Litigation train (timeline)

• Funding and upholding the Principles of the SRA Standards and Regulations
• Means of funding initial work and first interview: Monies on account? Fixed fee interview? First free interview?
• Funding options for future work
• –  Advice re: funding options that are or may be available
• Client’s description of events (may form basis of witness statement). Send copy to client to confirm/sign (usually in PI claims)
• Advise re: Disclosure obligations
• Consider urgency/preservation of evidence
• Client involvement – evidence gathering, diary, identify loss

• Conflict search
• Applying the Principles of the SRA Standards and Regulations – clear advice in writing
• Money laundering – identity checks and copy documents to file
• If client is a company - ensure client representative has authority to bind the company

• An identifiable cause of action?
• Identify parties to the action
• Burden of proof
• Limitation issues
• Jurisdiction issues
• Is there a child or protected party in the action? If so, identify litigation friend

To inform client:

• Ethos of modern litigation
• Protocol practice / best practice
• Inform client of suitable methods of ADR available
• Inform client of most effective time to consider ADR – not too early or too soon or before issues and some evidence available
• Inform client of benefits of ADR and need to embrace or justify why not

• Initiate early investigations – that are proportionate to possible value of claim
  Purpose of above to:
• – Identify possible sources of evidence
• – Satisfy burden of proof
• – Make first risk assessment (used to assess viability and possible CFA, DBA and/or ATE – but note the costs of the ATE or any success fee will not be recoverable)
• – Identify loss and damage
• Does client have BTE? Check detail of policy

• Applying the Principles of the SRA Standards and Regulations – the Professional conduct matters to be dealt with before any substantive work undertaken (save in cases of urgency)

• Client to understand reasons for, and benefit of, protocol
• First risk assessment concluded after stage 1 will advise suitable/available method of funding and, if CFA or DBA the terms of that
• ATE needed? Identify cost and level of cover. The cost of this will not be recoverable. Early letter to defendant/defendant insurer

• Seek instructions to undertake any step advised – Applying the Principles of the SRA Standards and Regulations Principles 1-7
• Applying the Principles of the SRA Standards and Regulations – duty not to mislead the court, clients or others– ensure client understands continuing obligations of disclosure and retention of all relevant evidence (whether helpful to client’s case or not)
• Determine whether any person or firm has authority to accept service of any future proceedings
• Check solvency of opponent

• Protocol – NOT part of CPR therefore court cannot enforce compliance with protocol (though sanctions may be imposed for unreasonable non-compliance with protocol)
• CPR can be engaged pre-issue in certain circumstances e.g. if requirements of CPR 31.16 are met for an application for pre-action application for disclosure and such an application is justified
• Protocol practice indicates:
• – Identify whether a protocol is in place for action
• – If no protocol – PD on Pre Action Conduct and behave “as if”
• – Most protocols identify the following stages of protocol practice:
• • – Letter of Claim (or Letter before Claim-Debt)
  • – Acknowledgement from defendant
  • – Letter of Response
  • – Exchange of documentary evidence
  • – Consider selection of ‘agreed’ expert
  • – Potential meeting of experts

After exchange of documents and information and exchange of Letter of Claim and Letter of Response, review case. New ‘Risk Assessment’. Then consider Part 36 offer and consider/propose an ADR process. Client to understand benefits of making Part 36 offer and risks of rejecting any made in this stage.

• Costs estimates given
• If costs estimates need to be revised, justify and seek instructions to continue

• Protocol time ‘limits’ and ‘variations’ to be agreed and justified
• Consider when protocol should not be undertaken e.g. if limitation period about to expire or if issues of jurisdiction indicate the need to issue pre-emptively
• In pre-emptive issue of proceedings consider a ‘stay’ of the proceedings after issue for protocol to be engaged

CPR Parts 6, 7 and 16

• Parties – name correctly
• Consider which court –
• High Court (values applying?)
• If a District Registry which one?
• County Court (values applying?)
• Where to issue?
• Consider Jurisdiction (is there a valid arbitration clause?)
• Consider Joinder – of issues or parties
• Know which track case is likely to be allocated to
• Documents needed to issue
  • – CF Form N1 x requisite number of copies
  • – Fee
  • – Notice of funding (N251)
  • – Notice of suitability of litigation friend (if appropriate) N235

