The English Legal System

The Civil Litigation Process in outline

The Woolf Reforms

Aims

• The aims of this lecture are to:

1. Introduce the stages of a litigated case in the civil courts;

2. Revise the defects in the unreformed civil litigation process;

3. Examine the Woolf reforms in detail;4. Look at the specific mechanisms that Lord Woolf

introduced to manage cases, in particular the pre-action protocols, the overriding objective, judicial case management and the enhanced use of directions.

Outcomes

• By the end of this lecture you should be able to:

1. Outline the basic stages of a litigated case;2. Summarise the defects in the previous system

of civil litigation;3. Describe the the Woolf reforms in detail;4. Outline in particular what is meant by pre-action

protocols, the overriding objective, judicial case management and the use of directions.

Outline of a civil case

• The claimant is Matthew

• Injured in a road accident, he was a cyclist

• Wishes to claim damages from the motorist who knocked him down

• Matthew has 2 witnesses

• The Defendant has a witness who says that Matthew was not looking when he took the bend

Stages of the Action

• Funding

• Can Matthew fund himself?• Will Matthew be eligible for public funding?• Are there any other options for him?

• Investigation of the claim, need to gather evidence

• What evidence is there, will they need a medical report at trial to detail the full extent of Eric’s injuries?

Contacting the other side/ Negotiation

• The solicitor should send a letter of claim, what used to be described as a letter before action

• Without prejudice negotiations should be carried out with the other side, meetings between solicitors and/or counsel to negotiate a settlement

Starting Proceedings

• Claim Form issued by the Court

• Starts the timetable for litigation running

• Should include brief details of the nature of the claim

Filing a defence

• Defendant has fourteen days to either file a defence or an acknowledgment of service

• An acknowledgment of service gives the defendant an extra fourteen days to file a defence

• The final twenty-eight day period may be extended with the consent of both the parties

• The main issue is that both sides should adopt a ‘cards on the table approach’

Post-issue Conduct of Litigation

• Exchanging Documents

• Exchanging witness statements and expert evidence

• TRIAL

(1) Pre-action Protocols

• What are they?

• What areas do they govern?

• Implications of non-compliance

(2) A new set of rules and the overriding objective

• “These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly”

• The change in the culture of litigation

Proportionality

• Amount of money involved

• The importance of the case

• The complexity of the issues

• The parties’ financial positions

(3) Judicial Case Management – CPR 1.4

• Encouraging co-operation

• Identifying the triable issues

• Helping the parties to settle

• Fixing settlement

• Cost/benefit

Striking Out a - Draconian Measure?

• Power to strike out a case comes from CPR Part 3

• Other sanctions that the court can apply

Biguzzi v Rank Leisure plc [1999] 4 All ER 934

• RL appealed against the decision to reinstate B’s claim for negligence and/or breach of contract which had been struck out for failing to adhere to the time limit

• Tried to rely on previous case law under the old system to support their proposition

Biguzzi continued

• Held:

1. Decision to reinstate correctly made;2. Court was not bound by any principles

of the old system;3. Striking out was inappropriate where

the court had other sanctions it could impose.

Walsh v Misseldine (2000) CA

• W sustained personal injuries in a RTA and commenced proceedings against M in 1992

• Confusion over the date for requesting a trial date in M’s defence

• Action struck out

• W appealed

Walsh continued

• Held:

1. If action progressed as it should have done the case should have been tried in 1995, therefore it was still possible to conduct a fair trial of the issues as they were formulated in 1995;

2. Future cases would require consideration of their own particular merits.

Summary Judgment

• Court may enter summary judgment if:

(a) It considers that (i) C has no real prospect of succeeding on

the claim or issue; or(ii) D has no real prospect of successfully

defending the claim;AND(b) There is no other compelling reason why the

case or matter should be disposed of at trial

The Tracks

• Procedure – when does allocation to a track take place?

• What influence do the parties have on track allocation?

• How does the court decide?

Small Claims Track

• Simple straightforward cases

• Value of less than £5000

• Heard by District Judges in the county courts

Fast-track

• Main procedural track

• Claims worth between £5,000 and £15,000 and for which trial will take one day or less

• The 30 week trial window

Multi-track

• More complex cases, either in financial value or because of the legal issues raised

• Much greater flexibility as to the timetable that will be adopted for these

The court’s directions

• Disclosure

• Exchange of witness statements

• Exchange of expert reports

Small claims example

• Jason borrows Sheila’s boat and runs it aground at the local lake. Sheila issues proceedings claiming £2,000 in damages for repair of the boat

• Jason disputes being at fault, has a witness to the weather conditions and questions the costs of the repairs

Possible court directions

• Parties serve written estimates of repair

• Witness statements

• Original documents

• 14 days before the hearing

• Trial listed to take place on… with a time estimate of 2 hours

Fast track example

• John has had double glazing installed and is suing Easy Windows for the full costs paid to them of £7,000

• Easy windows and John each have an expert who support their case

Possible court directions

• Both parties disclose documents within 4 weeks

• Both parties exchange witness statements within 10 weeks

• Both parties exchange their expert reports within 14 weeks and there be a meeting of the experts

• Trial within 30 weeks

Summary

• You should now be able to:

1. Outline the basic stages of the civil litigation process;

2. Summarise the defects in the old system of litigation;

3. Outline the Woolf reforms;4. State what is meant by pre-action protocols,

the overriding objective, judicial case management and directions.

Further reading

• Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9th edition)

• Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition)