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Civil litigation PDF

433 Pages·2010·4.55 MB·English
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i CIVIL LITIGATION ii Civil Litigation iii CIVIL LITIGATION Kevin Browne LLB, Solicitor Margaret J Catlow BA (Law), Solicitor iv Civil Litigation Published by College of Law Publishing Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA © The College of Law 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: 978 1 905391 97 4 Typeset by Style Photosetting Ltd, Mayfield, East Sussex Printed in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire v Preface This book has been written as a tool for learning about civil procedure in England and Wales. In it we examine the practical issues which arise from the start of a case until its ultimate conclusion, whether that is by settlement, court judgment or otherwise. We have divided up the civil process into five stages. But it is important to remember that each stage cannot be learnt in isolation from the others. We urge anyone using this book to make frequent reference to the overview of the five stages at 1.3 and the flow diagram at Appendix C(1). These will serve as a reminder of the various steps and how one part fits into the whole process. In this edition we have taken the opportunity not only to carry out the usual annual updating of the text but to make some significant changes. In particular, we have included a new Appendix B of templates of how to draft key documents (Letter before Claim under Practice Direction on Pre-action Conduct, Letter of Claim under Professional Negligence Pre-action Protocol, Particulars of Claim, Case Summary for use at a Multi- track Case Management Conference, Witness Statement, Hearsay Notice, Part 36 Offer Letter, Case Summary for use at a Fast Track Trial and Case Summary for use at a Multi-track Trial (‘Skeleton Argument’)). We have also revised and expanded the case study at Appendix D, which now includes a request for further information and a witness statement. The case study concerns Mr and Mrs Simpson. They own a large house locally and had agreed to let out part of it to Mr Templar. Apparently, when he arrived to take up his tenancy, he lost control of his car when driving up their driveway and crashed into their recently completed extension. You will first encounter the case study at the end of Chapter 2. In addition, we have included details of a solicitor’s core (professional) duties; funding notice requirements; a guide to drafting statements of truth; new examples on deemed service and calculating time limits; changes to Part 35 on experts; and a guide to contesting an assessment of costs. Cases included in this edition include Crosbie v Munroe (2003) (contentious proceedings); Interdigital Technology Corp v Nokia Corp (2008) (Part 18); Earles v Barclays Bank Plc (2009) (standard disclosure); Pearce v Ove Arup Partnership (2001) and Meadow v General Medical Council (2006) (experts); AF v BG (2009) (Part 36); Shah v Ul-Haq (2009) and Widlake v BAA Ltd (2009) (conduct and costs). In the interest of brevity, the masculine pronoun has been used throughout to include the feminine. KEVIN BROWNE AND MARGARET J CATLOW The College of Law London vi Civil Litigation Contents vii Contents PREFACE v TABLE OF CASES xiii TABLE OF STATUTES xvii TABLE OF STATUTORY INSTRUMENTS AND CODES OF PRACTICE xix TABLE OF ABBREVIATIONS xxv Chapter 1 INTRODUCTION TO CIVIL LITIGATION 1 1.1 The Woolf reforms 1 1.2 The Rules 3 1.3 An overview of a civil claim 4 1.4 Case analysis 8 1.5 Useful websites 10 Chapter 2 CONSIDERATIONS AT THE FIRST INTERVIEW INCLUDING FUNDING THE CLAIM 11 2.1 Introduction 11 2.2 Purpose of the first interview 11 2.3 Professional conduct 12 2.4 Funding 14 2.5 Case analysis 22 2.6 Viability and burden of proof 25 2.7 Interest 27 2.8 Foreign element and choice of forum 30 2.9 Alternatives to litigation 32 Chapter 3 EARLY ACTION 37 3.1 Writing to the client 37 3.2 Interviewing witnesses 38 3.3 Preserving documents 40 3.4 Obtaining expert evidence 40 3.5 Site visits 42 3.6 Instructing counsel 42 3.7 Pre-action protocols 44 3.8 Pre-action correspondence 45 3.9 Pre-action disclosure 50 3.10 Settlement 50 3.11 Researching the law 52 3.12 Cost–benefit analysis 52 3.13 Summary of pre-action steps 52 Chapter 4 ALTERNATIVE DISPUTE RESOLUTION 55 4.1 The nature of ADR 55 4.2 Advantages of ADR 56 4.3 Disadvantages of ADR 57 4.4 Types of ADR 58 4.5 Organisations