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The English Legal System
The Civil Litigation Process in outline
The Woolf Reforms
Aims
• The aims of this lecture are to:
1. Introduce the stages of a litigated case in the civil courts;
2. Revise the defects in the unreformed civil litigation process;
3. Examine the Woolf reforms in detail;4. Look at the specific mechanisms that Lord Woolf
introduced to manage cases, in particular the pre-action protocols, the overriding objective, judicial case management and the enhanced use of directions.
Outcomes
• By the end of this lecture you should be able to:
1. Outline the basic stages of a litigated case;2. Summarise the defects in the previous system
of civil litigation;3. Describe the the Woolf reforms in detail;4. Outline in particular what is meant by pre-action
protocols, the overriding objective, judicial case management and the use of directions.
Outline of a civil case
• The claimant is Matthew
• Injured in a road accident, he was a cyclist
• Wishes to claim damages from the motorist who knocked him down
• Matthew has 2 witnesses
• The Defendant has a witness who says that Matthew was not looking when he took the bend
Stages of the Action
• Funding
• Can Matthew fund himself?• Will Matthew be eligible for public funding?• Are there any other options for him?
• Investigation of the claim, need to gather evidence
• What evidence is there, will they need a medical report at trial to detail the full extent of Eric’s injuries?
Contacting the other side/ Negotiation
• The solicitor should send a letter of claim, what used to be described as a letter before action
• Without prejudice negotiations should be carried out with the other side, meetings between solicitors and/or counsel to negotiate a settlement
Starting Proceedings
• Claim Form issued by the Court
• Starts the timetable for litigation running
• Should include brief details of the nature of the claim
Filing a defence
• Defendant has fourteen days to either file a defence or an acknowledgment of service
• An acknowledgment of service gives the defendant an extra fourteen days to file a defence
• The final twenty-eight day period may be extended with the consent of both the parties
• The main issue is that both sides should adopt a ‘cards on the table approach’
Post-issue Conduct of Litigation
• Exchanging Documents
• Exchanging witness statements and expert evidence
• TRIAL
(1) Pre-action Protocols
• What are they?
• What areas do they govern?
• Implications of non-compliance
(2) A new set of rules and the overriding objective
• “These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly”
• The change in the culture of litigation
Proportionality
• Amount of money involved
• The importance of the case
• The complexity of the issues
• The parties’ financial positions
(3) Judicial Case Management – CPR 1.4
• Encouraging co-operation
• Identifying the triable issues
• Helping the parties to settle
• Fixing settlement
• Cost/benefit
Striking Out a - Draconian Measure?
• Power to strike out a case comes from CPR Part 3
• Other sanctions that the court can apply
Biguzzi v Rank Leisure plc [1999] 4 All ER 934
• RL appealed against the decision to reinstate B’s claim for negligence and/or breach of contract which had been struck out for failing to adhere to the time limit
• Tried to rely on previous case law under the old system to support their proposition
Biguzzi continued
• Held:
1. Decision to reinstate correctly made;2. Court was not bound by any principles
of the old system;3. Striking out was inappropriate where
the court had other sanctions it could impose.
Walsh v Misseldine (2000) CA
• W sustained personal injuries in a RTA and commenced proceedings against M in 1992
• Confusion over the date for requesting a trial date in M’s defence
• Action struck out
• W appealed
Walsh continued
• Held:
1. If action progressed as it should have done the case should have been tried in 1995, therefore it was still possible to conduct a fair trial of the issues as they were formulated in 1995;
2. Future cases would require consideration of their own particular merits.
Summary Judgment
• Court may enter summary judgment if:
(a) It considers that (i) C has no real prospect of succeeding on
the claim or issue; or(ii) D has no real prospect of successfully
defending the claim;AND(b) There is no other compelling reason why the
case or matter should be disposed of at trial
The Tracks
• Procedure – when does allocation to a track take place?
• What influence do the parties have on track allocation?
• How does the court decide?
Small Claims Track
• Simple straightforward cases
• Value of less than £5000
• Heard by District Judges in the county courts
Fast-track
• Main procedural track
• Claims worth between £5,000 and £15,000 and for which trial will take one day or less
• The 30 week trial window
Multi-track
• More complex cases, either in financial value or because of the legal issues raised
• Much greater flexibility as to the timetable that will be adopted for these
The court’s directions
• Disclosure
• Exchange of witness statements
• Exchange of expert reports
Small claims example
• Jason borrows Sheila’s boat and runs it aground at the local lake. Sheila issues proceedings claiming £2,000 in damages for repair of the boat
• Jason disputes being at fault, has a witness to the weather conditions and questions the costs of the repairs
Possible court directions
• Parties serve written estimates of repair
• Witness statements
• Original documents
• 14 days before the hearing
• Trial listed to take place on… with a time estimate of 2 hours
Fast track example
• John has had double glazing installed and is suing Easy Windows for the full costs paid to them of £7,000
• Easy windows and John each have an expert who support their case
Possible court directions
• Both parties disclose documents within 4 weeks
• Both parties exchange witness statements within 10 weeks
• Both parties exchange their expert reports within 14 weeks and there be a meeting of the experts
• Trial within 30 weeks
Summary
• You should now be able to:
1. Outline the basic stages of the civil litigation process;
2. Summarise the defects in the old system of litigation;
3. Outline the Woolf reforms;4. State what is meant by pre-action protocols,
the overriding objective, judicial case management and directions.
Further reading
• Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9th edition)
• Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition)