AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 11: PROCEDURE: AN EIGHT POINT SURVIVAL GUIDE
Here we have a short eight point guide on some of the key problem areas in relation to procedure once proceedings have been issued.
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.
Rule 3: Serve the Particulars of Claim with the Claim Form if you can.
We have had two recent examples.
- The claimant came to grief in Venulum Property Investments Ltd –v- Space Architecture Ltd & 9 others EWHC 1242 (TCC) in assuming that they had 14 days after service of the claim form to serve the Particulars. At the end of the four month period they did not. The court did not grant an extension.
- The claimant nearly came to grief in Hills Construction –v- Struth  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.
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  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.
Rule 5: Serve your cost budget on time.
If the budget 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.
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.
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  EWCA Civ 299 and the discussion “
- 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: pay the trial fee on time
Failure to pay leads to the case being automatically struck out. An application for relief from sanctions is needed.
Summary: be careful out there!
Although the worst elements of the Mitchell decision have been curbed 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 make agree – hopefully – watch the developing case law on the subject from afar.
You can be certain that it will be watched closely from this blog.