Civil Litigation. 15th Edition

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1 Civil Litigation 15th Edition

3 Civil Litigation 15th Edition John O'Hare, LL.B. (Leicester), Barrister, Costs Judge, Master of the Supreme Court Costs Office Kevin Browne, LL.B. ( ewcastle), Solicitor, Associate Professor at the College of Law, London Associate Director of Design of the Civil Litigation Legal Practice Course at the College of Law, London

4 First published in This edition is edited by John O Hare and Kevin Browne. Published in 2011 by Sweet & Maxwell, 100 Avenue Road, London NW3 3PF part of Thomson Reuters (Professional) UK Limited (Registered in England & Wales, Company No Registered Office and address for service: Aldgate House, 33 Aldgate High Street, London EC3N 1DL) For further information on our products and services, visit Typeset by Letterpart Ltd, Reigate, Surrey Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall. No natural forests were destroyed to make this product; only farmed timber was used and re-planted. A CIP catalogue record of this book is available for the British Library. ISBN: Thomson Reuters and the Thomson Reuters logo are trademarks of Thomson Reuters. Sweet & Maxwell is a registered trademark of Thomson Reuters (Professional) UK Limited. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen s Printer for Scotland. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher and source must be given Thomson Reuters (Professional) UK Limited

5 Preface 2012 and 2013 will be years of great change for civil litigation in England and Wales. The implementation of the Jackson reforms will mean that success fees and most ATE insurance premiums will cease to be recoverable between litigants and the success fees payable to lawyers in personal injury cases will be restricted to a sum not exceeding 25 per cent of the damages recovered, sometimes less. The RTA Protocol, which presently applies to half a million cases each year, may be extended to include higher value cases, including some non-rta cases. There are proposals to close over 150 county courts and to provide fixed costs in all cases allocated to the fast track. October 2011 saw the start of the de-regulation of legal services. on-lawyers are to be allowed to set up alternative business structures in order to supply legal services (although approvals of alternative business structures by the Law Society will not begin until 2012). The Co-op is hoping to dominate the de-regulated market in legal services as soon as it can. Lawyers and the legal press often criticise these changes as being likely to restrict access to justice for many claimants. The first such claimants to suffer will be those whose cases are not overwhelmingly strong: lawyers will cease to take on risky cases as readily as they have done in the past. In the cases they do take on, lawyers will receive substantially less remuneration than they previously received. Within a few years there may be fewer solicitors and barristers in practice and very much fewer of them will be self-employed. It may become more difficult to find a legal services provider and so the base costs of doing so may substantially rise. At this point, access to justice may be reduced for all claimants. De-regulating lawyers and de-skilling the work they do may solve some problems, but, sometimes, only at the expense of causing others. These changes will increase the need for a straightforward account of the legal procedures which lawyers and litigants will have to deal with. We hope that this edition and future editions of this book will meet that need. It has always been our mission to explain, in down-to-earth language, basic procedural law covering most civil cases, and to point the reader towards those parts of the White Book which cover the more abstruse topics which may arise. With this edition O Hare & Browne becomes available, not only on paper, but also electronically, via the internet. The online edition will permit readers to search the text for key words, case names and the like. This is our fifteenth edition. We always endeavour to describe the law as it currently is without too much reference to where it has come from. However, some topics can only be explained by reference to their (usually chaotic) history. The prime example of that in this edition is the law of interest (Ch.3). Other v

6 vi PREFACE sections of the book which have been substantially revamped in this edition include Ch.2, the new professional conduct rules, Ch.12, concerning skeleton arguments, Ch.24, to include the RTA Protocol and Chs 22 and 30 concerning e-disclosure. Some topics have become less important than previously (for example, legal aid practice) and for these we now invite the reader to consult earlier editions of this book. We hope you will find this text of value. As before we have prepared it with the aid, support and tolerance of our families, who would much prefer us to do something more useful to them, such as mowing the lawn again or helping with the cooking and washing up. John would like to pay tribute to Alison for all the generosity towards him that she has again shown, and to thank Alex for sorting out the computer glitches which John so regularly suffered. Kevin would like to thank Mary, Tom and Laurie for their love, support and inspiration. We have endeavoured to state the law as at August 1, However, some problems and delays which occurred at the printing stages enabled us to make some further updates, including the changes to the CPR which come into force in October John O Hare Kevin Browne

