civil_crim_proc_sg_ch1to4

Civil and criminal procedure

Robert Jago

2009LLB 2660004

page 2This subject guide was prepared for the University of London External System by:u

University of London External System

Robert Jago, MPhil (Cantab), Lecturer in Law, Department of Law, University of Surrey.

AcknowledgementsIn addition to the author mentioned, thanks must be given to the following:u

Patrick Gallimore, LLM (London), Lecturer in Law, Department of Law, University of Surrey. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide favourable or unfavourable please use the form at the end of this guide.

Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2009 Printed by Central Printing Service, University of London Design by Omnis Partners, Cumbernauld All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

Civil and criminal procedure

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Contents1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Introduction Introduction to civil procedure Preliminary matters Commencement of proceedings and responding to a claim Case management, additional claims and interim applications Summary judgment and related matters Issues before trial At trial and beyond Introduction to criminal procedure Police and prosecutors Bail, mode of trial decisions, disclosure of evidence and funding of criminal litigation Summary trial and the magistrates court Trial on indictment and the Crown Court Sentencing Appeals Feedback to activities 5 13 29 45 65 85 101 129 155 169 189 205 223 251 275 293

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Chapter 1 Introduction

ContentsIntroduction 11 12 13 14 Reading and resources Allocating your time The examination Abbreviations used in this subject guide 6 7 9 10 11

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IntroductionThe procedural rules governing the civil and criminal process are of critical importance to the delivery of justice in the legal system. It is the rules of procedure in the civil process that allows the system to operate, from the point at which a client wishes to instruct a solicitor through to the conclusion of a case where costs are allocated. In the criminal justice process the procedure is there to protect the defendant from the power of the state and the rules of procedure are there to safeguard the rights of the defendant. These rules govern the disclosure of evidence and the trial process from admissibility of evidence through to the point of verdict. Once the trial is over an appeal may be launched or a sentence passed. These processes all work within a legal framework which contains a number of important and complex rules. These rules are all central concerns of this course.

Civil and criminal procedure 1 Introduction

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1.1

Reading and resourcesRecommended textsThe most up-to-date and appropriate textbooks for this subject are:

Sime, S. A Practical Approach to Civil Procedure. (Oxford: Oxford University Press, 2008) eleventh edition [ISBN 9780199542536]. Please note a new edition of this book is due to be published in August 2009. and Sprack, J. A Practical Approach to Criminal Procedure. (Oxford: Oxford University Press, 2008) twelfth edition [ISBN 9780199535392]. Other suitable texts include: Ashworth, A. and M. Redmayne The criminal process (Oxford: Oxford University Press, 2005) third edition [ISBN 9780199273386]. Gearey, A., W. Morrison and R. Jago Politics of the common law (Abingdon: Routledge Cavendish, 2008) [ISBN 9780415481533]. Gerlis, S.M. and P. Loughlin Civil Procedure (Abingdon: Routledge Cavendish, 2004) second edition [ISBN 9781859417751]. Hungerford-Welch, P. Criminal procedure and sentencing (Abingdon: Routledge Cavendish, 2008) second edition [ISBN 9780415442923]. Jackson, J., M. Langer, and P. Tillers Crime, procedure and evidence in a comparative and international context: essays in honour of Professor Mirjan Damaka (Oxford: Hart, 2008) [ISBN 9781841136820]. Jolowicz, J.A. On civil procedure (Cambridge: Cambridge University Press, 2000) [ISBN 9780521584197]. McConville, M. and G. Wilson The handbook of the criminal justice process (Oxford: Oxford University Press, 2002) [ISBN 9780199253951]. Ormerod, D. and Lord Justice Hooper Blackstones criminal practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199553020]. Sanders, A. and R. Young Criminal justice (Oxford: Oxford University Press, 2006) third edition [ISBN 9780406971395]. Sime, S. and D. French Blackstones Civil Practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199549641]. Trechsel, S. and S. Summers Human rights in criminal proceedings (Oxford: Oxford University Press, 2006) [ISBN 9780199271207]. Zuckerman, A. Civil justice in crisis (Oxford: Oxford University Press/Clarendon, 1999) [ISBN 9780198298335]. Zuckerman, A. Zuckerman on civil procedure: principles of practice (London: Sweet and Maxwell, 2006) second edition [ISBN 9780421919105].

It is very important that you obtain the latest editions of any books that you use, whether textbooks or statute books. From now on, we will refer to these texts in an abbreviated form, using the authors name and paragraph references. For example: Sime 10.0710.12 or Sprack 15.615.25

Statute bookUnder the Regulations you are allowed to take one authorised statute book into the examination room plus one Queens Printer copy (or one photocopy of a Queens Printer copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 (see section 1.3.1 below). You will be provided with a copy of Blackstones Statutes on Criminal Justice and Sentencing (OUP). Information about the statute books and other materials that you are permitted to use in the examination is printed in the current Regulations, which you should refer to. Please note that you are allowed to underline or highlight text in these documents but you are not allowed to write notes or attach self-adhesive notelets, etc. on them. See also the Learning skills for law study guide for further guidance on these matters. The current Regulations for the LLB state: Students may underline and/or highlight passages with a coloured pen in the materials, but all other forms of personal annotation on statutes and other materials permitted to be taken into the examination room are strictly forbidden. Statute books are regularly updated: make sure you are using the latest edition.

page 8 Other books and resources


There is a rather limited collection of valuable monographs which deal with aspects of civil and criminal procedure. They will be referred to throughout this subject guide. You are not advised to purchase these specialised texts, but may find them useful and stimulating to refer to.

JournalsYou may find it useful to refer regularly to journals that specialise in civil and criminal procedure. The two most useful journals are Civil Justice Quarterly and Criminal Law Review.

Online resourcesAs well as the University of London Online Library and Laws Virtual Learning Environment (VLE), there are a number of useful websites for students of civil and criminal procedure. For example:u

www.bailii.org [website of the British and Irish Legal Information Institute, containing statutes from 1998 and cases (HL, CA and High Court) from 1996] http://www.cjsonline.org [website of the Criminal Justice System for England and Wales] www.intute.ac.uk/socialsciences [Intute:Law provides guidance and access to legal information resources on the internet] http://www.justice.gov.uk/civil/procrules_fin [Ministry of Justice website containing the Civil Procedure Rules] http://www.justice.gov.uk/criminal/procrules_fin [Ministry of Justice website containing the Criminal Procedure Rules] www.parliament.uk [website of the Houses of Parliament which includes the text of House of Lords judgments within two hours of delivery and also Hansard] www.statutelaw.gov.uk [the UK statute law database, giving revised versions of primary legislation].

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1.2

Allocating your timeCivil and criminal procedure has a wide and diverse syllabus and adequate time must be set aside in order to master the details of the law. It is impossible to state with precision how much time you will need for studying Civil and criminal procedure because students learn at different speeds. Some topics on the syllabus will require considerably more time than others. For example, in civil procedure the law relating to the overriding objective and its application, although detailed and rather complex, should require considerably less of your time than the law relating to case management and costs. There will be similar unequal divisions in your study of the criminal procedure, which comprises over 50 per cent of the syllabus. The section on the issues at summary trial, for example, will take considerably less time to study than, possibly, trial on indictment and sentencing. Also, the law and procedure relating to sentencing is a large and complex subject and far more time will need to be devoted to it than, for example, the matter of how and when evidence is disclosed at criminal trial. You should set aside a specific amount of time each week to study this subject, increasing the amount in the six weeks before the examination. Remember, though, that individuals vary greatly in their needs; the time to stop studying is when you know the topic thoroughly and not until then. It is very important to plan your time carefully. Do not forget to leave time for revision every week and month, not just in the period before the examination. Revision must be a continuous process.

1.2.1 How to use the subject guideThe guide closely follows the syllabus and has much the same pattern as the textbooks. Chapters 2, 3, 4, 5, 6, 7 and 8 concern issues relevant to the study of civil procedure, including the overriding objective, case management, issues at trial and costs. Chapters 9, 10, 11, 12, 13, 14 and 15 look at the issues relevant to studying the criminal justice process from the point of entry to the system through to appeals and the opportunity for overturning a guilty verdict. You are advised to read the relevant chapter of this subject guide before reading the textbooks in order to get an overall view of the topic. Note, however, that this subject guide is not a substitute for the textbooks. When you have read both the subject guide and the textbooks, return to the subject guide in order to answer the Activity questions that have been set for you. Feedback to many of the Activities can be found at the back of the guide. Do as many of the Activities as you can: they will help you learn and help you remember!

1.2.2 Topics not included in the guideTopics which are within the syllabus but which are rarely examined are omitted from the subject guide: these will become apparent as you work through the guide. We presume that you are familiar with the courts involved in the legal system, along with rules of precedent, etc, from your study of the English legal system in Common law reasoning and institutions.

1.2.3 The Human Rights Act 1998As with other areas of English law, in civil and criminal procedure there is a growing body of case law which deals with the incorporation into English law of most of the European Convention on Human Rights and Fundamental Freedoms by virtue of the Human Rights Act 1998. Rather than forming a single chapter in this guide, the application of rights under the Act will be considered at relevant points throughout the subject guide.

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1.3

The examination

1.3.1 Format of the examinationImportant: the information and advice given here is based on the examination structure used at the time this subject guide was written. However, the University may alter the format, style or requirements of an examination paper without notice. Because of this, you must check the instructions on the paper you actually sit. The examination lasts three hours and you will be required to answer four questions. Students are permitted to bring into the examination room the following specified documents: one Queens Printer copy (or one photocopy of a Queens Printer copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 and one copy of Blackstones Statutes on Criminal Justice and Sentencing (OUP). Please note the rules about annotating these materials stated in 1.1 above and in the Regulations.

1.3.2 Examination techniqueExamination papers in Civil and criminal procedure usually comprise both problem questions and essay questions. These two types of question obviously require very different techniques. In the case of problem questions, you need to be able to:u u u

identify the relevant area of law under discussion identify the relevant facts in the question apply both statute and case law to those facts. It is important to remember that of all the areas of law you study, civil and criminal procedure is probably the most rule-bound and so realistic conclusions can be reached from the facts presented. Try not to sit on the fence but to reach a reasoned conclusion based on authority. If you are asked to advise X, for example, you should make sure that you do so. In Civil and criminal procedure the case law is obviously important. When studying this subject you should make careful notes on each topic, including the most important cases, so that when it is time for revision you have a good set of notes on which to base that revision. This can be difficult as some of the case facts are very complicated. Dont worry if you do find this hard, but try to tease out what the relevant legal principle stemming from the case is. Be careful when taking notes that you are clear which particular case you are citing. All too frequently Examiners in this subject find that students have not mastered the case law to the point where they can cite the relevant cases. It is only by allocating sufficient time to careful note-taking throughout your course of study that you will be able to revise effectively and successfully. In most of civil and criminal procedure there are a whole host of detailed and comprehensive statutory provisions which must be interpreted and applied to examination questions. Rather than copying these provisions out, you should be able to briefly cite the relevant provision and then proceed to interpreting and applying the law. If you are answering essay questions, a different set of skills is required. The Examiners are looking for good critical answers to often difficult questions and issues. Only by being able to demonstrate a clear understanding of these issues, and the manner in which they are reflected in the law, will your answer attain higher marks. Good luck with your studies! Robert Jago.

For guidance on writing essays in exam conditions see also the Learning skills for law study guide.


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1.4

Abbreviations used in this subject guideAJA CCA 1984 CCR CEA 1968 CEA 1972 CEA 1995 CJJA 1982 CJJA 1991 CLSA 1990 CPA CPR HL HRA IA 1986 LA 1980 PD SCA SoGA 1979 Access to Justice Act 1999 County Courts Act 1984 County Court Rules 1981 Civil Evidence Act 1968 Civil Evidence Act 1972 Civil Evidence Act 1995 Civil Jurisdiction and Judgments Act 1982 Civil Jurisdiction and Judgments Act 1991 Courts and Legal Services Act 1990 Civil Procedure Act 1997 Civil Procedure Rules 1998 House of Lords Human Rights Act 1998 Insolvency Act 1986 Limitation Act 1980 Civil Procedure Rules Practice Directions Supreme Court Act 1981 Sale of Goods Act 1979

The following abbreviations for journals cited are used in this guide. CLQ CLJ CLR CLP IJEP LQR LS MLR Civil Law Quarterly Cambridge Law Journal Criminal Law Review Current Legal Problems International Journal of Evidence and Proof Law and Quarterly Review Legal Studies Modern Law Review

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Notes

Chapter 2 Introduction to civil procedure

ContentsIntroduction 21 22 23 24 25 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts The overriding objective and human rights Reflect and review 14 15 18 19 22 24 28

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IntroductionMost people hope to avoid ever having to go to court. The experience as a form of dispute resolution is rarely a positive one. That said, just as we are all capable of close relationships, we are also capable of conflict. In the context of that conflict it is sometimes necessary to seek recourse to the justice system. For the majority of the time this will be the civil justice system. A hapless builder may continue to fail to fix the roof of the conservatory he has built; a clumsy hairdresser may have spilt ammonia on your expensive designer jacket, ruining it, and refuse to compensate you. Such events are often sources of annoyance, of nuisance and even the subject of television entertainment! The civil justice system may go some way to alleviating the irritation caused by such events. They can upset the order of our lives but their occurrence rarely does lasting damage to our soul. However the civil justice system does not just deal with hapless builders and clumsy hairdressers. It also deals with negligent doctors who amputate limbs in error and provides interim relief (where the law steps in with provisional assistance) for a wife who finds herself at the mercy of a bullying husband. These images serve to remind us of the wide-ranging nature of civil justice. With such a variety of disputes to resolve, the civil justice system has to be all things to all men. This is not an easy task and the civil justice process has to work on different terms to the criminal justice process, which involves the power of the state and its extreme forms of censure. Civil justice has to negotiate, resolve, arbitrate and mediate in a way not expected within the criminal justice process. In many ways the trial day in the civil justice system can be seen as a moment of failure, where all previous attempts to avoid the courtroom have failed. The criminal trial is often a magnificent symbol of state power punishing evil deeds but the civil trial is far more mundane. Since there is, in most instances, no performance to a jury, the advocacy is more detailed, more careful and more specific. The civil justice system is far more concerned with costs and outcomes than its criminal counterpart. As a result, much of the process is designed to avoid the trial rather than building up to it. That is why much of what you study in civil procedure will be concerned with trial avoidance rather than trial preparation.

Learning outcomes for this chapterBy the end of this chapter and the relevant readings you should be able to:u

secure an introductory understanding of the civil justice process and how civil procedure fits into that process imagine the impact that the civil justice system can have on individuals describe the purpose and scope of the Civil Procedure Rules comprehend the different courts used in the civil justice process evaluate the application of the overriding objective consider the impact of the Human Rights Act 1998 on civil justice.

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Civil and criminal procedure 2 Introduction to civil procedure

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2.1

The civil process at a glanceEssential readingSime, Chapter 1: Introduction. Jolowicz, J. Adversarial and Inquisitorial Models of Civil Procedure, International and Comparative Law Quarterly 52(2) 2003, p.281 As has already been suggested, the trial in the civil justice system is a sign of failure. This means that much emphasis is placed on what takes place before a trial in an attempt to resolve a dispute and at the same time to do justice between the parties. It is an old axiom, dating back to Magna Carta, that justice delayed is justice denied so there is often pressure placed on parties to deal with their disputes swiftly. Of course the complexity of the dispute may mean that a speedy resolution is not possible. With these matters in mind we begin our study of the civil justice system by laying a few foundations upon which a loftier construct may be built. We begin by reminding ourselves of those who are protagonists in this process: the lawyers. You will recall from your Common law reasoning and institutions course that the legal profession in the UK is split between solicitors and barristers. Solicitors in the civil process provide most of the legal services for their clients and they serve as a direct point of contact during a case. Barristers offer a referral service which may involve the drafting of more specialist advice or the provision of more particular advocacy. It is worth remembering that the lawyers (both solicitors and barristers) have an overall duty to the court. Solicitors are officers of the court and they must do their best for their clients but must never mislead or deceive the court in the process. Barristers are under similar obligations and must always assist the court in the administration of justice.

