Chapter 1: Introduction To Civil Litigation PDF

Introduction to Civil Litigation 1 CHAPTER 1 Introduction to Civil Litigation 1.1 The Woolf and Jackson reforms 1 1.2 The Rules...

Introduction to Civil Litigation 1 CHAPTER 1 Introduction to Civil Litigation 1.1 The Woolf and Jackson reforms 1 1.2 The Rules 5 1.3 An overview of a civil claim 6 1.4 Case analysis 9 1.5 Strategic Lawsuits Against Public Participation 12 1.6 Useful websites 13 LEARNING OUTCOMES After reading this chapter you will have learned: why the Civil Procedure Rules were introduced the role of the Civil Procedure Rules how the overriding objective is applied the obligation on parties to further the overriding objective when the main steps in civil litigation are taken how to carry out and record case analysis. 1.1 THE WOOLF AND JACKSON REFORMS The nature of civil litigation in England and Wales changed fundamentally on 26 April 1999, when the Civil Procedure Rules 1998 (CPR 1998) (SI 1998/3132) came into force. These Rules are the courts’ attempt to implement the ‘Woolf Reforms’, as set out in Lord Woolf ’s report, Access to Justice, which was published in 1996. The philosophy behind this report was that the litigation system at the time was too expensive, too slow and incomprehensible to many litigants. In April 2013, following a comprehensive review of the system by Lord Justice Jackson, further extensive changes were introduced aimed at enhancing the courts’ powers to control the costs of litigation and permitting different methods of funding for civil cases. 1.1.1 The overriding objective Lord Woolf hoped that his proposed reforms, now enshrined in the CPR 1998, would lead to a civil justice system that was just in the results it delivered, fair in the way it treated litigants, and easily understood by users of that legal system. It was hoped that the new system would also provide appropriate procedures at a reasonable cost which could be completed within a reasonable time-scale. In particular, he thought it necessary to transfer the control of litigation from the parties to the court. The court would then determine how each case should progress by making appropriate directions, setting strict timetables and ensuring that the parties complied with them, backed up by a system of sanctions which the court could impose itself without the need for an application by any party. The overriding objective of the reforms is set out in r 1.1 of CPR 1998: 2 Civil Litigation (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable— (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate— (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f ) enforcing compliance with rules, practice directions and orders. In Maltez v Lewis (1999) The Times, 4 May, the claimant’s application was for a court order that the defendants should be prevented from instructing leading or senior counsel (barrister) for a copyright dispute between the parties as the claimant had only been in a position to instruct a junior counsel of seven years’ experience. The court held that it was the fundamental right of citizens to be represented by counsel or solicitors of their own choice. The court did not have a power to require a party to change their solicitors, but the court was able to ensure compliance with the overriding objective. For example, if one party had instructed a big firm of expensive solicitors and the other party could only afford to instruct a small firm then the court could and should ensure that a level playing field was achieved. That might occur on disclosure (see Chapter 11) by allowing the smaller firm more time, or in the preparation of trial bundles (see Chapter 14) the court could direct that the larger firm prepared them. The court had a duty to ensure a fair trial and was used to dealing with one side being more expertly represented than the other. The court could ensure compliance with the overriding objective where the representatives could be said to be unequal. The court has power to prevent a party being unfairly required to pay excessive costs because the other party has instructed unreasonably expensive advisers (see generally Chapter 14). In addition, note that in his Final Report, Lord Woolf suggested that: Where one of the parties is unable to afford a particular procedure, the court, if it decides that that procedure is to be followed, should be entitled to make its order conditional upon the other side meeting the difference in costs of the weaker party, whatever the outcome. The overriding objective must be borne in mind at all times when conducting civil litigation, both by the court, because r 1.2 states: The court must seek to give effect to the overriding objective when it— (a) exercises any power given to it by the Rules; or (b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2. and by the parties and their legal advisers, because r 1.3 states: The parties are required to help the court to further the overriding objective. 