  Additionally if being served with Particulars of Claim (POC)

  • – POC (or endorsed CF) x requisite number of copies along with any documents to be annexed.
• Service, note especially;
• – Who has authority to accept service (confirmation in writing)
• – In the County Court the ‘default’ position is that court will serve (usually 1st Class Post) unless expressly requested to return documents for service by claimant. Whoever serves, the N9 Response Pack must be attached to POC.
• If service by claimant

• – Choose appropriate method of service
• – Execute service precisely as required
• – File certificate of service (N215) within 21 days of service if you have served the claim form and the defendant has not filed an acknowledgement of service
• – Diarise date when acknowledgement of service and/or defence to be filed

There are no ADR issues for this stage.

• Need issue fee and/or monies on account generally
• Cost of method of service if instructing process server.

• CPR 6 & 2 & 3
• Service of CF within 4 months after issue (in jurisdiction) or 6 months (if outside jurisdiction)
• Parties can agree an additional 28 days for service of defence. Must inform court in writing
• Dates of service of each method of service are crucial
• Note CPR 6 provisions in relation to time
• Note CPR 3.10 in relation to time and courts powers to remedy errors
• Note CPR 2.8, 2.9, 2.10 and 2.11 in relation to time
• Note: if CF served without POC, POC must be served within 14 days of service of CF

Acting for claimant:

• Note date when acknowledgement of service and/or defence due in. Request judgment in default if not received acknowledgement of service or defence in time
• Consider any request for an extension of time for defendant to file defence ‘reasonably’
• Consider application for Summary Judgment (CPR 24) or a strike out (CPR 3.4) if appropriate, when acknowledgement of service or defence filed

Acting for defendant:

• Check service has been effective, note date when acknowledgement of service or defence due
• File and serve acknowledgement of service or defence within 14 days. File and serve defence within 28 days of date of service of Particulars of Claim
• Take full instructions
• Consider funding options for defendant, monies on account/is CFA a viable option?
- Determine definition of “success” in CFA
• Consider evidence for defendant’s version of events
• Obtain instructions for any step taken
• Risk assessment for defendant
• Advise defendant client of disclosure obligations if appropriate
• Advise defendant client of meaning and consequences of Statement of Truth to be made on defence
• Need take no action until defendant served with Particulars of Claim

• Applying the Principles of the SRA Standards and Regulations for your defendant new client
• – Dealing with conflict search
• – Money laundering identity checks
• – Applying the Principles of the 2017 Code of Conduct If client is a company - ensure client representative has authority to bind the company

CPR 15 and 16 (contents of a defence)

CPR 11 (if disputing jurisdiction)

CPR 18 (Requests for Further Information)

CPR 20 (Counterclaims and Additional Claims)

CPR 24 (Application for Summary Judgment)

CPR 3.4 (Strike Out)

• Drafting of defence
- A denial must be made with full particulars of defendants version of events
- Admit what should and can be admitted
- Refuse to admit only those parts of claimant’s case that defendant has no knowledge of i.e. the claim for loss and damage
- Raise any claim for a contribution or indemnity or counterclaim or additional claim as appropriate
- Adhere to time limits

If attempts at ADR or negotiation have been made and failed, or not made by this stage prepare to justify defendant’s position and anticipate that court may stay proceedings for ADR at Allocation (Stage 5). Once defendant has filed and served his defence it may be an opportunity to consider an ADR process or Part 36 offer to settle.

• Defendant should consider proportionality in the issues raised in the defence
• Risk assessment made and risks of cost recovery
• Consider whether funding option covers any counterclaim

14 days from service of POC – serve acknowledgement of service or defence

If filed acknowledgement of service, serve defence within 28 days of service of POC.

If disputing jurisdiction, defendant must make that claim with acknowledgement of service and take no other step in the proceedings.

