Stuff to know Flashcards
1
Q
What is the “Overriding Objective” of the civil procedure rules?
A
Enabling the court to deal with cases:
+ Justly; and
+ At proportionate cost, considering:
- the value of the claim
- the importance of the case
- the complexity of the issues
- the financial position of each party
2
Q
What is the usual rule in Civil cases re costs?
A
The loser pays the winners costs.
3
Q
What costs must the loser generally pay?
A
What the court considers REASONABLE and PROPORTIONATE.
Rule of thumb ~ 70%
4
Q
What is a “wasted costs order”?
A
Where the course considers that the unreasonable conduct of a party’s legal representative has led to unnecessary or wasted costs:
The court may order the legal representative to meet those costs PERSONALLY.
5
Q
What is “Security for costs”?
A
The defendant may apply for the claimant to pay to the court a sum corresponding to their estimated costs for defence.
If granted, the proceedings will be stayed till the claimant pays.
6
Q
When can you obtain security for costs?
A
It is available if it is JUST and the Claimant:
+ Is resident outside the EEA;
+ Is a limited company, with reason to believe it may be unable to meet costs;
+ Has changed their address with a view to evading consequences of litigation;
+ Has not given their address on the claim form;
+ Is acting as a nominal claimant; or
+ Has taken steps in relation to assets to make it difficult to enforce a costs order.
But in general not available against an INDIVIDUAL
7
Q
What must a regulated person not submit orally or in any documents or pleading?
A
a) statements of fact or contentions which lack either of evidence and instruction of the client (i.e. need evidence and instruction to make)
b) contentions that he cannot justify as prima facie arguable; or
c) allegations of fraud, unless clearly instructed to make such an allegation and it is prima facie supported by credible material (don’t allege criminal acts in civil cases in general)
8
Q
What should a regulated person no do in relation to a witness?
A
a) rehearse, practice or coach a witness in relation to their evidence
b) encourage a witness to give evidence which is untruthful or not the whole truth
c) except with permission of the opponents representative, communicate with any witness once they’ve started to give evidence, until they finish. Even if that witness is their lay client.
9
Q
What are the obligations of a regulated person during proceedings?
A
a) is personally responsible for the conduct and presentation of his case;
b) must not assert a personal opinion of the facts or the law UNLESS invited to do so by the court;
c) ensure that the court is informed of ALL decisions and legislative provisions he is aware of, including unfavourable;
d) bring any procedural irregularity to the attention of the court during the hearing - don’t sit on it
e) must not cite evidence not obtained from or through the client, or devise facts to assist in advancing the clients case
f) make a submission which he does not consider be properly arguable
g-h) generally insult/impugn/annoy people, of accuse them of crimes etc
10
Q
What is a cause of action?
A
A factual situation the existence of which entitles one person to obtain from the court a remedy against another person.
11
Q
What are the general elements of a cause of action?
A
- there exists a duty
- there was a breach of that duty
- in consequence of which breach the claimant has suffered…
- a LOSS
12
Q
What are the general elements of a cause of action in IP?
A
- there exists a RIGHT
- that right has been infringed…
enough for an injunction, for damages/account of profit also need…
- the infringement has resulted in DAMAGE/LOSS to right holder, OR GAIN BY INFRINGER
13
Q
To succeed at trial, what does the claimant need to show in relation to their cause of action?
A
That EVERY element of their cause of action exists as a matter of FACT
14
Q
What is the process of factual analysis/case analysis?
A
- Identify the legal issue of cause of action.
- Write it down as a proposition.
- List the facts, good (supporting) and bad (non-supporting). The facts are simply pieces of the clients story - must still be proved with EVIDENCE
- Edits the lists, separate FACTS from conclusions and FACTS from evidence, remove any which are not relevant to the proposition
This is the case theory - keep revisiting
15
Q
What is the difference between facts and conclusions?
A
Conclusions involve a subjective inference.
16
Q
What is the difference between facts and evidence?
A
Evidence is how you prove the facts.
17
Q
What are the objectives of the pre-action regime summarised in the practice direction?
A
a) understand each others position;
b) make decisions about how to proceed;
c) try to settle the issues without proceedings
d) consider a form of ADR
e) support the efficient management of those proceedings; and
f) reduce the costs of resolving the dispute
18
Q
What form does compliance with the PDPAC take?
A
The parties exchange correspondence.