1.1.2 Parties’ duty to further overriding objective 1.1.2.1 Parties’ duty to the court In a sense, all the other rules in the CPR 1998 are designed to try to achieve the overriding objective. It is important to note that solicitors and their clients have a positive duty, pursuant to r 1.3, to help the court to further the overriding objective. As the Commercial Court Guide (para A1.10) states, ‘The Court expects a high level of co-operation and realism from the legal  Introduction to Civil Litigation 3 representatives of the parties. This applies to dealings (including correspondence) between legal representatives as well as dealings with the Court’. CPR 1.3 encourages parties to engage at all stages of litigation, not least to enable them to better understand one another’s cases, which then enables the parties to focus issues for the court to determine. (per Deputy Master Glover in Buchanan v Stennett EWHC 3550 (Ch) at ) Does the duty to assist the court to further the overriding objective mean that a party to litigation owes a duty to another party? The answer is, no. In Woodward v Phoenix Healthcare Distribution Ltd EWHC 2152 (Ch), it was said by HHJ Hodges: In my judgment, the culture introduced by the CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitors, to draw attention to that mistake. That is, in my judgment, not required by CPR 1.3; and it does not amount to ‘technical game playing. Looking first at CPR 1.3. It is headed ‘Duty of the Parties’ and requires the parties to help the court to further the overriding objective. CPR 1.2 provides that the court must seek to give effect to the overriding objective when it exercises any power given to it by the rules or interprets any rule. The content of the overriding objective is identified in CPR 1.1. By sub-rule (1), the CPR are said to be a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. CPR 1.1 (2) contains a non-exhaustive elaboration of what is meant by dealing with a case justly and at proportionate cost … None of that, in my judgment, requires the court to impose on a party a duty to inform an opposing party of an error which has been made, even if there is still time for the opposing party to cure that error … In my judgment, ‘technical game playing’ is conduct such as taking arid procedural points which are, or may be, technically correct, but which are contrary to the spirit in which litigation should now be conducted, in terms of furthering the overriding objective. ‘Technical game playing’ is conduct such as resisting meritorious applications for relief from sanctions in circumstances where, in accordance with the criteria in Denton v White, such an application is bound to succeed. 1.1.2.2 Example In the case of Hannigan v Hannigan 2 FCR 650, the Court of Appeal was faced with a claim that should have been started under Part 8 using Form N208, but in fact it was commenced on a pre-CPR form with the same number. The defendants sought to strike out the claim. The claimant conceded eight failings, namely: (a) the claim was issued on the wrong form; (b) the statement of case was not verified by a statement of truth; (c) there was a failure to include the Royal Coat of Arms; (d) the first defendant was incorrectly named; (e) Mrs Hannigan’s witness statement was signed in the name of her firm rather than by her personally; (f ) her witness statement did not have the requisite legend in the top right-hand corner; (g) her witness statement failed to have marginal notes or a 3.5cm margin; and (h) the exhibit to her witness statement failed to have the requisite legend in the top right- hand corner, or a front page setting out a list of the documents and the dates of all the exhibits. It also failed to have the documents paginated. The district judge said that the proceedings were ‘fundamentally flawed’ and the circuit judge held that ‘there is too much wrong with these proceedings to exercise a discretion in the appellants’ favour’. However, the Court of Appeal refused to strike out the claim, Brooke LJ explaining: … It has not been suggested that the claimant’s solicitors did not set out all the information required of a claimant using the Part 8 procedure (see CPR 8.2) or that the written evidence on which she intended to rely was not filed with the form which was used as a claim form or served on the defendant with that 4 Civil Litigation document (see CPR 8.5(1) and (2)). The problem was the technical one that her solicitors did not use CPR practice form N208 (the Part 8 claim form) to start the claim contrary to para 3.1 of the first Practice Direction supplementing CPR Part 7, and that they also made the other technical mistakes. I am in no doubt that the manner in which the judge exercised his discretion was seriously flawed, because he wholly failed to take into account the fact that in these proceedings, sealed by the county court within the relevant limitation period, the defendants were given all the information they required in order to be able to understand what order Mrs Hannigan was seeking from the court and why she was seeking it.... … The interests of the administration of justice would have been much better served if the defendants’ solicitors had simply pointed out all the mistakes that had been made in these very early days of the new rules and Mrs Hannigan’s solicitor had corrected them all quickly and agreed to indemnify both parties for all the expense unnecessarily caused by his incompetence. CPR 1.3 provides that the parties are required to help the court to further the overriding objective, and the overriding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties. 1.1.2.3 Professional conduct Each party, whether legally represented or not, is required to help the court to further the overriding objective. But a party has no duty or obligation to their opponent. A solicitor has a duty to act in their own client’s best interests (see 2.3.6), and that more often than not will be disadvantageous to the interests of their client’s opponent. A solicitor owes certain duties to the court and is bound by standards of professional conduct set by the Solicitors Regulation Authority (SRA – see 2.3). This reflects the public interest in the proper administration of justice; the public interest, also covering the litigants themselves, being expressed in the overriding objective of the court dealing with each case justly. 