7 TABLE OF CO TE TS PAGE Preface...v Table of Cases...xvii Table of Statutes...lxxi Table of Statutory Instruments...lxxvii Table of Civil Procedure Rules...lxxix Table of Practice Directions...lxxxix PARA 1. Civil Litigation in Outline The Civil Courts The Civil Procedure Rules The overriding objective Judicial case management Practice Directions The case management tracks Court fees Effect of non-compliance Computation of time Definition of the court Rights of audience The court file Human Rights Act The principle of open justice The closed material procedure Funding Civil Litigation The SRA Code of Conduct Some EU Consumer Protection Directives which may affect solicitors retainers Legal Expenses Insurance Basic charging agreements Referrals by claims management companies Conditional fee agreements Proposals to abolish the recovery of success fees Damages-based agreements Barristers fees Costs incurred by litigants in person vii

8 viii CO TE TS Costs funded by the Legal Services Commission Costs funded by non-parties Third Party Funding Providing information on funding to opponents Interest Introduction Pre-judgment interest as of right Pre-judgment interest in the court s discretion Points relevant to all claims for pre-judgment interest Post-judgment interest Interest on costs Personal Injury Damages Special damages General damages Interest on damages Advising on quantum Limitation of Actions Introduction Ordinary time limits Extension or exclusion of ordinary time limits Foreign Limitation Periods The Preliminary Stages of Litigation The first interview First steps in the preparation of evidence Obtaining official records egotiations with a view to settlement Motor insurers The Motor Insurers Bureau ( MIB ) The Criminal Injuries Compensation Authority ( CICA ) Parties to Actions Title to the action Type of litigants Joinder of parties Consolidation (r.3.1(2)(g) and (h)) Interveners Representative proceedings Representation of interested persons who cannot be ascertained, etc Group Litigation Orders ( GLO ) Derivative claims Whom to sue? The solicitor s role generally

9 CO TE TS ix 8. Service of Documents The general rule serve on solicitors where possible General rules as to service of claim forms Special provisions about service of the claim form Service of documents other than the claim form From Issue to Allocation Introduction High Court or county court? Which court office? When are proceedings commenced? Service of claim form Defendant s right to call for service Particulars of claim Documents to be completed by the defendant Documents served after the defence Fixed date claims Production centre cases Money Claim Online ( MCOL ) Transfer of proceedings (Pt 30) Allocation to a particular track Rule 26.8(1) allocation factors Part 8 Claims Introduction The Part 8 claim form (r.8.2) Acknowledgment of service Filing evidence Case management Cases with a Foreign Element Civil jurisdiction and judgments acts and the EC Judgments Regulation on-cjja 1982 cases Challenging the court s jurisdiction Methods of service The time for responding to a claim form served outside England and Wales Counterclaims and additional claims Forum non conveniens Anti-suit injunctions Claim for a negative declaration Claims for money expressed in a foreign currency Drafting Statements of Case Introduction The function of statements of case General formalities Statements of truth