• Seek monies on account of Directions Questionnaire (DQ) fee (if claimant)
• Ensure client understands how his case will be case managed by the court and that he has obligations to the court as a party to the action, and to you as your client to assist in the progress of his claim (or defence) to trial or resolution
• Provide cost estimate to client at DQ and CMC stages
• If case small claim track advise client of limited costs recovery in that track

• Fee earner with relevant knowledge of file should attend any CMC
  Risk if CMC not purposeful, then wasted or indemnity costs order may be made
• Ensure DQ is completed in time otherwise risk strike out of case and potential professional indemnity claim

• CPR 26 – 29 govern: Allocation and Case Management generally
• Case will automatically be transferred to Defendant’s court if Defendant is an individual and claim is for a specified money claim
• Liaise with opponent in preparation of DQ (N180 or 181)
• Consider track allocation, whether a stay is appropriate, number and nature of witnesses, both lay and expert, likely directions (PD 28 and 29) trial length and costs estimates in preparation of DQ.
• Consider whether on filing DQ, it is a suitable time to make any interim application (summary Judgment, Interim Payments)
• If directions set out in DQ are not agreed, or the court of its own volition requires a hearing, the court will list a CMC
• Check Court Guides if High Court matter for documents necessary in the preparation for the CMC such as a case summary, as well as any directions order made by the court in respect of the listing of the CMC
• Justify any request for specific directions for example for expert evidence (whether as SJE or expert for each party)
• If making an Interim Application ‘on notice’ write to opponent first to see if order/relief sought can be agreed before submitting application
• If making Interim Application, after writing above, prepare application, usually in form N244 and written evidence supporting application along with a draft order and fee (and case summary if multi track case). Can use a Statement of Case already filed provided it contains a Statement of Truth
• Evidence supporting an Interim Application must be persuasive (exhibit material evidence where possible) and must directly refer to the courts discretion to make the order sought

• The costs estimate provided either with DQ or CMC must be as accurate as possible. PD 44.3.2involves the 20% rule but note dissenting case law on this point.
• Court will consider overriding objective when case managing
• If an Interim Application is made file N260 24 hours before hearing

• DQ is automatically issued by the court on receipt of a defence in all P7 fast track and multi track (non-specialist court) claims
• Note strict time limits for filing DQ and fee at court – usually 2-3 weeks from issue
• Note time limits for any Interim Application sought

• Advise client to preserve all relevant documentary, original and electronic evidence (see Stage 1)
  Client must understand what “standard disclosure” is (i.e. he will have to disclose documents that are harmful to his own case for example) and the extent of his “disclosure statement”. (CPR 31)
• If case involves electronic disclosure, try to agree key words and extent of search with opponent in accordance with CPR 31B. Prepare Electronic Disclosure Questionnaire (EDQ) (N264).
• Client must sign the List of Documents (N265)
• A Disclosure Report (DR) in form N263 will be required if case is non-PI multi-track.
• Keep client updated on disclosure by sending him his list and opponents to consider what documents may be missing
• ‘Inspection’ is the clients right. Consider if the claimant or relevant appointed person should assist inspection.

• Be mindful of documents privileged from inspection and do not disclose them
• If client has destroyed or removed disclosable documents you must advise client that the ‘identity’ of them must be disclosed on the list and an explanation of what has happened to the documents – If a client refuses you must not continue acting as this would be a breach of paragraph 1.4 of the SRA Standards and Regulations which includes the ‘Duty not to mislead the Court or others’

• Ensure you have a direction from the court for disclosure and inspection (CPR 31)
• Complete all 3 sections of N265 getting client to approve and sign Statement of Truth
• If you need more time to prepare list – ask opponent for extension. If he refuses – apply to the court.
• Provide copies to opponent of documents listed in section 2 and ask for your reasonable copying charges from them
• Consider challenging your opponents list: did he conduct a reasonable and proportionate search? Are documents he claims privilege over really privileged? Are there any documents missing from the list?
- If so – write requesting inspection of documents or class of documents then issue Application for Specific Disclosure (CPR 31.12)
• Action on inspection – consider potential amendment to Statement of Case
- Any additional documents required from client, opponent or third party
- Case analysis and risk assessment
- Counsel’s advice on liability and/or causation and/or quantum and/or settlement
• Note the two-year pilot scheme which involves the introduction of new disclosure rules. The pilot will operate in the Business and Property Courts in England and Wales.