1.1.3 Judicial case management Before the introduction of the CPR 1998, the speed at which cases progressed was largely determined by the parties’ solicitors. Under the CPR 1998, the court has a duty to manage cases and will therefore determine the pace of the litigation. Rule 1.4 states: (1) The court must further the overriding objective by actively managing cases. (2) Active case management includes— (a) encouraging the parties to co-operate with each other in the conduct of the proceedings; (b) identifying the issues at an early stage; (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (d) deciding the order in which issues are to be resolved; (e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure; (f ) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step justify the cost of taking it; (i) dealing with as many aspects of the case as it can on the same occasion; (j) dealing with the case without the parties needing to attend at court; (k) making use of technology; and (l) giving directions to ensure that the trial of a case proceeds quickly and efficiently. Case management by the court is considered in further detail in Chapter 9.  Introduction to Civil Litigation 5 1.1.4 Participation of vulnerable parties or witnesses Practice Direction 1A makes provision for how the court is to give effect to the overriding objective in relation to vulnerable parties or witnesses. A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence. The court, with the assistance of the parties, should try to identify vulnerability at the earliest possible stage of proceedings and consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result in order to further the overriding objective. In particular, the court should consider ordering ‘ground rules’ before a vulnerable witness gives evidence, to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support to be put in place for that person. The following observations of Master Dr Victoria McCloud in AXX (A protected party by his litigation friend, Mr XRE) v Zajac EWHC 2463 (KB) should be noted: 34. I shall make some observations on the approach to PD1A taken here. The vulnerability provisions essentially spell out in the form of a ‘structured reasoning tool’ the process which the court should go through and the factors to consider in every case so as to ascertain whether a person is vulnerable, how it may affect their role and position in the claim, and what steps to take to assist that person to participate. It does not replace the existing provisions in cases where a party actually lacks capacity to conduct litigation, but it can and should inform the court as to steps to take where a witness is vulnerable – which could for example include situations where a party can be enabled to have capacity to do certain other things such as attend a hearing and cooperate with experts in a medical examination. 35. It will be apparent that the approach I have taken sees the new provisions as a part of the wider duty of the Court to ensure hearings, and the management of cases, are fair and to have regard to and apply equalities duties and the principles of Article 6 of the Convention. Whilst I have taken a ‘structured’ approach to applying the listed criteria and categories of vulnerability, this is on the footing that the Practice Direction is a useful reasoning tool but is neither an exhaustive set of provisions nor intended to be construed narrowly as if a statute. Hence my reading of the provision as to enabling a person to put his evidence before the court is a purposive one and not a narrow one. 36. It is I think generally known that an innovation introduced by myself many years ago suitable for some cases is the ‘disability adaptations appointment’ appropriate to complex cases with disabilities which need to be accommodated, by which, away from the argument and heat of a contentious hearing, the parties can attend before the court on what amounts to a ‘mention’ to discuss in a non- judgmental way how to plan a trial and what adaptations need to be made. In my judgment where especially vulnerable litigants are involved, consideration of disability adaptations may become relevant to the application of the vulnerability guidance in PD1A and the two are complementary. Information concerning vulnerable parties and/or witnesses can be included on many court forms, such as the claim form (see 7.2.1.6 and Appendix A(1)) and an application notice (see 10.2 and Appendix A(12)). 1.2 THE RULES 1.2.1 Scope The CPR 1998 apply to all proceedings in the County Court, High Court and the Civil Division of the Court of Appeal, except: (a) insolvency proceedings; (b) family proceedings; (c) adoption proceedings; (d) proceedings before the Court of Protection; 6 Civil Litigation (e) non-contentious probate proceedings; (f ) proceedings where the High Court acts as a Prize Court (eg, Admiralty proceedings); (g) election petitions in the High Court. Therefore, the CPR 1998 apply to virtually all types of civil litigation proceedings in England and Wales. It is important to note that the CPR 1998 only apply as to how the relevant court proceedings are conducted and not to how the court should interpret and apply any relevant substantive law (see Cowan v Foreman EWCA Civ 1336). 