Litigation skills update

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Litigation skills update

Introduction

18 April 2012


Top 10 Litigation Tips

• Five preparing for disputes• Five preparing for Court hearings

Managing Disputes

“The large print giveth and the small print taketh away” (Tom Waits)

• Curse of the pro-forma contracts

• What terms were incorporated?

Managing Disputes

"In theory, there is no difference between theory and practice. But, in practice, there is."

(Yogi Berra)

• Internal processes

• E-disclosure - West African Gas Pipeline Co Limited v Willbros Global Holdings Inc [2012] EWHC 396 (TCC)

Managing Disputes

“It is a capital mistake to theorize before you have all the evidence. It biases the judgment.”

(Sherlock Holmes)

• Evidence wins cases

• Preserve documents

• Witness statements

Managing Disputes

“To jaw-jaw is always better than to war-war.” (Winston Churchill)

• Mediation – timing?

• Rolf v De Guerin [2011] EWCA Civ 78

Managing Disputes

“I run on the road, long before I dance under the lights” (Muhammad Ali)

• Resolution strategy

Court Hearings

Pre-Hearing Preparation

• Reading time

• Presentation of documents

Court Hearings

Skeleton Arguments

• Identify concisely:-

– The nature of the case;

– The propositions of law relied on (with authorities);

– Submissions of fact (refer to evidence)

• Be brief

• Avoid formality – use abbreviations

Court Hearings

Other Pre-Hearing Reading

• Authorities – what does judge really need?

• Bundles:-

- Numbering

- Agreed?

Court Hearings

Draft Orders

• Allocation Questionnaire

• Applications

• Hearings

Court Hearings

Cost Schedules

• Local rates

• Explain large items

• Brief your advocate


Costs Update & Limitation and Service Issues

Costs Update

Introduction

• Progress on LASPO;

• Part 36 update;

• Some cases you may have missed.

Progress on LASPO• Legal Aid, Sentencing and Punishment Bill (‘LASPO’)– currently at its third

reading in the House of Lords – This was the final chance for the Lords to change the Bill – which took place on 26 March 2012. The Bill will now go to the Commons for consideration of Lords’ amendments.

• Key features of the LASPO:• Success fees under CFA’s are no longer recoverable.• New conditions including maximum success fees to be set by the Lord

Chancellor.• Damages based agreements to be permitted• ATE premiums not to be recoverable.• Additional incentives for offers to settle.

Part 36 Update

• Death of Carver?• CPR: 36.14(1)(a): • “For the purposes of paragraph (1), in relation to

any money claim or money element of a claim “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly”.

• What now for near misses?

Acceptance of pre-action Part 36 offers• Solomon v Cromwell Group Limited (August

2010) Manchester County Court:

• “…where a Part 36 offer is accepted within the relevant period [usually 21 days] the Claimant will be entitled to the costs of the proceedings up to the day on which notice of acceptance was served on the offeror” (my emphasis added).

• “Costs of the Proceedings”.

Acceptance of pre-action Part 36 offers cont…• Footnote to The White Book 2012 [Page 1132]: • “A Part 36 offer may be made at any time, including before the

commencement of proceedings (r.36.3(2)(a)). Steps taken in contemplation of proceedings are to be regarded as “proceedings” for the purpose of r.36.10(1). Consequently, the affect of the Claimants acceptance of a Part 36 offer made before a claim has been issued is that the Claimant is entitled to recover costs incurred in contemplation of the proceedings up to the date of acceptance insofar as they would have formed part of his recoverable costs if proceedings have already been issued.

• Note: clear wording is needed as to the cost consequences of acceptance of a pre-action Part 36 offer

Some cases you may have missed

• Ahmed v (1) Brent LBC (2) National Probation Service (3) Ministry of Justice (4) Parole Board, High Court, 25 February 2011

• A publicly funded Claimant was ordered to pay the Defendants costs by way of set off against any future costs and all damages made in his favour in the proceedings.

• Lockley Order.

R (on the application of Newham LBC) v Stratford Magistrates Court and Others [2012] EWHC 325 (Admin).

• A judge had erred in awarding costs to a party who had been successful in opposing a licensing decision of a local authority as they ignored the default position that even if the party had succeeded there should be no order for costs.

Simcoe v Jacuzzi UK Group [2012] EWCA Civ 137

• The Court of Appeal found interest in the County Courts is recoverable on costs from the date of the Order giving rise to an entitlement to costs.

Dockerill (1) Healy v Tullett; Macefield v Bakos; Tubridy v Sarwar [2012] EWCA Civ 184

• Small Claims costs were not fixed under Part 45 but instead subject to detailed assessment

• guidance in O’Beirne v Hundson [2010] (1) WLR 1717 (CA) applies:

• Unless there is some complex issue necessitating the retention of solicitors the recoverable costs will be minimal.

• This decision severely restricts costs recovery in respect of minors where damages are below £1,000.


Third Party Funding

What is Third Party Funding?

What is Third Party Funding?

• Relatively new method of funding litigation.

• Third Party Funders or Litigation Funders fund costs of litigation in return for a percentage of the damages recovered.

• May be attractive to Litigant if short of funds or risk averse.

• Third Party Funders are professional fund investors - they usually also take out an ATE policy to cover opponent costs should the claim be lost.

Code of Conduct for Litigation Funders

• Civil Justice Council published a voluntary Code in November 2011

• Newly formed Association of Litigation Funders (ALF) has agreed to abide by the Code

• Provides: Litigant to take independent legal advice on the Funding Agreement

• Control of the litigation must remain with the funded solicitors

• Funders must maintain adequate financial resources to cover funding liabilities for minimum of three years

Litigation Funding Agreement

• The Litigation Funding Agreement shall state whether, and to what extent, the Funder will:

– satisfy an adverse costs order;

– pay any premium for costs insurance;

– give security for costs;

– meet any other financial liability

Adverse Costs

• Will funded solicitors be liable for adverse costs? See principles in Arkin v Borchard Lines Ltd and Sibthorpe and Morris v Southwark LBC

• Third Party Funder's fees not recoverable inter-partes and must be paid by client out of damages.

• Third Party Funders funding a losing case are potentially liable for opponent costs to extent of the Funder's own contribution

• ATE insurance will therefore usually be taken out to cover the risk of adverse costs.

Cases Update

• Arkin v Borchard Lines Ltd [2005] EWCA Civ 655 --- professional funders shall be liable for adverse costs to extent of their investment in the case.

• In the Matter of the Valetta Trust, 25 Nov. 2011 --- Jersey Courts held that a Litigation Funding Agreement was not unenforceable and was not contrary to public policy.

• Barchester Healthcare Ltd v Weddall QBD (Eady J) 10/11/2011 [2011] EWHC 2945 (QBD) --- Warning: Solicitors may become "funders" in certain circumstances.

Conclusions

• Litigation Funding likely to increase, in particular, following implementation of Jackson reforms.

• Voluntary Code of Conduct and the common law currently governs how Litigation Funding arrangements work - possibly future regulation?

• Relevant to larger value Commercial litigation but public bodies are also increasingly likely to come across cases where funding is involved.

• "Watch this space" ...... !!!


Service Issues

Service

• Different rules apply to:– service of the Claim Form within the jurisdiction– service of the Claim Form outside of the

jurisdiction• Furthermore, different rules of service apply to

other documents which are not Claim Forms. Given the limited time and complexities of the same; I will look at service of the Claim Form within the jurisdiction.

Service of the Claim Form– who? when? where? how?• Who?• CPR 6.4(1) –• The Court will serve the Claim Form except where: • (a) a rule or practice direction provides the Claimant must serve it; • (b) the Claimant notifies the Court that they wish to serve it; or • (c) the Court orders or directs otherwise.• CPR 6.4(3) – where the Court is to serve, copies of the Claim Form for

the Court and each party that needs to be served must be filed. • CPR 6.4(2) – where the Court serves it or decides on the method of

service.

When? CPR 7.5(1) :

Method of Service Step Required

First Class Post, DX or other service which provides for delivery on the next business day.

Posting, leaving with, delivery to or collection by the relevant service provider.

Delivery of the document to or leaving at the relevant place. Delivering to or leaving a document at the relevant place.

Personal service under Rule 6.5. Competing the relevant steps required by Rule 6.5(3).

Fax. Completing the transmission of the fax.

Other electronic method. Sending the email or other electronic transmission.

Extending time to serve the Claim Form • In general, an application to extend the time for service must be made within

the period for service under CPR 7.5, or if an extension has already been granted under CPR 7.6, within the extended period (see CPR 7.6(2)).

• If the application to extend is made outside the relevant period(s) specified above, the Court can extend the time for service of Claim Form only if, according to CPR 7.6(3):

• (a) the Court has failed to serve the Claim Form; or • (b) the Claimant has taken all reasonable steps to comply with CPR 7.5 but

was unable to do so; and • (c) in either case the Claimant has acted promptly in making the application.• Practice Direction 7A, paragraph 8.1; • Practice Direction 7A, paragraph 8.2;

Forcing service of the Claim Form:

• CPR 7.7(1) – where a claim form has been issued but not yet served, the Defendant may serve notice on the Claimant requiring him to serve the Claim Form or discontinue the claim within a period specified in that notice. That period of notice must (CPR 7.7(2)) be at least 14 days after the service of the notice.

• CPR 7.7(3) – if the Claimant fails to comply with the notice the Court may, on the application of the Defendant, dismiss the claim or make such order as it thinks fit.