Activity 2.1Conduct a web search for the term solicitor advocate in the UK. Why is the development of this profession an innovative development in the legal system? In the civil process events will begin with the initial instructions. This is where a first interview between solicitor and client takes place. It might be a member of the public has entered a solicitors office on the high street and the solicitor has asked them about the problem they face. During this initial interview the member of the public (who has now become a client) will be encouraged to provide an account of the problem in his or her own words. This will then enable the solicitor to decide whether to take on the clients case. This initial statement will also be used for the basis of the clients written statement if proceedings are issued. The solicitor will draw up the statement and it will be signed by the client. If the solicitor has decided to accept the case then a course of action agreed with the client will follow. Witness details will be explored and the solicitor will decide if an expert witness is required. All relevant documentation will be passed from the client to the solicitor and, if the problem is a continuing one, a continuing note of all relevant events will be kept by the client. At this early stage the solicitor will ascertain whether a claim is worth pursuing. Questions will be asked as to the defendants status because if they prove to be without sufficient resources then it will not be worth bringing a claim against them. Once this initial process has begun the solicitor will be expected to discuss the matter of payment with the client. The claim may be capable of receiving public funding and the options for this should be considered as soon as possible. If the case is to be privately funded then the solicitor will decide either to accept the case on a conditional fee arrangement (where the fee to be paid will depend on the outcome) or on a private and continuing retainer (where fees are paid if and when invoices are issued, regardless of the outcome of the action). It is worth remembering at this early stage that litigation can be very expensive! As a result solicitors have a duty to estimate to their clients what the fees for such an action could be. If the client loses the case then they will usually be expected to pay the other sides costs as well as their own. The arrangements for costs are considered later in this guide but for the moment solicitors should always proceed with caution, mindful of the potential costs involved. The solicitor is expected to keep the client continually informed of the progress of the case and to explain exactly what the nature of the solicitors authority is in relation to the dispute. What began as a straightforward inquiry as to the potential of a claim could become an advanced piece of litigation which has huge

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University of London External Systemcost implications. The solicitor must advise the client of these developments if and when they occur. They must also encourage settlement, if and when possible, in line with the framework provided for by Part 36 of the Civil Procedure Rules. Part 36 is a crucial aspect of the framework devised to avoid trial and its operation is considered in more detail later in this guide. Although the member of the public wandering into the solicitors office is a common image of the beginnings of civil litigation, the reality can often be far more mundane. Many solicitors receive their instructions in written form from established clients. These clients may be used to the litigation process and so will know what materials they need to send in with their written instructions. This is not always the case, however, and solicitors may be required to make a request for further information before the claim can continue. A solicitor will, as a matter of course, owe a duty of confidentiality to his or her client. This means that a solicitor must not discuss any part of a clients case with anyone outside of the solicitors office without the clients permission. The documents and information possessed by the solicitor in connection with a clients case are protected by legal professional privilege. On some occasions when a solicitor is contacted by a potential client, the solicitor is already acting on behalf of the person that the potential client wishes to bring an action against. If this happens then the solicitor will usually act for only one party for fear of a conflict of interest. It may be that the parties, following full and frank disclosure, will decide to allow the solicitor to act for both of them. This is unusual and unlikely for fear of a conflict of interest. It was confirmed in Re a Firm of Solicitors [1992] QB 959 that if a solicitor is in possession of relevant confidential information they will be restrained from acting against a former client. If the case involves a firm who were previously retained by a client, partners and employees who may be in possession of the confidential information may be restrained from acting against the former client. This remains the case if they move to another solicitors firm.

Activity 2.2Read Re a Firm of Solicitors [1992] QB 959 and consider the position where there are members of a firm who have never had possession of relevant confidential information with regards to a case. What is the conflict of interest situation here?

Activity 2.3Read the case of Bolkian v KPMG [1999] 2 AC 222 and consider how a Chinese wall could offer some protection when there is a concern about information transition in these complex situations. Once the solicitor has taken instruction from the client he or she will then enter into correspondence with the other party to the dispute. A series of negotiations are then likely to take place prior to court proceedings being actioned. Sometimes the issuing of a solicitors letter will demonstrate that the client is taking the dispute seriously and this will prompt the other side to settle the dispute without recourse to the courts. In other cases a solicitors letter can inflame the dispute further. If the former is the case then pre-action correspondence will take place and this includes the providing of the full details of the claim and giving the other side the opportunity to reach terms before proceedings begin. If negotiations fail then either the case will be dropped or court proceedings will follow. If the case is dropped then no further action will be taken. A client may feel that they have pushed as far as they can without wishing to risk further cost and anxiety. If proceedings do begin then decisions will need to be taken about where the dispute should be heard. Usually the client (who now becomes the claimant) will have a completely free choice to either issue the claim in the High Court or in the county court. Usually the High Court will be the preserve of the most serious claims, where the stakes are at their highest.

Activity 2.4Read Sime 1.231.35 and devise a flowchart to identify the main stages in the court proceedings.


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SummaryThe civil justice system is charged with resolving an ever-more eclectic collection of disputes, ranging from a minor claim of breach of contract to a major claim involving medical negligence. Given the range of disputes that the civil system has to respond to, the process is necessarily a complex one. It may be multi-faceted, depending on the nature of the claim. That said, the initial process will largely follow a standard pattern of either personal or written instruction to a firm of solicitors. If specialist expertise is required to advise on a case then a barrister may be instructed by the solicitor. Lawyers owe a duty to the court and to their clients to advise at all times on matters of costs and the desire to settle if it is in the clients best interests to do so. Solicitors owe a duty of confidentiality to their clients and if a conflict of interest emerges they have a responsibility to resolve it in a legally defensible way. All relevant documentation is protected by legal professional privilege. If negotiations falter and a settlement cannot be reached then the trial process will begin. The proceedings require much preparatory work but once this process is complete then a dispute will, one way or another, be resolved.

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2.2

Imagining civil justiceWhen looking at the civil justice process at a glance it would appear that it is a series of events leading to an outcome which is either a client victory or a client loss. The reality for those in the clutches of the system is far more complex. At one level, civil procedure could be reduced to a list of rules for you to memorise and recount when prompted. But before that you need to gain a deeper understanding of why? Why is this process important and who has suffered from its workings? Activity 2.5 should provide you with some useful context.

Activity 2.5Read Chapter 12 of The Politics of the Common Law (Routledge Cavendish, 2008) (available on the VLE). Consider the examples Gearey et al. use to allow us to imagine civil justice. Compile a 250 word summary of their view of civil justice with a view to placing the system into context. Who are the winners and losers in the way the system presently operates? No feedback provided.

SummaryNo legal system operates in a vacuum and to understand the relevance of civil justice it becomes necessary to consider the system in its current context. From your reading you will have seen that the failings of the civil justice system are not a new phenomenon. Criticisms have been abundant since before the writings of Dickens, who highlighted many such failings. On a more contemporary note, you will have identified, for example, how the civil process has been used to distribute medical resources in a more just fashion or noted those minorities within society (such as gypsies) who appear to be left victims of the planning authorities. You will also have been introduced to the nature of alternative dispute resolution, which will be considered later in this guide. The aim is to avoid court proceedings at all costs and in some instances this in itself will prove a very costly exercise. Finally you will have returned to the view of Dickens and considered whether the present system is any more just than it was in his day. Reforms have taken place but victims remain.


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2.3

Civil Procedure RulesEssential readingBeier, J. The Woolf Report and Civil Procedure, Liverpool Law Review 19(1) 1997, p.67. This reading is available on the VLE. The civil process works within a legal framework. In the High Court and the Court of Appeal it is the Supreme Court Act 1981 (SCA) which governs the procedure. In the county courts it is the County Courts Act 1984 (CCA). These statutes are usually expressed in very wide terms which mean that the procedures for the court to function are usually set out in the rules of the court. There exists a Civil Procedure Rule Committee whose task it is (as authorised under s.2 Civil Procedure Act 1997) to outline the practice and procedure to be followed in the civil courts. The key rules this committee make are the Civil Procedure Rules (CPR). Section 1(3) of the Civil Procedure Act 1997 requires the rules to be simple in form and substance. These rules are divided into a number of parts which each contain a number of rules. Some of these rules are preserved from the Supreme Court as devised in 1965 and can be found in Schedule 1. Rules preserved from the county court as devised in 1981 can be found in Schedule 2 of the new CPR. Both are useful guides as to how certain rules have been interpreted by the courts in the past. However the creation of the CPR was meant to serve as a new procedural code under rule 1.1(1) CPR and so references to past practice is meant to be used sparingly. Many of these rules are supplemented by detailed practice directions which take into account any legislative changes.

Activity 2.6Access www.opsi.gov.uk/acts.htm and click on 1997 and the Civil Procedure Act (web version). Then visit www.justice.gov.uk/civil/procrules_fin/index.htm and spend 510 minutes looking at each of the pages and seeing what a valuable resource they can be for students and practitioners of civil procedure. Make notes on what you find on these sites. No feedback provided. As well as statutory sources, the operation of the civil process has sometimes been informed by old rules and old case law (although this is to be discouraged as the CPR take on their own personality). There does exist a loophole in the CPR by virtue of s.76 CCA 1984 which states that if there is a case in the county court which is not provided for by existing rules then recourse to High Court practice is allowed. This has decreased in usefulness since the CPR were created in an attempt to stem this practice. The High Court is a successor to the common law courts and has therefore retained its inherent jurisdiction to control its procedure so as to avoid injustice.

Activity 2.7Read Lord Diplocks dicta in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977 and compile a 50 word summary as to how this general inherent jurisdiction power works.

2.3.1 The overriding objectiveThe overriding objective of the CPR is outlined in Part 1, which states: These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. The application of the overriding objective will be considered later in this chapter but for current purposes it is important to realise that one of the key ways that this overriding objective is applied is in the use of active case management. Active case management is outlined by rule 1.4(1) of the CPR and its form is considered in rule 1.4(2). This suggests that the court should be: 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;

page 20d 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 j dealing with as many aspects of the case as it can on the same occasion; dealing with the case without the parties needing to attend at court;

k making use of technology; l giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Case managementCases will be actively managed by judges throughout the process. This case management will begin at the allocation stage and will continue where the court gives directions on the evidence it is presented with. When the court compiles the order of cases for trial this will be done mindful of the injustice that may occur where there is delay. The court will control the time used at the trial itself as it takes the lead role in controlling the sequence of events. There is also the allotment of costs at the end of the trial, where the court will reduce costs which are out of proportion with the claim. As part of this process the court will also be encouraged to make sufficient use of technology. The use of the telephone (instead of requiring attendance at court, usually for witnesses but occasionally claimants and defendants) and video conferencing (as a way of examining witnesses who cannot attend the court) are two features of a system which recognises that the old processes, with their old and delaying polity, can no longer be defended in an age where technology makes communication so much more efficient. Examples of active judicial case management will be considered throughout this guide.

PrecedentWhen interpreting the CPR the standard rules of precedent apply. If the higher courts have ruled as to how a particular rule should operate then the lower courts must follow this decision. This means that the House of Lords is not bound by its previous decisions but the Court of Appeal is bound by the decisions of the House of Lords. It follows that the decisions of the High Court and county court are only persuasive. It would appear that, given the civil processs wish for consistency, the departure from precedent should only be exercised in extreme cases where a clear injustice would occur.

Activity 2.8Read Sime 3.253.27 and provide a 50 word summary as to what types of authorities should not be cited unless they establish a new principle or extend the law. No feedback provided. When interpreting the CPR it has become clear that what court staff have advised parties to do cannot be relied upon subsequently by the parties. Solicitors should know what the process is and should not attempt to rely on court staff for this purpose. It is worth remembering that the CPR have been drafted to use plain English so that the rules are intelligible for lay people to use in the courts. This has meant that, although the overriding objective should guide civil court practice, it is not there as a separate course of action to trounce the clearly-worded provisions of the CPR. If the provision is clear and plainlyworded then it should be followed, even if reliance on the overriding objective would result in a more just outcome. This is confirmed in Vinos v Marks and Spencer plc [2001] 3 All ER 784. If there are no express provisions in the CPR to deal with a particular situation before the court, the court must use whichever interpretation would best give effect to the overriding objective. It is also important to remember that when interpreting the CPR a court must be mindful of its obligations under s.3 Human Rights Act 1998 which requires the court, as best it can, to interpret the provision in line with Convention rights. We shall consider this in more detail later in the chapter.


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SummaryThe civil process is authorised to operate by the Civil Procedure Act 1997. This process operates using a collection of rules found in the Civil Procedure Rules 1998 as amended (CPR). These rules provide the detailed procedures for dealing with a case, from commencement of proceedings through to cost allotment at the end. The CPR requires that the court must, as its overriding objective, deal with cases justly. To this effect cases must be actively managed by the courts. The courts now make use of technology far more than they used to in an attempt to deal with cases more quickly. The overriding objective can be used to fill any gaps in interpreting the rules but it should not be used to trounce a rule which is clear in meaning just because the overriding objective would lead to what the courts saw to be a more just result.

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2.4

The courtsEssential readingSime, Chapter 2: The civil courts. You need to be familiar with the following courts for the purposes of the operation of civil procedure.

Magistrates courtsUnlike in criminal procedure, magistrates have a relatively limited jurisdiction over civil matters. Magistrates can be lay appointments and are supposed to represent as wide a cross-section of the community as possible. Magistrates are assisted by a clerk who advises on matters of law and procedure. While most of the work done by magistrates is criminal in nature, they do deal with some family law matters and make orders against those who have defaulted in the payment of local government taxes. Most of their work in the civil field is regulatory.

County courtsMost civil law matters at the initial stage will be dealt with by the county court. Most civil cases can be commenced in any county court but if it is to be defended the case is likely to be transferred to the court serving the district in which the defendant resides or carries on his or her business. Each court is presided over by a circuit judge. This is a professional lawyer with a 10 year Crown Court or county court qualification. Circuit judges sit in the Crown Court as well as the county court to give them a broad spectrum of judicial experience. County court trials are mainly conducted by circuit judges and by recorders. These recorders are part time judges. Each district will also have a district judge who must have seven years general qualification. District judges are usually charged with conducting most of the interim proceedings in the county court. They will also preside over small claim hearings. The staff who support these judges are civil servants. These staff members are usually involved in drawing up, issuing and serving court documents and maintaining court records. A discussion of the track system later in this guide will cover where the county court and the High Courts jurisdictions lie.

High CourtThe High Court, Crown Court and Court of Appeal together comprise the Supreme Court Judicature of England and Wales. They will be renamed the Senior Courts of England and Wales when the House of Lords, in its judicial function, becomes the Supreme Court. This is to avoid confusion. The main offices of the High Court are located at the Royal Courts of Justice. There are also district registries of the High Court which serve the districts of county courts. All claims involving disputes in London must be served in the Royal Courts of Justice. If the claim is based on a dispute outside of London then the proceedings may be commenced in the Royal Courts of Justice or the appropriate district registry. This will be a matter of claimant choice. There are three Divisions within the High Court. The Queens Bench Division (QBD) deals with all judicial review, admiralty and commercial matters. The Chancery Division (ChD) deals with all cases concerning property and probate. The Family Division (FamD) deals with all matrimonial matters. Trials in the High Court are conducted by justices of the High Court, who are also known as puisne judges, and by deputy judges. They must have 10 years standing within the legal profession. If there are interim applications then in London these will be dealt with by masters of the High Court (for the majority of civil business this is the procedural judge) but in the district registries these are dealt with by district judges.

Specialist courtsCourt of Appeal (Civil Division) The basic civil appeals structure is contained in the Access to Justice Act 1999 and the Appellate Jurisdiction Acts 1876 and 1887. Usually an appeal to the Court of Appeal (Civil Division) will be from the High Court. Generally permission to appeal (granted by the High Court or Court of Appeal under rule 52.3(1)(a) CPR will be required. The basic test for granting permission is whether the appeal has a real prospect of success. If the prospect of successful appeal is fanciful then permission will not be granted. Appeals against costs and the process of case management are generally discouraged.

These are applications for temporary orders, particularly in family law, which are only good until they are varied by another interim order or the issues are finally decided following trial.