1.2.2 Practice Directions In order to understand and interpret the Rules correctly, it is necessary also to look at the Practice Directions which supplement the Rules. In some cases, the Practice Direction (PD) for a particular Rule is more expansive than the Rule itself. In a sense, the Practice Direction puts flesh on the bare bones of the Rule. Reference is made to the Rules and Practice Directions throughout this book. Sometimes a Rule or Practice Direction has been quoted in full; at other times it is paraphrased. When conducting civil litigation, it is essential always to check the wording of any relevant Rule or Practice Direction as there are frequent amendments. The Rules can also be accessed on the Internet, via the website of the Ministry of Justice and GOV.UK (see 1.5), and HM Courts and Tribunals Service website (see 1.5) provides access to court forms, explanatory leaflets and details of current court fees (amongst other things). 1.3 AN OVERVIEW OF A CIVIL CLAIM Appendix C(1) sets out a flowchart showing the structure of a case that proceeds from the pre- action steps right through to a trial and the matters that may arise thereafter. We shall call these the five stages of litigation. 1.3.1 Stage 1: pre-commencement of proceedings 1.3.1.1 Client’s objectives With a new client it is vital to identify the client’s objectives. Ask yourself: what is the client really seeking to achieve, legally or otherwise? Do they want compensation, an apology or their ‘day in court’? Are all the suggested types of damage recoverable? Is it too late to claim a remedy, eg rejection of goods? In a commercial case, is a dispute damaging the client’s business, and is maintaining a business relationship with the other side important? 1.3.1.2 Prospective parties It is vital to ensure you consider who will constitute all the potential parties to any negotiations and court proceedings. Issues of professional conduct may arise (eg, a conflict of interest (see 2.3)). Moreover, the general rule is that ‘all persons to be sued should be sued at the same time and in the same action’: see Morris v Wentworth-Stanley QB 1004. Once all potential defendants have been identified and located, consideration must be given as to whether each is worth pursuing (see 2.6). 1.3.1.3 Evidence At the end of the first interview summarise the steps you and the client will take and the reasons for these. The key task for a solicitor is to set about collecting relevant evidence. Never delay taking a statement, known as a proof of evidence, from the client and potential witnesses. Memories fade and evidence has a nasty habit of vanishing. So, if a person has a story to tell or documents that might help, get that information quickly.  Introduction to Civil Litigation 7 1.3.1.4 Costs Of course, the client will need to know from the outset how their legal costs are to be calculated and paid for. As to the important topic of funding, see 2.4. 1.3.1.5 Limitation and jurisdiction You also need to address the questions of limitation and jurisdiction. You must work out when the limitation period expires and ensure that a careful diary note is kept of this. If, for example, a client is involved in a commercial dispute, you should check to see if the contract provides for any litigation to be conducted in England and Wales or elsewhere (see further 2.8) or for a shorter limitation period (see further 2.5.2.5). 1.3.1.6 Dispute resolution A client should not just launch into litigation. That is a last resort. A solicitor must always consider with the client what form of dispute resolution would be appropriate. The advantages and disadvantages of viable options should be discussed, and the client’s expectations will have to be carefully managed. Therefore, a solicitor must ensure that the client receives a full and frank assessment of the merits of their case. The client will need to weigh up many factors, such as the costs involved, the time and resources that the client will have to commit to the matter, and the effect any particular dispute resolution process may have on the client’s business. 1.3.1.7 Pre-action protocols Pre-action protocols govern the steps parties should take before commencing a court case. The parties should establish what issues are in dispute, share information that is available to each of them concerning those issues and endeavour to resolve those matters. Failure to follow a protocol step or its spirit, without good reason, will usually incur a sanction for that party if litigation is commenced (eg, a successful claimant might be penalised by the award of less or no interest and/or costs). A number of protocols have been approved by the Ministry of Justice, and these set out how parties should behave pre-action in particular types of cases, such as professional negligence claims (see 3.7). Where no approved pre-action protocol applies, there is a Practice Direction on Pre-action Conduct and Protocols that the parties should follow (also see 3.7). The main pre-action considerations for parties under either an approved protocol or the Practice Direction are set out at 1.3.1.8 to 1.3.1.10 below. 1.3.1.8 Alternative Dispute Resolution (ADR) Parties and their legal representatives are encouraged to enter into discussions and/or negotiations prior to starting proceedings. Whilst the Practice Direction and approved protocols do not usually specify how or when this should be done, the parties must give serious consideration to using any suitable form of available ADR (see Chapter 4). If proceedings are commenced, the parties must remember that by r 1.4(2)(e), active case management by the court will include encouraging them to use an ADR procedure if the court considers that appropriate. See, for example, 9.5.1.1 and 14.3.3.6 (as to costs). 