Litigation Flashcards
Features of a common law system
- little influence of Roman law
- judges: inherent jurisdiction
- Little or no codification
- common law v equity
- ADVERSARIAL
Features of a civil law system
- strong influence of Roman law
- supremacy of the statute
- codification
- private v public law
- INQUISITORIAL
Features of adversarial approach
- origins: Westminster judges & local juries
- openness/publicity
- oral proceedings
- passive judges & active parties
- standards of proof
Features of inquisitorial approach
- origins: churches & universities
- secrecy
- written proceedings
- passive parties & active judges
- searching for the objective truth
What is the principle of concentration?
When you have a jury trial it is an event that needs to be organised.
You start the hearing, you must end it by making a decision.
Said to be concentrated - it happens in one sitting.
Pre-trial/trial division
Pre-trial: everything that happens before the trial is the preliminary stage.
What is discovery?
The system by which parties can cooperate to produce information before trial.
So the parties know about the arguments of each other.
Allows parties to work together to get information on the case e.g. depositions
3 major milestones that lead to civil procedure reform
Woolf Report on Access to Justice 1996
Civil Procedure Rules 1998
Jackson Review of Civil Litigation Costs 2013
Features of the reform
Pre-action behaviour Case control Court allocation and tracking Document and procedure Encouragement of ADR
Pre-action behaviour
Came in the form of pre-action protocols.
Things both parties are supposed to do before they start proceedings and start a case in court.
They must have exchanged the vital information (e.g. their arguments) and in most cases attempted ADR.
If the parties don’t follow pre-action protocols this can be considered when the court is deciding on the outcome of the case when deciding costs
Case control
Continental feature.
The court is supposed to supervise how the case is going.
The court is entrusted with making sure the case proceeds in an efficient manner and as quickly as possible.
The court sets a timetable for the proceedings and disallows steps that are obviously disproportionate to the case
Court allocation and tracking
3 tracks 1. Small claims track 2. Fast-track/summary cause 3. Multi-track/ordinary cause Cases are set on tracks relatively early, so if your case is sent to small claims track it is pretty obvious you don’t get to move for high expenses.
Small claims track
- this involves relatively small amounts of money
- supposed to proceed fairly quickly
- strict rules on costs
Fast-track/summary cause
- something between small claims and full fledged
Multi-track/ordinary cause
- where all traditional rules of civil procedure apply
- you could employ expensive experts for evidence and spend a substantial amount of money on costs
Encouragement of ADR
Every time you go to court someone will ask if you have considered ADR.
There is a lot of encouragement to take the ADR route.
If you disregard the fact you are being advised to take another form of ADR you can be punished, especially in the form of costs at the end of court proceedings.
What is “the overriding objective” of the procedural code?
To enable courts to deal with cases justly and proportionately
What does dealing with a case justly and at proportionate cost include?
A) Ensuring the parties are on equal footing
B) saving expense
C) dealing with the case in ways which are proportionate:
- to the amount of money involved
- to the importance of the case
- to the complexity of the issues
- to the financial position of each party
D) ensuring that it is dealt with expeditiously and fairly
E) allotting to it an appropriate share of the courts resources, while taking into account the need to allocate resources to other cases
F) enforcing compliance with rules, practice directions and orders
Disclosure and inspection of documents
A party discloses a document by stating that the document exists or had previously existed - the other party has the right to inspect that document.
The document being discovered even when adverse to the interests of the party or supportive of the party’s case - there is an obligation to search for such documents.
How many types of disclosure did the Woolf report provide for and what are they called?
Standard disclosure
Specific disclosure
Discuss standard disclosure
Rules are that you disclose a document by mentioning that it exists, not necessarily by providing it to the other party or to the court.
The other party has a corresponding right to inspect that document/piece of evidence.
There is a duty to disclose not only documents that work in favour of your case but also documents that harm your case. Requirement under the Civil Procedure Rules to provide ALL relevant documentation. If you don’t do this you risk facing sanctions.
You must conduct a reasonable search - if you suspect there may be relevant documents/evidence somewhere you must conduct a reasonable search to try and locate them
Discuss specific disclosure
An application must be approved by the court.
You must provide specific reasons, bearing in mind the specific objective, and explain why you need the specific evidence.
If there is a good enough reason the court will order a specific disclosure.
Discuss Part 36 offers
If one of the parties in an ongoing litigation action is willing to settle on particular terms, this party can send their opponent a Part 36 offer.
If the parties decide to settle on the terms provided for in the offer then fine. If they don’t settle and the opponent does worse in the trial than in the terms of the offer, then all of the legal expenses from the point the offer was made until the trial will be beared by the rejecting party no matter what the outcome of the case is.
This is a way to increase compliance - anytime you reject an offer and you get worse terms at the trial you risk paying for all of the legal costs incurred by the other party.
