Civil Litigation 2019/2020

Browne

Sujets

• Droit et juridique
• Private
• Civil procedure
• Private Media Group

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226107
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

CIVIL LITIGATION

Published by
College of Law Publishing
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2019
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.
Crown copyright material is licensed under the Open Government Licence v3.0
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: 978 1 913226 02 2
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
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 that 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 incorporated developments in the parties’ duty to the court, unnamed parties, service of the claim form, stay of proceedings, drafting statements of case, costs capping, legal professional privilege, the disclosure pilot scheme in the Business and Property Courts, experts’ fees, sanctions, Part 36 offers, costs and proportionality.
New cases include Woodward v Phoenix Healthcare Distribution Ltd (2018) (r 1.3); Cameron v Liverpool Victoria Insurance Co Ltd (2019) (unnamed parties); Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS (2018) (service of claim form); Grant v Dawn Meats (UK) (2018) (stay); Kimathi v Foreign and Commonwealth Office (2018), Portland Stone Firms Ltd v Barclays Bank Plc (2018) and SPI North Ltd v Swiss Post International (UK) Ltd (2019) (statements of case); Hawking v Secretary of State for Health & Social Care (2018) (costs capping); Director of the SFO v Eurasian Natural Resources Corp Ltd (2018) and WH Holding Ltd v E20 Stadium LLP (No 2) (2018) (legal professional privilege); Gardiner and Theobald LLP v Jackson (Valuation Officer) (2018) (experts’ fees); Mayr v CMS Cameron McKenna Nabarro Olswang LLP (2018) (sanctions); James v James (2018), Ali v Channel 5 Broadcast Ltd (2018), Ballard v West Sussex Partnership NHS Foundation Trust (2018) and JLE (a Child) v Warrington and Halton Hospitals NHS Foundation Trust (2018) (Part 36); and Williams v Secretary of State for Business, Energy and Industrial Strategy (2018) (costs).
In the interest of brevity, the masculine pronoun has been used throughout to include the feminine.
KEVIN BROWNE AND MARGARET J CATLOW
The University of Law
London
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF SECONDARY LEGISLATION
TABLE OF ABBREVIATIONS
Chapter 1 INTRODUCTION TO CIVIL LITIGATION
1.1 The Woolf and Jackson reforms
1.2 The Rules
1.3 An overview of a civil claim
1.4 Case analysis
1.5 Useful websites
Chapter 2 CONSIDERATIONS AT THE FIRST INTERVIEW INCLUDING FUNDING THE CLAIM
2.1 Introduction
2.2 Purpose of the first interview
2.3 Professional conduct
2.4 Funding
2.5 Case analysis
2.6 Viability and burden of proof
2.7 Interest
2.8 Foreign element and choice of forum
2.9 Alternatives to litigation
Chapter 3 EARLY ACTION
3.1 Writing to the client
3.2 Interviewing witnesses
3.3 Preserving documents
3.4 Obtaining expert evidence
3.5 Site visits
3.6 Instructing counsel
3.7 Pre-action protocols
3.8 Pre-action correspondence
3.9 Pre-action disclosure
3.10 Settlement
3.11 Researching the law
3.12 Cost–benefit analysis
3.13 Summary of pre-action steps
3.14 Summary of Practice Direction on Pre-Action Conduct and Protocols
Chapter 4 ALTERNATIVE DISPUTE RESOLUTION
4.1 The nature of ADR
4.2 Advantages of ADR
4.3 Disadvantages of ADR
4.4 Types of ADR
4.5 Organisations providing ADR
4.6 Using ADR
4.7 Choosing ADR
Chapter 5 COMMENCING PROCEEDINGS
5.1 Choice of court
5.2 Court personnel
5.3 Issuing proceedings
5.4 Parties to the proceedings
5.5 Service of the claim form
5.6 Extending time for service of the claim form
5.7 Service of documents other than the claim form
5.8 Service of particulars of claim
Chapter 6 RESPONDING TO PROCEEDINGS AND JUDGMENT IN DEFAULT
6.1 Introduction
6.2 Computation of time
6.3 Acknowledgement of service (Part 10)
6.4 The defence (Part 15)
6.5 Admissions (Part 14)
6.6 Default judgments (Part 12)
Chapter 7 STATEMENTS OF CASE
7.1 Introduction
7.2 Contents of the particulars of claim
7.3 The defence
7.4 Reply to defence
7.5 The role of statements of case
7.6 Amendments to statements of case (Part 17)
7.7 Requests for further information (Part 18)
7.8 Summary: how should you approach drafting particulars of claim?
7.9 Summary: how should you approach drafting a defence?