Consider making a P36 offer and entering into an ADR process after disclosure, inspection, and risk assessment

• In larger commercial cases disclosure as a process, including inspection can become a lengthy and expensive process. Proportionality will need to be at the forefront of your mind.
• Both ‘proportionality’ and ‘reasonableness’ can be used as grounds not to disclose. Can be challenged.

• Disclosure is usually the first substantive direction after allocation, followed by inspection. In fast track cases this is likely to be 4 weeks after allocation. In multi track cases this could be longer. In either case, inspection is usually within 7 days of disclosure.
• ‘Disclosure’ is an ongoing obligation and relevant documents that come to light after the formal process must be disclosed – file new N265 or amend existing N265.
• In actions when protocol has been engaged (sometimes all) disclosure will have taken place then pre-action. At the very least some documentation should have been disclosed
• Disclosure can be sought pre-action when the criteria of CPR 36.16 is met

• Consider with client how he will pay for expert evidence – not usually covered by any funding arrangement
• Keep client updated with process of exchange of witness statements and expert issues by sending him all your witness statements for approval, then on exchange seeking his comments on opponents statements; by ensuring he understand the expert’s report and how this impacts on his case and seeking his instructions to disclose any report

• If interviewing another party’s witness (there is no property in a witness) consider recording the interview or inviting opponent to interview to avoid allegations of coercion
• Witness statements must , if practicable, be in the witnesses’ own words. Legal practitioners should not put words into a witness’s evidence

Witness Statements

• Ensure you have a direction from the court for witness statement exchange – seek simultaneous exchange – and to adduce their oral evidence at trial
• Prepare either witness statements or witness summaries (CPR 32)
• If you need more time to prepare witness statements ask opponent for extension. If he refuses apply to court
• If witness will not attend trial - prepare Hearsay Notice to be served with witness statements
• If opponent’s witness not attend – consider serving Notice to Attack Credibility or apply to the court to cross-examine witness
• Action on exchange of statements – case analysis and risk assessment, potentially further investigation which may lead to supplemental statements being prepared, counsel’s advice, Notice to Admit or Notice to Produce

Expert Evidence

• Ensure you have the appropriate direction from the court relating to one or more of the following: no expert evidence required, each party have their own expert, a single joint expert, correct area of specialism, how many experts required on each issue. Provide estimated cost of expert evidence when seeking a direction for expert evidence in an action.
• If you want to rely on report – if own expert – disclose it
• If you do not want to rely on report – whether own expert or SJE, write seeking clarification of report. If still not satisfied seek permission of court to rely on and adduce evidence of another expert
• Action once expert evidence issues are concluded: case analysis and risk assessment, do the conclusions of the expert accord with your statement of case? If not you may need to amend
• Has a direction been made for experts to meet and prepare Schedule of Issues – ensure this is done in time
• If a direction has been made for questions to an expert, consider whether you need the assistance of an ‘advisory expert’ to raise those questions
• Ensure any experts report is in required form in accordance with the extensive provisions of CPR 35
• Consider whether the court may wish an order for ‘hot-tubbing’ of expert evidence.