Civil and criminal procedure 2 Introduction to civil procedureHouse of Lords The highest court in the land is the House of Lords (soon to become the Supreme Court under the Constitutional Reform Act 2005). The House of Lords can be appealed to from the Court of Appeal (Civil Division) under s.1 of the House of Lords (Administration of Justice (Appeals)) Act 1934. Appeal to the House of Lords is subject to a restriction: the matter must be one which is of public importance and therefore should be considered by the House of Lords. If a decision from the High Court is to be appealed to the House of Lords, this is governed by ss.1215 of the Administration of Justice Act 1969. European Court of Justice Since the passing of the European Communities Act 1972 it has been possible for any English court to request a preliminary ruling on a point of European Community law. This can be a civil law matter and the reference takes place under s.234 of the EC Treaty. All courts have discretion to make this referral if they are the last point of appeal. European Court of Human Rights Since 2000, when the Human Rights Act 1998 came into force, all courts are under an obligation under s.2 to take into account the jurisprudence of the European Court of Human Rights in Strasbourg. However, if an individual feels that the domestic courts have failed to protect a right within the Convention he or she retains the right to petition to Strasbourg.

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Activity 2.9Read 2.382.43 of Sime and write a single sentence which summarizes the function of the following specialist courts.u u u u u

Technology and Construction Court Commercial Court Admiralty Court Companies Court Patents Court

Decide where the following cases would be most likely to be heard. a A claimant alleges that he suffered two arm amputations on a ship as a result of a crew members negligence. b A company director wishes to hear details of his disqualification from the company. c A claimant alleges their contract for the carriage of goods by sea was frustrated by events outside his control. d A defendant architect is due to appear in court for a case where his designs and advice led to the collapse of a new building. e A designer in possession of a registered design wishes to assert his right over that design before it is revoked.

SummaryGiven the complexity and range of cases covered by the civil process it is not surprising that there are a wide range of courts to resolve this array of disputes. The two major courts for most civil matters will be the county court and the High Court, with their jurisdiction being determined by the potential cost and complexity involved in the case.

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2.5

The overriding objective and human rightsEssential reading

Sime, Chapter 3: Overriding objective and human rights.

2.5.1 The overriding objectiveYou will recall that the overriding objective requires the court to do justice (rule 1.1 CPR). With this in mind it seems that it would not be just to shut the door to a claim which was technically in breach of the rules. This was confirmed in Chilton v Surrey County Council (1999) LTL 24/6/99 where it was stated that the nature of the real claim would be dealt with rather than what was originally asked for. Likewise in Cala Homes (South) Ltd v Colchester District Council (1999) The Times, 15 October 1999 a claim was resolved that had been commenced in the wrong office. Justice dictates that procedural breaches of this kind are unlikely to result in a rejection of the claim outright. The concept of equality of arms is a theme often associated with the disclosure of evidence in criminal proceedings. In civil proceedings it could be said to manifest itself in the concept of equal footing. However the civil process does not require parties to have access to the same quality of representation. While equal footing maybe desirable, it is not in the power of the court to dismiss cases where one party has instructed representation which is far more expensive than the other side. This would be impossible to supervise and implement and so is not seen as part of the process of dealing with cases justly (see Maltez v Lewis (1999) The Times, 4 May 1999 and McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775). It is desirable, as part of the overriding objective, that cases are dealt with expeditiously and fairly which then saves overall expense. This principle has been used to reject a request for the court to order separate trials so that a claim could be determined once long term hospitalisation had been completed. It was felt by the court in Adan v Securicor Custodial Services Ltd [2005] PIQR P79 that such a move would have exposed the defendants insurers to an uncertain liability for an indefinite period. This was viewed as oppressive and undesirable. When it comes to the striking out of claims on the basis of saving expense, the authorities appear to adopt a less consistent tone (see Re Hoicrest Ltd [2000] 1 WLR 414 and Re Osea Road Camp Sites Ltd [2005] 1 WLR 760). Given that resources are so highly prized in the civil process it is little wonder that the courts have been keen to ensure there is a careful allotting of an appropriate share of the courts resources. This has sometimes led to an appeal against an interim order being refused (see Stephenson (SBJ) Ltd v Mandy (1999) The Times, 21 July 1999). Even the Court of Appeal have used something of a guillotine method to decide that spending more than an hour sorting through court papers was a waste of court time and so dismissed an appeal (see Adoko v Jemal (1999) The Times, 8 July 1999). As the courts wish to deal with cases in a just manner it would appear from the authority that co-operation within the process is highly prized. Any attempt to take advantage of your opponents error is seen by the court and can have an impact on the outcome of the case as a whole (see Chilton v Surrey County Council (1999) LTL 24/6/99). In King v Telegraph Group Ltd [2005] 1 WLR 2282 deliberately provocative language was used which went against the spirit of co-operation and the solicitors were criticised as a result. This spirit of co-operation was also breached in Hertsmere Primary Care Trust v Administrators of Balasubramaniums Estate [2005] 3 All ER 274 when one party failed to point out the other partys obvious error in a Part 36 offer. Judges will now take a dim view of parties wishing to seek a tactical advantage because the duty to the court is to deliver justice in as clear and even-handed manner as possible.

Equality of arms is the idea that the defence should never be placed at a substantial disadvantage to the prosecution in terms of its ability to present its case.


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2.5.2 Human rights and civil procedureLike other areas of law that you have studied, the Human Rights Act 1998 has had an effect on civil procedure. The 1998 Act brought into effect the European Convention on Human Rights and within the civil process there are three rights which are of particular importance (see below). If a party seeks to rely on a provision or right or seeks any remedy available under the Human Rights Act 1998 then this must be stated in their statement of claim with precise details of why they believe there has been an infringement of their Convention rights. The first of these provisions having a direct impact on civil procedure is Article 6 and the right to a fair hearing. This is guaranteed under Article 6(1) of the Convention. This right has four facets to it for these purposes: fair hearing, equality of arms, all relevant evidence considered and reasons should be given for a court decision.

Activity 2.10Read Sime 3.413.44 and compile two sentences which summarise each of these facets of Article 6, with reference to the accompanying cases.

Fair hearing: R (on the application of Pelling) v Bow County Court [2001] UKHRR 165. Equality of arms: R v Secretary of State for the Home Department ex p Quaquah [2000] HRLR 325. Minimum delay: EDC v UK [1998] BCC 370. Duty to give reasons: English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409. Article 8 and the respect for privacy and family life is also a key Convention right for civil procedure. This is a qualified right and so allows the court to depart from it in some instances. The case law on this Article suggests that often a balance is required between the right to a fair trial in Article 6 and the right to privacy and family life in Article 8. It would seem that Article 8 overrides Article 6 when it concerns children but it is the other way round when it involves adults. There is a concern that covertly shot video footage in personal injury claims which often involves an invasion of an individuals privacy will be shown, but only to a limited extent (see Rall v Hume [2001] 3 All ER). Thus 20 minutes worth of video footage may be shown, rather than several hours of it. The effect of this Convention right has been limited by the House of Lords in Wainwright v Home Office [2004] 2 AC 406. The final article of relevance here is Article 10 and freedom of expression. The relevance here appears two-fold. Firstly it is raised where someone asserts their right to freedom of expression and the other party says that their reputation needs protecting. Secondly it is used where a newspaper is restrained from publishing articles that invade the claimants privacy. The claimant raises the right to privacy under Article 8 whereas the newspaper raises its own Article 10 right. Here a balance will be struck and the case law suggests that each case will turn on its own facts (see Cream Holdings v Banerjee [2005] 1 AC 253 and Douglas v Hello! Ltd [2002] QB 967).

Activity 2.11Read Sime 3.563.66 and produce a 200 word summary of the Procedural Aspects on Raising Human Rights Points. Once you have done this, decide which of the following scenarios would be the most likely to lead to a declaration of incompatibility. a A piece of legislation claims that once a child is taken into local authority care the parents rights are automatically extinguished and the local authority assumes all rights over the child for the purposes of that childs future. b A piece of legislation remains silent on what happens to parental rights once a child is taken into local authority care.

