Simple Rules for Complex Cases Andrew Beck B.L.

Context Viewed from defence perspective Drawn primarily from professional negligence and multi-party litigation Not exclusive to these types of cases

Rule 1: Check if a conditional appearance should be entered. Often a rush to enter a standard appearance Complex, multi-party litigation can contain EU/ international dimension Check Choice of Jurisdiction and Law Clause

Rule 1: Check if a conditional appearance should be entered. Jurisdiction = competence of Courts. Choice of Law = substantive law to be applied. Omission of clause + EU/international element = EU regulations/private international law.

Rule 2: Check if there is an arbitration clause. Judicial policy favours arbitration ‘Enforcement bias’ – even badly drafted clauses will be enforced Avoid taking a “step in proceedings” until assess

Rule 2: Check if there is an arbitration clause. Step = Act which invokes jurisdiction of court and demonstrates election O’Dwyer v. Boyd [2002] SC. Halsbury cited: filing afft in summary summons; delivery of a defence; applic. for extension of time for defence Commentary - remains case under Arbitration Act 2010

Rule 3: Get the full file from the insured - quickly. See Rule 4. If delay – invoke/threaten claims co-operation clause (express or implied)

Rule 4: Check if there is a third party to be joined. If so, join and join quickly. Imperative to move “as soon as is reasonably possible” Civil Liab. Act Get (1) file; (2) expert input; and (3) legal input.

Rule 4: Check if there is a third party to be joined. In past TP Notices served with delays of 15 to 18 months were not set aside. Changed ethos –Greene v. Triangle [2008] HC – “delays which may have been considered appropriate in the past will no longer be tolerated”

Rule 4: Check if there is a third party to be joined. Lyons v. Delaney, Locke & Thorpe [2015] HC delay of 5 months led to set aside of TP Notice - CA upheld “Viewed by itself, a delay of five months may not seem that long … but such applications are rarely, if ever, concerned with such an elementary step”

Rule 5: If you are the third party, consider setting aside third party notice. Greene v. Triangle [2015] CA “[The Court will consider] not only … the explanations which were given by a defendant for any purported delay, but [will] also … make an objective assessment as to whether, in the whole circumstances of the case and its general progress, the third party notice was or was not served as soon as is reasonably possible.”

Rule 6: Check if the Statute of Limitations applies. Not just black and white cut off. Are cases where parts of claim barred.

Rule 6: Check if the Statute of Limitations applies. Financial loss Gallagher v. ACC Bank plc [2012] SC. Rooted in facts of the case as pleaded. Fennelly J., “[Plaintiff] suffered damage by the very fact of entering the transaction…” BUT alternative approach, “where obligations of management and investment were undertaken”.

Rule 7: Check if security for costs should be sought. Consider plaintiff company. Consider calling in accounts from CRO.

Rule 7: Check if security for costs should be sought. Interfinance Group Limited v. K.P.M.G. [1998] Establish prima facie defence to the plaintiff's claim (In complex cases will involve expert report - cost.) If Plaintiff fails in action, it will not be able to pay the moving party's costs.

Rule 7: Check if security for costs should be sought. Interfinance Group Limited v. K.P.M.G. [1998]- approved SC Plaintiff can establish special circumstances, for example, that Defendant is the cause of its poverty. “Causal connection” required Connaughton Road [2009] HC

…and a suggestion: Write down your first impressions. Write down before noise of case settles in. BUT not always right – biases etc. Malcom Gladwell – intuition has a value where informed by experience i.e. Getty kouros statue.

“About 530 BC, or modern forgery” Getty Museum catalogue

Simple Rules for Complex Cases Andrew Beck B.L.