SURVIVING MITCHELL 6: "YOU GOTTA HAVE A PLAN": BE READY FOR TRIAL THE DAY YOU ISSUE
The unforgiving nature of the Mitchell decision means that litigators have to be certain that they will be able to comply with any directions that the court orders. In effect this means that a claimant has to be ready for trial the day after issue. At the very least the claimant must have a clear, and budgeted, plan for how the action will proceed to trial. Anything less will (not may) lead to disaster.
BACK TO RULE 1?
Here I am repeating “Rule 1” in the Jackson Survival Guide I wrote in August last year.
“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.”
ELABORATING ON RULE 1
The proper use of the Pre-Action Protocol means that in most cases a claimant should have a clear idea of the issues in the case prior to issue. We all know that theory and practice are often divorced. However we now work in an age where mistakes cannot be made.
YOUR PRE-ISSUE CHECKLIST
A pilot flying a plane has a pre-flight checklist. This covers a great deal, not least whether the plane is fit to fly and whether there is enough fuel to arrive. Flying a plane without a checklist is inconceivable. A similar principle now has to apply to litigation at all levels.
Litigation cannot be done by the “seat of the pants”. Litigation now has to be planned and that plan rigorously executed.
“PEOPLE DON’T PLAN TO FAIL: THEY FAIL TO PLAN”
This may be a truism. That doesn’t stop it being true. You must have a clear plan for the litigation and be able to take it to trial if necessary.
BUT I DON’T WANT TO GO TO TRIAL
We should recognise at the outset one of the main tensions in the litigation system. When parties litigate they don’t want to go to trial. The claimant wants the defendant to settle and the defendant wants the claimant to go away. The blunt reality is that most cases settle. However the whole purpose of the case management process is to prepare for trial (the parties having been given plenty of opportunity to settle through the pre-action process).
That may well be why most lawyers in contentious work will call themselves “litigators” as opposed to the American “trial lawyers”. Most of our time (and counsel is included in this) is spent in the process and procedure of litigation rather than at trial. However an attitude change is needed. Proceedings have to be issued with the trial in mind. Assuming a case will settle is a dangerous assumption.
Flying a plane is a professional job, the risks are high. There is no shame in relying on checklists and procedures. Indeed this is central to the job. This is now true of civil litigation. Pilots train for all eventualities. The checklist and thoroughness that exists in the aviation system mean (fortunately) they are never needed.
“IF YOU WANT PEACE PREPARE FOR WAR?”
A more controversial quote this time. However it is now true of civil litigation. If you want the case to settle on terms you have to be ready (and by that I mean ready) to go to trial.
A PRE-ISSUE CHECKLIST
(This is very much a work in progress. It will form the subject of a much more detailed post later in the series. However I urge every litigator to develop their own checklists, I would welcome comments and additions).
- Have you complied with all the requirements of the relevant pre-action protocol? It is dangerous for a claimant to issue proceedings when the requirements have not been met. Costs could be disallowed, or reduced.
- Do you have the witness statements available in a form that you could exchange?
- Do the statements comply with the rules? Do not forget the formal requirements.
- Are the pleadings in order?
- Do you have a clear idea of what the issues are and how you will prove them?
- Are all the expert reports available? If not is there a clear timetable for obtaining further reports?
- Do you have all relevant documents to hand?
- Do you know what documents you require from the defendant? If you do have you asked for them under the terms of the Pre-Action Protocol/Practice Direction. If not why not?
- Do you have a budget? A claimant must have a clear idea of the costs to date and the costs to take the matter to trial.
- Are the expert reports CPR compliant? Any defect in the report could lead to it being disallowed.
- Are the experts likely to be CPR compliant? This was, it has to be said, one of the main complaints on Twitter this very evening. However consider that:
(i) Experts are being paid – usually quite well (pro-rata often much better than the lawyers).
(ii) If they take the money they should comply with the rules Every practising litigator must have experience of recalcitrant experts. However nowadays they can be sued.
(a) Tell them about the likely timetable.
(b) Tell them about the actual timetable once it is in place.
(c) Tell them the consequences of failure to comply with the court order.
A PRE-TRIAL “ADVICE ON EVIDENCE”
In days gone by an “advice on evidence” would almost inevitably be sought prior to trial. This was in the days before the exchange of witness statements and expert reports. The “front loading” of evidence (particularly witness evidence) has made this less common. However this does not make it any less important.
It is not unusual (indeed quite common) to see new evidence in a matter winging its way over a week or so before the trial date. It happened to me last week. What has happened is often obvious. Counsel’s opinion has been sought. Counsel has advised that a few gaps need to be filled and this evidence reflects that advice. In one case I was involved with a local authority dug up a road a week before trial to try to determine the depth of a pothole. That evidence was not allowed in pre-Jackson. New evidence will certainly (or almost certainly) not be allowed in now.
REMEMBER “EVIDENCE” COVERS DAMAGES AS WELL AS LIABILITY
Damages have to be proven. Your checklist should include:
- Does the witness evidence prove the damages claimed?
- Is the schedule up to date.
- What other evidence is needed to prove damages?
- Have I got, and disclosed, all relevant documentation in relation to damages.
- If not why not and how long will it take to get it?
WISE WORDS FROM THE BENCH
Anyone in doubt about the value of an “advice” on evidence consider the judgment of Mr Justice Newman in McRae -v- Chase International Express Ltd  EWCA Civ 505. This was a case where the Court of Appeal reduced, drastically, damages awarded to a claimant. The reduction took place on the simple grounds that there was no evidence before the court upon which an award could be made.
“If the method and presentation adopted in this case reflects a common circumstances in connection with personal injury cases in the district court it has, in my judgment, departed too far from the basic principle that a claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to come. It may be that the days of a formal advice on evidence are long gone but the need which such advice fulfil remains. Someone on each side in litigation such as this, with sufficient skill to do so, must, at some timely stage before trial, draw up a lost of the issues which remain contentious and then consider whether or not there is evidence available to meet those issues …. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence which is available.”
SO HAVE YOUR “ADVICE ON EVIDENCE” PRIOR TO TRIAL
In any case of any substance I recommend you have an advice from counsel, or conference with counsel, prior to issue. This is not [or not just] a plea for my own profession but a serious recommendation. At this stage you can:
- Review the available evidence.
- Review the witness statements.
- Ensure that the pleadings and schedules actually match the evidence
(Anyone who thinks that this is not important should go to a trial where there is a discrepancy. It is a prime target for effective cross-examination and a common reason for losing a case).
- Ensure that you can prove the damages.
- Have a frank assessment of the strength of the case and the likely value of the case.
- Ensure that nothing else needs to be done under the Pre-Action protocols.