TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016

Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year)

1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT)

Litigators of all types must have a clear idea about the relevant limitation period in every case they handle. It is unwise to “guess”, certainty is required.

Similarly there are numerous cases where the client themselves have been woefully inaccurate about the date of an incident. I regularly see cases where clients are months (sometimes years) wrong in the date of an accident, for instance.

Don’t guess – know

• Ten myths about limitation that every personal injury practitioner should know
• Limitation: the Essential Checklist
• Limitation: Essential Points before the Essential Checklist
• The date of knowledge and Section 33
• Limitation and the date of knowledge considered in the context of hearing loss.
• The accrual of the limitation period for loss of earnings
• The date of knowledge under section 14A of the Limitation Act 1980.
• Issuing contribution proceedings within the limitation period.
• Deliberate concealment by the defendant extends the limitation period.
• Section 14A of the Limitation Act 1980
• Limitation in a breach of contract claim.
• Amending pleadings: has the limitation period expired?
• Limitation: what’s the position when the defendants won’t tell you who they are?

2. KNOW THE ADDRESS AND DATE FOR SERVICE OF THE CLAIM FORM (AND I MEAN “KNOW”)

This blog regularly reports on problems with service of the claim form.

• Know the rules about service.
• Know the address for service.
• Know whether an address for service has been nominated.

Don’t guess – know

• Service of the Claim Form: “last known address” points to watch

3. HAVE A SYSTEM IN PLACE IN RELATION TO SERVICE OF THE CLAIM FORM

Here I mean a system for monitoring whether an address has been nominated and double-checking prior to service.  Claim form errors remain some of the easiest procedural mistakes to make and the hardest to put right.

• Service of the Claim Form: relief from sanctions and challenging the jurisdiction: a complex mix?

• There are now unexploded grenades in your filing cabinet: serve proceedings promptly and properly.
• Service of the Claim Form: Further traps for the Unwary
• Late Service of the Claim Form, extensions of time and sleepless nights
• Service of the Claim Form: “last known address” points to watch
• Service of the Claim Form: Essential Points before the Essential Checklist
• A Dismal Catalogue of Confusion and Error
• Delaying Service of the Claim Form: Dicing with Procedural Death
• Service of the Claim form: Another claimant comes to grief
• Service of the Claim Form and a good reason: And so to Bed
• Service of the Claim Form can be a problem for defendants too.
• Claim Forms: Declaration that steps taken constitute good service.
• Service of proceedings the “essential checklist”.
• Service of proceedings: adding to the essential checklist
• Another claim form not served properly.

If you don’t have a system then mistakes are going to happen.

4. THINK VERY CAREFULLY BEFORE SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT

You should know off by heart this wording  from Practice Direction 22 – Statements of Truth.

“3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).”

Know that if anything goes wrong then the client will probably blame you

• Taking the statement of truth lightly.
• Signing disclosure statements?
• Pleadings, the statement of truth and contempt of court.
• Witness statements and avoiding jail: are you protecting your clients and protecting yourself?
• The profound lack of wisdom in signing statements of truth on behalf of your client

5 . KNOW (OR LEARN) HOW TO DRAFT A WITNESS STATEMENT

Many people believe they know how to draft witness statements. However (on my estimate) around 80% of statements do not comply with the basic rules. Sometimes, as we have seen recently, this can backfire badly.

• Make sure that the statement, at the very least, complies with the rules and practice directions.
• Worry, a lot, if the statement is basically all opinion and no “evidence”.
• It helps a little if you know a bit about the law of evidence.

Witness statements are usually the key documents if matters proceed to trial. Again, if things go wrong, a witness will usually blame the person who took the statement.

• Totally hopeless applications and inadequate witness statements.
• The importance of the statement of truth

• Witness statements & sources of information and belief: 10 key points
• Witness statements giving the source of information and belief: a rule overlooked at your peril.
• Making first hand statements avoids penalties
• Drafting witness statements and the lawyer as witness
• Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).

6. LEARN HOW TO PROVE THINGS

This may seem like a basic requirement. However many cases fail at trial because there is simply no evidence to prove key points. This is particularly the case with damages. Last year we saw cases, at all levels,  fail because of a very basic failure to adduce evidence of loss

• Proving things by evidence: another example of an absence of evidence leading to a case failing

If you can’t prove it then you don’t get it.

• Proving things by evidence: such a quaint, old fashioned concept.

• If you can’t prove it you don’t get it.
• Silence on key issues does not prove your case
• Pleadings proof and evidence.
• Highwaymen, evidence and damages.
• Proving matters by evidence: a lesson from the family court.
• Evidence: proving damages and interest on damages: you can’t sugar the pill and have to prove the loss.
• Witness statements and proving loss of earnings.
• Proof of facts: the basic principles summarised.
• Causation and evidence – a burning problem.
• Making a finding of fraud without evidence 3.
• If findings of dishonesty are to be made then witnesses have to be heard.
• Making findings of fraud without a party being represented 2: a hearing in the administrative court
• Pleading and proving allegations of fraud or dishonesty: useful guidance

7. LEARN HOW MUCH THINGS COST (AND HOW MUCH YOU ARE GOING TO GET)

One of stated aims of the Jackson report was to make us all “cost lawyers”. That is with an awareness of the costs of litigation.  This is now (and always should have been) an integral part of the litigator’s role.  Further once the budget is set you have to be very aware of the consequences of costs going beyond this, and the major difficulty in recovering costs.

