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CIV LIT – KEY INFORMATION DOCUMENT
Litigation Reasonably in Prospect: party
KEY CASES wishing to claim privilege over the
document must be aware of specific
circumstances rather than a general
Parry v Newsgroup (legal advice)
possibility.
An attendance note of a meeting between
parties is NOT privileged.
Without Prejudice communications
Documents whose purpose is a genuine
Three Rivers (legal privilege)
attempt to settle. The document need not
On the facts there may be a narrow
be labelled 'without prejudice'. A
definition of who the client is.
document marked 'without prejudice' may
not necessarily be a genuine attempt to
Bailable v Air India (legal advice)
settle.
Wider communications are privileged due
to the continuum of communication.
Rush and Tomkins v. GLC
Without Prejudice: the courts will look to
Good Luck case (legal advice)
substance, rather than form.
A communication can still remain
privileged even if the client repeats the
Great Atlantic Insurance v. Home Office
advice internally.
Waiver: Waiving privilege over part of a
document will generally lead to privilege
Litigation Privilege
being waived over the whole of it. You can
A document which is a confidential
only react where the document is
communication between
severable.
lawyer/client/third party where the
dominant purpose in creating the
Test for Summary Judgment (CPR 24.2)
document is to obtain legal
1. Claimant has no real prospect of
advice/information/evidence for use in the
succeeding on the claim or issue; OR
conduct of litigation which was at the time
2. Defendant has no real prospect of
reasonably in prospect.
successfully defending the claim or issue;
AND
Waugh v British Railways Board (lit)
3. There is no other compelling reason why
Dominant Purpose: Where there are two
the case/issue should be disposed of at
purposes to a document, litigation must be
trial.
the dominant purpose.
Swain v Hillman (No real prospect)
Re Highgrade Traders (lit priv)
Realistic prospect of success.
Dominant Purpose: The courts will look to
the commissioner of the document, rather
International Finance Corp v Utexafrica
than the author.
Real prospect of success: Real means more
than merely arguable.
USA v Philip Morris (lit priv)
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Swain v Hillman - summary judgment 7A PD 2.4
A summary judgment is not a mini trial. Where there is a choice of which court to
commence proceedings in, you must
American Cyanamid v Ethicon (Step 1) consider the following factors:
Is there a serious question to be tried? The (i) FINANCIAL VALUE OF CLAIM of claim
claim cannot be frivolous or vexatious. (disregarding interest/counterclaim value -
CPR 16.3(6))
American Cyanamid v Ethicon (Step 2a) (ii) COMPLEXITY of facts, legal issues,
Would damages be adequate for the remedies or procedures involved;
applicant if the court refuses to grant the (iii) IMPORTANCE of OUTCOME of the
injunction? If yes - injunction refused. claim TO PUBLIC IN GENERAL
American Cyanamid v Ethicon (Step 2b) 7A PD 4.1
Would damages be adequate for the The claim form and every other statement
respondent if the court granted the of case, must be HEADED with the title of
injunction wrongly? If yes - injunction the proceedings. The title should state:
granted.
(1) the NUMBER OF PROCEEDINGS
American Cyanamid v Ethicon (Step 3) (2) the COURT OR DIVISION in which they
Where does the balance of convenience are proceeding,
lie? Will one party be disproportionately (3) the FULL NAME of EACH party,
harmed if the injunction is (4) EACH PARTY'S STATUS in the
granted/refused? The courts will normally proceedings (i.e. claimant/defendant).
seek to preserve the status quo ante.
7A PD 7.1
Part 22 requires the claim and, where they
KEY CPR REFERENCES & PD’S are NOT INCLUDED in the CLAIM FORM,
the PARTICULARS OF CLAIM, to be
5A PD 2.1 VERIFIED BY A STATEMENT OF TRUTH
STATEMENTS OF CASE AND OTHER
DOCUMENTS drafted by a legal 16 PD 2.6(d)
representative should bear his/her The claim form must be headed with the
signature [i.e. a barrister] and if they are title of the proceedings, including the full
DRAFTED by a legal representative AS A name of each party. The full name means,
MEMBER or EMPLOYEE of a FIRM they in the case of a COMPANY OR LLP, the full
SHOULD BE SIGNED IN THE NAME OF THE registered name, including suffix (plc,
FIRM. limited, LLP, etc), must be used.
7A PD 2.1 16 PD 3.2
You CANNOT generally COMMENCE Where the claimant DOES NOT include the
PROCEEDINGS in the HIGH COURT unless PARTICULARS OF CLAIM IN CLAIM FORM
you expect to recover MORE THAN they may be served separately:
£100,000
(1) either AT SAME TIME AS CLAIM FORM,
or
(2) WITHIN 14 DAYS AFTER SERVICE of the
claim form provided that the service of the
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particulars of claim is not later than 4 16 PD 10.2
months from the date of issue of the claim D should deal with EVERY ALLEGATION in
form. accordance with CPR 16.5(1) and (2).
16 PD 3.3 16 PD 11.2
If the particulars of claim are not included The form of the statement of truth for a
in or have not been served with the claim DEFENCE is as follows:
form, the claim form must also contain a
statement that particulars of claim will '[I believe][the defendant believes] that
follow the facts stated in the defence are true.'