1.3.1.9 The standard letter before claim Immediately after collecting sufficient evidence to substantiate a realistic claim, and before addressing issues of quantum in detail, the potential claimant should send to the proposed defendant a letter detailing the claim. Where the claim is one to which an approved protocol applies, such as professional negligence, the information to be included in the letter before claim will be specified in the protocol (see further 3.7 and Appendix A(20)). Where no approved protocol applies, see Appendix A(19), Practice Direction – Pre-action Conduct and Protocols. Enough information must be given so that the prospective defendant can 8 Civil Litigation commence investigations and at least put a broad valuation on the claim. The prospective claimant should set out any proposals they have for ADR. 1.3.1.10 The letter of response The approved protocols and the Practice Direction on Pre-action Conduct and Protocols give guidance on the matters to be dealt with in the letter of response. (See 3.8 and Appendices A(19) and (20).) The prospective defendant should acknowledge safe receipt of the letter of claim and, after investigating the matter, should state whether or not liability is admitted. Reasons should be given if liability is denied. Where primary liability is admitted but contributory negligence is alleged, details of that should be provided. Note that the potential claimant should also respond to any such allegation before issuing proceedings. The question of ADR should also be addressed. 1.3.2 Stage 2: commencement of the claim Before starting a court case, the client should be fully aware of what will be involved. That is more than the chances of success and the pros and cons of litigation. The client should have a good idea of what will happen next, as well as how long that might take and the likely cost. In particular, the client should appreciate that the court will impose a strict timetable of steps that must be taken. Not only must the client keep relevant documentation safe, it must be clear to the client what documents, if any, that are harmful to their case will have to be shown to the other side (see Chapter 11). In addition, the client should be told that they might have to attend court, not only for the trial but for hearings before that. The client must be informed that if they want to stop the litigation at any time (see 13.6), they will have to pay the opponent’s costs, unless a more favourable settlement can be negotiated. At all times, the client’s expectations must be carefully managed. Proceedings are commenced by a claim form. A specimen can be seen at 7.2.1.6. To activate the claim, this must be served on the defendant. Full details of the claim, called particulars, must also be served on the defendant. If the defendant wishes to contest the claim, they must file at the court and serve on the claimant a defence. This triggers in the County Court the allocation of the case to a particular ‘track’. A claim of up to £10,000 will usually be allocated to the small claims track. Typically, these claims concern consumer disputes and the court does not expect parties to be legally represented. Claims exceeding £10,000 and up to £25,000 are usually allocated to the fast track. Whilst parties will usually have legal representation on this track, the court will tightly control costs, as well as the type and amount of evidence each party can rely on. In particular, the expectation is that a single joint expert should be used by the parties where expert evidence is necessary, and the trial must be conducted within one day (effectively five hours). Claims exceeding £25,000 are usually allocated to the multi-track. As a claim cannot be started in the High Court unless it exceeds £100,000 (£50,000 for personal injury claims), all claims in that court are dealt with on the multi-track. 1.3.3 Stage 3: interim matters Once on a track, the court carefully manages a case. Directions will be given to the parties as to the steps that must be taken to prepare for trial. A strict timetable will be imposed as to when each step must be taken. On the small claims track and fast track the expectation is that these directions can be given without any court hearing. In multi-track cases of any complexity it is usual for the parties to meet with a judge at a so-called case management conference in order clearly to define the issues in dispute and determine what steps need to be taken and when, in order to prepare for trial. The most common case management directions are for: (a) standard disclosure (ie, the parties list the documents in their possession that they intend to rely on, or which are adverse to their case, or support an opponent’s case (see  Introduction to Civil Litigation 9 Chapter 11, in particular 11.20 as to the disclosure pilot scheme currently operating in the Business and Property Courts)); and (b) the exchange of evidence before trial that the parties intend to rely on (eg, experts’ reports and statements, known as ‘witness statements’, of non-expert witnesses (see Chapter 12)). Whatever the track, the parties will be working towards either a known trial date, or at least a period of time in the future when the trial will occur. In addition to managing the procedural steps that the parties must take to prepare for trial, the court in most multi-track cases will also carry out costs management. This process allows the court to manage both the steps to be taken and the costs to be incurred by the parties to the proceedings so as to further the overriding objective (see 1.1.1). As to case and costs management generally, see Chapter 9. In addition to case and costs management directions, parties may during this stage apply to the court for any specific orders that might be required (eg, to force an opponent who has neglected to take a required step in accordance with the timetable to do so on pain of having their case thrown out by the court). See further Chapter 10. 