Compliance should be proportionate, in to…
identify, narrow and resolve…
the legal, factual or expert issues
19
Q
Contents of a letter of claim (pre-action letter)?
A
- Claimants full name and address;
- The basis of the claim and the facts on which it is based (case theory);
- What the claimant wants;
- If money, how much and how is it calculated;
- Identification of essential documents and a request for those the Claimant wishes to see.
- A proposal of ADR is suitable, and if not explain why.
- A response date (must be reasonable 14-90 days)
- Unless Defendant is represented, a reference to the PDPAC and costs consequences
20
Q
Contents of a response letter (pre action) to a letter of claim?
A
- Reasons why the claim or part of it is not accepted, identifying facts in dispute;
- Whether the Defendant intends to make a counterclaim, and if so details of that counterclaim;
- Any facts as to why the defendant is wholly or partly to blame;
- Whether the Defendant agrees to the proposal for ADR, or suggests an alternative method;
- A list of essential documents and any the Defendant wishes to see; and
- Copies of documents the Claimant has requested and/or any reasons why requested documents are not provided.
21
Q
What should you do if you need more time to reply to a letter of claim?
A
Acknowledge the letter as soon as possible, and in that letter propose:
+ a different date for replying; and
+ the reasons why more time is needed
22
Q
What are the potential effects of failing or refusing to comply with pre-action protocols/PDPAC?
A
The court will consider whether all parties have complied in substance, if it consider you have not, may apply:
+ adverse case management directions (e.g. stay until ADR considered)
+ costs sanctions
+ deprivation of interest
+ lower or enhanced interest
23
Q
What is pre-action disclosure?
A
If you have requested a particular document and the other party refuses to provide it/ignores you:
You can go to the court and request pre-action disclosure, requirements:
- Both applicant and respondent are both likely parties to subsequent proceedings.
- The document(s) sought would fall within the scope of STANDARD DISCLOSURE.
- issuing the order is desirable
a) in order to dispose fairly of the anticipated proceedings;
b) assist the dispute to be resolved without proceedings; and/or
c) save costs
24
Q
What can you do with documents provided under a pre-action protocol or PDPAC?
A
ONLY used for the purpose of resolving the matter.
NOT permitted to use for ANY other purpose unless agreed in writing.
25
What is a Norwich Pharmacal Order?
It is an order you can request to force an innocent third party to disclose the IDENTITY of a wrongdoer. Requirements:
a. Must be mixed up in the wrongdoing;
b. Must have facilitated the wrongdoing;
c. Applicant for the order must have sufficient interest, e.g. a genuine intention to sue the wrongdoer once identified.
26
List of ADR methods
```
+ Negotiation
+ Mediation
+ Arbitration
+ Industry sponsored dispute resolution
+ Expert determination
+ Early Neutral evaluation
+ UKIPO Opinion
+ commercial/publicity other pressure
+ walk away
```
27
What are the advantages of ADR as compared to litigation?
+ Commercial resolution - creative solutions, can agree things which a court can't order.
+ Preservation of relationships.
+ Faster
+ Cheaper
+ Certainty - avoid litigation risk
+ Confidential
+ Lack of precedent value
+ Finality - no appeals
+ Provides equivalent of "day in court" - air grievances, receive apologies etc
28
When should ADR take place?
ADR can take place before proceedings, and also in parallel with proceedings (before judgement).
Depending on the dispute, you may need to find out more information, e.g. expert opinion, before you start ADR.
29
What disputes go to the Queens Bench division?
```
+ Contracts;
+ Negligence;
+ Personal injury;
+ Defamation;
+ Debts
etc
```
30
What should you do before filing a claim?
Comply with relevant protocols or the PDPAC...
...unless urgent e.g. interim injunction
31
How do you issue a claim?
# Fill in the claim form, including brief details of the claim sufficient to identify the CAUSE OF ACTION
Identify the Claimant and one or more Defendants.
Pay the relevant court fee.
File the claim form ELECTRONICALLY (only individuals can file in person still)
32
When can a Defendant make a counterclaim?
In the defence to the claim;
at any other time, the permission of the court is required
33
What is the court fee to issue a claim?
Varies with the value of claim.
Capped at £10,000
34
How should you identify a company on the claim form?
+ Full name
+ Registered address (on companies house)
+ Company number
35
What is the relevance of the claim value when filing the claim form?
