Introduction to Civil Litigation Matt Champ- Boys & Maughan

Way it normally works… 1.Letter Before Action is sent- This is what happened… this is what the law says… you therefore owe us money… pay up or else… 2. If no response- proceedings are issued (fill out a Claim Form) 3. Court will then usually serve the claim on the Defendant 4. Defendant has 14 days to enter a Defence or ask for more time (acknowledge service)- once this is done then will go through a few procedural hurdles ending up at a hearing- judge decides who wins and how much for etc

Interim Hearings Conduct of case is governed by Civil Procedure Rules (“CPR”)- very long, very boring Lots of things can happen between the claim being issued and the final trial- these hearings are called ‘interim hearings’. Normally take place in the county court before a District Judge on the papers (no witnesses)

This competition 3 interim hearings: Round 1- Setting aside a default judgment Round 2- Application for summary judgment Final- Application for relief from sanctions Rounds 1 & 2 will be before mock- District Judges Final will be before a mock Court of Appeal

Overriding Objective CPR 1.1: 1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) 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 court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.

Very flowery- good to base submissions around Almost like the ‘ethos’ that the court has to follow when making its decisions

Default Judgments As mentioned, 14 days to get a Defence in. If that doesn’t happen then the Claimant can apply for a default judgment Fill out a form, send it in, court doesn’t look at the merits of the case, just sends out a judgment for you to enforce. Can be genuine reasons why people do not reply- change of address, family illness, mental incapacity etc

When people become aware of the judgments (doing a credit check etc), they sometimes feel that they have a defence and so apply to the court to get rid of the judgment so that they can have their day in court. Fill out an application form, submit it with a witness statement, opposing side normally files their own witness statement in response, listed before a judge to have a ding dong about it

CPR 13.3 13.3 (1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if – (a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why – (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim. (2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Realistic Prospects- Have they got an arguable Defence? Some Other Good Reason- Was the claim properly served? Any other reason why it would be unfair for the judgment to stand Promptness- Did the Defendant apply quickly when they became aware of the judgment? If not, why not?

Summary Judgment- CPR 24 This is where a claim is issued and the claim itself, or even the Defence in response, is so weak that it would be a waste of time and money if it was to go through the entire court process Getting something kicked out quickly High threshold

CPR 24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Relief From Sanctions Court tells you to do something by a certain date or else you face a punishment (normally your case gets chucked out)- you don’t do what you’re told, and are then punished. Can apply to the court to allow you back in

CPR 3.9 3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence

Denton [2014] EWCA Civ 906 Read the case! Test is basically: 1) Is the error serious or significant? 2) Why did the error happen? 3) What are all the circumstances of the case

Skeleton Arguments Submitted to the judge and the other side in advance of the hearing Brief, almost bullet points, of key points that you can refer the judge to- judge normally reads them in advance- good opportunity to influence the judge before the hearing Less is sometimes more Can refer the judge to it in the hearing Key is structure and headings: Two or three neutral paragraphs about the facts Identify the relevant test Apply the facts to the test

Here’s one I prepared earlier

The hearing itself… In a glorified office- not like you see on TV. Normally a judge and an usher Judge is in a suit Man- Sir, woman- Ma’am Sit down Introduce yourself and confirm who you act for (Claimant or Defendant) Check the judge has the relevant paperwork and has read it (skeleton argument, witness statement etc)

Hints Go through your skeleton at a nice pace, refer to the skeleton: Sir, as you can see from paragraph 5 of my skeleton… Best style- conversational Refer to witness evidence to back up your point: The Claimant contends that he never signed the contract which can be seen at paragraph 7 of Mr Brown’s statement, if I could refer you there please sir.

When you’re done, summarise your submissions: For that reason we say the Defendant does have a realistic prospect of success and he did apply promptly and so the judgment should be set aside Wait to see if the judge has any questions

The prize… £100.00 to the winner and the person’s name on the Boys & Maughan shield If you wish to go on to the LPC or BPTC then it will help enormously to say that you have won an advocacy competition from a large regional law firm

Dates All rounds will take place on a Thursday. First round- 9 November 2017 Second Round- 30 November 2017 Final- TBC On the Monday before the date, participants are expected to submit their skeleton arguments

Format In all likelihood- MC and PL will decide on skeleton arguments submitted who will take part due to time constraints Those selected will have the opportunity to carry out two scenarios in November Highest combined marks will then go through to the final

Useful Links https://youtu.be/KNZii_mFXVA https://www.justice.gov.uk/courts/procedure -rules/civil/rules- CPR Rules online (you can get the White Book on Westlaw which has all of the commentary) Google is your friend!- Look for practitioner articles- they normally summarise what happened- can then decide whether to read the full judgment https://youtu.be/KNZii_mFXVA