1.3.4 Stage 4: trial A trial on the small claims track is informal and conducted at the discretion of the judge. The formal rules of evidence apply on the fast track and multi-track. At the end of a fast track trial, the judge will usually have resolved all issues (ie, liability, quantum (if relevant) and costs). As to costs, the judge will decide if any party should pay the other’s costs and, if so, how much. This is known as a summary assessment of costs. The parties must provide each other and the court with a detailed breakdown of costs for this purpose. On the multi-track, the trial judge will decide who should pay costs. The general rule is the loser pays the winner’s costs. If the parties cannot subsequently agree on the amount of those costs, they are determined post trial by a different judge, known as a costs judge, via a process called detailed assessment. See generally 1.3.5 and 14.3. 1.3.5 Stage 5: post-trial On all tracks a party may decide to appeal all or part of the trial judge’s decision. As stated at 1.3.4 above, in a multi-track case, a detailed assessment of costs as awarded by the trial judge will take place if the parties cannot agree on the amount. A party awarded damages and/or costs will expect to be paid by the date set by the court. What if that does not happen? The party will have to apply to the court to enforce the judgment. Most commonly, this involves instructing court officials to attend the debtor’s premises and to take their belongings to be sold at public auction. The proceeds are then paid to the party. It is therefore vital, as indicated at 1.3.1 above, to ensure that at stage 1 steps are taken to check that any potential defendant is actually worth suing. 1.4 CASE ANALYSIS 1.4.1 Causes of action A cause of action is the legal basis of a claim. Examples include breach of contract, negligence, negligent misstatement, misrepresentation and nuisance. To determine whether a client has a cause of action and their prospects of success, it is vital at the outset that a solicitor analyses all the known facts, whether given orally by the client and any witnesses, or contained in documentation. Lawyers call this evidence, and it is important to appreciate that the term is not limited to court proceedings. 10 Civil Litigation 1.4.2 Example: breach of contract Take a claim for breach of contract as an example. The first thing to do is to assess the evidence that is available that will establish that there was a contract. Common law requires there to be an agreement with a promise, consideration, and intention to create legal relations. The last, certainly in any business context, will not be an issue. In practical terms, the solicitor will need to consider how and when the contract in dispute was formed, and whether it was written or oral. If it was written, then a copy should be obtained. If it was oral, the solicitor needs details of when and where it was made, who actually entered into the contract for each party, and the express terms agreed. If the dispute concerns what express terms were agreed in a contract, the solicitor needs to assess the available evidence. If it is a written agreement, then the document will help; however, there may still be questions over the interpretation of those terms. In the case of an oral contract, this can be particularly tricky, as often the only evidence appears to come from the parties who made the contract. If they have different recollections of what was agreed, then the case can turn on their credibility. In such circumstances, it is important to look for other evidence, for example, someone else who was present when the contract was discussed, or notes of the meeting made by the client. In addition, where a contract is entered into during the course of a party’s business, there may also be implied terms which apply to both written and oral contracts. When the solicitor is satisfied that the existence of a contract can be established (or is not likely to be in dispute) and its terms, the solicitor will then need to consider how the client will prove that there was a breach which has resulted in recoverable losses. What does the client say the opponent did (or failed to do) that amounts to a breach of the contract? This is a question of fact, and the solicitor must assess the evidence the client has to prove the claim. Once a breach has been established, the factual consequences of that breach should be identified. Then each item of loss claimed will have to be similarly investigated. Finally, an assessment needs to be made of the overall strengths and weaknesses of the claim, and consideration given to what further evidence needs to be obtained. 