Professional Ethics pre-reading (to include student materials for the 1st small group session)
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DOCUMENT 4AN OVERVIEW OF THE PROCEDURE IN THE CIVIL COURTS The purpose of this document is to give you an overview of the civil litigation process. Having read it you will have a context in which to place the various aspects of the civil litigation procedure which you will be studying on the course. 1 Starting a Civil Claim – Limitation. When faced with any new instructions, one of the most important things that counsel should establish at the outset is the time limit within which proceedings should be commenced. In order to ensure that a defendant does not have the prospect of litigation hanging over it for years and to prevent the courts being asked to deal with stale claims, the Limitation Act 1980 (found in Volume 2 of the White Book) sets out time limits within which a claimant must issue proceedings. If the claimant does not issue his/her claim within the time limit then it will be statute barred which will provide a complete defence to the claim (however meritorious the claim might be). Limitation is an equally important factor to consider when acting for a defendant as, if the claimant’s claim is statute barred then (subject to the rare exceptions where the court might disapply the limitation period in personal injury claims), this affords the defendant a complete defence. Limitation is a vast and complex topic and different time limits apply to different causes of action. This will be dealt with is a separate SGS. By way of example however, you may be interested to learn that claims for breach of contract must be commenced within 6 years of the alleged breach occurring. Personal injury claims must be commenced 3 years from the date on which the cause of action accrued (i.e. the accident occurred); or the date of knowledge (if later) of the person injured.” “Knowledge” is defined at section 14 of the Limitation Act as the first date on which the person first had knowledge that
An example where a claimant has “knowledge” at a later date than the accident may be where the claimant is a victim of a hit and run and the identity of the driver is not known until a later date. It is essential that proceedings are issued before the expiry of the relevant limitation period. You will therefore come to learn the difference between presenting a claim (which will stop time running for the purpose of limitation and is in effect when the claim form is stamped by the court) and serving the claim on the defendant (when the defendant first has sight of and is served with the legal formulation of the claim; this should normally occur within 4 months of the claim form being issued).
Once the claimant has ascertained that it is not under immediate pressure to issue its claim, then you will have realised from Activity 3, that there are protocols on pre-action conduct which need to be followed before a claim should be commenced. There are a number of different pre-action protocols designed to cover a variety of claims (e.g. for clinical negligence, judicial review, defamation, construction and engineering disputes). Litigation in court proceedings is now seen as a means of resolving a civil dispute only as a last resort, and alternative ways of attempting to settle the dispute are actively encouraged under the Civil Procedure Rules. Protocols are designed to improve the pre-action communication between the parties and to encourage settlement. You can take a look at some of the pre-action protocols in the CPR and you will see that they encourage the parties to exchange information in advance of commencing proceedings. The aim is that if both parties have a clear and full version of events and facts before them and time to reflect, that this may increase the chances of settlement. Importantly, although they are referred to as “protocols”, they are enforced by the courts and a party who fails to comply with a relevant protocol will find that they will face sanctions by the court even if they are ultimately successful (for example they may be deprived of their legal costs or part of their legal costs to which they would otherwise be entitled). Whether or not you have complied with the pre-action protocol will also need to be referred to on your Statement of Case and also in the Directions Questionnaire (which all parties will be required to file if the claim is defended). Think back to the overriding objective which you were asked to find in the Activity section of Document 3. 3 In which court should proceedings be commenced? If the pre-action protocols do not result in settlement between the parties and court proceedings need to be commenced, some thought will need to be given as to the appropriate court (whether High (HC) or County (CC)) in which to commence proceedings. Having an awareness of the court structure will assist you in deciding in which court you should commence your client’s claim or, if acting for a defendant, in considering if it is necessary for the claim to be transferred to another court. Broadly:
- Under £100,000: must be started in CC - Over £100,000: may be started in either court but should be started in HC if claimant believes appropriate because of financial value/complexity/ importance to public. Note that the threshold limit for claims to start in the High Court changed from £ 25,000 to £100,000 in 2014. - Claims under £100,000 started in HC will generally be transferred to CC for trial (unless required by enactment, specialist list or category to be dealt with in HC)
