Civil litigation

433 Pages·2010·4.55 MB·English

by  Kevin Browne, (Associate professor in law), Margaret J Catlow

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