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					 Litigation skills update

 Introduction
                            18 April 2012




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 Top 10 Litigation Tips
 • Five preparing for disputes
 • Five preparing for Court hearings




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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




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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?




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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




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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   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
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      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
                                                                 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




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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




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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




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