16 PD 3.4 16 PD 13.1
Particulars of claim which are not included In his DEFENCE, D must GIVE DETAILS of
in the claim form must be verified by a the EXPIRY of any RELEVANT LIMITATION
statement of truth, the form of which is as PERIOD RELIED ON
follows:
16 PD 13.3
'[I believe][the claimant believes] that the A PARTY MAY (1) REFER in his STATEMENT
facts stated in these particulars of claim are OF CASE to any POINT OF LAW on which his
true. CASE is based (2) give in his statement the
NAME of any WITNESS he proposes to call;
16 PD 3.8 and (3) ATTACH to or serve with the
3.8 Particulars of claim served separately statement a document which he considers
from the claim form must also contain: is necessary to his claim/defence (including
expert report filed in accordance with Part
(1) the name of the court in which the 35).
claim is proceeding,
(2) the claim number, 22 PD 3.4
(3) the title of the proceedings, and Where a document is to be VERIFIED ON
(4) the claimant's address for service BEHALF of a COMPANY the STATEMENT OF
TRUTH must be SIGNED by a PERSON
16 PD 7.3 holding a SENIOR POSITION in the
Where a claim is based on a written company... That person must STATE the
contract, that contract should be attached OFFICE or POSITION HELD.
to or served with the particulars of claim,
along with any general conditions of sale 35A Senior Courts Act 1981
incorporated in the contract. Power of High Court to award interest on
debts and damages
16 PD 7.4
Where a claim is BASED UPON AN ORAL CPR 2.8(1)
AGREEMENT, the particulars of claim Sets out the 'CLEAR DAY' RULE in respect of
should SET OUT THE CONTRACTUAL counting time (i.e. you DO NOT INCLUDE
WORDS USED and STATE BY WHOM, TO the day on which the period begins, or the
WHOM, WHEN AND WHERE they were day of the event referred to)
SPOKEN.
CPR 2.8(3)(a)
DATE OF SERVICE is ALWAYS a 'CLEAR DAY'
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CPR 2.8(4) CPR 6.26
Where the SPECIFIED TIME PERIOD is 5 For DOCUMENTS OTHER THAN A CLAIM
DAYS OR LESS; and INCLUDES a SATURDAY FORM, this section SETS OUT the DEEMED
OR SUNDAY; or BANK HOLIDAY/XMAS DAY. SERVICE DATES, depending on METHOD of
CHIRSTMAS DAY/GOOD FRIDAY that DAY SERVICE
does NOT COUNT. Otherwise, weekends
are counted CPR 7.4
The PARTICULARS OF CLAIM must be
CPR 3.1(4) served on the D WITHIN 14 DAYS after
Where the court gives directions it will take SERVICE of CLAIM FORM
into account whether or not o a party has
complied with the Practice Direction - Pre- CPR 7.5(1)
Action Conduct or any relevant pre-action The CLAIM FORM and (if attached)
protocol. particulars of claim, must be served on the
D, if within England/Wales jurisdiction, by
CPR 6.5(3) MIDNIGHT on the CALANDAR DAY 4
A claim form is SERVED PERSONALLY on - MONTHS AFTER the DATE OF ISSUE.
Claimant must COMPLETE the RELEVANT
(a) an individual by leaving it with that STEP set out in the TABLE in this section.
individual;
CPR 10.3(1)(a)
(b) a company or other corporation by WHERE the D is SERVED with a CLAIM
leaving it with a person holding a senior FORM which states that PARTICULARS OF
position within the company or CLAIM are to FOLLOW, the general rule is
corporation; or that the PERIOD FOR FILING AN
ACKNOWLEDGEMENT OF SERVICE IS 14
(c) a partnership (where partners are being DAYS AFTER THE SERVICE OF THE
sued in the name of their firm) by leaving it PARTICULARS
with a partner or a person who, at the time
of service, has the control or management CPR 10.3(1)(b)
of the partnership business at its principal Subject to CPR 10.3(1)(a), the PERIOD FOR
place of business FILING an ACKNOWLEDGEMENT OF
SERVICE is 14 DAYS AFTER SERVICE of the
CPR 6.14 CLAIM FORM
A claim form is DEEMED SERVED within the
UK on the SECOND BUSINESS DAY AFTER CPR 12.3(1)
COMPLECTION of relevant STEP under rule The CLAIMANT can APPLY for DEFAULT
7.5(1) JUDGEMENT IF the D has NOT FILED an
ACKNOWLEDGMENT OF SERVICE OR a
CPR 6.17 DEFENCE TO THE CLAIM AND the relevant
If the claimant serves the claim form to D, TIME PERIOD for doing so has expired.
he must FILE A CERTIFICATE OF SERVICE
WITHIN 21 DAYS of SERVICE of the CPR 13.2
PARTICULARS OF CLAIM unless all parties MANDATORY GROUNDS
have FILED ACKNOWLEDGMENTS OF The court MUST SET ASIDE a DEFAULT
SERVICE. JUDGEMENT where:
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