10 x CO TE TS Format of a statement of case Principles of drafting statements of case Drafting a claim Personal injury claims Inconsistent statements of case (PD 16 para.9.2) Anticipating a particular defence Templates for claims Drafting a defence Drafting a counterclaim Forms of admission, defence and counterclaim Drafting a reply and/or defence to counterclaim Further statements of case? Suggested documents Amending statements of case Interim Applications Types of application Application notices Documents in support of an application Applications without notice Applications with notice Costs in interim applications Drafting Applications, Skeleton Arguments, Witness Statements and Affidavits Drafting application notices Drafting skeleton arguments Use of witness statements and affidavits Witness statements and affidavits: general formalities Solicitors duties Drafting evidence for use at an interim hearing Drafting witness statements for use at trial The final version Default Judgment The general picture Claims in which default judgment is not available (rr.12.2 and 12.3(3) and PD 12 paras 1.2 and 1.3) Default judgment on request (r.12.4) Default judgment on application Setting aside a default judgment Default judgment and additional claims Admissions and Requests for Time to Pay What is an admission? Judgment on a written admission Admissions in form 9A or 9C Defendant s request for time to pay (r.14.9) Amending or withdrawing an admission

11 CO TE TS xi Stay of proceedings after six months inactivity (r.15.11) Disposal Hearings Relevant orders Judgment obtained before allocation Judgment obtained after allocation Counterclaims and Additional Claims (Pt 20) Counterclaim by a defendant against a claimant (r.20.4) Counterclaim by a defendant against someone other than a claimant (r.20.5) Co-defendant s contribution and indemnity claims against each other (r.20.6) Claims by a defendant against a non-party Claims by a third party against a fourth party, etc Applying for permission to issue an additional claim Service of an additional claim form (rr.20.8 and 20.12) Consequences of a non-party failing to acknowledge and/or defend (r.20.11) Case management of additional claims Additional claims and costs Summary Judgment Scope and effect of CPR, Pt The no real prospects test When to apply How to apply Evidence in response and further evidence in reply Orders made in summary judgment applications Refusing summary judgment The Small-Claims Track (Pt 27) Types of cases Retaining solicitors to conduct small claims Allocation Expert evidence (r.27.5) The hearing of a small track claim Costs (r.27.14) Summary judgment (Pt 24) Appeal European smalls claims procedure (Pt 78) The Fast Track (Pt 28) Typical cases How fast is fast? The need for a caseplan Directions on allocation (r.28.2) Pre-trial checklist

12 xii CO TE TS 22. The Multi-Track (Pt 29) Typical cases Case management at the outset Case management pre-trial Information Technology ( IT ) Trial timetable Cases automatically allocated to the multi-track Trial and costs Experts Introduction Pre-action matters Restrictions on expert evidence in court proceedings Expert evidence obtained by each party Assessors (r.35.15) Cases ot Governed by Standard Track Allocation Judicial review (Pt 54) Interpleader proceedings Actions for the recovery of land Interim Payments The object of the rules Conditions to be satisfied Personal injury claims and periodical payments orders Voluntary payments Applications for interim payments Further conduct of the action Security for Costs Introduction Applications against claimants and appellants Defence applications against someone other than the claimant Security for costs orders under r Security for costs under CPR Interim Injunctions Introduction Undertaking as to damages (PD 25A para.5.1a) General principles upon which granted: American Cyanamid v Ethicon Exceptions to American Cyanamid Procedure on applications Freezing injunctions (r.25.1(f)) Search orders (r.25.1(h)) Disclosure of information by the defendant Effect of a r.3.7 strike out (r.25.11) Interim receivership orders

13 CO TE TS xiii Interim orders relating to relevant property Change of Solicitors 29. Part 36 Offers to Settle The rationale of Pt Making offers to settle Accepting offers to settle Where offers to settle are not accepted Disclosure and Inspection Introduction The meaning of disclosure (r.31.2) Standard disclosure (r.31.5) What is a document? (r.31.4) Documents under a party s control (r.31.8) The solicitor s role in disclosure Searching for standard disclosure documents (r.31.7) Limited or extended disclosure? Drafting a standard disclosure list of documents A continuing duty (r and PD 31A, para.3.3) Privilege from disclosure (r.31.19(1)) Inspection Limiting inspection ( the disproportionate ground ) (r.31.3(2)) Privilege from inspection Disclosure in stages (r.31.13) Inspection of documents referred to in statements of case, etc. (r.31.14) Inspection on terms Inadvertent inspection (r.31.20) Subsequent use of disclosed documents (r.31.22) Specific disclosure (r and PD 31a, para.5) Failure to disclose or allow inspection (r.31.21) Disclosure against a non-party (r.31.17) Pre-action disclosure (r.31.16) The rule in orwich Pharmacal Evidence Key questions The legal burden The evidential burden The standard of proof Exchange of witness statements Opinion evidence Hearsay evidence Documentary evidence Real evidence Plans, photographs, models, etc