1. Determines which court to file to/which track the claim will be assigned to.
2. Determines court fee
36
What do you put on the claim form if the monetary value of the claim is not known yet?
You can state:
+ Unknown/to be determined/unlimited, but will have to pay the maximum court fee.
+ You can specify an upper bound, e.g. "no more than £200,000" and pay the court fee appropriately.
37
What is the limitation period for filing a claim?
In England and Wales - 6 years.
Time stops running for limitation purposes when the court issues the claim.
38
How many copies of the claim form are needed?
One for you
One for the court
One to serve on EACH defendant
39
Do you need to file the particulars of claim with the claim form.
No, the particulars may be filed at court and served separately...
... but it's best practice to file and serve together with the claim form.
40
What is the statement of truth on the claim form?
It confirms the claimant's belief in the truth of the facts stated, not the representative.
Best practice - get the claimant to sign the claim form.
41
How do you serve the claim once the court has issued it?
Must be served on each defendant, with a response pack.
+ Within 4 months
+ Within 6 months if serving outside England/Wales), permission of the court is needed to file outside of EEA.
42
What methods of service are permitted, in order of preference?
1. Personal service - hand to the defendant (or a company director).
2. Leaving at the last known address (ok for companies, less good for people)
3. First class post (not preferred, stuff gets lost)
Other services, courier etc are not permitted.
43
When is a claim "deemed" served?
Two business days after service is effected, by whatever means.
44
What do you need to do right after serving the claim on each defendant?
File a certificate of service with the court WITHIN 21 days of service of the claim form AND particulars of claim.
45
If you are served a claim, what must you do first?
File acknowledgement of service within 14 days of service.
46
If you are served with a claim and dispute the courts jurisdiction what should/shouldn't you do?
+ You should indicate on the acknowledgement of service that you intend to dispute the courts jurisdiction.
+ You should not indicate an intention to defend, as this will be deemed acceptance of the court's jurisdiction.
47
What is the USUAL time period for filing the defence?
28 days from service of the claim.
Extendable by a further 28 days by consent of the parties.
Different timescales apply to IP claims.
48
What can you do if the (or a) defendant does not respond to service of the claim?
Provided that you have filed the certificate of service of service of the claim...
...you can seek defauly judgement against that defendant.
49
What cases/reliefs go to the small claims track?
+ Monetary value up to £10,000.
+ Procedural rules are relaxed to encourage parties to represent themselves.
+ Each part bears their own costs
+ Cannot grant interim injunctions, but CAN grant final injunctions
50
What types of cases can the IPEC small claims track NOT handle?
Claims relating to:
+ Patents;
+ Registered designs;
+ Semiconductor topography rights; and/or
+ Plant varieties
51
What is the Fast track?
+ For claims between £10,001 and £25,000
+ Standard timetable to trial is no more than 30 weeks;
+ Costs are limited
+ IPEC has no fast track
52
What is multi-track?
+ For claims over £25,000; or
+ Lower value claims where the case involves complex evidence and/or points of law;
+ In IPEC, there is no fact track, so multi-track includes from £10,001 upwards.
53
What is the minimum value of claim for the high court?
£100,000
54
Where does IPEC fit in the court structure?
IPEC is part of the Chancery Division of the High Court.
55
What issues/claims does IPEC have jurisdiction to hear?
+ Relating to patents;
+ Infringement of copyright, TMS, designs, and other IP rights;
+ Revocation or invalidity of patents, reg designs and TMs, plus amendment of patents;
+ May make declarations of non-infringement;
+ Determinations of entitlement to IP;
+ Employee compensation for patents
+ Misuse of trade secrets and other breaches of confidence.
56
Who has rights of audience to represent clients in the IPEC?
+ Patent attorneys
+ TM attorneys
+ Solicitors
+ Barristers
57
What is the claim cap for IPEC?
£500,000
58
Features of IPEC as compared to patents court?
+ Cheaper, faster and more informal processes;
+ Shortened procedure: Claim; defence then case management conference
+ More rigorous case management. Court will determine a timetable and make an order as to:
- disclosure
- product or process description
- experiments
- witness statements
- expert reports
- cross examination at trial
59
How does disclosure work in IPEC?
In IPEC, disclosure is restricted to specific issues as ordered by the court.
60
Costs recovery in IPEC?
