Litigation skills update

1. Litigation skills update Introduction 18 April 2012

2. Top 10 Litigation Tips Five preparing for disputes Five preparing for Court hearings

3. Managing Disputes “The large print giveth and the small print taketh away” (Tom Waits) • Curse of the pro-forma contracts • What terms were incorporated?

4. Managing Disputes "In theory, there is no difference between theory and practice. But, in practice, there is." (Yogi Berra) • Internal processes • E-disclosure - West African Gas Pipeline Co Limited v Willbros Global Holdings Inc [2012] EWHC 396 (TCC)

5. Managing Disputes “It is a capital mistake to theorize before you have all the evidence. It biases the judgment.” (Sherlock Holmes) • Evidence wins cases • Preserve documents • Witness statements

6. Managing Disputes “To jaw-jaw is always better than to war-war.” (Winston Churchill) • Mediation – timing? • Rolf v De Guerin [2011] EWCA Civ 78

7. Managing Disputes “I run on the road, long before I dance under the lights”  (Muhammad Ali) • Resolution strategy

8. Court Hearings Pre-Hearing Preparation • Reading time • Presentation of documents

9. Court Hearings Skeleton Arguments • Identify concisely:- • The nature of the case; • The propositions of law relied on (with authorities); • Submissions of fact (refer to evidence) • Be brief • Avoid formality – use abbreviations

10. Court Hearings Other Pre-Hearing Reading • Authorities – what does judge really need? • Bundles:- - Numbering - Agreed?

11. Court Hearings Draft Orders • Allocation Questionnaire • Applications • Hearings

12. Court Hearings Cost Schedules • Local rates • Explain large items • Brief your advocate

13. Costs Update & Limitation and Service Issues Costs Update

14. Introduction • Progress on LASPO; • Part 36 update; • Some cases you may have missed.

15. Progress on LASPO • Legal Aid, Sentencing and Punishment Bill (‘LASPO’)– currently at its third reading in the House of Lords – This was the final chance for the Lords to change the Bill – which took place on 26 March 2012. The Bill will now go to the Commons for consideration of Lords’ amendments. • Key features of the LASPO: • Success fees under CFA’s are no longer recoverable. • New conditions including maximum success fees to be set by the Lord Chancellor. • Damages based agreements to be permitted • ATE premiums not to be recoverable. • Additional incentives for offers to settle.

16. Part 36 Update • Death of Carver? • CPR: 36.14(1)(a): • “For the purposes of paragraph (1), in relation to any money claim or money element of a claim “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly”. • What now for near misses?

17. Acceptance of pre-action Part 36 offers • Solomon v Cromwell Group Limited (August 2010) Manchester County Court: • “…where a Part 36 offer is accepted within the relevant period [usually 21 days] the Claimant will be entitled to the costs of theproceedings up to the day on which notice of acceptance was served on the offeror” (my emphasis added). • “Costs of the Proceedings”.

18. Acceptance of pre-action Part 36 offers cont… • Footnote to The White Book 2012 [Page 1132]: • “A Part 36 offer may be made at any time, including before the commencement of proceedings (r.36.3(2)(a)). Steps taken in contemplation of proceedings are to be regarded as “proceedings” for the purpose of r.36.10(1). Consequently, the affect of the Claimants acceptance of a Part 36 offer made before a claim has been issued is that the Claimant is entitled to recover costs incurred in contemplation of the proceedings up to the date of acceptance insofar as they would have formed part of his recoverable costs if proceedings have already been issued. • Note: clear wording is needed as to the cost consequences of acceptance of a pre-action Part 36 offer

19. Some cases you may have missed • Ahmed v (1) Brent LBC (2) National Probation Service (3) Ministry of Justice (4) Parole Board, High Court, 25 February 2011 • A publicly funded Claimant was ordered to pay the Defendants costs by way of set off against any future costs and all damages made in his favour in the proceedings. • Lockley Order.

20. R (on the application of Newham LBC) v Stratford Magistrates Court and Others [2012] EWHC 325 (Admin). • A judge had erred in awarding costs to a party who had been successful in opposing a licensing decision of a local authority as they ignored the default position that even if the party had succeeded there should be no order for costs.

21. Simcoe v Jacuzzi UK Group [2012] EWCA Civ 137 • The Court of Appeal found interest in the County Courts is recoverable on costs from the date of the Order giving rise to an entitlement to costs.