14 xiv CO TE TS Similar fact evidence Reconstruction evidence Advice on evidence Fact Management Further information (Pt 18) When to ask How to ask What not to ask Responding to a request Applying for an order otices to admit (r.32.18) Judicial Case Management Introduction Extending or shortening time limits Adjourning hearings Stay of proceedings Split trials and preliminary issues Orders made subject to conditions Striking out statements of case Relief from sanctions Controlling evidence Controlling costs Controlling wayward litigants Termination of an Action by Consent Reaching a binding settlement outside court proceedings Undertakings Court approval of settlement Consent orders and judgments Discontinuance Introduction Discontinuance by notice (r.38.3) Subsequent proceedings (r.38.7) Preparations for Trial Completing the pre-trial checklist Pre-trial review Organising witnesses Unavailable witnesses The trial bundle Recusal of judge Trial Sitting behind counsel Witnesses Procedure at trial

15 CO TE TS xv The art of advocacy The role of the trial judge Judgment Costs Payable by One Party to Another Definition of costs Discretionary nature of costs Methods of assessment Basis of assessment Proportionality The indemnity principle Restrictions on court s discretion as to costs Assessing the reasonableness of success fees Assessing the reasonableness of insurance cover costs Detailed assessment proceedings Costs: Special Cases Costs-only proceedings Wasted costs orders Applications under s.70 of Solicitors Act Other methods of challenging solicitors bills Orders for costs against LSC-funded clients and/or the LSC Costs orders in favour of or against non-parties Orders in respect of pro bono representation Costs where a group litigation order has been made Protective costs orders Prospective costs orders Assessment of costs payable pursuant to a contract Enforcement of Money Judgments Introduction High court enforcement of county court judgments Information hearing (Pt 71) Writ of fieri facias (High Court); warrant of execution (county court) Third-party debt proceedings (Pt 72) Attachment of earnings Charging order on land (Pt 73) Charging order on securities (Pt 73) Equitable execution: appointment of a receiver (Pt 69) Charging order on debtor s interest in partnership property Sequestration Judgment summons Bankruptcy and winding up of companies Enforcement of foreign judgments (Pt 74) Enforcement outside England and Wales European order for payment (Pt 78) Set-off of judgments Advising the judgment debtor

16 xvi CO TE TS 41. Enforcement of Other Judgments Recovery of land Insolvency Introduction What is insolvency? Statutory demands Personal insolvency: bankruptcy Corporate insolvency: winding up Applications to Set Aside or Vary Orders Orders made in the absence of one party Orders directly affecting non-parties Orders working out, supplementing or enforcing orders previously made Court s power under CPR 3.1(7) Relief from sanctions Correcting accidental slips or omissions in judgments and orders Other amendments to judgments and orders made before sealing Appeals up to the Court of Appeal Routes of appeal Permission to appeal The appellant s notice Procedure where permission is not required or is obtained Procedure in the Court of Appeal Appeals to the United Kingdom Supreme Court Introduction Application for permission to appeal otice of appeal or cross-appeal PAGE Index...753

2011 No. 586 (L. 2) SENIOR COURTS OF ENGLAND AND WALES COUNTY COURTS, ENGLAND AND WALES. The Civil Proceedings Fees (Amendment) Order 2011

S T A T U T O R Y I N S T R U M E N T S 2011 No. 586 (L. 2) SENIOR COURTS OF ENGLAND AND WALES COUNTY COURTS, ENGLAND AND WALES The Civil Proceedings Fees (Amendment) Order 2011 Made - - - - 28th February