Is possible, however:
+ there is a cost cap for each stage of proceedings; AND
+ an overall cap on TOTAL costs of £50,000
61
Factors in favour issuing a claim in IPEC?
+ Size and financial resources of the parties;
+ Conduct of the case;
+ Value of claim and remedies required;
+ Complexity and public importance of the claim;
+ Case management orders required;
+ Estimated length of trial (needed);
+ Need/desire for an early trial
62
Will IPEC always hold a hearing for interim APPLICATIONS?
Not always - dealt with on the papers unless the court considers a hearing is necessary.
63
What kinds of claim can be allocated to the IPEC small claims track?
+ Value less than £10,000
+ Particulars of claim state small claims track, and the defendant does not object
+ Not concerning patents, Reg. designs, Semiconductor topographies or pant varieties.
64
Which claims must be started in the Patents Court or IPEC according to CPR.63?
Claims relating to:
```
+ Patents;
+ Registered designs;
+ Community registered designs;
+ Semiconductor topography rights;
+ Plant varieties
```
65
Which claims must be started in the General Chancery Division or IPEC according to CPR.63?
Claims relating to:
```
+ Copyright and/or performance rights
+ Design rights (unregistered)
+ Trade marks
+ Passing off
+ Association rights
+ Moral rights
+ Database rights
+ Claims in respect of technical trade secrets
+ etc
```
66
What are the statements of case?
Combination of:
+ The particulars of claim;
+ The defence; and
+ Any reply to the defence.
NOTE - statements of case can stand as evidence at IPEC provided they are verified by a statement of truth.
67
What are the different timescales for filings with IPEC?
+ The defence must be filed within 42 days provided the claimant has certified compliance with the PDPAC in the particulars;
+ Otherwise, period for filing defence extended to 70 days.
+ Reply to the defence to be filed within 28 days.
+ Reply to a defence to a counterclaim must be filed within 14 days
68
What are the difference timescales for filings with the patents court?
+ Claims relating to registered patents/designs also have a more generous time limit:
+ 42 days to file the defence; then
+ 21 days to reply to the defence
69
Can you amend a patent which is the subject of existing proceedings?
ONLY after applying to the court and receiving permission.
Unlike regular applications, this is advertised and ANY person may oppose the application, subject to time limits.
70
Involvement of the UKIPO in proceedings?
+ Claims relating to registered rights may be SERVED on the address listed on the appropriate register.
+ Where a remedy sought would affect an entry in a UKIPO register, the Comptroller MUST be served the claim form, application notices, statements of case etc.
+ The Comptroller may take part in proceedings, but need not serve documents unless ordered by the court.
71
What is the standard test for disclosure of documents?
Disclosable documents:
a. Upon which the party RELIES;
b. which are likely to affect his own case or another parties case adversely;
c. Which support any other party's case.
A party must disclose only those documents which are, or were, in his control
72
In relation to disclosure, what does "control" mean?
Means if the document was:
+ In their physical possession;
+ They had the right to possession of it;
+ They had the right to inspect it.
73
What is a document for disclosure purposes?
Anything in which information is recorded.
74
Who should sign the disclosure statement(s)?
The party (or a representative of the party), not their legal representative.
The person signing should understand their duties and be present at the CMC.
Rules should be explained to them, don't rely on sending guidelines.
75
When is a document a copy and when a separate document?
A copy is a separate document for disclosure if it contains:
+ a modification;
+ obliteration; or
+ other marking or feature
76
How should the list of documents for disclosure be formatted?
a. Should be:
+ listed chronologically;
+ numbered consecutively;
+ given a concise description or put into categories.
b. If you don't, the court may order a new list WITH COSTS.
c. If the documents are not found in chronological order (as is often the case), tell the other side that is how they were found and advise the client NOT to alter the order.
77
Which documents in the disclosure listing may be INSPECTED?
+ Any which are not privileged.
+ Confidentiality does not prevent inspection.
+ If referred to in the statements of case OR in witness statements the other party has a RIGHT to inspect - privilege is deemed waived.
78
What does "specific disclosure" mean (not in the IPEC sense)?
If a party considers that another party has failed to meet its obligations in standard disclosure, can apply to the court to order that party to do one or more of:
a. disclose documents or classes of documents specified in the order;
b. carry out a search to the extent stated in the order; and/or
c. disclose any documents located as a result of that search.
79
What can you do with a disclosed document?