1.4.3 Summary: breach of contract A list of the basic facts that need to be established in order to succeed in making a claim for breach of contract includes the following: (a) contract (its formation – parties, date, written or oral, subject matter (goods, goods and services/materials and work, services), consideration); (b) terms relied on (express and/or implied); (c) breach of those terms; (d) factual consequences of the breach of those terms; (e) damage and loss. Often, solicitors record their analysis in a grid chart. An example follows. Client: Factory Goods (Mythshire) Limited (‘FG’) Opponent: Cool Systems (Mythshire) Limited (‘CS’) Cause of action: Breach of oral contract made on 29 November [last year] for CS to supply and install an air conditioning system at FG’s factory. Implied terms relied on: The air conditioning system would be of satisfactory quality and installed exercising reasonable care and skill – s 4(2) and s 13 of the Supply of Goods and Services Act 1982.  Introduction to Civil Litigation 11 Elements to Facts to establish Evidence available Evidence to obtain establish Contract CS, by its employee, Mr CS’s estimate, invoice If necessary, proof of Wise, agreed on 29 and receipted account. evidence from Mrs November [last year], Proof of evidence of Ms Clark who was present with Ms Riley, FG’s Riley. with Ms Riley on 29 employee, to supply FG November [last year]. with and install at FG’s factory a new air conditioning system. Implied term CS supplied the air N/a – not likely to be N/a – not likely to be conditioning system disputed as implied by disputed. (goods) to FG and statue. installed it (services) at FG’s factory as part of CS’s business. Breach The system is not of Report from the Head of A report from an expert satisfactory quality and FG’s factory confirming FG’s it was installed without maintenance team allegation. reasonable care and identifying faults in the skill being taken. The system and its system does not start installation. automatically and has to Daily record of dealings be set manually. The with the system kept by system failed to achieve FG’s factory the required setting of maintenance team. between 24 and 25 degrees Celsius in the summer and between 17 and 19 degrees Celsius in winter. Factual Portable air Written complaints by Take a detailed proof of consequences conditioning units had FG’s staff about evidence from the to be hired. The factory extremes of individuals concerned. had to close in temperatures since A report from an expert excessively hot or cold installation. confirming the weather and suffered a Daily record of factory allegations. loss of profit. temperatures kept by The system will have to Mrs Vaux, FG’s be either upgraded or employee responsible replaced. for health and safety. 12 Civil Litigation Elements to Facts to establish Evidence available Evidence to obtain establish Damage and (1) Cost of upgrading (1) None. (1) A report from an loss system supplied or (2) Records of Mr expert. replacement of that Frame, FG’s head of (2) FG’s profit and loss system with a suitable human resources, accounts, production system. recording time factory records, etc. (2) Loss of profit – time closed. (3) Expert needs to factory had to close due (3) Receipted invoices consider this point. to excessively hot for portable units. working conditions. (3) Client tried to mitigate loss – hired portable air conditioning units but these were insufficient. As a case develops, you should continually review which issues remain in dispute and how those are to be proved. There are three key case analysis points: viability, liability, and quantum. Chapters 2 and 3 will discuss the steps you will need to take in order to complete your case analysis. 1.5 STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION Solicitors need to be aware of an increasing use of a form of litigation known collectively as SLAPPs – Strategic Lawsuits Against Public Participation. SLAPPs can be characterised as an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. These actions are typically initiated by reputation management firms and framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest. The SRA expects solicitors to be able to identify proposed courses of action (including pre- action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way. Solicitors should advise clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal. The following are designated by the SRA as red flags or features which are commonly associated with SLAPPs. Although they might not by themselves be evidence of misconduct, nor will they necessarily be present in all cases, they might help a solicitor identify a proposed SLAPP: The target is a proposed publication on a subject of public importance, such as academic research, whistle-blowing or investigative journalism. The instructions are to act solely in a public relations capacity, for example by responding to pre-publication correspondence with journalists about a story which is true and does not relate to private information. The client asks that the claim is targeted only against individuals (where other corporate defendants are more appropriate), is brought under multiple causes of action or jurisdictions/fora, and/or in a jurisdiction unconnected with the parties or events. Further details can be found on the SRA’s website at.  Introduction to Civil Litigation 13 1.6 USEFUL WEBSITES The starting point for any exploration of the Web in this area should probably be the Ministry of Justice or GOV.UK websites that host the Civil Procedure Rules, at or. Court forms and guides are on the HM Courts and Tribunals Service site. For ease of reference, copies of commonly used court forms can be found in Appendix A. However, these forms are often subject to change and you should check on the website for the most recent version. 14 Civil Litigation