22. Dockerill (1) Healy v Tullett; Macefield v Bakos; Tubridy v Sarwar [2012] EWCA Civ 184 • Small Claims costs were not fixed under Part 45 but instead subject to detailed assessment • guidance in O’Beirne v Hundson [2010] (1) WLR 1717 (CA) applies: • Unless there is some complex issue necessitating the retention of solicitors the recoverable costs will be minimal. • This decision severely restricts costs recovery in respect of minors where damages are below £1,000.

23. Third Party Funding What is Third Party Funding?

24. What is Third Party Funding? • Relatively new method of funding litigation. • Third Party Funders or Litigation Funders fund costs of litigation in return for a percentage of the damages recovered. • May be attractive to Litigant if short of funds or risk averse. • Third Party Funders are professional fund investors - they usually also take out an ATE policy to cover opponent costs should the claim be lost.

25. Code of Conduct for Litigation Funders • Civil Justice Council published a voluntary Code in November 2011 • Newly formed Association of Litigation Funders (ALF) has agreed to abide by the Code • Provides: Litigant to take independent legal advice on the Funding Agreement • Control of the litigation must remain with the funded solicitors • Funders must maintain adequate financial resources to cover funding liabilities for minimum of three years

26. Litigation Funding Agreement • The Litigation Funding Agreement shall state whether, and to what extent, the Funder will: • satisfy an adverse costs order; • pay any premium for costs insurance; • give security for costs; • meet any other financial liability

27. Adverse Costs • Will funded solicitors be liable for adverse costs? See principles in Arkin v Borchard Lines Ltd and Sibthorpe and Morris v Southwark LBC • Third Party Funder's fees not recoverable inter-partes and must be paid by client out of damages. • Third Party Funders funding a losing case are potentially liable for opponent costs to extent of the Funder's own contribution • ATE insurance will therefore usually be taken out to cover the risk of adverse costs.

28. Cases Update • Arkin v Borchard Lines Ltd [2005] EWCA Civ 655 --- professional funders shall be liable for adverse costs to extent of their investment in the case. • In the Matter of the Valetta Trust, 25 Nov. 2011 --- Jersey Courts held that a Litigation Funding Agreement was not unenforceable and was not contrary to public policy. • Barchester Healthcare Ltd v Weddall QBD (Eady J) 10/11/2011 [2011] EWHC 2945 (QBD) --- Warning: Solicitors may become "funders" in certain circumstances.

29. Conclusions • Litigation Funding likely to increase, in particular, following implementation of Jackson reforms. • Voluntary Code of Conduct and the common law currently governs how Litigation Funding arrangements work - possibly future regulation? • Relevant to larger value Commercial litigation but public bodies are also increasingly likely to come across cases where funding is involved. • "Watch this space" ...... !!!

30. Service Issues

31. Service • Different rules apply to: • service of the Claim Form within the jurisdiction • service of the Claim Form outside of the jurisdiction • Furthermore, different rules of service apply to other documents which are not Claim Forms. Given the limited time and complexities of the same; I will look at service of the Claim Form within the jurisdiction.

32. Service of the Claim Form– who? when? where? how? • Who? • CPR 6.4(1) – • The Court will serve the Claim Form except where: • (a) a rule or practice direction provides the Claimant must serve it; • (b) the Claimant notifies the Court that they wish to serve it; or • (c) the Court orders or directs otherwise. • CPR 6.4(3) – where the Court is to serve, copies of the Claim Form for the Court and each party that needs to be served must be filed. • CPR 6.4(2) – where the Court serves it or decides on the method of service.

33. When? CPR 7.5(1) :

34. Extending time to serve the Claim Form • In general, an application to extend the time for service must be made within the period for service under CPR 7.5, or if an extension has already been granted under CPR 7.6, within the extended period (see CPR 7.6(2)). • If the application to extend is made outside the relevant period(s) specified above, the Court can extend the time for service of Claim Form only if, according to CPR 7.6(3): • (a) the Court has failed to serve the Claim Form; or • (b) the Claimant has taken all reasonable steps to comply with CPR 7.5 but was unable to do so; and • (c) in either case the Claimant has acted promptly in making the application. • Practice Direction 7A, paragraph 8.1; • Practice Direction 7A, paragraph 8.2;

35. Forcing service of the Claim Form: • CPR 7.7(1) – where a claim form has been issued but not yet served, the Defendant may serve notice on the Claimant requiring him to serve the Claim Form or discontinue the claim within a period specified in that notice. That period of notice must (CPR 7.7(2)) be at least 14 days after the service of the notice. • CPR 7.7(3) – if the Claimant fails to comply with the notice the Court may, on the application of the Defendant, dismiss the claim or make such order as it thinks fit.