Use it ONLY for the purposed of the proceedings in relation to which it was disclosed, except where:
a: the document is read by the court (judge), or referred to at a hearing, held in public;
b: the court gives permission; or
c: the party who disclosed that document, and the person who owns it, agree
80
What if I don't want to have my confidential, but non-privileged documents become public?
You can apply for a confidentially order - should be done before disclosure
81
How does IPEC handle disclosure?
The court will specify the scope of disclosure in the case management order, by reference to:
+ date range
+ issues
+ number of documents etc
82
What is the current business and property courts (including patents court) disclosure pilot?
Initial disclosure:
1) the key documents the party is relying on in support of its claims or defences in its statement of case (and documents referred to in the statement of case);
2) the key documents necessary to enable the other parties to understand the claim or the defence they have to meet
Extended disclosure on request at the CMC, if requested, ordered by the court according to number of different models.
83
What is important re electronic documents when litigation is in prospect?
Tell the client to preserve disclosable documents and explain what they are.
Be aware of, and potentially pause, document retention/destruction policies.
84
What are the principal heads of privilege?
a) self-incrimination
b) legal professional
c) without prejudice
85
What are the type of legal professional privilege?
i) Legal advice privilege; and
| ii) litigation privilege
86
What is legal advice privilege?
Legal advice privilege attaches to communications which are:
1. Confidential;
2. Between a legal advisor and their client; and
3. Created for the sole or dominant purpose of obtaining or providing legal advice.
87
What is legal advice?
Has been construed broadly by the house of lords that was - anything where the lawyer is providing advice with regard to the specific legal context (can be practical).
Litigation NEED NOT be contemplated.
88
Who is the client for legal advisor privilege?
Has been construed narrowly by the court of appeal, as those senior individuals with authority to instruct the lawyer.
Not satisfactory, but has not been revisited since Three Rivers.
89
What is litigation privilege?
Litigation privilege attaches to documents which are:
1. Confidential;
2. Created in respect of existing litigation or litigation which is reasonably in prospect; and
3. Created for the sole or dominant purpose of obtaining legal advice OR EVIDENCE in respect of such litigation, or to aid in its conduct.
90
Does the cause of action need to have arisen for litigation privilege to attach?
No
91
Does the other side need to be aware that litigation is reasonably anticipated for litigation privilege to attach?
No
92
Who owns legal professional privilege?
The CLIENT.
The lawyer is under a professional obligation to assert privilege unless and until it is waived by the client.
93
Can a document which is privileged in one set of proceedings have that privilege challenged in later proceedings?
No. Once a document is found privileged in one proceedings, it is privileged in any subsequent actions in which the document may be relevant.
Applies even if the two actions are unrelated.
UNLESS the privilege is lost either accidentally or deliberately.
94
Relationship of confidentiality and privilege?
+ All privileged documents MUST be confidential.
+ Confidential documents are NOT NECESSARILY privileged.
+ To prevent a confidential document being made public, need to apply for an order (before disclosure), then only the other sides reps will see it.
95
Who can assert legal professional privilege?
+ Solicitors;
+ Barristers;
+ Patent attorneys;
+ TM attorneys;
+ Trainer solicitors, legal executives and paralegals working under the supervision of a solicitor;
+ In house lawyers - when performing their legal advice role.
96
What are the limits to the scope of patent attorney privilege?
Patent attorney privilege is limited to:
a) communications as to any matter relating to the protection of any invention, design, technical information, or trade mark, passing off; and
b) documents, materials or information relating to any matter in paragraph a).
97
What are the limits to the scope of TM attorney privilege?
TM attorney privilege is limited to:
a) communications as to any matter relation to the protection of any design or trade mark, or passing off; and
b) documents, materials or information relating to any matter mentioned in paragraph a).
98
What is "without prejudice" privilege?
Without prejudice privilege attaches to communications containing a GENUINE ATTEMPT at settlement or compromise.
+ Marking a document "without prejudice" is only indicative of intention;
+ the substance of the document determines whether it is privileged.
99
What does without prejudice privilege NOT protect?
Acknowledgements or admissions of liability.
100
Who must consent to waive without prejudice privilege?
BOTH parties to the communication, i.e. sender AND recipient.
101
When can a without privilege document be produced to the court?
To evidence the terms of a settlement.
NOT in any other circumstances.
102
What if I want to be able to show my without prejudice document to the court in relation to costs and conduct?
