The English Legal System The Civil Litigation Process in outline The Woolf Reforms

Aims The aims of this lecture are to: 1.Introduce the stages of a litigated case in the civil courts; 2.Revise the defects in the unreformed civil litigation process; 3.Examine the Woolf reforms in detail; 4.Look at the specific mechanisms that Lord Woolf introduced to manage cases, in particular the pre- action protocols, the overriding objective, judicial case management and the enhanced use of directions.

Outcomes By the end of this lecture you should be able to: 1.Outline the basic stages of a litigated case; 2.Summarise the defects in the previous system of civil litigation; 3.Describe the the Woolf reforms in detail; 4.Outline in particular what is meant by pre- action protocols, the overriding objective, judicial case management and the use of directions.

Outline of a civil case The claimant is Matthew Injured in a road accident, he was a cyclist Wishes to claim damages from the motorist who knocked him down Matthew has 2 witnesses The Defendant has a witness who says that Matthew was not looking when he took the bend

Stages of the Action Funding Can Matthew fund himself? Will Matthew be eligible for public funding? Are there any other options for him? Investigation of the claim, need to gather evidence What evidence is there, will they need a medical report at trial to detail the full extent of Eric’s injuries?

Contacting the other side/ Negotiation The solicitor should send a letter of claim, what used to be described as a letter before action Without prejudice negotiations should be carried out with the other side, meetings between solicitors and/or counsel to negotiate a settlement

Starting Proceedings Claim Form issued by the Court Starts the timetable for litigation running Should include brief details of the nature of the claim

Filing a defence Defendant has fourteen days to either file a defence or an acknowledgment of service An acknowledgment of service gives the defendant an extra fourteen days to file a defence The final twenty-eight day period may be extended with the consent of both the parties The main issue is that both sides should adopt a ‘cards on the table approach’

Post-issue Conduct of Litigation Exchanging Documents Exchanging witness statements and expert evidence TRIAL

(1) Pre-action Protocols What are they? What areas do they govern? Implications of non-compliance

(2) A new set of rules and the overriding objective “These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly” The change in the culture of litigation

Proportionality Amount of money involved The importance of the case The complexity of the issues The parties’ financial positions

(3) Judicial Case Management – CPR 1.4 Encouraging co-operation Identifying the triable issues Helping the parties to settle Fixing settlement Cost/benefit

Striking Out a - Draconian Measure? Power to strike out a case comes from CPR Part 3 Other sanctions that the court can apply

Biguzzi v Rank Leisure plc [1999] 4 All ER 934 RL appealed against the decision to reinstate B’s claim for negligence and/or breach of contract which had been struck out for failing to adhere to the time limit Tried to rely on previous case law under the old system to support their proposition

Biguzzi continued Held: 1.Decision to reinstate correctly made; 2.Court was not bound by any principles of the old system; 3.Striking out was inappropriate where the court had other sanctions it could impose.

Walsh v Misseldine (2000) CA W sustained personal injuries in a RTA and commenced proceedings against M in 1992 Confusion over the date for requesting a trial date in M’s defence Action struck out W appealed

Walsh continued Held: 1.If action progressed as it should have done the case should have been tried in 1995, therefore it was still possible to conduct a fair trial of the issues as they were formulated in 1995; 2.Future cases would require consideration of their own particular merits.

Summary Judgment Court may enter summary judgment if: (a)It considers that (i)C has no real prospect of succeeding on the claim or issue; or (ii)D has no real prospect of successfully defending the claim; AND (b) There is no other compelling reason why the case or matter should be disposed of at trial

The Tracks Procedure – when does allocation to a track take place? What influence do the parties have on track allocation? How does the court decide?

Small Claims Track Simple straightforward cases Value of less than £5000 Heard by District Judges in the county courts

Fast-track Main procedural track Claims worth between £5,000 and £15,000 and for which trial will take one day or less The 30 week trial window

Multi-track More complex cases, either in financial value or because of the legal issues raised Much greater flexibility as to the timetable that will be adopted for these

The court’s directions Disclosure Exchange of witness statements Exchange of expert reports

Small claims example Jason borrows Sheila’s boat and runs it aground at the local lake. Sheila issues proceedings claiming £2,000 in damages for repair of the boat Jason disputes being at fault, has a witness to the weather conditions and questions the costs of the repairs

Possible court directions Parties serve written estimates of repair Witness statements Original documents 14 days before the hearing Trial listed to take place on… with a time estimate of 2 hours

Fast track example John has had double glazing installed and is suing Easy Windows for the full costs paid to them of £7,000 Easy windows and John each have an expert who support their case

Possible court directions Both parties disclose documents within 4 weeks Both parties exchange witness statements within 10 weeks Both parties exchange their expert reports within 14 weeks and there be a meeting of the experts Trial within 30 weeks

Summary You should now be able to: 1.Outline the basic stages of the civil litigation process; 2.Summarise the defects in the old system of litigation; 3.Outline the Woolf reforms; 4.State what is meant by pre-action protocols, the overriding objective, judicial case management and directions.

Further reading Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9 th edition) Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7 th edition)