Where?CPR 6.9 – the table:Nature of the Defendant to be served Place of Service

1. Individual Usual or last known address

1. Individual being sued in the name of the business Usual or last known residence of the individual; or principal or last known place of business

1. Individual being sued in the business name of a partnership

Usual or last known residence of the individual; or principal or last known place of business of the partnership

1. Limited Liability Partnerships Principal office of the partnership: or any place of business of the partnership within the jurisdiction which has a real connection with the claim

1. Corporation (other than a company) incorporated in England and Wales

Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim

1. Company registered in England and Wales Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim

1. Any other company or corporation Any place within the jurisdiction where the corporation carries on its activity; or any place of business of the company within the jurisdiction

How?

• CPR 6.3(1) provides that Claim Form may be served by the following methods:

• (a) personal service in accordance with CPR 6.5; • (b) first class post, DX or other service which provides for

delivery on the next business day, in accordance with Practice Direction 6A;

• (c) leaving it at a place specified in CPR 6.7, 6.8, 6.9 or 6.10; • (d) fax or other means of electronic communication in

accordance with Practice Direction 6A; or • (e) any method authorised by the Court under CPR 6.15.• Companies Act 2006

Deemed date of service of the Claim Form:• CPR 6.14, when a Claim Form is served in accordance

with Part 6, it is deemed to be served on the second business day after completion of the relevant steps required under CPR 7.5(1) (see earlier slide for the table).

• The deemed date of service of a Claim Form was not capable of rebuttal by evidence of actual receipt of the Claim Form by the Defendant. The aim of the rule was to achieve procedural certainty: Anderton v Clwydcc [2002] EWCA Civ 933.

Service of the Claim Form on a child or of a protected party• CPR 6.13(1)- where the Defendant is a child (but not also a protected party),

the Claim Form must be served on: • (a) one of the child’s parents or guardians; or • (b) if there is no parent or guardian, an adult with whom the child resides or

in whose care the child is.• If a Defendant is a protected party then, by virtue of CPR 6.13(2), the Claim

Form must be served on: • (a) the attorney under a registered enduring power of attorney with authority

in respect of the protected party; or • (b) the donee of a lasting Power of Attorney with authority in respect of the

protected party; or • (c) the deputy appointed by the Court of Protection; or • (d) if there is no such person in any of the above three categories, an adult

with whom the protected party resides or in whose care the protected party is.

Case law

• Claim Form service by fax: dispensing with service :

• Thorne v Lass Salt Garvin (A Firm) [2009] EWHC 100 (QB)

• Claim Form service extension: limitation period :

• Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203


Limitation and Service Issues

Introduction

• Limitation and Personal Injury Claims;

• Some cases you may have missed;

• Service of the Claim Form– who? when? where? how?

Limitation and Personal Injury Claims• The basic period – section 11 of the Limitation Act 1980:• “Where the Claimant seeks damages in respect of personal

injury to the Claimant or any person, the claim must be brought within 3 years of:

• (a) the date on which the cause of action accrued: or • (b) the date of knowledge (if later) of the person injured”.• When the injured person dies before a limitation period expires,

the limitation period for the cause of action surviving for the benefit of his Estate is 3 years from (section 1 Law Reform (Miscellaneous Provisions) Act 1934):

• (a) the date of death; or • (b) the date of the personal representatives knowledge.

The discretion – Limitation Act, section 33.

• Under section 33 the Court has the power, if it considers it equitable to do so, to disapply the limitation period set out in section 11.

• The provisions leave a number of questions to be addressed:

• (a) when does the course of action accrue? • (b) what is the date of knowledge?• (c) when will the Court exercise its discretion and disapply

the limitation provisions?

Accrual of the course of action:

• There is no definition of this phrase in the Limitation Act.

• Cartledge v E. Jopling & Co Limited [1963] A.C. 758 HL.

The date of knowledge:• Limitation Act, section 14 – the date on which the Claimant first

had knowledge of the following facts: • (a) that the injury in question was significant; • (b) that the injury was attributable in whole or in part to the act or

omission which is alleged to constitute a negligence, nuisance or breach of duty;

• (c) the identity of the defendant; • (d) if it is alleged that the act or omission was that of the person

other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against a defendant; and knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

Knowledge:

• Limitation Act, section 14.3 - for the purposes of this section, a person’s knowledge includes knowledge which he might reasonable have been expected to acquire –

• (a) from facts observable or ascertainable by him: or • (b) by facts ascertainable by him with the help of medical

or appropriate expert advice which is reasonable for him to seek: but a person shall not be fixed under this sub-section with knowledge of a fact ascertainable only with the help of expert evidence so long as he has taken the reasonable steps to obtain (and, where appropriate) to act on that advice”.