Then it needs to be marked as "Without prejudice save as to costs".
This cannot be implied, it must be expressly marked with this wording.
103
What is a CPR Part 36 offer?
An offer made:
a) In writing;
b) Must STATE it is intended to be a Part 36 offer;
c) Must make clear whether it relates to the WHOLE claim or only PART of it;
d) Must be open for at least 21 days.
By making OR ACCEPTING a part 36 offer, a Defendant agrees to pay the Claimant's costs of the proceedings to the DATE OF ACCEPTANCE.
Part 36 offers are without prejudice save as to costs.
104
What are the consequences if a Claimant FAILS to beat a Defendant's Part 36 offer at trial?
In this situation, the Defendant is entitled to:
a) costs (including an recoverable pre-action costs) from the date on which the period for acceptance of the offer expired (i.e. reversal of usual costs from that date)
b) Interest on those costs.
105
What are the consequences if a Claimant BEATS its own Part 36 offer at trial?
Claimant will be entitled to:
a) interest on the sum of money awarded, at a rate not exceeding 10% above base rate, for some or all of the period from the expiry of the period for accepting the Part 36 offer.
b) costs (including recoverable pre-action costs) on the INDEMNITY (~90%) basis from the expiry of the period for accepting the Part 36 offer
c) interest on those costs at a rate not exceeding 10% above base rate
d) an additional amount in damages (punitive damages), up to £75,000, calculated by 10% of the first £500k, plus 5% of any damages above that figure
106
What if the Claimant beats their Part 36 offer in the IPEC?
The cost caps for each stage are likely to be uplifted by 25%.
The overall cap is also likely to be uplifted by 25%, to £62,500.
107
What is the Case Management Conference (CMC)?
+ The court will fixe a date for the CMC after the statements of case have been exchanged.
+ The court reviews the progress of the matter so far, and gives directions (timetable) for progressing the claims (in accordance with the overriding objective)
+ Ensures as far as it can that all agreements that can be reached between the parties about the matters at issue and the conduct of the claim are made and recorded.
+ Specific CMC rules may apply in particular courts.
+ The court will manage costs by making a Costs Management Order
+ May be more than one CMC
108
What is costs management?
A way for the court to control costs:
+ The parties prepare and exchange litigation budgets, and in needed as litigation progresses, amended budgets.
+ The court state the extent to which those budgets are approved (e.g. if the parties can't agree)
+ The court manages the case so that it proceeds within the approved budgets.
+ The recoverable costs of the winning party are assessed in accordance with the APPROVED BUDGET
109
When do litigation budgets need to be filed?
Not later than 21 days before the first CMC.
In the form of "Precedent H" format document
110
Other than litigation budgets, what do the parties need to file in relation to costs?
Not later than 7 days before the CMC, they need to file an agreed budget discussion report.
This must set out the figures which are agreed or disputed for each stage of the litigation.
The grounds of any disputes should be summarised.
111
What are the consequences if a party fails to file its litigation budget?
Deemed to have filed a budget including only the applicable court fees, unless the court orders otherwise.
Consequences for cost recovery
112
When do fixed costs NOT apply in IPEC?
a) Where the court considers that a party has behaved in a manner which amounts to an abuse of process; or
b) Where the claim concerns infringement or revocation of a patent, reg design, or TM the validity of which has been certified by a court or by the Comptroller of UKIPO in earlier proceedings
The latter is effectively a deterrent to repeated litigation of the same patent etc.
113
What is a witness statement?
+ A written statement signed by a person, which contains the evidence which that person would be allowed to give orally.
+ Best chance to persuade - no examination in chief (open questioning to let witness tell their story.
+ Only cross-examination at trial
114
Are you limited in the number, length etc of witness statements?
The court can control evidence by limiting:
+ The number of witnesses;
+ The issues they can comment on; and/or
+ The length of their statements
115
What is the structure and content of a witness statement?
+ Introduction - main body - conclusion, expressed int he first person.
+ Should usually follow the chronological sequence of events;
+ Should relate to the cause of action, but include wider considerations/context
+ Statement of truth, which can ONLY be signed by the witness.
116
What should be included in a witness statement?
+ The witness's story in their OWN words;
+ Corroboration
+ Explanation and clarification
+ Knowledge
+ Information or belief - give source
117
What should not be included in a witness statement?
