.
Litigation can end up driving them further apart, as parties become focused on seizing the tactical and undermining
each other’s case in whatever way they can.
ADR is based on winners and losers, it tends to encourage the parties to talk more freely. As it is neutral, non-
threatening and totally confident environment as well as their business relationship. [can regulate the parties
relationship in the future]
It is more flexible.
Media publicity on litigation cases.
Unless the parties choose otherwise, settlements cannot be imposed on them. The parties can withdraw or revert to
litigation. In litigation the parties are bound by the rulings of the court, however unfair they consider them to be.
Promote earlier settlement, and it will often provide the parties with a better understanding.
ADR and Protocols
The provision and scope for ADR during the Pre Action Protocol period.
A standardized approach has been undertaken for all Pre-Action Protocols, including the Practice Direction on Pre-
Action Conduct and Protocols. They all embody similar paragraphs requiring the parties to consider whether ADR is
appropriate and, if so, in what form, courts may require evidence that ADR was considered pre issue.
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