Professional Documents
Culture Documents
Robert Jago
2009
LLB 2660004
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This subject guide was prepared for the University of London External System by:
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Robert Jago, MPhil (Cantab), Lecturer in Law, Department of Law, University of Surrey.
Acknowledgements
In addition to the author mentioned, thanks must be given to the following:
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Patrick Gallimore, LLM (London), Lecturer in Law, Department of Law, University of Surrey. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide favourable or unfavourable please use the form at the end of this guide.
Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2009 Printed by Central Printing Service, University of London Design by Omnis Partners, Cumbernauld All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.
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Contents
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Introduction Introduction to civil procedure Preliminary matters Commencement of proceedings and responding to a claim Case management, additional claims and interim applications Summary judgment and related matters Issues before trial At trial and beyond Introduction to criminal procedure Police and prosecutors Bail, mode of trial decisions, disclosure of evidence and funding of criminal litigation Summary trial and the magistrates court Trial on indictment and the Crown Court Sentencing Appeals Feedback to activities 5 13 29 45 65 85 101 129 155 169 189 205 223 251 275 293
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Chapter 1 Introduction
Contents
Introduction 11 12 13 14 Reading and resources Allocating your time The examination Abbreviations used in this subject guide 6 7 9 10 11
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Introduction
The procedural rules governing the civil and criminal process are of critical importance to the delivery of justice in the legal system. It is the rules of procedure in the civil process that allows the system to operate, from the point at which a client wishes to instruct a solicitor through to the conclusion of a case where costs are allocated. In the criminal justice process the procedure is there to protect the defendant from the power of the state and the rules of procedure are there to safeguard the rights of the defendant. These rules govern the disclosure of evidence and the trial process from admissibility of evidence through to the point of verdict. Once the trial is over an appeal may be launched or a sentence passed. These processes all work within a legal framework which contains a number of important and complex rules. These rules are all central concerns of this course.
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1.1
Sime, S. A Practical Approach to Civil Procedure. (Oxford: Oxford University Press, 2008) eleventh edition [ISBN 9780199542536]. Please note a new edition of this book is due to be published in August 2009. and Sprack, J. A Practical Approach to Criminal Procedure. (Oxford: Oxford University Press, 2008) twelfth edition [ISBN 9780199535392]. Other suitable texts include: Ashworth, A. and M. Redmayne The criminal process (Oxford: Oxford University Press, 2005) third edition [ISBN 9780199273386]. Gearey, A., W. Morrison and R. Jago Politics of the common law (Abingdon: Routledge Cavendish, 2008) [ISBN 9780415481533]. Gerlis, S.M. and P. Loughlin Civil Procedure (Abingdon: Routledge Cavendish, 2004) second edition [ISBN 9781859417751]. Hungerford-Welch, P. Criminal procedure and sentencing (Abingdon: Routledge Cavendish, 2008) second edition [ISBN 9780415442923]. Jackson, J., M. Langer, and P. Tillers Crime, procedure and evidence in a comparative and international context: essays in honour of Professor Mirjan Damaka (Oxford: Hart, 2008) [ISBN 9781841136820]. Jolowicz, J.A. On civil procedure (Cambridge: Cambridge University Press, 2000) [ISBN 9780521584197]. McConville, M. and G. Wilson The handbook of the criminal justice process (Oxford: Oxford University Press, 2002) [ISBN 9780199253951]. Ormerod, D. and Lord Justice Hooper Blackstones criminal practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199553020]. Sanders, A. and R. Young Criminal justice (Oxford: Oxford University Press, 2006) third edition [ISBN 9780406971395]. Sime, S. and D. French Blackstones Civil Practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199549641]. Trechsel, S. and S. Summers Human rights in criminal proceedings (Oxford: Oxford University Press, 2006) [ISBN 9780199271207]. Zuckerman, A. Civil justice in crisis (Oxford: Oxford University Press/Clarendon, 1999) [ISBN 9780198298335]. Zuckerman, A. Zuckerman on civil procedure: principles of practice (London: Sweet and Maxwell, 2006) second edition [ISBN 9780421919105].
It is very important that you obtain the latest editions of any books that you use, whether textbooks or statute books. From now on, we will refer to these texts in an abbreviated form, using the authors name and paragraph references. For example: Sime 10.0710.12 or Sprack 15.615.25
Statute book
Under the Regulations you are allowed to take one authorised statute book into the examination room plus one Queens Printer copy (or one photocopy of a Queens Printer copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 (see section 1.3.1 below). You will be provided with a copy of Blackstones Statutes on Criminal Justice and Sentencing (OUP). Information about the statute books and other materials that you are permitted to use in the examination is printed in the current Regulations, which you should refer to. Please note that you are allowed to underline or highlight text in these documents but you are not allowed to write notes or attach self-adhesive notelets, etc. on them. See also the Learning skills for law study guide for further guidance on these matters. The current Regulations for the LLB state: Students may underline and/or highlight passages with a coloured pen in the materials, but all other forms of personal annotation on statutes and other materials permitted to be taken into the examination room are strictly forbidden. Statute books are regularly updated: make sure you are using the latest edition.
There is a rather limited collection of valuable monographs which deal with aspects of civil and criminal procedure. They will be referred to throughout this subject guide. You are not advised to purchase these specialised texts, but may find them useful and stimulating to refer to.
Journals
You may find it useful to refer regularly to journals that specialise in civil and criminal procedure. The two most useful journals are Civil Justice Quarterly and Criminal Law Review.
Online resources
As well as the University of London Online Library and Laws Virtual Learning Environment (VLE), there are a number of useful websites for students of civil and criminal procedure. For example:
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www.bailii.org [website of the British and Irish Legal Information Institute, containing statutes from 1998 and cases (HL, CA and High Court) from 1996] http://www.cjsonline.org [website of the Criminal Justice System for England and Wales] www.intute.ac.uk/socialsciences [Intute:Law provides guidance and access to legal information resources on the internet] http://www.justice.gov.uk/civil/procrules_fin [Ministry of Justice website containing the Civil Procedure Rules] http://www.justice.gov.uk/criminal/procrules_fin [Ministry of Justice website containing the Criminal Procedure Rules] www.parliament.uk [website of the Houses of Parliament which includes the text of House of Lords judgments within two hours of delivery and also Hansard] www.statutelaw.gov.uk [the UK statute law database, giving revised versions of primary legislation].
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1.2
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1.3
The examination
identify the relevant area of law under discussion identify the relevant facts in the question apply both statute and case law to those facts. It is important to remember that of all the areas of law you study, civil and criminal procedure is probably the most rule-bound and so realistic conclusions can be reached from the facts presented. Try not to sit on the fence but to reach a reasoned conclusion based on authority. If you are asked to advise X, for example, you should make sure that you do so. In Civil and criminal procedure the case law is obviously important. When studying this subject you should make careful notes on each topic, including the most important cases, so that when it is time for revision you have a good set of notes on which to base that revision. This can be difficult as some of the case facts are very complicated. Dont worry if you do find this hard, but try to tease out what the relevant legal principle stemming from the case is. Be careful when taking notes that you are clear which particular case you are citing. All too frequently Examiners in this subject find that students have not mastered the case law to the point where they can cite the relevant cases. It is only by allocating sufficient time to careful note-taking throughout your course of study that you will be able to revise effectively and successfully. In most of civil and criminal procedure there are a whole host of detailed and comprehensive statutory provisions which must be interpreted and applied to examination questions. Rather than copying these provisions out, you should be able to briefly cite the relevant provision and then proceed to interpreting and applying the law. If you are answering essay questions, a different set of skills is required. The Examiners are looking for good critical answers to often difficult questions and issues. Only by being able to demonstrate a clear understanding of these issues, and the manner in which they are reflected in the law, will your answer attain higher marks. Good luck with your studies! Robert Jago.
For guidance on writing essays in exam conditions see also the Learning skills for law study guide.