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SummaryCritical to your understanding of how the civil process works will be the understanding of how the overriding objective has worked in practice, its interplay with the Human Rights Act 1998 and the growing jurisprudence of that legislation within the context of civil justice. Dealing with cases justly will necessitate a balancing of competing interests. Whilst principle must govern, it would appear the courts are also pragmatic when the prospect of injustice emerges.

Activity 2.12Read the following articles.

Schmidt, F. A critical analysis of recent developments in German law on civil procedure, Civil Justice Quarterly 28(2) 2009, p.273 Meggit, G. and F. Aslam, Civil justice reform in Hong Kong: a critical appraisal, Civil Justice Quarterly 28(1) 2009, p.111

Write a 250 word summary of the recent developments in German law on civil procedure and civil justice reform in Hong Kong. As this is a comprehension exercise no feedback is given.

ConclusionThroughout this introduction to civil procedure it has been necessary to understand why civil justice is relevant, what courts it is administered in and what principles guide its operation. A combination of all three will serve as a useful guide as you begin to grapple with the complex web of rules which allow the system to function. Remember, though, the rules mean nothing if the overall aim is unclear.

Sample examination questionsQuestion 1 Critically evaluate the significance of the overriding objective on the conduct of civil litigation. Question 2 The variety of cases that might be labelled civil litigation has ensured that no single set of rules and procedures can provide an efficient system of justice for all litigants. Discuss.

Advice on answering the questionsQuestion 1 The overriding objective is a key feature of the reformed civil process under the Civil Procedure Rules (CPR). As rule 1.2 CPR states, the court must give effect to the overriding objective when exercising any power or interpreting any rule. That means that the whole of the rest of the CPR must be read subject to the aims of the overriding objective. However, it would be dangerous to overstate how much impact this will have. There are many discretions set out in the CPR (for example the discretion to exclude evidence under rule 32). It is worth noting that these discretions are, in most cases, triggered by the code of rules under the CPR and these rules are clear in their meaning (however much rule 1.2(b) may influence their interpretation). However, rule 1 does not simply state the overriding objective, it also places both parties and the court itself under further obligations. Parties are under a duty to help the court and the court has a duty of active case management. In effect this means that (in contrast to the rule systems pre-dating the CPR) the court must ensure that the case runs according to the wishes of the court as a neutral party to proceedings. The duty of active case management, therefore, allows the court to control the litigation timetable efficiently (rule 1.4 (f), (g), (i)(l)) and to determine issues to be litigated (rule 1.4(d)). These duties, combined with powers elsewhere in the CPR, allow the court to ensure, so far as it is able, that litigation does not become the exclusive preserve of the wealthy. However, the overriding objective might be subject to criticism in that it does not offer clear guidance as to which objective is the most important to be achieved. Although dealing with cases justly is the core objective, aspects of the overriding objective are given equal weight.

Civil and criminal procedure 2 Introduction to civil procedureQuestion 2 It is certainly true that civil litigation could encompass quite a range of cases, from pseudo-criminal cases like Anti-Social Behaviour Order hearings and actions under the Protection from Harassment Act 1997 on the one hand, to chancery and commercial proceedings on the other. However, it is not true to say that the Civil Procedure Rules (CPR) have sought to promote a one size fits all model for civil justice. First of all, the CPR sit alongside a group of other sets of rules governing other types of litigation. For example, the Family Proceedings Rules govern the conduct of cases concerning children, matrimonial property and other family law areas. Equally, whatever the harmony of the CPR, cases are heard in different courts of different levels of importance. Equally (and somewhat confusingly), the CPR itself makes allowance for differing cases. This is done particularly by using pre-action protocols that provide particular guidance (and set particular expectations) for different types of cause of action (e.g. medical negligence, landlord and tenant claims, etc). The protocols provide guidance that is specific to the conduct of the particular type of litigation and, by doing so, saves time and complexity at court. At the same time, civil procedure provides for cases of different complexities and values to be dealt with on different tracks; these cases are then subject to different sets of standard rules and directions. A good answer to this question would therefore identify that the rules accommodate a certain quantity of diversity. The question assumes that efficiency cannot be achieved in this way. In absolute terms this may be true if efficiency is associated with standardisation and inflexibility. However, arguably, what the CPR have achieved is a considerable degree of consistency within a framework that permits particular approaches in particular cases. Arguably this focus on specific cases provides a different and more just concept of efficiency.

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Reflect and reviewLook through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on Need to revise first Need to study again

I can secure an introductory understanding of the civil justice process and how civil procedure fits into that process. I can imagine the impact that the civil justice system can have on individuals. I can describe the purpose and scope of the Civil Procedure Rules. I can comprehend the different courts used in the civil justice process. I can evaluate the application of the overriding objective. I can consider the impact of the Human Rights Act 1998 on civil justice.

If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 2.1 2.2 2.3 2.4 2.5 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts Overriding objective and human rights Revision done

Chapter 3 Preliminary matters

ContentsIntroduction 31 32 33 34 Funding litigation Pre-action protocols Alternative dispute resolution Limitation Reflect and review 30 31 35 37 39 43

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IntroductionWe have already indicated that much of the work in civil procedure is geared towards a settlement of a dispute that has arisen, as opposed to a straightforward move to trial. The cost of litigation is expensive and, in response to the concerns raised about the financial cost of justice, there are now much clearer guidelines on how civil litigation is funded. To mitigate the potentially large costs of litigation the process has developed a series of preaction protocols which help structure the response to the claim in a way that can utilise alternative forms of dispute resolution. Another method of limiting costs is the limitation period. Although limitation periods could be seen as a way of limiting access to justice, it is argued that they are necessary to ensure the swift resolution of alleged claims and to encourage disputes to be resolved without having to rely on evidence that could become lost or antiquated as a result of indefinite time limits. Parties are therefore encouraged to deal with claims promptly so as to avoid later injustice.

Essential readingYou will need to read the following complete chapters, which are quite short.

Sime, Chapters 47.

Learning outcomesBy the end of this chapter and the relevant readings you should be able to:u u

critically explore the different ways that civil litigation is funded display a sound knowledge of how pre-action protocols work in a number of areas of civil procedure explain what the alternative forms of dispute resolution are and when they may be effectively utilised evaluate the current rules concerning the limitation defence and how limitation periods operate in the civil process.

u

u

Civil and criminal procedure 3 Preliminary matters

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3.1

Funding litigationEssential reading

Sime, Chapter 4: Funding litigation. Kritzer, H. Fee regimes and the cost of civil justice, Civil Justice Quarterly 28(3) 2009, p.344 As well as being expensive to launch, civil litigation can also be expensive to conclude. Due to the potential costs involved, solicitors are under a professional duty to advise their clients on the likely cost of bringing matters to court and what will happen in the event that the claimant loses. It is a general rule of thumb that if a claimant loses they will have to pay their own costs and those of the other side (rule 44.3(2) CPR). Similarly, if a claimant wins then the losing defendant will have to pay the costs of the claimant. Given that much of these costs will actually be the cost of paying lawyers fees it is no wonder that lawyers are expected to warn and explain to their clients how much any litigation is likely to cost. The usual practice is for lawyers to seek payment on account as the case proceeds. If the client has paid in instalments, he or she is not likely to be quite so surprised when they are confronted by a very large bill at the end of the case. Before costs can be incurred, a potential litigant is often concerned about whether a lawyer will actually take on a case. If funds are tight then lawyers may not be willing to take on the case without receiving a payment on account, however small. If the lawyer refuses to take on the case then the claimant will have to seek external funds to pay for their case or abandon their claim.

