Practice Direction 6 Revisited Damian Gordon Barrister at Law

The Future of Litigation Old Method See Client Send letter of Demand or letter responding to demand Pleadings Discovery/Disclosure Interrogatories Trial (Settlement at Court) Exhausted Client (little involvement) PD6 See Client Letter setting out case with Documents Response with Documents Accept or reject claim Mediation Client fully involved in the process Risk Management

Introduction Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms: Commonly known just as “PD6” Applies to all civil proceedings Parties follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation

Pre-commencement Procedure Step 1: Paragraphs 3-13 inclusive. The plaintiff sends a letter to the defendant with the details of the claim This is supported by copies of the essential documents which the plaintiff relies on AND Subject to privileged documents, any documents which may significantly impair the party’s Case.

Pre-commencement Procedure Step 1 continued: The defendant should promptly acknowledge the plaintiff’s claim letter and provide a full written response as appropriate The defendant will either accept the claim in whole or in part and make proposals for settlement or; State that the claim is not accepted.

Pre-commencement Procedure The defendant must be precise about what parts of the claim, if any, are accepted and what parts are rejected The defendant must provide detailed reasons (including supporting documents) for non- acceptance of the claim

Requires pre-commencement discovery of documents by both sides Pre-commencement procedure should also normally include “the parties conducting, in good faith, genuine and reasonable negotiations with a view to settling the claim economically and without Court proceedings” The PD6

The PD6 is specific as to the need for the parties to consider alternative dispute resolution. Lawyers are there to solve the problem Lawyers are there to control the process

Pre-Commencement Procedure PD6 provides sanctions for non-compliance with the prescribed procedure for pre-action conduct if, in the opinion of the Court, “non-compliance… has led to the commencement of proceedings which might not otherwise have needed to be commenced, or has led to delay or costs being incurred in the proceedings that might otherwise not have been incurred.” per BarrJ NTSC Spadaccini v Grice [2012] 41 at para.46.

The PD6 Sanctions May go to pre judgement interest No interest or at a lower or higher rate SCR 63.3 Costs discretion very active No Costs to indemnity Costs How you engage in the pre proceedings determines your strategy for the entire case

The PD6 As part of your case strategy you should be able to provide evidence to the Court to show how you have engaged in alternate means of resolving the dispute The day of being able to settle a matter because of the relationship which exists between practitioners is fading

The PD6 The first rule in mediation is that both parties have to wish to mediate This process allows an escape route for your clients This process, if engaged in properly, is a shield to any future claim for negligence or argument concerning your legal fees charged

Case Management Conferences Paragraphs introduces the Judicial Eye. Positive duty placed on the Court to ensure the real issues of substance are resolved by the Court. Master’s ability to illicit this means your pleadings will be scrutinized. Therefore the parties and the Legal reps need to attend the conference.

The Proceedings Stage Disclosure limited to the real issues The real issues are determined at the case management conference The entirety of your case relates back to your pre action procedures.

Offers Offers of Compromise are inextricably joined to the pre-action procedures The ability to intimidate with offers is diluted by the need for the parties to embrace in the process of trying to resolve their dispute

Changes Ahead PD6 will become a SCR. PD6 will be incorporated into Magistrates Court Actions PD6 will be referred as the Overarching Purpose of disputes The Court will be able to intervene to ensure the PD6 integrity in Court proceedings is maintained.

Changes Ahead Timetables Ordering Mediation The Trial Structure Pleadings Disclosure Submissions “Overarching Duty” for Lawyers to comply Re: PD6

The Perfect Storm Spandaccini v Grice [2012] NTSC41 Parties were neighbours Fence dispute Legal Costs 10 times the amount in agreed damages The ability of the Court to award interest and Costs at different parts of the proceeding to reflect the Parties’ attitude during the proceedings.