In relation to the High Court we will also consider the appropriate division in which the claim will be heard (Queens’ Bench, Chancery or Family Division). If the claim is not going to be commenced in the High Court of Justice in the Strand, then the appropriate District Registry will also need to be selected. Whilst you may choose the one that is convenient (geographically) for your client, the courts are usually more sympathetic to the defendant. The county court has moved to one single court although claims brought in the county court can be commenced in any county court “hearing centre”. There are also specific rules which apply to claims for specified sums of money 4 Documents needed to commence the claim. Proceedings are commonly commenced by using a Part 7 claim form (Practice Form N1) where there is a dispute of fact between the parties (with the issues being raised, being defined in witness statements which are served and relied on by the parties). This is the most common type of claim which you will come across on the civil litigation course and also in OPW and DRFT and CIV ADV. There is an alternative method of commencing certain proceedings know as Part 8 claims (Practice Form N208) which occur, for example, where there is no dispute of fact between the parties but the parties may want a term of a document to be construed by the court, or where an infant settlement requires the approval of the court (you will be making an application to seek approval of an infant settlement as one of your first civil advocacy applications). Different procedures are followed depending on whether you are commencing a part 7 or a part 8 claim. However, if you have taken a look at the part 7 claim form on the Ministry of Justice website, you will see that it is a simple document. The detail of the claim is not usually contained within the claim form itself, but within the particulars of claim which may be served either at the same time as the claim form or within 14 days of service of the claim form. If the particulars of claim are not included in or have not been served with the claim form, the claim form must contain a statement that particulars of claim will follow (See CPR 7.4). We will also consider the methods of service of these legal documents and when that service is deemed to take effect. This will be important to understand as time limits for responding at each stage of the civil procedure are strictly enforced by the civil courts. 5 Responding to the Claim Once a defendant has been served with the particulars of claim, then the defendant will be able to see what the legal case is against him/her. Remember, if the pre-action protocols have been followed, then there should already have been advanced exchange of information between the parties and so the legal claim and the detail of it should not come as any surprise to the defendant. The defendant will have a short time within which to respond. There are a number of options which are available to the defendant. For example, it may admit the claim but state that it needs extra time to pay. It may defend the claim and perhaps may also wish to bring a counterclaim against the claimant. It may state that it is not to blame and may lay the blame at a third party who is not yet a party to the proceedings. We will consider each of these options in some detail on the civil litigation course. You will also learn how to draft the relevant documents (e.g. a defence) on the DRFT course. The defendant may also do nothing and hope that the problem goes away! It will then get what is known as a default judgment against it and we will also consider the procedure to be followed to obtain a default judgment on behalf of the claimant and how to get the default judgment set aside if it is served on the defendant. You will have an opportunity to put this theory into practice in your CIV ADV course when you will need to use your powers of persuasion in advocacy to seek to persuade the court to set a default judgment aside and to allow your client to defend the claim to trial. 6 Allocation to the tracks Once the court becomes aware that a claim is going to be defended, then it will look at allocating the claim to one of 3 tracks. The court will make a provisional allocation and the parties will be requested to complete and file with the court a direction questionnaire and is some cases a costs budget which will give further information about the claim; for example how many witnesses the parties think that they need to prove the facts in issue; whether the parties believe that expert evidence may also be required, for which permission of the court must be sought; how long the parties feel the proceedings will last; and to which track they think that the claim should be finally allocated. With this information the claim will be allocated to the appropriate “track” which will determine how the case will be managed from then on and what “directions” the parties will need to follow. Broadly speaking the cases are allocated as follows;
CPR 26.6 sets out the scope for each track. We will consider case management in some detail and you will be able to appreciate which claims will be allocated to which track and the differences in the management of the cases in each track. Whilst the small claims track is designed for the simplest of cases, and the parties will normally only need to exchange the documents on which they rely, you will learn that in the fast and multi-track, the court will make very different orders for disclosure of documents. You may find that you need to advise your client that they are required to disclose documents which are very harmful to their case! (unless perhaps you are able to advise that such documents fall within the class of documents which are privileged from production (see paragraph 3.4 of Document 2)). The court will actively manage the cases from an early stage in terms of procedure and evidence and will always bear in mind the costs involved in the proceedings and whether it is just and proportionate that such costs should be incurred. When you come to look at multi track cases you will become familiar with the costs budgets which will be used by the parties and the courts. 7 An Outline of the Procedural Steps Yüklə 0,8 Mb. Dostları ilə paylaş:
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