3.1.1 Duty to advise clients on fundingThe Solicitors Costs Information and Client Care Code 1999 outlines the duties of a solicitor to discuss with their client how, when and by what means the client will be securing funding for their litigation. Having explained the position of how cases are funded in the event of either a win or a loss, solicitors should ensure their clients understand their options for funding. Whilst a breach of these rules will not render an action illegal (Garbutt v Edwards [2006] 1 WLR 2907), they may mitigate any losses incurred by the client at a later date. The following options should be considered.u u u u

Will the client be eligible for help under the Community Legal Service? Should a conditional fee arrangement be considered as an option? Are the clients costs already covered by insurance? Will the clients liability for their own costs be covered by an employer or a trade union or other organisation of which the client is a member? Will pre-purchased insurance cover the other partys costs or will after-the-event insurance cover them?

u

3.1.2 Traditional retainerHistorically a client would be expected to pay a solicitor for their costs of conducting a case at an agreed hourly rate. Arrangements were often notoriously lax and the client simply relied upon the solicitor to charge a reasonable rate. If billing was irregular then a client could expect a large bill at the end of the case. Rule 15 of the Solicitors Practice Rules 1990 does require a client care letter to be sent to a client which confirms who is dealing with their case and confirms any cost estimate. This is only an estimate but it should be a ballpark figure which will inform the client of what sort of monies are anticipated for the claim to be resolved. A scale of charges is used to estimate what fees are likely. These scales will be used in accordance with who actually does the work on the case. The time of senior solicitors is clearly more expensive than junior solicitors and the scales reflect that. The fees also reflect regional variations. It is usually the case that a high profile city firm will charge higher rates than a low profile small town firm. The client care letter should include details of this hourly rate. Clients will also have to pay for photocopying and any other fees incurred by the solicitors during the course of the litigation. If the client understands and

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University of London External Systemagrees with the contents of the client care letter they should sign it and return it to the solicitor. It is commonplace for those with motor or home insurance to pay a premium which includes legal expenses insurance. This is often referred to as before-the-event insurance. The insurers will cover all costs in relation to a claim in this instance but will require the clients lawyers to confirm that the case is a meritorious one and whether continued litigation can be justified. There is an additional form of insurance available called after-the-event (ATE) insurance which is, as the title suggests, taken out to cover the other sides costs. Given the certainty of claim (it is taken out after the event) clearly the availability of this form of insurance is limited and the premiums can be very expensive.

3.1.4 Champerty and maintenanceSometimes a client simply has not funds to pay for a claim. If a solicitor believes that such a claim has merit and there are no sources of funding available then they may decide to defer any payment for the work done and only claim a fee if the litigation is successful (no win, no fee). Any such claim is perilous because the solicitor may find they ultimately receive no monies at all if the claim fails. That said, this practice is common in the US where often an additional advantage is sought by the lawyer if they win. This is usually in the form of a share of the damages. Historically in England and Wales these agreements were treated as crimes or torts but since the Criminal Law Act 1967 they are only contracts which are illegal and therefore contrary to public policy. This is because they savour of champerty and maintenance.

Activity 3.1Read the case of Giles v Thompson [1994] 1 AC 142 and in 50 words explain what is meant by savour of champerty and maintenance.

3.1.5 Conditional fee agreementsLegal Aid for civil litigation was replaced by the Community Legal Service in 2000, introduced by the Access to Justice Act 1999. With this change came a reduction in the amount of money available for the resolution of civil disputes. To counter this, and to avoid an increase in champerty and maintenance, parties are to be encouraged by their solicitors to take out a conditional fee agreement (CFA). Under a CFA a solicitor may agree that their client will only be liable to pay their own costs if the claim is successful. If it is successful then the solicitor will be able to claim their usual rate plus a success fee, which is a percentage uplift of the final costs awarded. This success fee cannot be more than 100 per cent of the solicitors usual fees. Depending on the insurance obtained, the other sides costs may still be payable by the client. Conditional fee agreements were authorised by s.58 Courts and Legal Services Act 1990 (CLSA) and since 1998 it has been possible to use them in all types of civil litigation other than matrimonial cases. The case of Hodgson v Imperial Tobacco [1998] 1 WLR 1056 confirms that such arrangements cannot be attacked for maintenance and champerty. A CFA must be in writing, must relate to a civil case (other than a matrimonial matter) and the success fee cannot be for more than 100 per cent of the fees due. This does leave the matter of the costs for the other side. An after-the-event insurance policy may be available for the other sides costs only and, along with any disbursements, this may be the only costs that a client incurs. Once this has been agreed then the solicitors must notify their opponents that they are acting under a CFA. Upon award the unsuccessful party will be expected to pay part of the uplift fee which refers to the risks of litigation. If there have been delays in payment of fees or expenses then these cannot be recovered by the successful party.

Disbursements are the sums paid by the firm during the course of litigation. These may include experts fees and photocopying costs.


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3.1.6 Community Legal ServiceSince 2000 the public funding of litigation has been administered by the Legal Services Commission. The funding for civil cases is provided by the Community Legal Service. The courts have no power to provide litigants with such funding. Given that resources are finite, public funds will only be used to support claims that most need assistance. There are differing levels of service available under the Community Legal Service and they depend on the needs of the individual case. The levels are:u u u u u u u

legal help help at court legal representation help with mediation general family help specific directions excluded categories.

Activity 3.2Read Sime 4.234.29 and place up to ten words under each heading to confirm what each of these levels of service mean. No feedback provided. The Community Legal Service operates to offer financial support to those people who cannot afford to litigate. This requires means testing set at a very low level and realistically only the very poor are given full assistance. There are some limits here and cases brought under the Children Act 1989 are not subject to any form of financial eligibility. Those who are better off than the very poor, but are still not considered to be sufficiently able to fund litigation, will be able to pay contributions towards the cost of the legal services, usually by a one-off payment or by instalments. The criteria for such limited funding are extensive. A Funding Code was produced by the Legal Services Commission under s.8 Access to Justice Act 1999. This code considers alternative means of funding or an alternative means of redress. If an application is premature, another level of service is appropriate or if the request for funding is unreasonable then funding maybe refused. If the case is trivial and allocated to the small claims track then this is likely to defeat a claim for funding. If a CFA is suitable then funding may be refused and if the prospects of the case are unclear then public funding is unlikely. The Funding Code uses a series of categories to determine the potential success rate of a case. If the case has an 80 per cent chance of success this is deemed as very good. If it has a less than 50 per cent chance of success then this is deemed poor. Cost benefit grounds can prevent access to funding. This means that funding may be refused if the benefit to be gained does not justify the level of costs likely to be incurred. The only time this is unlikely to be refused is if there is a wider public interest or if it is of overwhelming importance to the client. Overwhelming importance is likely to include an action will affect the life, liberty, physical safety or housing of the applicant. Guidelines on the merits of cases for the purposes of obtaining funding are usually devised by barristers and can be found in Annexe E of the Code of Conduct of the Bar of England and Wales. Under s.10(7) Access to Justice Act 1999 any money recovered in a publicly-funded claim will automatically become the subject of an unwanted charge (statutory charge) in favour of the state. This means the state will be able to reimburse itself for any costs it has incurred. This liability only applies once the total costs incurred by the publicly-funded client have been adjusted to reflect a deduction of contributions paid by the publicly-funded client and any costs by the other side. The statutory charge will be for the balance. The solicitor will have a duty to advise their publicly-funded client of the effects of the statutory charge. This arrangement means that any costs or damages recovered by a publicly-funded party are subject to the first charge in favour of the Legal Services Commission and so only the publicly-funded solicitor can give a valid discharge for the amount paid.

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University of London External SystemSometimes funding, once granted by the Community Legal Service, will be revoked or discharged.

u u

Revocation can happen if there is misconduct on the part of the publicly-funded client. Discharge is usually where the client has died or the work has been completed. If funding is revoked then the client is treated as if they never received public funding. All costs to the Legal Services Commission would then be recoverable. If a client receives public funding then they are, like their solicitor, obliged to comply with the Access to Justice Act 1999. All parties are under a continuing duty to inform the Commission of any change in circumstances which may affect previous entitlements. If a litigant is publiclyfunded they are generally protected from having to pay the costs of the other side if they are unsuccessful.

SummaryFunding litigation is a tricky issue. Society demands that access to justice should not be formally dependant on access to funds but substantively this is often the case. Solicitors have a raft of duties that are owed to clients to ensure they are aware of the pitfalls of litigation so that litigation is not entered into lightly. There are a number of ways for clients to fund their litigation. One such way is via public funding but the criteria for this sort of funding is heavily restricted and subject to particularly exacting criteria. Once secured, public funding can be revoked.


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3.2

Pre-action protocolsEssential reading

Sime, Chapter 5: Pre-action protocols. In accordance with the overall commitment of the civil process to resolving disputes before a trial, it is normal practice in nearly every case for the claimant to enter into correspondence with the defendant to give them a chance to negotiate a compromise to the dispute. If successful, such a compromise will save both parties time and money and will save the court the inconvenience of formally resolving the dispute. There are exceptions to this general rule. If a limitation period is about to expire or an injunction is sought then preaction correspondence is actually unwise. For most cases the court will expect the parties to make clear the allegations and answers to a claim and to co-operate with all pre-action investigations. From a clear understanding of all the issues, clear settlements can emerge which may result in a trial being avoided. The tools by which these negotiations are framed are called pre-action protocols. In order to secure some form of consistency in approach, the Department of Constitutional Affairs (now the Ministry of Justice) published nine pre-action protocols which cover a wide range of civil litigation areas. These protocols are: personal injury, clinical negligence, disease and illness, rent arrears, housing disrepair, construction and engineering, professional negligence, defamation and judicial review cases. The court will expect parties to conform to the relevant pre-action protocol. Any departure from its practices will require justification before the court. Some cases are not covered by a pre-action protocol, for example commercial claims and contractual claims. If there is no protocol then the court will expect the parties, in accordance with the overriding objective, to act reasonably in the exchange of documents and information. Parties will be expected to do all they can to avoid the start of proceedings.

Activity 3.3Read Sime 5.065.15 and provide 100 word summaries of the professional negligence and personal injury pre-action protocols.

3.2.1 ExpertsExpert testimony is clearly important in some civil disputes. The instruction of these experts can vary according to the different protocols. Often parties will wish to instruct an expert who will best support their case. Sometimes a protocol will demand a joint instruction of an expert. This involves an expert being agreed on by the parties. There is also the opportunity for joint selection of an expert. Here a claimant will give the other party a list of the names of experts who they think are suitable to instruct. Within 14 days the defendant can indicate any objections to any of these experts. If no objection is forthcoming then a mutually acceptable expert will be instructed. If all experts are rejected then the defendant will have to appoint their own experts. If this rejection of the experts is deemed unreasonable by the court then the defendant may face increased costs. Sometimes a potential claimant will consult a solicitor very close to the end of the limitation period. In such instances the solicitor will have to give the defendant as much notice as is practicable. A stay of proceedings may be requested pending completion of the steps required for any protocol. Alternatively the courts may be asked to extend the time available for the protocol to be actioned.

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3.2.2 Failure to complySometimes both parties fail to comply with the requirements of a protocol. Sometimes this will be defensible and the courts will see this. On other occasions the failure to comply will not be defensible and if there has been a failure due to deliberate flouting then a claimant may be justified to commence proceedings without following a pre-action protocol. The parties may find themselves subject to penalties at a later stage in the court process if they fail to comply with a protocol. If commencement of proceedings has resulted from a failure to comply with a protocol when it would not have done if the protocol had been followed then costs may be incurred as a result (see Practice Direction Protocols, paragraph 2.3, quoted in Sime 5.22). The courts will not be interested in minor infringements but will be concerned with major breaches.

3.2.3 Motor accidentsUnder s.145 Road Traffic Act 1988 all drivers are required to obtain compulsory insurance against liability in respect of death or bodily injury of any person, or in respect of damage to property caused by the use of a vehicle on a road. As long as the claimant gives notice to the defendants insurer within seven days then the insurer is obliged to satisfy any judgment awarded. Compulsory insurance will not assist if the motorist fails to stop at the scene of the accident or the motorist is not insured. In these circumstances the Motor Insurers Bureau (MIB) provides compensation to be payable to the claimant. Two agreements are in place with the MIB. Firstly the Motor Insurers Bureau (Compensation of Victims of Untraced Drivers) Agreement 2003 applies to cases where someone is killed or injured by an untraceable motorist. There is a three year limitation period on the application for this form of compensation. Under the Motor Insurers Bureau (Compensation of Drivers) Agreement 1999 a prescribed form must be followed. If the form is followed then the MIB will pay the amount in full.

3.2.4 Pre-action Part 36 offersIf, upon receipt of the pre-action letter of claim, the proposed defendant sees that there is merit in the claim then they should be encouraged by their solicitor to make an offer to settle. Offers to settle can be by telephone, face to face meeting, electronically or by letter. An offer made (usually by letter) which states that it is to be treated without prejudice save as to costs is also known as a Part 36 offer. It can be referred to on the question of costs. A Part 36 offer must be made in writing and, if accepted, it takes effect in accordance with the terms of the Part 36 offer. If the Part 36 offer is not accepted then, if the judgment does not exceed the amount of the offer, the claimant will be responsible for both sides costs from the expiry of the relevant period. The moral of this story is that claimants should think very carefully about rejecting a Part 36 offer as, if they win on liability but costs are more than the offer, then they, the claimant, become liable for all costs. Proposed claimants can also make Part 36 offers. These are usually in the form of I would settle for X. If these are rejected then the court may award costs with enhanced rates of interest.

SummaryIn accordance with the commitment to the swift resolution of disputes, pre-action protocols are used to guide the exchange of information and evidence prior to proceedings being commenced. If these protocols are not followed then there may be cost implications later in court proceedings. There are special rules in place for motor accidents involving uninsured or untraceable drivers. Part 36 offers will be encouraged as a further commitment to early settlement.


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3.3

Alternative dispute resolutionEssential readingSime, Chapter 6: Alternative dispute resolution. Brunsdon-Tully, M. There is an A in ADR but does anyone know what it means any more?, Civil Justice Quarterly 28(2) 2009, p.218 As much of this chapter is interested in pre-action activity, it is not surprising that some mention should be made here of the different forms of alternative dispute resolution (ADR). Most ADR procedures can be accessed using a commercial dispute resolution service. As litigation is seen as a last resort, ADR is usually recommended. That said, the courts also recognise that ADR does not work if it is not agreed to by all parties. Parties ignore the call to ADR at their peril because the courts will impose a cost sanction on parties who refuse ADR unreasonably. If a remedy is required which only a court can provide then the use of ADR is not really an option. Here the context of the complaint will be key as it will be necessary to assess what outcome the claimant requires.

Activity 3.4Read Sime 6.036.08 and make a list of the five most important advantages and disadvantages of the use of ADR.

3.3.1 Which type of ADR ?There are many different forms of ADR. To help you understand which type of ADR suits which dispute, the following activity may be useful.

Activity 3.5Read Sime 6.09 and consider which form of ADR would you recommend for the following problems. a Your neighbour refuses to cut down his high hedge. b You are a contractor carpenter and the builder you have carried out some work for is refusing to pay, arguing they cannot afford your charges. c You are considering a claim against a commercial damp proofer but want to check whether the damp is due to their defective building work or because of your failure to clear your gutters. d You have had your refuse bin stolen and the local authority will only replace it for a fee. e You are trying to sue a carriage company for failing to deliver your goods to an overseas location. In your agreement it states that you will seek arbitration to make a claim against the company.

3.3.2 The cost of ADRAlthough ADR is often espoused as a cost-cutting measure it can still be an expensive process. This will tend to depend on the nature of the dispute. If you are using community mediation, for example, then this is usually free with only participant expenses being paid. Commercial arbitration can be very expensive. The registration fee alone can be as much as 2,500. These fees are understandable as you are asking arbitrators (who are often qualified lawyers) to adjudicate on complex matters whilst considering particularly detailed documentation in the process. Time spent by the arbitrator is usually recouped at some stage via the fees paid.

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Activity 3.6Read Sime 6.136.83 and compile a 50 word summary of the key issues for the process of each of the following.u u u u u u u

Arbitration. Adjudication in construction disputes. Mediation and conciliation. Early neutral evaluation. Expert determination. Grievance and complaints procedures. Ombudsman.

3.3.3 Refusal to use ADRAs has already been suggested, much emphasis is placed upon individuals using ADR in an attempt to avoid the need for going to trial (see Cowl v Plymouth City Council (2001) The Times, 8 January 2002). Pre-action protocols dictate that, to avoid the court, ADR must be considered. Once proceedings have commenced then the court has to, in accordance with the overriding objective, deal with cases justly by encouraging the use of ADR. If one party adop

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