Chapter 8 ADDITIONAL PROCEEDINGS AND PART 8 CLAIMS
8.1 Introduction
8.2 Procedure
8.3 Drafting a counterclaim
8.4 Part 8 claims
Chapter 9 CASE MANAGEMENT AND ALLOCATION OF CASES
9.1 Introduction
9.2 The court’s powers
9.3 Striking out a statement of case and other sanctions
9.4 Relief from sanctions
9.5 Allocation
9.6 Allocation to a track
9.7 Costs management
9.8 Overview of multi-track case and costs management
Chapter 10 APPLICATIONS TO THE COURT
10.1 Introduction
10.2 Applications generally
10.3 Interim costs
10.4 Appeals against an interim order
10.5 Particular types of application
10.6 Interim remedies (Part 25)
10.7 Interim payments
10.8 Security for costs (r 25.12)
Chapter 11 DISCLOSURE AND INSPECTION OF DOCUMENTS – CPR 1998, PART 31
11.1 Purpose of disclosure and inspection
11.2 Definition of ‘disclosure’ (r 31.2) and ‘documents’ (r 31.4)
11.3 Disclosure on each track
11.4 Standard disclosure (r 31.6)
11.5 Disclosure of copies (r 31.9)
11.6 The duty to search (r 31.7)
11.7 The right of inspection (r 31.3)
11.8 Procedure for standard disclosure
11.9 The disclosure statement
11.10 Continuing obligation (r 31.11)
11.11 Withholding inspection
11.12 Disclosing the existence of documents: the list
11.13 Failure to disclose (r 31.21)
11.14 Subsequent use of disclosed documents (r 31.22)
11.15 Applying for specific disclosure (r 31.12)
11.16 Disclosure before proceedings start (r 31.16)
11.17 Non-party disclosure (r 31.17)
11.18 Disclosure obligations and solicitors’ duties
11.19 Inspection of standard disclosure documents
11.20 Disclosure pilot scheme in the Business and Property Courts (PD 51U)
Chapter 12 EVIDENCE
12.1 Introduction
12.2 Witness evidence
12.3 Form of witness statements
12.4 Use of witness statements at trial
12.5 Witness summaries (r 32.9)
12.6 Sanctions for not serving a witness statement (r 32.10)
12.7 Affidavits
12.8 Opinion evidence
12.9 Hearsay evidence
12.10 Use of plans, photographs and models as evidence (r 33.6)
12.11 Notice to admit facts (r 32.18)
12.12 Notice to admit or prove documents (r 32.19)
12.13 Expert evidence (Part 35)
12.14 Professional negligence cases: the defendant’s own evidence
12.15 Assessors (r 35.15)
Chapter 13 SETTLEMENT
13.1 Negotiations
13.2 Pre-action settlements
13.3 Settlements reached after the issue of proceedings
13.4 Part 36
13.5 Claims involving children and protected parties
13.6 Discontinuance (Part 38)
Chapter 14 FINAL PREPARATIONS FOR TRIAL, TRIAL AND ASSESSMENT OF COSTS
14.1 Final preparations for trial
14.2 Trial
14.3 Costs
Chapter 15 ENFORCEMENT OF MONEY JUDGMENTS
15.1 Introduction
15.2 Interest on judgment debts
15.3 Tracing the other party
15.4 Investigating the judgment debtor’s means
15.5 Methods of enforcement
15.6 Summary of key points
Appendix A COURT FORMS, PROTOCOLS AND GUIDELINES
A( 1) Forms N1 and N1A – Claim Form and Notes for Claimant
A( 2) Form N1C – Notes for Defendant on Replying to the Claim Form
A( 3) Form N9, including Forms N9A–N9D – Response Pack
A( 4) Form N215 – Certificate of Service
A(5) Form N218 – Notice of Service on Partner
A( 6) Form N266 – Notice to Admit Facts
A( 7) Form N181 – Directions Questionnaire
A( 8) Appendix to Part 28
A( 9) Precedent H – Costs Budget and Guidance Notes
A( 10) Precedent R – Budget Discussion Report
A( 11) Form N263 – Disclosure Report
A( 12) Form N244 – Application Notice
A( 13) Form N260 – Statement of Costs for Summary Assessment
A( 14) Form N242A – Offer to Settle
A( 15) Form N170 – Pre-trial Checklist
A( 16) Form N252 – Notice of Commencement of Assessment of Bill of Costs
A( 17) Precedent S – Bill of Costs
A( 18) Precedent G – Points of Dispute
A( 19) Practice Direction – Pre-action Conduct and Protocols
A( 20) Professional Negligence Pre-action Protocol
A( 21) Guidance for the Instruction of Experts in Civil Claims 2014
A( 22) Guideline figures for the Summary Assessment of Costs
A( 23) Precedent Q – Model form of breakdown of the costs claimed for each phase of the proceedings
Appendix B TEMPLATES FOR DRAFTING KEY DOCUMENTS
B( 1) Letter Before Claim under Practice Direction on Pre-action Conduct
B( 2) Letter of Claim under Professional Negligence Pre-action Protocol
B( 3) Particulars of Claim (Separate from Claim Form)
B( 4) Defence
B( 5) Defence and Counterclaim
B( 6) Case Summary for Use at a Multi-track Case Management Conference
B( 7) Directions Order: Drafting
B( 8) Directions Order: Key CPR Provisions
B( 9) Standa