providing ADR 59 4.6 Using ADR 60 4.7 Choosing ADR 60 Chapter 5 COMMENCING PROCEEDINGS 63 5.1 Choice of court 63 5.2 Court personnel 64 viii Civil Litigation 5.3 Issuing proceedings 65 5.4 Parties to the proceedings 69 5.5 Service of the claim form 73 5.6 Extending time for service of the claim form 77 5.7 Service of documents other than the claim form 78 5.8 Service of particulars of claim 79 Chapter 6 RESPONDING TO PROCEEDINGS AND JUDGMENT IN DEFAULT 81 6.1 Introduction 81 6.2 Computation of time 81 6.3 Acknowledgement of service (Part 10) 82 6.4 The defence (Part 15) 83 6.5 Admissions (Part 14) 84 6.6 Default judgments (Part 12) 87 Chapter 7 STATEMENTS OF CASE 91 7.1 Introduction 91 7.2 Contents of the particulars of claim 94 7.3 The defence 101 7.4 Reply to defence 104 7.5 The role of statements of case 104 7.6 Amendments to statements of case (Part 17) 106 7.7 Requests for further information (Part 18) 107 7.8 Summary: how should you approach drafting particulars of claim? 109 7.9 Summary: how should you approach drafting a defence? 110 Chapter 8 ADDITIONAL PROCEEDINGS AND PART 8 CLAIMS 113 8.1 Introduction 113 8.2 Procedure 114 8.3 Drafting a counterclaim 116 8.4 Part 8 claims 118 Chapter 9 CASE MANAGEMENT AND ALLOCATION OF CASES 119 9.1 Introduction 119 9.2 The court’s powers 119 9.3 Striking out a statement of case and other sanctions 120 9.4 Relief from sanctions 122 9.5 Allocation 124 9.6 Allocation to a track 127 9.7 Costs estimates 136 Chapter 10 APPLICATIONS TO THE COURT 137 10.1 Introduction 137 10.2 Applications generally 137 10.3 Interim costs 140 10.4 Appeals against an interim order 143 10.5 Particular types of application 143 10.6 Interim remedies (Part 25) 149 10.7 Interim payments 151 10.8 Security for costs (r 25.12) 153 Chapter 11 DISCLOSURE AND INSPECTION OF DOCUMENTS – CPR 1998, PART 31 157 11.1 Purpose of disclosure and inspection 157 11.2 Definition of ‘disclosure’ (r 31.2) 158 11.3 Definition of ‘documents’ (r 31.4) 158 11.4 Standard disclosure (r 31.6) 158 11.5 Disclosure of copies (r 31.9) 160 11.6 The duty to search (r 31.7) 160 11.7 The right of inspection (r 31.3) 161 11.8 Procedure for standard disclosure 161 Contents ix 11.9 The disclosure statement 162 11.10 Continuing obligation (r 31.11) 163 11.11 Withholding inspection 163 11.12 Disclosing the existence of documents: the list 166 11.13 Failure to disclose (r 31.21) 167 11.14 Subsequent use of disclosed documents (r 31.22) 167 11.15 Applying for specific disclosure (r 31.12) 168 11.16 Disclosure before proceedings start (r 31.16) 168 11.17 Non-party disclosure (r 31.17) 169 11.18 Disclosure obligations and solicitors’ duties 169 11.19 Summary of key points 170 Chapter 12 EVIDENCE 173 12.1 Introduction 173 12.2 Witness evidence 174 12.3 Form of witness statements 174 12.4 Use of witness statements at trial 176 12.5 Witness summaries (r 32.9) 176 12.6 Sanctions for not serving a witness statement (r 32.10) 177 12.7 Affidavits 177 12.8 Opinion evidence 178 12.9 Hearsay evidence 178 12.10 Use of plans, photographs and models as evidence (r 33.6) 184 12.11 Notice to admit facts (r 32.18) 184 12.12 Notice to admit or prove documents (r 32.19) 184 12.13 Expert evidence (Part 35) 184 12.14 Professional negligence cases: the defendant’s own evidence 191 12.15 Assessors (r 35.15) 191 Chapter 13 SETTLEMENT 193 13.1 Negotiations 193 13.2 Pre-action settlements 193 13.3 Settlements reached after the issue of proceedings 194 13.4 Part 36 197 13.5 Claims involving children and protected parties 209 13.6 Discontinuance (Part 38) 209 Chapter 14 FINAL PREPARATIONS FOR TRIAL, TRIAL AND ASSESSMENT OF COSTS 211 14.1 Final preparations for trial 211 14.2 Trial 213 14.3 Costs 219 Chapter 15 ENFORCEMENT OF MONEY JUDGMENTS 233 15.1 Introduction 233 15.2 Interest on judgment debts 234 15.3 Tracing the other party 234 15.4 Investigating the judgment debtor’s means 234 15.5 Methods of enforcement 235 15.6 Summary of key points 242 Appendix A COURT FORMS, PROTOCOLS AND GUIDELINES 243 A(1) Forms N1 and N1A – Claim Form and Notes for Claimant 245 A(2) Form N1C – Notes for Defendant on Replying to the Claim Form 249 A(3) Form N9, Including Forms N9A–N9D – Response Pack 251 A(4) Form N251 – Notice of Funding 260 A(5) Form N215 – Certificate of Service 261 A(6) Form N218 – Notice of Service on Partner 263 A(7) Form N266 – Notice to Admit Facts 264 A(8) Form N150 – Allocation Questionnaire 265

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