Litigation Part 2 – Pre-trial

This stage of a litigation case is dictated by the CPR – there is a set process which should be followed by both parties, with deadlines to be followed. Very simply, this could be as follows:

• issue of claim
• service of claim, normally with Particulars of Claim, on defendant
• acknowledgement of Service (14 days of service of Particulars of Claim)
• defence filed, with a possible Part 20 claim (14 days of service of Particulars of Claim or Acknowledgement)
• possibly consider ADR
• allocation questionnaire from court
• parties to return allocation questionnaire (and try to agree case management)
• allocation to track.

This is a lot of form filling and, arguably, the best chance your client will have for setting out his or her claim. The Particulars of Claim, Defence and Part 20 claim, if there is one, are the first statements of the case and are very important. I can offer a few tips to complete them but I am sure you will get practice in your course.

Particulars of Claim

This document sets out the basis for the claim, its value, the legal aspects of the case and any evidence. Sometimes you will include a witness statement from your client explaining the events. For contract cases, the particulars of claim should cover:

• parties and date of agreement
• nature and purpose of the agreement and consideration
• any relevant express and implied terms
• facts concerning any breach
• losses caused
• interest
• brief summary of what is being claimed
• breakdown of money
• statement of truth and authorisation if appropriate
• date of document and ‘author’.

And for negligence (RTA) cases:

• sufficient details of the incident
• details of the defendants negligence
• relevant previous convictions
• damage caused and fact claimant suffered injury, with reference to medical report
• losses sustained
• interest
• relief sought – damages and interest
• statement of truth and authorisation if appropriate
• date of document and ‘author’.

As you can see, there is a lot of work required before a Particulars of Claim can be filed. This coupled with any pre-action protocol means it could take a long time to actually issue a case in court. You should manage your client’s expectations of timescale; they probably won’t realise it takes that long!

The content of a Particulars of Claim is all about tactics – what do you reveal, what don’t you reveal, how strongly should you attack the defendant, how should you portray the incident, etc. A key area for tactics is admitting any culpability of your client – anyone’s first instinct is to hide and pin it all on the other person. In my opinion, it is better to get everything out in the open – if you include it, you can draft it and spin it your own way. If it comes out further down the line and you haven’t mentioned it, then it might not look as good as it could. For example, consider this exchange:

Claimant: I paid him to take my car away and he didn’t show up. I had parked it a little way down the street but it was the only blue car there. If he had turned up he would have seen it.

Defendant: I assumed it had already been taken away because it wasn’t outside her house.

Contrast this with:

Claimant: I paid him to take my car away and he didn’t show up.

Defendant: I turned up at her house and it wasn’t outside, I could only assume it had already been taken away.

Claimant: He would have seen it if he had turned up. I had parked it a little way down the street but it was the only blue car there.

Which claimant sounds more credible? There is also the issue that your client might not tell you everything – if something doesn’t add up, ask again!

Defence

The defence should address every material allegation in the Particulars of Claim – the options are to admit, deny, refuse to admit or make no admissions or shift the blame. Examples could be:

• The defendant owes no duty to the claimant.
• No breach occurred on the facts.
• There is no causal link between the act and the losses incurred.
• There is a right of set off that reduces or extinguishes the claim.
• The claimant could have mitigated his losses but failed to do so.
• The claimant/third party was also negligent.
• The case has been brought out of time.

It should also include any counterclaim the defendant has against the claimant or a Part 20 claim, if a third party has some culpability and the defendant seeks indemnity or a contribution.

Again, the Defence is an important document and, especially if service of claim comes out of the blue, may take some time to draft. You have 14 days from service of Particulars of Claim to respond but this is extended to 28 days if an Acknowledgement of Service is filed. In most cases (unless the claim is totally unfounded) it is useful to get extra time by filing the Acknowledgement.

Remember – if your client does nothing, the claimant may be able to obtain a judgment in default. Setting this aside has a burden of proof, takes extra time and money and is fixed costs.

Pre-trial applications

There are several pre-trial applications that can be made and should be considered at this stage. They split into three groups: termination, advancing the case, or obtaining a remedy.

Termination

These applications seek to end the case early, before it reaches trial. They should be considered by both parties as, if successful, they could dramatically reduce the costs in the case as well as benefiting your client. They are as follows:

• default judgement (where no response filed to claim)
• summary judgement (resolves clear claims or defences, flushes out opponent’s best points early)
• strike out
• stay (halts the claim for a particular length of time or indefinitely, e.g. to observe a contractual dispute resolution clause)
• discontinuance/withdrawal
• acceptance of offer to settle.

Advance the case

These applications are to assist the case where one party is not co-operating or where agreement cannot be reached. They could help facilitate a settlement or advance your client’s case where information is not forthcoming. They are as follows:

• directions (timings, what documents should be disclosed, etc. – will be decided by the court)
• disclosure (disclosure of particular evidence, especially when one party is claiming a privilege)
• examination of witness, property or document (where one party wishes the court to grant an order for examination).

Remedy

The remedies are to protect your client in advance of the case. They are only available in particular circumstances for particular cases but can be very effective if successful. They can also lend weight to your case, but beware: if the trial ends up going the other way, the costs could be much higher for your client, e.g. an injunction that prevents construction work due to a dispute will have huge damages for delay, as there will be a lot of workers, supply and other contracts affected. They include:

• security for costs (paid into court)
• interim payment (where the issue is quantum of claim – interim payment of the part that is not in dispute)
• search order
• freezing order
• injunction.

There are a lot of tactics involved in this stage – what to put in the Particulars of Claim or Defence, whether there is an application to be made to flush out the points, what directions should we agree, could we get anything out of ADR? It may be that you will have to explain these issues to your client in the exam. My legal writing exam was based in Civil Litigation: writing a letter explaining costs options to the client. It could have easily have been a letter explaining the next stages in the process, or what options were available. It could have been drafting a Particulars of Claim.

Understanding the motives behind each option will help you to judge which one is best for the case, if any.

Top tip for the exam: always mention ADR at this stage, discuss the time limits for service of documents and consider the impact of your decision on costs.