Litigation Flashcards
What steps must occur before action (pre-action protocol)?
The court expects both parties to have exchanged sufficient information to:
understand each other’s position
make decisions about how to proceed
try to settle issues without proceedings
consider a form of alternative dispute resolution
support efficient management of proceedings
reduce costs of resolving dispute
Content of LBA/C&D
Identifies client
Details background of client
Details what rights are said to exist
Set out the law that applies
Sets out what other party is said to have done
Sets out what outcome is demanded and by when
Reminds them of need to retain document
Who might a client sue?
Licensors and licensees
Companies and directors
Retailers and manufacturers
What interim remedies are there?
Interim injunctions
Freezing injunctions
Pre-Action disclosure
Norwich pharmacal order
What courts?
High Court
Intellectual Property Enterprise Court
Small Claims Track of the IPEC
High Court
Unlimited damages
Theoretically unlimited costs
Interim remedies
May need to be brought into ‘main’ High Court if other claims (e.g. deformation)
IPEC
Up to 500k damages
Up to 60k legal costs + 30k quantum
Interim remedies
Small Claims Track IPEC
Up to 10k damages
Limited costs recovery
No interim injunctions
Cannot hear cases related to registered designs or patents
How does litigation start?
Filing of claim form
Accompanied by Particulars of Claim - should shadow a LBA/C&D
Both the claim and the particulars are served on the defendant.
How does a defendant respond to a claim in litigation?
Must file a defence, or acknowledgement of service and a defence letter (with any counter claim)
Defence is to set out which facts are admitted
Which facts are denied
Which facts are not admitted and are the obligation of the Claimant to show.
What is a case management conference?
A time where parties meet to decide what is still in dispute.
Sets number of witnesses
Disclosure
Time in Court
Timeline
Judge then signs off the order or decides if parties cannot agree
What is disclosure?
Documents in your possession that either you will rely on, which damage your case or which assist your opponent’s case.
What are witness statements?
Must be witness’ own words and have a statement of truth. If from records must say how they know records are correct.
What happens at trial?
All witnesses must attend for cross-examination.
Usually:
Claimant and Defendants open explaining the case and law.
Claimant’s witnesses then Defendant’s.
Claimant and defendant close
Claimant then gets to respond to defendant’s close.
When are costs dealt with in litigation?
After trial when decision handed down or a later date.
