The English Legal System Civil Litigation Disclosure and Inspection Part 36 Offers High Court and County Court Final Overview

Aims The aims of this lecture are to: 1.Look at the process of disclosure of documents in civil litigation; 2.Differentiate this process of disclosure from inspection of documents; 3.Look at Part 36 Offers and payments into court, their purpose and effectiveness; 4.Look at the rules for issuing proceedings in the High Court and county courts and the impact that the Woolf reforms had on this area; 5.Examine civil litigation in overview and revise some of the features which have changed since 1999.

Outcomes By the end of this lecture you should be able to: 1.Describe the processes of disclosure of documents and inspection; 2.Differentiate between these processes and state what their aims are; 3.State what is meant by a Part 36 Offer and how effective these are in bringing about an early settlement in civil cases; 4.Describe the rules for issuing proceedings in the High Court and in the county courts and critically assess whether the distinction between courts is still needed; 5.Critically overview the process of civil litigation as whole.

The purpose of disclosure and inspection Cards on the table approach Fulfilling the overriding objective

What are disclosure and inspection? Disclosure: informing that other party that a document exists (Part 31.2) Inspection: when the other party inspects or is given a copy of the disclosed document KEEP THE CONCEPTS SEPARATE IN YOUR MIND

Standard disclosure (Part 31.6) Disclose: –Documents on which he relies –Documents which: Adversely affect his own case Adversely affect another party’s case or Support another party’s case and –Any documents required to be disclosed by a relevant practice direction

Documents must be or have been in the party’s control (Part 31.8)

Which documents to disclose Example Steve has been injured while working for his employer on a building site. He says the scaffolding he was working on was not secured properly and that he fell four storeys because of this. His employer says that Steve fell because he was not paying proper attention. Which of the following would need to be disclosed and why?

Which documents to disclose Defendant’s Documents Internal site inspection reports immediately after the accident showing no problem with the scaffolding Site inspection by HSE prior to the accident indicating problems with the scaffolding Steve was working on. A letter from the defendants to their solicitors indicating that they worry they may be liable

Which documents to disclose Claimant’s Documents Medical records for Steve’s injuries Numerous letters from the company to Steve about changes in holiday entitlement and other matters relating to his employment

The Right to inspection (Part 31.3) The right exists unless: –A party has a duty or right to withhold –It would be disproportionate to allow inspection –The party no longer has control of the document

Withholding on the grounds of Legal Privilege Communications between solicitor and client Communications between solicitor and third parties

Which documents to allow inspection of Decide which documents to allow inspection of in the case of Steve Atkinson

Disclosure when? Can be prior to the case even commencing On the fast track, within about 4 weeks of allocation See pp of Zander for a discussion of the change to the rules of disclosure brought about by the CPR

Part 36 Offers Why? Part 1.4 the court has a duty to encourage settlement Loser pays principle (Part 44.3 (2) (a))

What is a Part 36 Offer? Part 36 Offer: an offer to settle the case that can have specific costs, sometimes other, consequences

Part 36 Offers by Claimants New under the CPR An offer to accept a sum of money in settlement

The consequence of acceptance of a Claimant’s offer Claim stayed upon the terms of the offer Claimant entitled to have costs paid by the defendant up to the date of the defendant serving notice of acceptance

The consequences of not accepting the Claimant’s offer Claimant loses the case Claimant wins the case but fails to do better than their offer Claimant wins the case and does better than their offer

Part 36 Offers and Payments by Defendants An offer by a defendant prior to settle proceedings is a Part 36 Offer If a defendant wants to make an offer on a money claim after proceedings are commenced they need to make a Part 36 payment into court

The consequences of not accepting the Defendant’s payment The claimant loses the case The claimant wins the case and does better than the payment The claimant wins the case and fails to do better than the payment Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court

Example of a Defendant’s Part 36 Payment D pays into court £10,000 At trial C wins and is awarded £5,000 C’s costs before the last date the offer could have been accepted: £1,500 D’s costs after the last date offer could have been accepted: £2,000 C’s costs after the last date offer could have been accepted: £2,000

Who pays? D pays C’s pre-offer costs: £1500 C pays D’s post-offer costs: £2000 C has to pay his own post-offer costs: £2000 C is therefore £4000 out of pocket

The Civil Court System Magistrates’ Courts County Courts High Court

Allocation of cases between High and County Courts Jurisdiction of County Courts Jurisdiction of High Court: Practice Direction 7 of the Civil Procedure Rules Further reading: Zander pp 4-9

Should the High Court and county courts be amalgamated?

Overview Funding An overview of the civil process The reforms to the civil process The role of the courts

Summary of lecture You should now be able to: 1.Describe the process of disclosure of documents and inspection and differentiate between them; 2.Describe the rules for making Part 36 offers and payments into court and the consequences which these have; 3.State the rules as to when you will issue proceedings in the High Court or in the county court; 4.Critically consider whether the courts should be amalgamated.

Further reading For further reading on the subjects covered in this lecture see: 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)