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1.4
The following abbreviations for journals cited are used in this guide. CLQ CLJ CLR CLP IJEP LQR LS MLR Civil Law Quarterly Cambridge Law Journal Criminal Law Review Current Legal Problems International Journal of Evidence and Proof Law and Quarterly Review Legal Studies Modern Law Review
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Notes
Contents
Introduction 21 22 23 24 25 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts The overriding objective and human rights Reflect and review 14 15 18 19 22 24 28
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Introduction
Most people hope to avoid ever having to go to court. The experience as a form of dispute resolution is rarely a positive one. That said, just as we are all capable of close relationships, we are also capable of conflict. In the context of that conflict it is sometimes necessary to seek recourse to the justice system. For the majority of the time this will be the civil justice system. A hapless builder may continue to fail to fix the roof of the conservatory he has built; a clumsy hairdresser may have spilt ammonia on your expensive designer jacket, ruining it, and refuse to compensate you. Such events are often sources of annoyance, of nuisance and even the subject of television entertainment! The civil justice system may go some way to alleviating the irritation caused by such events. They can upset the order of our lives but their occurrence rarely does lasting damage to our soul. However the civil justice system does not just deal with hapless builders and clumsy hairdressers. It also deals with negligent doctors who amputate limbs in error and provides interim relief (where the law steps in with provisional assistance) for a wife who finds herself at the mercy of a bullying husband. These images serve to remind us of the wide-ranging nature of civil justice. With such a variety of disputes to resolve, the civil justice system has to be all things to all men. This is not an easy task and the civil justice process has to work on different terms to the criminal justice process, which involves the power of the state and its extreme forms of censure. Civil justice has to negotiate, resolve, arbitrate and mediate in a way not expected within the criminal justice process. In many ways the trial day in the civil justice system can be seen as a moment of failure, where all previous attempts to avoid the courtroom have failed. The criminal trial is often a magnificent symbol of state power punishing evil deeds but the civil trial is far more mundane. Since there is, in most instances, no performance to a jury, the advocacy is more detailed, more careful and more specific. The civil justice system is far more concerned with costs and outcomes than its criminal counterpart. As a result, much of the process is designed to avoid the trial rather than building up to it. That is why much of what you study in civil procedure will be concerned with trial avoidance rather than trial preparation.
secure an introductory understanding of the civil justice process and how civil procedure fits into that process imagine the impact that the civil justice system can have on individuals describe the purpose and scope of the Civil Procedure Rules comprehend the different courts used in the civil justice process evaluate the application of the overriding objective consider the impact of the Human Rights Act 1998 on civil justice.
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2.1
Activity 2.1
Conduct a web search for the term solicitor advocate in the UK. Why is the development of this profession an innovative development in the legal system? In the civil process events will begin with the initial instructions. This is where a first interview between solicitor and client takes place. It might be a member of the public has entered a solicitors office on the high street and the solicitor has asked them about the problem they face. During this initial interview the member of the public (who has now become a client) will be encouraged to provide an account of the problem in his or her own words. This will then enable the solicitor to decide whether to take on the clients case. This initial statement will also be used for the basis of the clients written statement if proceedings are issued. The solicitor will draw up the statement and it will be signed by the client. If the solicitor has decided to accept the case then a course of action agreed with the client will follow. Witness details will be explored and the solicitor will decide if an expert witness is required. All relevant documentation will be passed from the client to the solicitor and, if the problem is a continuing one, a continuing note of all relevant events will be kept by the client. At this early stage the solicitor will ascertain whether a claim is worth pursuing. Questions will be asked as to the defendants status because if they prove to be without sufficient resources then it will not be worth bringing a claim against them. Once this initial process has begun the solicitor will be expected to discuss the matter of payment with the client. The claim may be capable of receiving public funding and the options for this should be considered as soon as possible. If the case is to be privately funded then the solicitor will decide either to accept the case on a conditional fee arrangement (where the fee to be paid will depend on the outcome) or on a private and continuing retainer (where fees are paid if and when invoices are issued, regardless of the outcome of the action). It is worth remembering at this early stage that litigation can be very expensive! As a result solicitors have a duty to estimate to their clients what the fees for such an action could be. If the client loses the case then they will usually be expected to pay the other sides costs as well as their own. The arrangements for costs are considered later in this guide but for the moment solicitors should always proceed with caution, mindful of the potential costs involved. The solicitor is expected to keep the client continually informed of the progress of the case and to explain exactly what the nature of the solicitors authority is in relation to the dispute. What began as a straightforward inquiry as to the potential of a claim could become an advanced piece of litigation which has huge
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Activity 2.2
Read Re a Firm of Solicitors [1992] QB 959 and consider the position where there are members of a firm who have never had possession of relevant confidential information with regards to a case. What is the conflict of interest situation here?
Activity 2.3
Read the case of Bolkian v KPMG [1999] 2 AC 222 and consider how a Chinese wall could offer some protection when there is a concern about information transition in these complex situations. Once the solicitor has taken instruction from the client he or she will then enter into correspondence with the other party to the dispute. A series of negotiations are then likely to take place prior to court proceedings being actioned. Sometimes the issuing of a solicitors letter will demonstrate that the client is taking the dispute seriously and this will prompt the other side to settle the dispute without recourse to the courts. In other cases a solicitors letter can inflame the dispute further. If the former is the case then pre-action correspondence will take place and this includes the providing of the full details of the claim and giving the other side the opportunity to reach terms before proceedings begin. If negotiations fail then either the case will be dropped or court proceedings will follow. If the case is dropped then no further action will be taken. A client may feel that they have pushed as far as they can without wishing to risk further cost and anxiety. If proceedings do begin then decisions will need to be taken about where the dispute should be heard. Usually the client (who now becomes the claimant) will have a completely free choice to either issue the claim in the High Court or in the county court. Usually the High Court will be the preserve of the most serious claims, where the stakes are at their highest.
Activity 2.4
Read Sime 1.231.35 and devise a flowchart to identify the main stages in the court proceedings.
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Summary
The civil justice system is charged with resolving an ever-more eclectic collection of disputes, ranging from a minor claim of breach of contract to a major claim involving medical negligence. Given the range of disputes that the civil system has to respond to, the process is necessarily a complex one. It may be multi-faceted, depending on the nature of the claim. That said, the initial process will largely follow a standard pattern of either personal or written instruction to a firm of solicitors. If specialist expertise is required to advise on a case then a barrister may be instructed by the solicitor. Lawyers owe a duty to the court and to their clients to advise at all times on matters of costs and the desire to settle if it is in the clients best interests to do so. Solicitors owe a duty of confidentiality to their clients and if a conflict of interest emerges they have a responsibility to resolve it in a legally defensible way. All relevant documentation is protected by legal professional privilege. If negotiations falter and a settlement cannot be reached then the trial process will begin. The proceedings require much preparatory work but once this process is complete then a dispute will, one way or another, be resolved.
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2.2
Activity 2.5
Read Chapter 12 of The Politics of the Common Law (Routledge Cavendish, 2008) (available on the VLE). Consider the examples Gearey et al. use to allow us to imagine civil justice. Compile a 250 word summary of their view of civil justice with a view to placing the system into context. Who are the winners and losers in the way the system presently operates? No feedback provided.
Summary
No legal system operates in a vacuum and to understand the relevance of civil justice it becomes necessary to consider the system in its current context. From your reading you will have seen that the failings of the civil justice system are not a new phenomenon. Criticisms have been abundant since before the writings of Dickens, who highlighted many such failings. On a more contemporary note, you will have identified, for example, how the civil process has been used to distribute medical resources in a more just fashion or noted those minorities within society (such as gypsies) who appear to be left victims of the planning authorities. You will also have been introduced to the nature of alternative dispute resolution, which will be considered later in this guide. The aim is to avoid court proceedings at all costs and in some instances this in itself will prove a very costly exercise. Finally you will have returned to the view of Dickens and considered whether the present system is any more just than it was in his day. Reforms have taken place but victims remain.
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Activity 2.6
Access www.opsi.gov.uk/acts.htm and click on 1997 and the Civil Procedure Act (web version). Then visit www.justice.gov.uk/civil/procrules_fin/index.htm and spend 510 minutes looking at each of the pages and seeing what a valuable resource they can be for students and practitioners of civil procedure. Make notes on what you find on these sites. No feedback provided. As well as statutory sources, the operation of the civil process has sometimes been informed by old rules and old case law (although this is to be discouraged as the CPR take on their own personality). There does exist a loophole in the CPR by virtue of s.76 CCA 1984 which states that if there is a case in the county court which is not provided for by existing rules then recourse to High Court practice is allowed. This has decreased in usefulness since the CPR were created in an attempt to stem this practice. The High Court is a successor to the common law courts and has therefore retained its inherent jurisdiction to control its procedure so as to avoid injustice.