• Consider making a P36 offer, revising an earlier P36 offer or the late acceptance of your opponent’s P36 offer if it has not been withdrawn
• Consider ADR
• For any Part 36 offer rejected – inform insurer if client has BTE/ATE and seek authority to proceed under policy

• It is likely that you will recover the cost of your client’s reasonable disbursements if your client secures a costs order in his favour
• Keep in mind overriding objective particularly with regard to witness statement exchange and expert issues

• Witness statement exchange precedes expert evidence in most cases
• In fast track cases, witness statement exchange is usually 10 weeks from allocation with expert evidence 14 weeks. In multi track cases this may be longer (PD 28 and 29)
• If ‘questions to expert’ are to be made, ensure you do so within time specified (usually within 28 days of receiving report). If cannot, seek extension, and if not agreed, apply to court (court will not readily grant an extension that would affect trial window or trial date)

• If client is funded – report to funder and seek authority to proceed to trial
• Undertake a final risk assessment
• Secure payment on account of costs to cover counsel’s fees for any Conference and trial
• Notify client (and funder) of trial dates

• Keep client informed of costs and procedure up to and including trial
• Request monies on account if act for claimant for Pre-Trial Checklist (PTC) in form N170
• Be mindful of your duties under the Standards and Principles of the SRA Standards and Regulations .

• Consider whether you need to update any evidence before trial and that you have an order from the court to adduce your evidence at trial
• With this in mind, complete and file PTC (N170). Claimant pays fee. Await trial date
• Put trial date in your diary and block out week before to prepare for trial
• Serve witness summonses (N20) at least 7 days before trial (CPR 34)
• Book counsel, consider conference and (in week before trial) Brief counsel and agree Brief Fee
• Make any special arrangements for trial – interpreter – video link – IT facilities
• Check Court Guides (of High Court) and Directions Orders for preparation of Trial Bundles
• Prepare Trial Bundles to include – Case Summary, Trial Timetable, Statement of Parties, Schedule of Issues, (and/or Chronology), Skeleton arguments and authority (prepared by trial advocate a few days before trial) and core bundle of documents (Statements of Case, relevant Directions Orders and Notices, evidence for each party including lay and expert evidence and documentary evidence)

• Continue attempts to settle by negotiation: P36 revised offers and any suitable cost effective method of ADR. Request a stay if appropriate
• Have prepared for use at trial a separate bundle containing P36 offers

• Prepare costs estimate to date of PTC and up to and including trial for client and funder
• Be aware, even at this late stage, of the proportionality (and commerciality) of proceeding to trial
• Prepare summary assessment of costs based on N260 if fast track trial to be served 2 clear days before the trial
• Have to hand an up to date costing if needed at multi-track trial

• Filing of PTC defined in directions order made at allocation or subsequent CMC
• Period between filing PTC and trial is usually about 8 weeks in fast track case but could be many months in multi track case (due to the court’s and party availability)

• If existing client – no new client care obligations under the SRA Standards and Regulations. Check funding as likely that funding the main action (ATE, BTE, Third Party, CFA or Union) will not cover enforcement proceedings. Usually private.
• If a new client – deal with matter as if new client in main action litigation
• In either case, confirm client instructions – particularly regarding costs and whether seek enforcement as recovery of debt or security

• Whilst this should have been done at outset (and periodically) in main action, check solvency of debtor – bankruptcy only or winding up search, land registry searches, company searches, Enquiry Agent and/or Information Order (CPR 71)
• Control expectations of client – enforcement not guarantee of recovery of debt

Main methods:

• Execution in High Court (RSC Order 46 - Writ of fi fa) or county court (CCR Order 26 – Writ of Execution)
• Attachment of earnings (Attachment of earnings Act 1971 CPR 89)
• Third party debt order (CPR 72)
• Charging Order (Charging Order Act 1978 and CPR 73)

Practical considerations:

• Consider interest of debt (in High Court or county court) and whether recoverable in each different method
• Does case need to be transferred either between county courts or between High and county court?
• Are certain methods exclusive or can they be combined?

• Not usually applied post-judgment although good practice to try and negotiate with debtor in terms of instalments or reasonable payment plan acceptable to both creditor and debtor

• Be mindful of overall costs of litigation, debt and enforcement as against likelihood of recovery of debt
• Most methods provide for either fixed costs or summary assessment if successful but there will be irrecoverable costs (as in main action litigation) for all these methods if enforcement becomes protracted or there is only a nominal or nil recovery

• General limitation period of 6 years from judgment
• Each of the above methods will usually take between 2 and 4 months from date of judgment to secure final order.