Litigation skills update
18 April 2012
Top 10 Litigation Tips
• Five preparing for disputes
• Five preparing for Court hearings
“The large print giveth and the small print taketh
away” (Tom Waits)
• Curse of the pro-forma contracts
• What terms were incorporated?
"In theory, there is no difference between theory
and practice. But, in practice, there is."
• Internal processes
• E-disclosure - West African Gas Pipeline Co
Limited v Willbros Global Holdings Inc 
EWHC 396 (TCC)
“It is a capital mistake to theorize before you
have all the evidence. It biases the judgment.”
• Evidence wins cases
• Preserve documents
• Witness statements
“To jaw-jaw is always better than to war-war.”
• Mediation – timing?
• Rolf v De Guerin  EWCA Civ 78
“I run on the road, long before I dance under the
lights” (Muhammad Ali)
• Resolution strategy
• Reading time
• Presentation of documents
• 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
Other Pre-Hearing Reading
• Authorities – what does judge really need?
• Allocation Questionnaire
• Local rates
• Explain large items
• Brief your advocate
Costs Update & Limitation and
• 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
• 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
• What now for near misses?
Acceptance of pre-action Part 36
• 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
• 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  EWHC 325
• 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 
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  EWCA Civ 184
• Small Claims costs were not fixed under Part 45 but
instead subject to detailed assessment
• guidance in O’Beirne v Hundson  (1) WLR 1717 (CA)
• 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
• 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
• Civil Justice Council published a voluntary Code in
• Newly formed Association of Litigation Funders (ALF) has
agreed to abide by the Code
• Provides: Litigant to take independent legal advice on the
• Control of the litigation must remain with the funded
• 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
• 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
• ATE insurance will therefore usually be taken out to cover
the risk of adverse costs.
• Arkin v Borchard Lines Ltd  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  EWHC 2945 (QBD) --- Warning:
Solicitors may become "funders" in certain circumstances.
• 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" ...... !!!
• Different rules apply to:
– service of the Claim Form within the jurisdiction
– service of the Claim Form outside of the
• 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?
• 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
When? CPR 7.5(1) :
Method of Service Step Required
First Class Post, DX or other service which provides for delivery Posting, leaving with, delivery to or collection by the
on the next business day. 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
• 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.
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 Usual or last known residence of the individual; or principal or last
partnership 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 Principal office of the corporation; or any place within the jurisdiction
England and Wales 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
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
• CPR 6.3(1) provides that Claim Form may be served by the
• (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
• (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
• 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 
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
• Claim Form service by fax: dispensing with
• Thorne v Lass Salt Garvin (A Firm)  EWHC
• Claim Form service extension: limitation period :
• Hoddinott v Persimmon Homes (Wessex) Limited
 EWCA Civ 1203
Limitation and Service Issues
• Limitation and Personal Injury Claims;
• Some cases you may have missed;
• Service of the Claim Form– who? when? where?
Limitation and Personal Injury
• 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
• (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,
• 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
• (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
• Cartledge v E. Jopling & Co Limited  A.C.
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.
• 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
• Adams v Bracknell Forest BC  UKHL 29
• Whiston v London SHA  EWCA Civ 195
• Jones v Norfolk CC  1313 (QB)
• A v Hoare  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  P.I.Q.R 235
• Davis v Ministry of Defence, The Times, August 7,
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
• Simpson v Northwest Holst Southern Limited
 1 WLR 968
• Cressey v Timm & Son  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
– Any decision of the Court under this section would
prejudice the defendant or any other person whom he
– The Court may direct that those provisions shall not
apply to any specified course of action to which the
What the Court is to take into
• 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
– 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  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
• McDonnell v Walker  EWCA 1257:
Section 33 – exercising the
• AB v Newgent Care Society  EWCA 1005
Some cases you may have missed
• Sir Robert Lloyd & Co Limited v Hoey 
EWCA Civ 1060
• Hatfield v Trafford Council, Manchester County
Court 3 April 2012
• HBL v Wirrall MBC High Court QBD 8 December
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
• 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;
– Being mindful of the need to give due regard to equality
duties in all decision making.
• R (on the application of W) v Birmingham City Council
 EWHC 1147, 19 May 2011
• R (on the application of Luton Borough Council & others) v
Secretary of State for Education  EWHC 217
(Admin), 11 February 2011
• Vale of Glamorgan Council v Lord Chancellor 
EWHC 1532, 16 June 2011
• R (on the application of Robin Murray & Co) v Lord
Chancellor  EWHC 1528, 16 June 2011
• White v Secretary of State for Communities and
Local Government  QBD (Admin)
• R (Hope & Glory) Public House Limited) v City of
Westminster Magistrate's Court  EWCA Civ
• 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  EWHC 3575 (Admin);
 EWCA Civ 28
• R (on the application of the British Bankers
Association) v Financial Services Authority 
EWHC 999 (Admin), 20 April 2011