36. Where?CPR 6.9 – the table:

37. How? • CPR 6.3(1) provides that Claim Form may be served by the following methods: • (a) personal service in accordance with CPR 6.5; • (b) first class post, DX or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A; • (c) leaving it at a place specified in CPR 6.7, 6.8, 6.9 or 6.10; • (d) fax or other means of electronic communication in accordance with Practice Direction 6A; or • (e) any method authorised by the Court under CPR 6.15. • Companies Act 2006

38. Deemed date of service of the Claim Form: • CPR 6.14, when a Claim Form is served in accordance with Part 6, it is deemed to be served on the second business day after completion of the relevant steps required under CPR 7.5(1) (see earlier slide for the table). • The deemed date of service of a Claim Form was not capable of rebuttal by evidence of actual receipt of the Claim Form by the Defendant. The aim of the rule was to achieve procedural certainty: Anderton v Clwydcc [2002] EWCA Civ 933.

39. Service of the Claim Form on a child or of a protected party • CPR 6.13(1)- where the Defendant is a child (but not also a protected party), the Claim Form must be served on: • (a) one of the child’s parents or guardians; or • (b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is. • If a Defendant is a protected party then, by virtue of CPR 6.13(2), the Claim Form must be served on: • (a) the attorney under a registered enduring power of attorney with authority in respect of the protected party; or • (b) the donee of a lasting Power of Attorney with authority in respect of the protected party; or • (c) the deputy appointed by the Court of Protection; or • (d) if there is no such person in any of the above three categories, an adult with whom the protected party resides or in whose care the protected party is.

40. Case law • Claim Form service by fax: dispensing with service : • Thorne v Lass Salt Garvin (A Firm) [2009] EWHC 100 (QB) • Claim Form service extension: limitation period : • Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203

41. Limitation and Service Issues

42. Introduction • Limitation and Personal Injury Claims; • Some cases you may have missed; • Service of the Claim Form– who? when? where? how?

43. Limitation and Personal Injury Claims • The basic period – section 11 of the Limitation Act 1980: • “Where the Claimant seeks damages in respect of personal injury to the Claimant or any person, the claim must be brought within 3 years of: • (a) the date on which the cause of action accrued: or • (b) the date of knowledge (if later) of the person injured”. • When the injured person dies before a limitation period expires, the limitation period for the cause of action surviving for the benefit of his Estate is 3 years from (section 1 Law Reform (Miscellaneous Provisions) Act 1934): • (a) the date of death; or • (b) the date of the personal representatives knowledge.

44. The discretion – Limitation Act, section 33. • Under section 33 the Court has the power, if it considers it equitable to do so, to disapply the limitation period set out in section 11. • The provisions leave a number of questions to be addressed: • (a) when does the course of action accrue? • (b) what is the date of knowledge? • (c) when will the Court exercise its discretion and disapply the limitation provisions?

45. Accrual of the course of action: • There is no definition of this phrase in the Limitation Act. • Cartledge v E. Jopling & Co Limited [1963] A.C. 758 HL.

46. The date of knowledge: • Limitation Act, section 14 – the date on which the Claimant first had knowledge of the following facts: • (a) that the injury in question was significant; • (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute a negligence, nuisance or breach of duty; • (c) the identity of the defendant; • (d) if it is alleged that the act or omission was that of the person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against a defendant; and knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

47. Knowledge: • Limitation Act, section 14.3 - for the purposes of this section, a person’s knowledge includes knowledge which he might reasonable have been expected to acquire – • (a) from facts observable or ascertainable by him: or • (b) by facts ascertainable by him with the help of medical or appropriate expert advice which is reasonable for him to seek: but a person shall not be fixed under this sub-section with knowledge of a fact ascertainable only with the help of expert evidence so long as he has taken the reasonable steps to obtain (and, where appropriate) to act on that advice”.

48. Knowledge cont…: • Adams v Bracknell Forest BC [2004] UKHL 29 • Whiston v London SHA [2010] EWCA Civ 195 • Jones v Norfolk CC [2010] 1313 (QB)

49. Significant injury: • A v Hoare [2008] UKHL6: • “The test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injuries sufficiently serious to justify proceedings but whether he would ‘reasonably’ have done so. You ask what the claimant new about the injury he had suffered, you add any knowledge he had about the injury which may have been imputed to him under Section 14(3) and you ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against the defendant who did not dispute liability and was able to satisfy a judgement…”

50. Attributable in whole or part to the act or omission… • Aspargo v North Essex DHA [1997] P.I.Q.R 235 • Davis v Ministry of Defence, The Times, August 7, 1985