LITIGATION AFTER JACKSON: A 10 POINT SURVIVAL GUIDE

Mediatelegal

There has been a tremendous change in policy in relation to case management after 1st April 2013.  This has already led to major difficulties for some litigators. This post is the first (of what may be many)  survival guides for litigators working in the new climate.

Rule 1: Have everything ready pre-issue and have a plan.

Effectively this means that you have, almost, to be ready for trial when you issue.  Have the Particulars of Claim to hand; witness statements and all relevant documents. Further you must have a clear idea of your cost budget.

Rule 2: Once you have issued serve the Claim Form promptly

 Nothing has changed here.  Failure to serve the Claim Form properly remains one of the key problem areas in litigation.

  • Make sure you know where you are to serve.
  • Make sure you know who to serve.
  • Make sure you serve within the rules.
  • Make sure you serve before the expiry of the period allowed for service.

See

http://civillitigationbrief.wordpress.com/2013/07/03/service-of-the-claim-form-further-traps-for-the-unwary/

And

http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/

Rule 3: Serve the Particulars of Claim with the Claim Form if you can.

 We have had two recent examples.

See http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/

  • The claimant nearly came to grief in Hills Construction –v- Struth [2013] EWHC 1693 when the defendant applied to strike the action out because the Particulars had not been served 14 days after the claim form. However the judge found that the claim form had not, in fact, been served. The judge stated that if he had been asked to exercise his discretion on the law after the 1st April he would not have granted the claimant an extension.

See http://civillitigationbrief.wordpress.com/2013/08/21/service-of-a-copy-claim-form-is-not-good-service-how-could-this-benefit-a-claimant/

Rule 4:  Serve your witness statements on time even if your opponent is not complying.

See the observations of Judge Pelling in  Fons HF –v- Corporal Ltd & Pillar Securitisation [2013] EWHC 1278 (Ch).

“all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate”

The judge stated that if an opponent was in default then the proper course of action is for the party who wants to comply to send the statements “in escrow” in a sealed envelope.

 See http://civillitigationbrief.wordpress.com/2013/07/21/serving-witness-statements-late-an-extremely-dangerous-practice/

 Rule 5: Serve your Form H on time.

 If the Form H is late then there is a presumption that a party is litigating just for court fees.  There is no guarantee that a court will grant relief from sanctions.

 See http://civillitigationbrief.wordpress.com/2013/08/11/litigatorswant-to-work-for-nothing-then-dont-file-your-costs-budget-on-time/

Rule 6: Assume that every order of the court order is a peremptory order

 This can be the only safe working assumption.  If a party is in breach then they need permission. Permission may not necessarily be granted.

See http://civillitigationbrief.wordpress.com/2013/08/20/failure-to-comply-with-cpr-can-bite-defendants-too/

Some comfort can be obtained from

http://civillitigationbrief.wordpress.com/2013/07/29/relief-from-sanctions-a-case-in-which-relief-was-granted-wych-v-careforce-group-ltd/

However it is early days and see

http://civillitigationbrief.wordpress.com/2013/08/13/relief-from-sanctions-a-case-where-relief-was-refused/

Rule 7: If you cannot comply with an order apply in advance of the date for breach

This is an important point.  Making an application ahead of the date for breach gives rise to a wholly different approach to the issue of breach and relief, see Robert –v- Momentum Services Limited [2003] EWCA Civ 299  and the discussion “Extensions of time after Jackson: Safety First” http://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/

Remember however:

  • There is no guarantee that the court will grant your extension.
  • You may find yourself getting 14 hours to comply rather than 14 days.
  • The rules relating to applying for extension of service of the claim form are wholly different and very draconian.

Rule 8: Prepare for the case management hearing carefully

 This was never a hearing that could be taken for granted. Some courts have very specific rules. See

http://civillitigationbrief.wordpress.com/2013/08/13/preparation-for-case-management-hearings-guidance-from-birmingham-mercantile-court/

Rule 9: Use the standard directions.

 These are supposed to mandatory. Their use will save much grief.

http://civillitigationbrief.wordpress.com/2013/06/28/one-direction-singing-from-the-same-hymn-sheet/

 Rule 10: Make an early and decent Part 36 offer

This now applies to both parties.

There are major advantages to a claimant who makes a Part 36 offer which is not beaten at trial,

See http://civillitigationbrief.wordpress.com/2013/06/27/thanks-for-the-500000-now-wheres-the-extra-50000-you-owe-me/

A Part 36 has to be beaten to be effective for the party making the offer. Being “near” is not enough

See http://civillitigationbrief.wordpress.com/2013/07/29/part-36-a-near-miss-is-not-enough/

Summary: be careful out there!

Until we see how the new regime beds down it is clear that civil litigation is a dangerous place for litigators for all sides.  The only safe course of action is to comply with all court orders to the letter (and date) and – hopefully – watch the developing case law on the subject from afar.

You can be certain that it will be watched closely from this blog.