Activity 2.7
Read Lord Diplocks dicta in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977 and compile a 50 word summary as to how this general inherent jurisdiction power works.
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d deciding the order in which issues are to be resolved;
e encouraging the parties to use an alternative dispute resolution procedure, if the court considers that appropriate, and facilitating the use of such procedure; f helping the parties to settle the whole or part of the case;
g fixing timetables or otherwise controlling the progress of the case; h considering whether the likely benefits of taking a particular step justify the cost of taking it; i j dealing with as many aspects of the case as it can on the same occasion; dealing with the case without the parties needing to attend at court;
k making use of technology; l giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Case management
Cases will be actively managed by judges throughout the process. This case management will begin at the allocation stage and will continue where the court gives directions on the evidence it is presented with. When the court compiles the order of cases for trial this will be done mindful of the injustice that may occur where there is delay. The court will control the time used at the trial itself as it takes the lead role in controlling the sequence of events. There is also the allotment of costs at the end of the trial, where the court will reduce costs which are out of proportion with the claim. As part of this process the court will also be encouraged to make sufficient use of technology. The use of the telephone (instead of requiring attendance at court, usually for witnesses but occasionally claimants and defendants) and video conferencing (as a way of examining witnesses who cannot attend the court) are two features of a system which recognises that the old processes, with their old and delaying polity, can no longer be defended in an age where technology makes communication so much more efficient. Examples of active judicial case management will be considered throughout this guide.
Precedent
When interpreting the CPR the standard rules of precedent apply. If the higher courts have ruled as to how a particular rule should operate then the lower courts must follow this decision. This means that the House of Lords is not bound by its previous decisions but the Court of Appeal is bound by the decisions of the House of Lords. It follows that the decisions of the High Court and county court are only persuasive. It would appear that, given the civil processs wish for consistency, the departure from precedent should only be exercised in extreme cases where a clear injustice would occur.
Activity 2.8
Read Sime 3.253.27 and provide a 50 word summary as to what types of authorities should not be cited unless they establish a new principle or extend the law. No feedback provided. When interpreting the CPR it has become clear that what court staff have advised parties to do cannot be relied upon subsequently by the parties. Solicitors should know what the process is and should not attempt to rely on court staff for this purpose. It is worth remembering that the CPR have been drafted to use plain English so that the rules are intelligible for lay people to use in the courts. This has meant that, although the overriding objective should guide civil court practice, it is not there as a separate course of action to trounce the clearly-worded provisions of the CPR. If the provision is clear and plainlyworded then it should be followed, even if reliance on the overriding objective would result in a more just outcome. This is confirmed in Vinos v Marks and Spencer plc [2001] 3 All ER 784. If there are no express provisions in the CPR to deal with a particular situation before the court, the court must use whichever interpretation would best give effect to the overriding objective. It is also important to remember that when interpreting the CPR a court must be mindful of its obligations under s.3 Human Rights Act 1998 which requires the court, as best it can, to interpret the provision in line with Convention rights. We shall consider this in more detail later in the chapter.
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Summary
The civil process is authorised to operate by the Civil Procedure Act 1997. This process operates using a collection of rules found in the Civil Procedure Rules 1998 as amended (CPR). These rules provide the detailed procedures for dealing with a case, from commencement of proceedings through to cost allotment at the end. The CPR requires that the court must, as its overriding objective, deal with cases justly. To this effect cases must be actively managed by the courts. The courts now make use of technology far more than they used to in an attempt to deal with cases more quickly. The overriding objective can be used to fill any gaps in interpreting the rules but it should not be used to trounce a rule which is clear in meaning just because the overriding objective would lead to what the courts saw to be a more just result.
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2.4
The courts
Essential reading
Sime, Chapter 2: The civil courts. You need to be familiar with the following courts for the purposes of the operation of civil procedure.
Magistrates courts
Unlike in criminal procedure, magistrates have a relatively limited jurisdiction over civil matters. Magistrates can be lay appointments and are supposed to represent as wide a cross-section of the community as possible. Magistrates are assisted by a clerk who advises on matters of law and procedure. While most of the work done by magistrates is criminal in nature, they do deal with some family law matters and make orders against those who have defaulted in the payment of local government taxes. Most of their work in the civil field is regulatory.
County courts
Most civil law matters at the initial stage will be dealt with by the county court. Most civil cases can be commenced in any county court but if it is to be defended the case is likely to be transferred to the court serving the district in which the defendant resides or carries on his or her business. Each court is presided over by a circuit judge. This is a professional lawyer with a 10 year Crown Court or county court qualification. Circuit judges sit in the Crown Court as well as the county court to give them a broad spectrum of judicial experience. County court trials are mainly conducted by circuit judges and by recorders. These recorders are part time judges. Each district will also have a district judge who must have seven years general qualification. District judges are usually charged with conducting most of the interim proceedings in the county court. They will also preside over small claim hearings. The staff who support these judges are civil servants. These staff members are usually involved in drawing up, issuing and serving court documents and maintaining court records. A discussion of the track system later in this guide will cover where the county court and the High Courts jurisdictions lie.
High Court
The High Court, Crown Court and Court of Appeal together comprise the Supreme Court Judicature of England and Wales. They will be renamed the Senior Courts of England and Wales when the House of Lords, in its judicial function, becomes the Supreme Court. This is to avoid confusion. The main offices of the High Court are located at the Royal Courts of Justice. There are also district registries of the High Court which serve the districts of county courts. All claims involving disputes in London must be served in the Royal Courts of Justice. If the claim is based on a dispute outside of London then the proceedings may be commenced in the Royal Courts of Justice or the appropriate district registry. This will be a matter of claimant choice. There are three Divisions within the High Court. The Queens Bench Division (QBD) deals with all judicial review, admiralty and commercial matters. The Chancery Division (ChD) deals with all cases concerning property and probate. The Family Division (FamD) deals with all matrimonial matters. Trials in the High Court are conducted by justices of the High Court, who are also known as puisne judges, and by deputy judges. They must have 10 years standing within the legal profession. If there are interim applications then in London these will be dealt with by masters of the High Court (for the majority of civil business this is the procedural judge) but in the district registries these are dealt with by district judges.
Specialist courts
Court of Appeal (Civil Division) The basic civil appeals structure is contained in the Access to Justice Act 1999 and the Appellate Jurisdiction Acts 1876 and 1887. Usually an appeal to the Court of Appeal (Civil Division) will be from the High Court. Generally permission to appeal (granted by the High Court or Court of Appeal under rule 52.3(1)(a) CPR will be required. The basic test for granting permission is whether the appeal has a real prospect of success. If the prospect of successful appeal is fanciful then permission will not be granted. Appeals against costs and the process of case management are generally discouraged.
These are applications for temporary orders, particularly in family law, which are only good until they are varied by another interim order or the issues are finally decided following trial.
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Activity 2.9
Read 2.382.43 of Sime and write a single sentence which summarizes the function of the following specialist courts.
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Technology and Construction Court Commercial Court Admiralty Court Companies Court Patents Court
Decide where the following cases would be most likely to be heard. a A claimant alleges that he suffered two arm amputations on a ship as a result of a crew members negligence. b A company director wishes to hear details of his disqualification from the company. c A claimant alleges their contract for the carriage of goods by sea was frustrated by events outside his control. d A defendant architect is due to appear in court for a case where his designs and advice led to the collapse of a new building. e A designer in possession of a registered design wishes to assert his right over that design before it is revoked.
Summary
Given the complexity and range of cases covered by the civil process it is not surprising that there are a wide range of courts to resolve this array of disputes. The two major courts for most civil matters will be the county court and the High Court, with their jurisdiction being determined by the potential cost and complexity involved in the case.
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2.5
Equality of arms is the idea that the defence should never be placed at a substantial disadvantage to the prosecution in terms of its ability to present its case.
