Introduction to Court Litigation
Have you received a Claim Form (Form N1) or a a Part 8 Claim form (N208) claiming product liability negligence or breach of contract relating to your website terms and conditions or requesting the disclosure of an IP address or customer information? Alternatively, you may wish to bring a claim for breach of contract, online defamation of character or online harassment. Here are 5 useful tips if you are ever involved in civil litigation.
(1) Court Litigation – The Civil Procedure Rules (CPR)
The 68th Update of the CPR is coming into force on the 01 January 2014. Incidentally, in the 68th update to the Civil Procedure Rules the amendments relate to a rule change arising from the removal by section 11 of the Defamation Act 2013 Act (received Royal Assent April 2013) of the presumption of trial with a jury in defamation cases, which leaves the judge with discretion to order jury trial where it is appropriate to do so.
The CPR are the rules that govern all civil procedure in the High Court and County Court in England and Wales. They also include European law such as the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It would be very difficult to bring or defend a civil dispute in England and Wales without some understanding of the CPR, quite apart from knowledge of the relevant substantive law.
(2) Court Litigation – Pre Action Conduct
The first thing to note is that the parties are encouraged to try to settle matters themselves. After all embodied in the word “civil” is an implication of order and politeness as opposed to disorder and rudeness. As a result, there are rules about allowing the parties to receive full and frank information about what they are being alleged to have done, and then to be given sufficient time to reply. Usually it is only after such preliminary efforts are exhausted that legal proceedings are introduced to resolve matters in court with a judge as referee. Sadly, the civility that is implied in “civil” proceedings are rarely present, and lawyers are not exempt. Some of the rudest and most unnecessarily disparaging letters that we receive have been from other lawyers. That being said some of the most courteous and well-mannered letters that we receive also come from lawyers. Needless to say, all conduct throughout litigation should stick to resolving the substantive issues.
(3) Court Litigation – Pleadings
This is the term given to the details of the claim made by the Claimant and the details of the reply by the Defendant. An appropriate analogy might be a picture frame and the picture itself. Pleadings are the picture frame and the evidence is the picture that goes in the frame. In other words, the pleadings set out the case or the defence. Good pleadings are the first challenge to get over because without good pleadings the case may be a non-starter even if there is strong evidence to support it. If the case is of high value say a million pounds or more, or involves a number of very complex points of law, it is arguable that a good senior specialist barrister or Queen’s Counsel is needed to provide an opinion, prepare pleadings and present the case. This is because specialist barristers with huge experience in their area of legal practice might have come across the particular legal problem that you’re trying to resolve before. Arguably solicitors are more commercial, with a business instinct for the case, and a more holistic approach. In a high value case a senior barrister/Queen’s Counsel might be advisable (in a case where the solicitors have become too combative) as they might genuinely take a more objective or impersonal approach that might be helpful in achieving a pragmatic outcome. This combination may be exactly what is needed to guide the client, and deal with the many challenges that a client might face to be successful in court.
(4) Court Litigation – Evidence
If you go to court thinking that just because you have impeccable pleadings the court will accept your side of the story then you are very mistaken. Your pleadings no matter how good will lie in ruins without evidence. The 2 types of evidence found in a court room theatre is expositional evidence and real evidence.
Real evidence is evidence that is physical, and it supports an issue that has been pleaded. Written contracts, receipts, fingerprints, a weapon are all examples of real evidence. Expositional evidence is a written statement to establish a certain fact or facts. Obviously although expositional evidence if signed and supported with a statement of truth is admissible as evidence it will not necessarily carry as much weight as written evidence with real evidence to support it.
Expert evidence is when an expert is called upon to give an opinion on issues in dispute in the case. An expert’s opinion evidence is admissible.
(5) Court Litigation – Ending a case
Knowing how and when to stop pursuing a case whether as Claimant or Defendant is as important, and perhaps more important, than knowing how to run a case. You can end a case in a number of ways including by way of a Tomlin Order. A detailed explanation of all the possible scenarios in ending a case is well beyond the scope of this article. It is important to point out that you should never run a case for profit. It is also ill advised to run a case on principle alone unless you have extremely deep pockets, and the principle is of crucial importance to you. A costs benefits analysis should be regularly reviewed as you almost never recoup 100% of your legal costs on an assessment of costs. The rule of thumb for when to quit is to quit as soon as you’ve made your point.