If it isn’t in the budget then you are going to struggle to get it

• The practical consequences of overblowing the budget.
• • Costs budgets in Facebook defamation claim
  • Guidance given as costs budgeting in practice 
  • Costs budgeting all the useful links in once place
  • Proportionality, costs and payments on account: a High Court Decision
  • Costs at the end of the case: the judge can make observations abotu matters outside the costs budget.
  • The appropriate approach to interim costs where the costs have exceeded the costs budget.

8. BEWARE YE OF EXPERT WITNESSES BEARING GIFTS

Know, define and limit the role of any expert in a guess. Be particularly wary of the “partisan” expert witness.  The main danger is to the party instructing them. They can give an impression of false strength and costs can be incurred, and wasted,  by an “over-enthusiastic”  expert.

The wrong expert can cost you the case

• That difficult distinction between an expert witness and an advocate.

• When the credibility of the lay and expert witnesses lies in shreds
• Expert reports: too long and not much use.
• More on experts: non-compliance with the rules taints the evidence badly
• The credibility of witnesses: joint meetings and overreaching experts: a case to point.
• Over eager experts just do not help: they hinder and harm the case of those who call them.
• Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
• Expert evidence about the veracity of witnesses: well, its probably a waste of time.
• An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
• Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
• Principles of mitigation of loss & the credibility of expert witnesses.
• I didn’t mean it when I signed the joint report: what happens when experts change their minds?
• Expert evidence: the expert’s role: seeing the wood for the trees.
• Cross-examining expert witnesses: hints, tips and links.
• Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.
• Guidance to experts: who does an expert “represent”?
• Expert witnesses going beyond the boundaries of expert evidence: its increases costs and is counter-productive. 

9. LEARN ABOUT E-DISCLOSURE

Like it or not electronic disclosure is here to stay in all forms of litigation. In personal injury it is social media. The basic rules and mechanics of edisclosure now have to be understood by everyone.

Electronic records are growing by the minute. Learn which ones are important and how to retain or obtain them

• Type in haste, repent at leisure
• Evidence, the internet and social media
• Personal Injury Litigants, lawyers and social media
• Adverse inferences from missing documents
• Have you complied with an unless order? Guidance in the context of e-disclosure.
• Relief from sanctions refused following inadequate e-disclosure.

10. PREPARE GOOD BUNDLES FOR EVERYTHING

It is always a surprise, but it always true, that a post on trial bundles is the most popular post on this blog. Trial bundles have been the target of some very astringent judicial criticism. Know the rules and ensure your bundles comply.

Bundles are more often criticised for being too long rather than too short

• Trial bundles: Timing, Contents & Presentation: and do you know “Sedley’s Laws” ?
• Troublesome bundles yet again.
• Proportionality, bundles and £3 million spent on costs.
• When bundles & sanctions collide.
• More on Bundles:  there is much time and money to be saved yet.
• Lengthy bundles and interim costs.
• Get bundles and skeletons to court or else.
• Relief from sanctions: Bundles: Expert evidence and litigants in person.
• Costs, proportionality and getting the bundles right.
• “Madness” over costs and useless trial bundles.
• More about trial bundles: Most of the stuff in them is useless (apparently).
• Bundles, appeals and the art of advocacy: Are poor bundles letting down your case?
• Useless Bundles; lengthy skeletons and judicial ire.
• A word about bundles: More views from the Bench.
• Trial Bundles: Another view from the Bench.
• The Importance of Trial Bundles again: Read Legal Orange.
• Yet more on bundles
• Trial bundles, Sedley’s laws and documentary carpet bombing

11 DON’T BELIEVE THE TITLE OF EVERYTHING YOU READ (GET EVERYTHING DONE AHEAD OF TIME)

This is a biggy (and I know it is probably impossible). Remember the law of sanctions remains stringent. Denton is not a recipe for indulgence.  Failure to comply with court orders can still have major consequences.  The best resolution is to comply.

Sanctions hurt and are expensive even if relief is granted

• Relief from sanctions refused in £30 million case
• Costs after relief from sanctions
• Relief from sanctions in the TCC: Late Service of the Particulars of Claim. 
• Case struck out for failure to give disclosure in relation to later accident

• Have you complied with an unless order? Guidance in the context of e-disclosure.
• Have you complied with an order for disclosure? The appropriate test.
• Action struck out for failure to give disclosure: relief from sanctions refused.
• Has proper disclosure been given? A new area of battle.
• Edisclosure and breach of orders: Case struck out: No question: No quarter given.
• The duty of full and frank disclosure: a case in point.
• Signing disclosure statements? Remember you can go to prison.
• Relief from sanctions refused following inadequate e-disclosure.