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Activity 2.10
Read Sime 3.413.44 and compile two sentences which summarise each of these facets of Article 6, with reference to the accompanying cases.
Fair hearing: R (on the application of Pelling) v Bow County Court [2001] UKHRR 165. Equality of arms: R v Secretary of State for the Home Department ex p Quaquah [2000] HRLR 325. Minimum delay: EDC v UK [1998] BCC 370. Duty to give reasons: English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409. Article 8 and the respect for privacy and family life is also a key Convention right for civil procedure. This is a qualified right and so allows the court to depart from it in some instances. The case law on this Article suggests that often a balance is required between the right to a fair trial in Article 6 and the right to privacy and family life in Article 8. It would seem that Article 8 overrides Article 6 when it concerns children but it is the other way round when it involves adults. There is a concern that covertly shot video footage in personal injury claims which often involves an invasion of an individuals privacy will be shown, but only to a limited extent (see Rall v Hume [2001] 3 All ER). Thus 20 minutes worth of video footage may be shown, rather than several hours of it. The effect of this Convention right has been limited by the House of Lords in Wainwright v Home Office [2004] 2 AC 406. The final article of relevance here is Article 10 and freedom of expression. The relevance here appears two-fold. Firstly it is raised where someone asserts their right to freedom of expression and the other party says that their reputation needs protecting. Secondly it is used where a newspaper is restrained from publishing articles that invade the claimants privacy. The claimant raises the right to privacy under Article 8 whereas the newspaper raises its own Article 10 right. Here a balance will be struck and the case law suggests that each case will turn on its own facts (see Cream Holdings v Banerjee [2005] 1 AC 253 and Douglas v Hello! Ltd [2002] QB 967).
Activity 2.11
Read Sime 3.563.66 and produce a 200 word summary of the Procedural Aspects on Raising Human Rights Points. Once you have done this, decide which of the following scenarios would be the most likely to lead to a declaration of incompatibility. a A piece of legislation claims that once a child is taken into local authority care the parents rights are automatically extinguished and the local authority assumes all rights over the child for the purposes of that childs future. b A piece of legislation remains silent on what happens to parental rights once a child is taken into local authority care.
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Summary
Critical to your understanding of how the civil process works will be the understanding of how the overriding objective has worked in practice, its interplay with the Human Rights Act 1998 and the growing jurisprudence of that legislation within the context of civil justice. Dealing with cases justly will necessitate a balancing of competing interests. Whilst principle must govern, it would appear the courts are also pragmatic when the prospect of injustice emerges.
Activity 2.12
Read the following articles.
Schmidt, F. A critical analysis of recent developments in German law on civil procedure, Civil Justice Quarterly 28(2) 2009, p.273 Meggit, G. and F. Aslam, Civil justice reform in Hong Kong: a critical appraisal, Civil Justice Quarterly 28(1) 2009, p.111
Write a 250 word summary of the recent developments in German law on civil procedure and civil justice reform in Hong Kong. As this is a comprehension exercise no feedback is given.
Conclusion
Throughout this introduction to civil procedure it has been necessary to understand why civil justice is relevant, what courts it is administered in and what principles guide its operation. A combination of all three will serve as a useful guide as you begin to grapple with the complex web of rules which allow the system to function. Remember, though, the rules mean nothing if the overall aim is unclear.
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I can secure an introductory understanding of the civil justice process and how civil procedure fits into that process. I can imagine the impact that the civil justice system can have on individuals. I can describe the purpose and scope of the Civil Procedure Rules. I can comprehend the different courts used in the civil justice process. I can evaluate the application of the overriding objective. I can consider the impact of the Human Rights Act 1998 on civil justice.
If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 2.1 2.2 2.3 2.4 2.5 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts Overriding objective and human rights Revision done
Contents
Introduction 31 32 33 34 Funding litigation Pre-action protocols Alternative dispute resolution Limitation Reflect and review 30 31 35 37 39 43
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Introduction
We have already indicated that much of the work in civil procedure is geared towards a settlement of a dispute that has arisen, as opposed to a straightforward move to trial. The cost of litigation is expensive and, in response to the concerns raised about the financial cost of justice, there are now much clearer guidelines on how civil litigation is funded. To mitigate the potentially large costs of litigation the process has developed a series of preaction protocols which help structure the response to the claim in a way that can utilise alternative forms of dispute resolution. Another method of limiting costs is the limitation period. Although limitation periods could be seen as a way of limiting access to justice, it is argued that they are necessary to ensure the swift resolution of alleged claims and to encourage disputes to be resolved without having to rely on evidence that could become lost or antiquated as a result of indefinite time limits. Parties are therefore encouraged to deal with claims promptly so as to avoid later injustice.
Essential reading
You will need to read the following complete chapters, which are quite short.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u u
critically explore the different ways that civil litigation is funded display a sound knowledge of how pre-action protocols work in a number of areas of civil procedure explain what the alternative forms of dispute resolution are and when they may be effectively utilised evaluate the current rules concerning the limitation defence and how limitation periods operate in the civil process.
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3.1
Funding litigation
Essential reading
Sime, Chapter 4: Funding litigation. Kritzer, H. Fee regimes and the cost of civil justice, Civil Justice Quarterly 28(3) 2009, p.344 As well as being expensive to launch, civil litigation can also be expensive to conclude. Due to the potential costs involved, solicitors are under a professional duty to advise their clients on the likely cost of bringing matters to court and what will happen in the event that the claimant loses. It is a general rule of thumb that if a claimant loses they will have to pay their own costs and those of the other side (rule 44.3(2) CPR). Similarly, if a claimant wins then the losing defendant will have to pay the costs of the claimant. Given that much of these costs will actually be the cost of paying lawyers fees it is no wonder that lawyers are expected to warn and explain to their clients how much any litigation is likely to cost. The usual practice is for lawyers to seek payment on account as the case proceeds. If the client has paid in instalments, he or she is not likely to be quite so surprised when they are confronted by a very large bill at the end of the case. Before costs can be incurred, a potential litigant is often concerned about whether a lawyer will actually take on a case. If funds are tight then lawyers may not be willing to take on the case without receiving a payment on account, however small. If the lawyer refuses to take on the case then the claimant will have to seek external funds to pay for their case or abandon their claim.
Will the client be eligible for help under the Community Legal Service? Should a conditional fee arrangement be considered as an option? Are the clients costs already covered by insurance? Will the clients liability for their own costs be covered by an employer or a trade union or other organisation of which the client is a member? Will pre-purchased insurance cover the other partys costs or will after-the-event insurance cover them?
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Activity 3.1
Read the case of Giles v Thompson [1994] 1 AC 142 and in 50 words explain what is meant by savour of champerty and maintenance.
Disbursements are the sums paid by the firm during the course of litigation. These may include experts fees and photocopying costs.
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legal help help at court legal representation help with mediation general family help specific directions excluded categories.
Activity 3.2
Read Sime 4.234.29 and place up to ten words under each heading to confirm what each of these levels of service mean. No feedback provided. The Community Legal Service operates to offer financial support to those people who cannot afford to litigate. This requires means testing set at a very low level and realistically only the very poor are given full assistance. There are some limits here and cases brought under the Children Act 1989 are not subject to any form of financial eligibility. Those who are better off than the very poor, but are still not considered to be sufficiently able to fund litigation, will be able to pay contributions towards the cost of the legal services, usually by a one-off payment or by instalments. The criteria for such limited funding are extensive. A Funding Code was produced by the Legal Services Commission under s.8 Access to Justice Act 1999. This code considers alternative means of funding or an alternative means of redress. If an application is premature, another level of service is appropriate or if the request for funding is unreasonable then funding maybe refused. If the case is trivial and allocated to the small claims track then this is likely to defeat a claim for funding. If a CFA is suitable then funding may be refused and if the prospects of the case are unclear then public funding is unlikely. The Funding Code uses a series of categories to determine the potential success rate of a case. If the case has an 80 per cent chance of success this is deemed as very good. If it has a less than 50 per cent chance of success then this is deemed poor. Cost benefit grounds can prevent access to funding. This means that funding may be refused if the benefit to be gained does not justify the level of costs likely to be incurred. The only time this is unlikely to be refused is if there is a wider public interest or if it is of overwhelming importance to the client. Overwhelming importance is likely to include an action will affect the life, liberty, physical safety or housing of the applicant. Guidelines on the merits of cases for the purposes of obtaining funding are usually devised by barristers and can be found in Annexe E of the Code of Conduct of the Bar of England and Wales. Under s.10(7) Access to Justice Act 1999 any money recovered in a publicly-funded claim will automatically become the subject of an unwanted charge (statutory charge) in favour of the state. This means the state will be able to reimburse itself for any costs it has incurred. This liability only applies once the total costs incurred by the publicly-funded client have been adjusted to reflect a deduction of contributions paid by the publicly-funded client and any costs by the other side. The statutory charge will be for the balance. The solicitor will have a duty to advise their publicly-funded client of the effects of the statutory charge. This arrangement means that any costs or damages recovered by a publicly-funded party are subject to the first charge in favour of the Legal Services Commission and so only the publicly-funded solicitor can give a valid discharge for the amount paid.