Knowledge cont…:

• Adams v Bracknell Forest BC [2004] UKHL 29

• Whiston v London SHA [2010] EWCA Civ 195

• Jones v Norfolk CC [2010] 1313 (QB)

Significant injury:

• A v Hoare [2008] UKHL6:• “The test itself is an entirely impersonal standard: not whether

the claimant himself would have considered the injuries sufficiently serious to justify proceedings but whether he would ‘reasonably’ have done so. You ask what the claimant new about the injury he had suffered, you add any knowledge he had about the injury which may have been imputed to him under Section 14(3) and you ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against the defendant who did not dispute liability and was able to satisfy a judgement…”

Attributable in whole or part to the act or omission…• Aspargo v North Essex DHA [1997] P.I.Q.R 235

• Davis v Ministry of Defence, The Times, August 7, 1985

The identity of the Defendant:

• The limitation period will be extended where the Claimant is unable to identify the Defendant; particularly where the defendant has been less than forthcoming

• Simpson v Northwest Holst Southern Limited [1980] 1 WLR 968

• Cressey v Timm & Son [2005] EWCA Civ 763

The discretion - Section 33 of the Limitation Act 1980:• If it appears to the Court that it would be equitable to allow

an action to proceed having regard to the degree to which:– The provisions of section 11 (or 11a) or 12 of this Act

prejudice the plaintiff or any person whom he represents and;

– Any decision of the Court under this section would prejudice the defendant or any other person whom he represents;

– The Court may direct that those provisions shall not apply to any specified course of action to which the action relates.

What the Court is to take into account:• The Court is to have regard to all the circumstances of the case and in particular to:

– The length, and the reason for, delay on part of the claimant:– The extent to which, having regard to the delay, the evidence adduced

or likely to be adduced by the claimant or defendant is likely to be less cogent that if the action had been brought in time.

– The conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to reasonable requests or information or inspection for the purposes ascertaining facts which were or might be relevant to the claimants cause of action against the defendant.

– The duration of any disability of the claimant arising after the accrual with a cause of action.

– The extent to which the claimant acted promptly once he knew the act or omission might be capable of giving rise to an action for damages.

– The steps taken, if any, by the claimant to obtain medical, legal or other expert evidence in the nature of such advice he may have received.

Applying the discretion: the balance of prejudice • Kain v Francis [2008] EWCA Civ 1451:• “It appears to me that there is now a long line of

authority to support the proposition that, in a case where the defendant has had aired a notice of the claim, the accrual of a limitation defence should be regarded as a windfall and the prospects of its loss, by the exercise of the section 33 discretion, should be regarded as either no prejudice at all…or only a slight degree of prejudice”.

Delay: what period?

• For the purposes of section 33(3)(a) of the Limitation Act, the delay is that after the expiry of limitation period. However, looking at all the circumstances, the Court can look at any earlier delay.

• McDonnell v Walker [2009] EWCA 1257:

Section 33 – exercising the discretion • AB v Newgent Care Society [2010] EWCA 1005

(QB):

Some cases you may have missed

• Sir Robert Lloyd & Co Limited v Hoey [2011] EWCA Civ 1060

• Hatfield v Trafford Council, Manchester County Court 3 April 2012

• HBL v Wirrall MBC High Court QBD 8 December 2011


Judicial Review

Case Update

Risks in Reducing Public Services

• Breaches of existing contractual obligations;• Reducing services where the service user has, through

assessment of otherwise, an existing established right to the service;

• Reducing services in breach of a legitimate expectation that services will continue for either a fixed period or indefinitely; and

• Adopting an unlawful process in making the decision to reduce services, in particular:– Making sure the public body follows its own internal procedural

rules and any statutory obligations applying to the decision making process;

– Making sure any consultation obligations are complied with; and – Being mindful of the need to give due regard to equality duties

in all decision making.

Consultation

• R (on the application of W) v Birmingham City Council [2011] EWHC 1147, 19 May 2011

• R (on the application of Luton Borough Council & others) v Secretary of State for Education [2011] EWHC 217 (Admin), 11 February 2011

• Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532, 16 June 2011

• R (on the application of Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528, 16 June 2011

Jurisdiction

• White v Secretary of State for Communities and Local Government [2011] QBD (Admin)

• R (Hope & Glory) Public House Limited) v City of Westminster Magistrate's Court [2011] EWCA Civ 31

And Finally…

• R (on the application of (1) Homesun Holdings Ltd (2) Solar Century Holdings Ltd (3) Friends of the Earth) v Secretary of State for Energy and Climate Change [2011] EWHC 3575 (Admin); [2012] EWCA Civ 28

• R (on the application of the British Bankers Association) v Financial Services Authority [2011] EWHC 999 (Admin), 20 April 2011


CPR quiz

Philippa Dempster

Documents

Litigation skills update