+ Irrelevant material
+ Conjecture
+ Opinion
+ Otherwise inadmissible evidence
+ Argument
118
What should the particulars of claim include?
+ Should inform every party of the case they have to prepare for and meet during the litigation.
+ Provide background to the parties, the dispute, etc
+ The material facts, including a cause of action for every Claimant and a liability for every Defendant.
+ Make sure that you have made it sufficiently particular, and that each other party knows what case they must meet.
+ Set out the loss (and how is arises from the breach).
+ Set out the relief sought in the "Prayer" "AND THE CLAIMANT CLAIMS..."
+ Claim for interest (on damages etc) and explanation of the entitlement to the claim.
119
What IPEC specific factors should you include in your particulars of claim?
+ Evidence can be included/attached to the particulars of claim for IPEC IF accompanied by a statement of truth (use sparingly)
+ Don't forget to include a statement of compliance with the PDPAC (presuming you did), to avoid the period for service of the Defence being extended to 70 days.
+ If you want allocation to the small claims track - state in the particulars of claim.
120
What to include in the defence?
+ File the ACKNOWLEDGEMENT to give yourself more time to prepare the defence.
+ The allegations which are DENIED and why. You must put forward an alternative version of events.
+ Any allegations which are ADMITTED.
+ The allegations which are NEITHER admitted NOR denied but which have to be proved by the claimant (may be liable for costs if easily proven)
+ Statement of truth
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What to include in the reply?
+ The reply is to the Defence, and is OPTIONAL
+ Only for NEW points raised in the Defence, which have not already been addressed in the Particulars of Claim
+ If a reply is not served, the Claimant is NOT taken to have admitted anything raised in the Defence.
+ If a reply is served but does not deal with a particular point in the Defence, that point will not be deemed admitted by the Claimant.
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What is a statement of truth?
Unsurprisingly it is a statement that a party (or witness) believes the facts stated in the document are true.
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Which documents require a statement of truth?
A number of court documents MUST be verified by a statement of truth:
+ ALL statements of case
+ witness statements
+ expert reports
+ certificates of service
+ lists of documents in disclosure
+ any other document where required by a rule or practice direction
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Who can sign a statement of truth?
a) for a statement of case or an application, only the party or their legal representative;
b) for a witness statement, ONLY the maker of the statement.
For a company, a person holding a senior position should sign, stating their office, e.g. director, treasurer, secretary, chief exec, manager or other officer.
A representative is attesting to their clients belief, not their own, and must sign personally not as firm - better avoided.
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What are the consequences if a document requiring a statement of truth doesn't include it?
+ For a statement of case - remains effective unless struck out by the court. But a party cannot rely on such a statement of case as evidence of any of the matters set out in it.
+ For a WITNESS STATEMENT, the court MAY direct that it shall not be admissible as evidence
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Consequences of making a false statement of truth?
Proceedings for contempt of court.
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What is an interim application?
Process used to obtain an order from the court prior to the trial, relating to any matter not already covered by the CMC.
+ short hearing, or at IPEC usually on the papers.
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Why should mediation or other ADR be considered?
Because the courts wish to encourage it, and hence may penalise a party in costs for an unreasonable refusal to consider ADR.
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What are the Halsey factors?
Factors which will be considered by the court in determining whether a parties refusal to consider/engage in mediation was reasonable:
1) Nature of the case (e.g. small building case was suitable "par excellence")
2) Merits of the case (belief in a "watertight" case not enough to disregard mediation)
3) Cost of mediating - trivial when compared to litigation
4) Prospects of success at mediation (your own intransigence is not a good reason)
Court in Halsey also considered whether there had been any other attempts at settlement and whether mediation would have caused any delay - factors are non-exhuastive
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Factors for mediation?
1) No, or only limited, legal remedy is available
2) Preserving a relationship and/or wider commercial resolution is possible
3) Maintaining privacy
4) Avoiding high fees
5) Avoiding delays
6) Avoiding legal precedent
7) Unable to negotiate
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Factors against mediation?
1) High prospect of success at trial;
2) Party refuses, is incompetent, untrustworthy or absent
3) Serious misconduct or crime is involved
4) Better off in small claims court (small value)
5) You want the highest quantum (amount of remedy) possible (no compromise)
6) Wanting a test case to establish precedent (use against other infringers in analogous circumstances)
7) Need the court to protect your interests, e.g. injunction, enforceable court order etc