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u u
Revocation can happen if there is misconduct on the part of the publicly-funded client. Discharge is usually where the client has died or the work has been completed. If funding is revoked then the client is treated as if they never received public funding. All costs to the Legal Services Commission would then be recoverable. If a client receives public funding then they are, like their solicitor, obliged to comply with the Access to Justice Act 1999. All parties are under a continuing duty to inform the Commission of any change in circumstances which may affect previous entitlements. If a litigant is publiclyfunded they are generally protected from having to pay the costs of the other side if they are unsuccessful.
Summary
Funding litigation is a tricky issue. Society demands that access to justice should not be formally dependant on access to funds but substantively this is often the case. Solicitors have a raft of duties that are owed to clients to ensure they are aware of the pitfalls of litigation so that litigation is not entered into lightly. There are a number of ways for clients to fund their litigation. One such way is via public funding but the criteria for this sort of funding is heavily restricted and subject to particularly exacting criteria. Once secured, public funding can be revoked.
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3.2
Pre-action protocols
Essential reading
Sime, Chapter 5: Pre-action protocols. In accordance with the overall commitment of the civil process to resolving disputes before a trial, it is normal practice in nearly every case for the claimant to enter into correspondence with the defendant to give them a chance to negotiate a compromise to the dispute. If successful, such a compromise will save both parties time and money and will save the court the inconvenience of formally resolving the dispute. There are exceptions to this general rule. If a limitation period is about to expire or an injunction is sought then preaction correspondence is actually unwise. For most cases the court will expect the parties to make clear the allegations and answers to a claim and to co-operate with all pre-action investigations. From a clear understanding of all the issues, clear settlements can emerge which may result in a trial being avoided. The tools by which these negotiations are framed are called pre-action protocols. In order to secure some form of consistency in approach, the Department of Constitutional Affairs (now the Ministry of Justice) published nine pre-action protocols which cover a wide range of civil litigation areas. These protocols are: personal injury, clinical negligence, disease and illness, rent arrears, housing disrepair, construction and engineering, professional negligence, defamation and judicial review cases. The court will expect parties to conform to the relevant pre-action protocol. Any departure from its practices will require justification before the court. Some cases are not covered by a pre-action protocol, for example commercial claims and contractual claims. If there is no protocol then the court will expect the parties, in accordance with the overriding objective, to act reasonably in the exchange of documents and information. Parties will be expected to do all they can to avoid the start of proceedings.
Activity 3.3
Read Sime 5.065.15 and provide 100 word summaries of the professional negligence and personal injury pre-action protocols.
3.2.1 Experts
Expert testimony is clearly important in some civil disputes. The instruction of these experts can vary according to the different protocols. Often parties will wish to instruct an expert who will best support their case. Sometimes a protocol will demand a joint instruction of an expert. This involves an expert being agreed on by the parties. There is also the opportunity for joint selection of an expert. Here a claimant will give the other party a list of the names of experts who they think are suitable to instruct. Within 14 days the defendant can indicate any objections to any of these experts. If no objection is forthcoming then a mutually acceptable expert will be instructed. If all experts are rejected then the defendant will have to appoint their own experts. If this rejection of the experts is deemed unreasonable by the court then the defendant may face increased costs. Sometimes a potential claimant will consult a solicitor very close to the end of the limitation period. In such instances the solicitor will have to give the defendant as much notice as is practicable. A stay of proceedings may be requested pending completion of the steps required for any protocol. Alternatively the courts may be asked to extend the time available for the protocol to be actioned.
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Summary
In accordance with the commitment to the swift resolution of disputes, pre-action protocols are used to guide the exchange of information and evidence prior to proceedings being commenced. If these protocols are not followed then there may be cost implications later in court proceedings. There are special rules in place for motor accidents involving uninsured or untraceable drivers. Part 36 offers will be encouraged as a further commitment to early settlement.
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3.3
Activity 3.4
Read Sime 6.036.08 and make a list of the five most important advantages and disadvantages of the use of ADR.
Activity 3.5
Read Sime 6.09 and consider which form of ADR would you recommend for the following problems. a Your neighbour refuses to cut down his high hedge. b You are a contractor carpenter and the builder you have carried out some work for is refusing to pay, arguing they cannot afford your charges. c You are considering a claim against a commercial damp proofer but want to check whether the damp is due to their defective building work or because of your failure to clear your gutters. d You have had your refuse bin stolen and the local authority will only replace it for a fee. e You are trying to sue a carriage company for failing to deliver your goods to an overseas location. In your agreement it states that you will seek arbitration to make a claim against the company.
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Activity 3.6
Read Sime 6.136.83 and compile a 50 word summary of the key issues for the process of each of the following.
u u u u u u u
Arbitration. Adjudication in construction disputes. Mediation and conciliation. Early neutral evaluation. Expert determination. Grievance and complaints procedures. Ombudsman.
Summary
Alternative dispute resolution procedures cover a very wide range of procedures in response to a wide range of types of dispute. From arbitration through to mediation the purpose and relevance of each procedure will largely depend on the nature of the dispute. There is an expectation that parties will endeavour to use ADR and that only when this has failed will they ask the court to resolve the dispute. Failure to engage in ADR could have cost implications but this is not a presumption against those who do not use ADR. The context of each case will be considered before such penalties are applied.
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3.4
Limitation
Essential reading
Sime, Chapter 7: Limitation. Brown, S. Limitation: still something of a lottery?, Journal of Personal Injury Law 2 2008, p.176 The last of our preliminary issues involves a discussion of limitation periods. It has long been a feature of the civil justice system that limitations would be imposed on the commencing of proceedings. The reason for this is well-documented in civil cases but is nicely summarised by Lord Griffiths in Donovan v Gwentoys Ltd [1990] 1 WLR 472 when he said: The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal. The major concerns about bringing a claim so long after the alleged events occurred is that evidence which may have been crucial may be unavailable as it has been lost. It is also regarded as contrary to public policy to keep people perpetually at risk. Limitation works as a procedural defence. The court will not apply this limitation defence of its own volition. The defendant must raise it as a defence to a claim and apply to have a claim struck out on the basis that there is an abuse of process. The only consequence of a limitation period is that the cause of action remains but it cannot be enforced.
Activity 3.7
Read Sime 7.04 and consider what limitation period would be most likely to apply to the following cases. a Your spouse is killed in an industrial action at work and you want to make a claim for compensation. b You are claiming that a public authority has breached your human right to privacy under Article 8 of the European Convention on Human Rights. c You want to bring an action against a local newspaper which alleges that you are a corrupt business person. d You are a private landlord and you want to secure unpaid rent from your tenant. e You had an unnecessary limb amputation performed by a doctor who mistakenly thought that you had gangrene. Clearly this wide range of varying limitation periods can cause problems of categorisation. Some actions have no limitations periods at all (such as fraudulent breach of trust) whereas others have a very tight limitation period of three months (unfair dismissal under Employment Rights Act 1996). It is interesting that personal injuries or fatal accident cases involving an invasion of bodily integrity have a three year limitation period whereas cases involving a violation of property (recovery of land) have a 12 year limitation period. Clearly we wish personal injury cases to be resolved as quickly as possible but does that mean that land recovery should be able to be stale for longer than a personal injury case? The rationale is that you may find it more difficult to recover land than demonstrate personal injury and it is worth remembering why the limitation periods are in place: to avoid keeping people perpetually at risk of civil suit. No such limitations are in place in criminal proceedings. Categorisation problems do occur in trust and equity claims (Nelson v Rye [1996] 1 WLR 1378) and also in personal injury cases (Letang v Cooper [1965] 1 QB 232 and Stubbings v Webb [1993] 2 AC 498). The well known case of Factortame is relevant here as a claim for damages for infringement of a European Communtiy right amounts to a breach of a statutory duty and so is subject to a six year limitation period (R v Secretary of State for Transport, ex parte Factortame Ltd (No 7) [2007] 1 WLR 942).
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Activity 3.8
Read the cases of Ali v Courtaulds Textiles Ltd (1999) The Times, 28 May 1999 and Copeland v Smith [2000] 1 WLR 1371 and read s.14(1) Limitation Act 1980. Explain in 100 words how the term date of knowledge has been construed by the courts in case law. No feedback provided.
Activity 3.9
Read s.33 LA 1980 and the case of Thompson v Brown [1981] 1 WLR 744. Then explain, in 100 words how s.33 works in practice, with reference to Lord Diplocks judgment in Thompson v Brown.
Summary
Limitation periods operate to prevent stale claims being brought against defendants and to prevent people from being kept perpetually at risk of a civil action against them. There are different statutory provisions to apply to different types of civil actions but the court will be able to extend the limitation period in certain types of cases if it appears just and reasonable in the circumstances to do so. Personal injury claims would appear to raise the most important procedural issues here due to the tight limitation period of three years and the fact that the law has had to be more flexible when it comes to latent damage.
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Question 2 This question concerns limitation of actions.
As Callum has brought an action, the question is whether his action is time-barred. Note that if he has brought an action which is time-barred, the action is not automatically struck out; rather the limitation point must be raised in Donkas defence (PD 16, paragraph 13.1). Under s.11(4) of the Limitation Act 1980, the time period for limitation runs from the date of accrual of the cause of action or from the date of knowledge, whichever is later. The date of knowledge is specified under s.14. Section 14(1)(b) specifies that the claimant must know that injury was attributable to a negligent act or omission and s.14(1)(c) specifies that the identity of the defendant is a fact that must be known in order for the date of knowledge to be set. Although Bernadette was suspected as a defendant, the reference in the 1980 Act is to the defendant against whom an action is brought. As the defects in the car were unknown until the TV programme revealed this fact in August 2000, the court will have regard to what the claimants might reasonably have been expected to know before then under s.14(3) as interpreted in Adams v Bracknell Forest Borough Council [2005] 1 AC 76. This will depend on whether it was reasonable to expect the claimants (or Callums parents) to suspect the car rather than Bernadettes driving. It is possible, therefore, that the date of knowledge will not arise until the claimants knew, or could have known, of Donkas potential responsibility. It might also be argued that the basis of any cause of action (the defects in the car) was concealed and therefore the limitation period would not start until the concealment had been discovered (arguably 2000 when the TV documentary exposes the fact) (s.32(1)(b) Limitation Act 1980). This operates in a similar way to s.14 but would require proof of active and deliberate concealment according to Brocklesbury v Armitage [2002] 1 WLR 598. It might be possible to argue that the concealment has not in fact been discovered until Donka revealed the truth about the car in May 2004 (in which case Callum is in time to bring his action). However, it seems more likely that the court would consider Callum to have been on notice of the problems from 2000 and therefore the limitation period will have expired in August 2003. This is particularly so because a party could obtain evidence using pre-action protocols and, if such a route was unfruitful, could commence litigation to obtain discovery of the required information. Callum was a minor at the time of the accident and so the three year limitation period under s.11 Limitation Act 1980 would not apply until he reached his eighteenth year in March 2003 (s.28). The Latent Damage Act 1986 would not apply because it is not the damage (i.e. the injury for which compensation is being sought) which is latent but the cause of action. Bernadette is still able to commence an action for the injuries she has suffered. The three year limitation period would not start until she had recovered enough to be able to instruct lawyers (s.28 Limitation Act 1980).
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If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 3.1 3.2 3.3 3.4 Funding litigation Pre-action protocols Alternative dispute resolution Limitation Revision done
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Notes
Contents
Introduction 41 42 43 44 45 46 Issuing and serving proceedings Renewal of process Service outside the jurisdiction Responding to a claim Default judgment Statements of case Reflect and review 46 47 50 52 56 58 60 64
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Introduction
When all else fails the claimant may decide to proceed with a case against the defendant. ADR may not have worked and the claimant may still believe that the court is the only effective forum for resolution of the dispute. Commencing proceedings can be a costly exercise and is subject to particular requirements in terms of form and substance. Proceedings need to be issued and served and there is a renewal process which is available, within limits, when the limitation period has lapsed. Sometimes service will need to take place outside of the jurisdiction and the rules concerning this process can be quite complex. Once a claim has been issued the defendant can either respond or a default judgment can be entered where a defendant fails to defend a claim. If the claim is defended then a statement of case will follow and will need to be presented in a particular form before the court.
Essential reading
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u u u
display a sound knowledge of how proceedings are issued, served and renewed critically explore how service takes place outside of the jurisdiction explain what happens when a defendant to a claim responds and when he or she fails to respond critically consider how statements of case are compiled and presented.
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4.1
Activity 4.1
Read the sample claim form at Sime, Figure 8.2 and explain: a the value of the claim b what sort of business the claimant is involved in c under what heading the statement I am duly authorised by the Claimant to sign this statement appears.
4.1.2 Service
Essential reading
Zuckerman, A. New provisions for service: a great improvement threatened by discretion, Civil Justice Quarterly 28(1) 2009, p.1
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Activity 4.2
Read Table 8.1 in Sime and answer the following. a Where would you serve a defendant who was the proprietor of his or her business? b Where would you serve a company? c Where would you serve an individual? For the purposes of service it is possible for a claim form to be served to the defendants solicitors if they are authorised to accept service (rule 6.13(2) CPR). The last known address is often the place for service to be actioned. This has led to a number of cases deciding where the last known address is. It has been held that a house owned by another but occasionally used by the defendant when he visited England was not the defendants last known address (Chellaram v Chellaram (No 2) [2002] 3 All ER 17). This is last known to the claimant rather than the defendant and the defendant may have moved on since (Collier v Williams [2006] 1 WLR 1945). If the defendant is abroad at the time of service it will still be deemed to have been effective (City and County Properties Ltd v Kamali [2007] 1 WLR 1219). Service will involve the delivery of documents to the defendant. These documents will include the completed claim form N1, the particulars of claim (which may follow) and a response pack. This response pack will include acknowledgement of service, admission, defence and counterclaim. This service is available in a variety of forms and will depend on the action being sought. The methods of service are outlined in rule 6.3(1) CPR. They include personal service, post, leaving the documents at the address for service, document exchange (DX) and electronic methods of service. Personal service Personal service is effected when documents are left with the defendant. Once mention has been made of the nature of the documents then an unco-operative defendant will still have been served if documents are left near him or her. Personal service to a company requires a person within a senior position to be served (PD 6, paragraph 6.2). Personal service on partners sued in the name of the partnership will be effected by leaving the claim form with a person or partner who has control of the company. Postal service Under rule 6.3(1)(b) CPR it is clear that any postal delivery method that involves next day delivery (such as first class post) will be permitted. If slower post is used then postal service will not have taken place. It is possible to leave documents at an address though the letter box or leave them at a reception desk. The DX system can also be used. This is a system used by solicitors and barristers for the exchange of documents. Documents sent this way will usually be received the next business day. Electronic methods Service can also take place using electronic methods. This is usually by fax or email. For this to be acceptable the defendant or his or her representatives must have made it clear, in writing, that this is an acceptable method of service. If acceptance is obtained then service through these methods will be deemed acceptable and no hard copy need follow. Sometimes a contract will contain a term providing that proceedings can be served in a particular way and sometimes, if there is mutual agreement, an ad hoc agreement on service will be effective (Kenneth Allsion Ltd v AE Limehouse Ltd [1992] 2 AC 105 as affirmed in Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441). Service will generally be undertaken by the court but there are some exceptions. These usually apply to cases for the Commercial Court rather than for general litigation.
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Activity 4.3
Read Table 8.2 in Sime and identify when the following methods of service will have been deemed to be valid. a Document exchange (DX). b Fax. c Personal service before 5pm on a business day.
4.1.4 Filing
Service is where documents are served on the defendant. Filing is where documents are filed at court. Most important documents which are used in litigation will need to be filed at court. The court maintains its own copies of files. Files have to be delivered and this will have been deemed to have taken place even if the court is closed and they are placed in the courts letter box. Filing is possible electronically but only where a fee is not payable.
Summary
Once a claim form has been completed it must be served on the defendant. Service can take many forms but must be actioned within prescribed time limits to be valid. Depending on the method of service a deemed date of delivery will be specified. Variants to this process are possible but only in exceptional circumstances. The court will require its own copies of a case file and this is termed filing at court.
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4.2
Renewal of process
Essential reading
Sime, Chapter 9: Renewal of process. Once a claim has been issued a period of validity begins, normally lasting for four months, during which time service can take place. The claimant is entitled to use the full limitation and the full validity period, although it may not be wise to do so. The result is that a defendant may be advised of a claim some significant time after the limitation period has come to an end. At the point of service the defendant is now on formal notification that legal proceedings have been actioned. An extension may be granted to extend the validity period although this will be rare. The court will usually be reminded that it is contrary to public policy to allow what are called stale claims to proceed. This was confirmed by Megaw J in Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355 at 366: it is unfair to defendants, and it makes the administration of justice more uncertain, if litigation is delayed so that witnesses die or cannot be traced; or memories fade; and defendants are entitled to know definitely, at the expiry of some defined time, whether or not they are to be pursued in the courts.
Activity 4.4
Read the case of Hashtroodi v Hancock [2004] 1 WLR 3206 and clarify the guiding principles for renewal of process during the period of validity. Understandably it is even more difficult to obtain an extension once the validity period has passed, as it should have been sought at an earlier stage. The criteria under which the court will grant an extension after the validity period has passed are prescribed in rule 7.6(3) CPR. This is most likely to be used successfully in cases where the claimant (for good reasons) believed that the court was effecting service and then discovered that it was not (see Amerada Hess v Rome (2000) The Times, 15 March 2000). If claims are made in respect of cargo then special rules apply under the Hague-Visby Rules, Article III, rule 6 and there is no power to extend the validity period. If claims are being made to multiple defendants then all defendants must be served during the period of validity. If proceedings have been stayed, then the validity period will continue to run while no proceedings on the claim can take place. As extensions are sought because the defendant has not been served it is necessary for these to be made without notice to the defendant. They are usually made without an oral hearing. All evidence must be disclosed by the claimant. The claimant must also provide evidence of why and how service has been sought within the validity period. The claimant must also state how long he or she requires for the extension and why this extension is required for that duration. Defendants can appeal to have the order set aside but can only do so once they have acknowledged service. If the defendant has attempted to evade service the fact this time period has been extended is not likely to entice them to reappear.
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Summary
Once the claim has been issued a period of validity begins during which service must take place. This period of validity can be extended during the validity period or after the validity period has been concluded but the court will need compelling evidence to do so, since public policy has always tried to defeat what it terms stale claims.
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4.3
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. A parallel Convention known as the Lugano Convention also exists which covers Iceland, Norway and Switzerland. The UK is also treated as separate parts (England, Scotland, Wales and Northern Ireland) and a separate Modified Convention, set out in Schedule 4 of the CJJA 1982 as substituted by SI 2001/3929, Schedule 2, allocates jurisdiction between the courts of each part. The key is to locate where the defendant is and then to check which regulation or convention applies. If the defendant is domiciled in the EU then the general rule is that they must be sued in the country where they are domiciled. If a claim could be brought in the courts of more than one country then, to avoid possible inconsistency in approach, the English court has a power to stay its proceedings or to grant injunctions to restrain foreign proceedings. Most courts in countries within the Jurisdiction Regulation will adopt the same approach of staying or restraining.
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Land disputes. If a claim is founded on a dispute as to title or possession of land it must be brought in the courts of the country where the land is situated (British South Africa Co v Companhia de Mocambique [1893] AC602). Intellectual property. If a claim is founded on the validity or infringement of foreign copyrights, trade marks and patents then they must be brought in the country where they are registered (Tyburn Productions Ltd v Conan Doyle [1991] Ch 75). Divorce, nullity and judicial separation. Under s.5(2) Domicile and Matrimonial Proceedings Act 1973 the courts in England have jurisdiction over proceedings for divorce, nullity and judicial separation if either of the parties to the marriage, at the time proceedings are commenced, is domiciled in England or has been habitually resident in England for the previous year. Service abroad can take place for other family proceedings although a translation must be provided if the respondent does not understand English. Insolvency proceedings. Service outside the jurisdiction of any document in proceedings under the Insolvency Act 1986 or the Insolvency Rules 1986 is governed by Insolvency Rules 1986 (SI 1986/1925) rule 12.12. This means that insolvency proceedings are for the most part outside the scope of the Jurisdiction Regulation. The Jurisdiction Regulation Article 22 allocates exclusive jurisdiction regardless of the domicile of the parties. Under Article 25 the courts of that contracting state are required to declare that they have no jurisdiction. This applies in the following five types of case.
An action in rem may include an action against a ship or other property. It is contrasted with an action in personam which is brought against a legal person.
2 Companies and associations. Whenever there is a legal challenge to the validity of the constitution, nullity or dissolution of a company or association then this action must be brought in the country where the relevant body has its seat. Its seat is where the company or association was incorporated or formed or where its central organisation is managed and controlled. (Article 22(2)) 3 Public registers. If there is a dispute as to an entry in a public register then the courts of the state where the register is kept must be used. (Article 22(3)) 4 Intellectual property. As with the common law rules, the courts of the state where the intellectual property was registered will have exclusive jurisdiction. (Article 22(4)) 5 Enforcement of judgments. Where a judgment is to be enforced then the courts of the state with this task will have exclusive jurisdiction. (Article 22(5))
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u u u
the case falls within Articles 524 of the Jurisdiction Regulation there are no other proceedings pending on the same case in another Member State the defendant is domiciled in a Member State. This final requirement will be dispensed with where exclusive jurisdiction has been fixed or the requirement has been modified so that any party can be domiciled in a Member State.
Activity 4.5
Read Sime 10.3910.72 and write a 350 word summary which explains how service works under the Jurisdiction Regulation for contractual claims, maintenance claims, tort claims, branches, agencies and establishment disputes, trusts claims and salvage and freight disputes.
Lis pendens (Latin) = suit pending. It means that another action referring to the property concerned is in existence.
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Summary
Service outside of the jurisdiction gives rise to a complex web of rules which are followed according to which jurisdiction applies. Much of this web has been simplified by the rules for service under the Jurisdiction Regulation but complexities remain when service is to be effected outside of the EU. It is best to remember that within the EU the Jurisdiction Regulation applies and outside of the EU rule 6.36 CPR applies, but only with the permission of the court. If service takes place outside the jurisdiction then the response time allowed is longer. If no response is forthcoming then judgment in default can be entered as long as permission to serve was sought. If it was not sought under the Jurisdiction Regulation then permission to enter the judgment in default must be granted.
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4.4
Responding to a claim
Essential reading
Sime, Chapter 11: Responding to a claim. Once a defendant have been served notice of proceedings against them they must, if they decide to contest the case, fill in an acknowledgement of service and/or file a defence. The defence to a claim becomes part of the case management system. The court will send the parties an allocation questionnaire so that a judge can allocate the case to a case management track and then give directions as to how the case should be conducted in the future. If a defendant does nothing then it is likely that a default judgment (see section 4.5 below) will be entered against them. It may be that the defendant does not have any answer to the claim but wishes to secure more time to pay. It may also be the case that the defendant disputes the jurisdiction of the court. In all of these cases the defendant will be responding to a claim whether actively or passively.
file or serve an admission (rule 10.3(1) CPR) file a defence, which may be combined with a counterclaim (rule 14.2(1)) file an acknowledgement of service (rule 15.4). This means that the defendant need not take immediate action if the particulars of claim to a claim form are to follow. However if the particulars of claim do arrive with the claim form then they must act swiftly. If a defendant is filing an admission then they should fill in the correct admission form in the response pack and admit the claim. The forms do permit the defendant to admit part or all of the claim. If they admit the whole claim then they are advised to pay within 14 days. This will limit their liability for the claimants costs. If they choose to leave it for a longer period they can apply to pay in instalments. To request this option, they will have to disclose significant financial and personal circumstances; the claimant will then consider the offer. If accepted then a judgment will be entered for payment by instalments. If rejected the court will decide the rate and period of payment. If a defendant is filing a defence then he or she should fill in the correct form in the response pack which can include notification of a counterclaim. If defendants so choose, they may draft a defence using ordinary paper. This is usually undertaken by solicitors who like to set out the case with full facts. The form in the response pack may not be large enough to accommodate this detail and so normal paper is used. If a defendant is acknowledging service then this is usually because they are not yet able to file a defence during the 14 day period or they are going to dispute the courts jurisdiction. If they acknowledge service they are then, under rule 15.4(1)(b) CPR, given a further 14 days for filing a defence. A form is available in the response pack for acknowledgement of service and once this has been filed the court must notify the claimant in writing. This will usually be done by sending a copy of the form to the claimants solicitor. It is possible for the parties to agree to extend the time for serving a defence but any agreement can only be for a further 28 days (rule 15.5(1) CPR). The court must be notified of this agreement in writing. This restricted period enables the court to maintain a hold on the litigation and to fulfil its case management obligations under the overriding objective.
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4.4.3 Transfer
There exist automatic transfer provisions so that defended claims can be transferred to the defendants home court. If a case has been allocated to the wrong court then the court may order a transfer to the correct court. This will usually be decided on the basis of the financial value of the claim, the simplicity or complexity of the case facts and whether it would be more convenient to try the case in a different court.
Activity 4.6
Read Sime 11.1711.20 and explain, in a 50 word summary, what the rules of transfer are for specialist claims. No feedback provided.
Summary
The usual process (which may differ for specialist claims) is that a defendant must actively respond to a claim by acknowledging service or filing a defence which may include details of a counterclaim. This response must be done within 14 days of service of the particulars of claim. An acknowledgement of service will extend the period for responding to 28 days and these periods can be further extended by a court order in exceptional circumstances. Proceedings can be transferred to a more appropriate court if the circumstances demand such an action. A passive response (that is, no response to the claim at all) may result in a default judgment being entered by the claimant.
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4.5
Default judgment
Essential reading
Sime, Chapter 12: Default judgment. Once the period for responding to a claim has passed and the defendant has failed to defend a claim then a judgment in default may be entered. This produces a judgment in favour of the claimant without holding a trial. The process exists to prevent unnecessary expenditure of time, money and court resources in protracted claims which are, after all, undefended. Much civil litigation is debt recovery and once service has been effective this will usually either prompt payment by the defendant or the defendant may simply choose to ignore the claim. When this latter event takes place and the response period has lapsed, the claimant may then think about entering a summary judgment. This process is quite straightforward and simply involves the claimant returning a request form to the court asking for judgment to be entered. A member of the administrative team at the court will then action this and a judgment will be entered. This judgment will then bind the defendant and can be enforced in the usual way. The result is the same as it would be if the defendant had lost at a contested trial.
Specialist claims include Admiralty proceedings, arbitration proceeding, possession claims and contentious probate proceedings.
Activity 4.7
Read Sime 12.1312.19 and compile a 150 word summary to explain how default judgment can be entered.
Liquidated demands are claims such as the price of goods or services, for rent or for the repayment of a loan or bank overdraft.
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Summary
Once the period for responding to a claim has come to an end a judgment in default may be entered. The rules for entering a default judgment differ according to the type of claim involved. Questions concerning quantum of damages will be resolved by the courts as allocated. A default judgment will be set aside if it was entered incorrectly. A default judgment may be set aside if there is a good reason or a strong prospect of the defendant successfully defending the claim. Conditions can be attached to the setting aside of a default judgment.
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4.6
Statements of case
Essential reading
Sime, Chapter 13: Statements of case. The early stage of civil proceedings which have been commenced by ordinary claim form will be dominated by the exchange of statement of case by the claimant and, possibly, by the defendant. These are formal documents which will then be used in litigation so that it is clear what each party has said about the case. These statements of case have three functions. 1 They inform the party on the other side of the case that will have to be met.
2 They define the issues which need to be decided. 3 They provide the judge who is dealing with the case with a concise statement of what the case is about.
Activity 4.8
Read Sime 13.0513.35 and provide 20 words for each of (a), (b), (c), (d) and (f) to explain what the key features of each are for the purposes of recording this detail for the statement of case.
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Summary
Statements of case are an important feature of the civil trial process as this documentation will identify the issues to be considered and will be the focus for case management and the trial itself. The substance of these statements will vary according to each claim but the form will follow a certain sequence. This will enable the court to proceed with a collection of written documents which have been obtained with consistency and in accordance with the CPR. Too much rigidity may deny the court the opportunity to proceed to deal with cases justly. Too much flexibility and the courts time will be wasted working out what type of document is required and in what form. The CPR ensures a balance is aimed for and in most cases achieved.
Conclusion
This chapter has involved a consideration of how proceedings are issued and served within this jurisdiction. Renewal of process is possible in exceptional circumstances. Service can take place outside of the jurisdiction but this usually involves following some very complex rules, depending on whether service is within the EU or outside it. Once served, the defendant can acknowledge service or file a defence and/or a counterclaim. If they fail to respond then the claimant can apply to enter a judgment in default. Much of the documentation at this stage contains the statements of case. These are crucial for the civil process because of its reliance on written documents.
Niall, the sole owner of a shop, Staples and Such, under which name he traded. The shop supplied Milo with office supplies and the claim relates to defective products. Olive, his accountant, and her firm, the Stenson Partnership, in respective of her negligent work.
Knowing that an action was about to be commenced, Niall closed Staples and Such and sold the business and its trading name to Quentin, who opened a shop under the same name at a different address. Niall then left the country. The claim form was sent to the new address by second class post on 13 April. On 28 April, Quentin returns the letter including the claim form to Milo with a note stating that he has only just taken over the business. Milo has just learnt that Niall will return to the country on 3 May. It is not possible to serve upon him until he returns. The claim against Olivia is taken in person to the offices of the Stenson Partnership on 19 April. No partners are available so the claim form is left with the receptionist. Advise Milo. Question 2 Robert, a car dealer, issues two claims, one against Sylvia and the other against Tom. Both are properly served, sent by first class post on Tuesday 14 April. Against Sylvia, Robert claims 12,500 plus interest at 8% per day from the date of the claim, this being the amount Sylvia promised to pay for the car she bought from Robert. Against Tom, Robert claims 14,000, being the profit Robert has lost on other cars sales as a result of Toms negligence. The particulars of claim allege that Tom carried out work at Roberts car dealership negligently and so caused it to shut for a week. The 14,000 is based on the projected number of car sales that were lost during the week minus the amounts saved (in expenses such as lighting and staff costs, etc.). Sylvia does not respond to the claim. Tom files an acknowledgment of service on 20 April but has taken no further action. On Thursday, 7 May, Robert obtains a default judgment against both Sylvia and Tom and is awarded 12,500 and 14,000 respectively plus the interest amount in each case. Sylvia was away on a two month tour of South America when the claim was served and has only just returned (it is currently Monday, 14 May). She denies that she was liable to pay for the car as it was so defective that she was entitled to (and did in fact) reject the car. She alleges that she is therefore not obliged to pay any amount at all. Tom does not admit that he was negligent but has only just been able to consult his lawyer. He also argues that the amount Robert is claiming is an exaggeration of his actual loss. Advise Robert.
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If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 4.1 4.2 4.3 4.4 4.5 4.6 Issuing and serving proceedings Renewal of process Service outside the jurisdiction Responding to a claim Default judgment Statements of case Revision done