Civil Notes FULL 2019 PDF

Preview

Summary

SGS 1Pre-Action ConductThe approach of the courts- Para 3 of the PD — Before commencing proceedings, the court will expect the parties to have exchange sufficient information to (a) Understand each other’s position (b) Make decisions about how to proceed (c) Try to settle the issues without proceedi...

Description

SGS 1 Pre-Action Conduct The approach of the courts! • Para 3 of the PD — Before commencing proceedings, the court will expect the parties to have exchange sufficient information to ! (a) Understand each other’s position! (b) Make decisions about how to proceed! (c) Try to settle the issues without proceedings! (d) Consider a form of ADR to assist with settlement ! (e) Support the efficient management of those proceedings! (f) Reduce the costs of resolving the dispute !

After commencing proceedings: compliance & consequences of non-compliance (Para 13-16 of the PD)! • If the dispute proceeds to litigation, the court will elect the parties to have complied with the relevant pre-action protocol or the Practice Direction! • The court will take into account the non-compliance when giving directions for their management of proceedings (CPR 3.1(4)-(6)) &when making orders for costs! • The court will consider whether all parties have complied in substance with the terms in the relevant protocol or PD and it is not likely to concern with minor or technical infringement especially when the matter is urgent (eg: an application for an injunction)! • The court may decide that there has been a failure in compliance when a party has, eg: not proving sufficient information to enable the objectives in Para 3 of the PD to be met, or not acted in within a time limit set out in a relevant protocol or within a reasonable period, or unreasonably refuse to use a form of ADR, or fail to respond at all to the invitation to do so! • The PD states where there has been non-compliance with a pre-action protocol or this PD, that the court may order that:! (a) the parties are relieved of the obligation to comply or further comply with the preaction protocol or this PD; or! (b) The proceedings are stayed white particular steps are taken to comply with the preaction protocol or this PD; or! (c) Sanctions are to be applied.! • The court will consider the effect of any non-compliance when deciding whether to impose any sanctions and sanctions may include:! (a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties; or! (b) An order that the party at fault pay those costs on an indemnity basis; or! (c) If the party at fault is a Claimant who has been awarded a sum of money— an order depriving that party of interest on that sum for a specific period, and/or awarding interest at a lower rate than would otherwise been awarded! (d) If the party at fault is a Defendant and Claimant has been awarded a sum of money— an order awarding interest on that sum for that specified period at a higher rate, not exceeding 10%v of the base rate than the rate which would otherwise have been awarded! Para 17 of the PD—Limitation ! • **The PD and pre-action protocol DO NOT alter the statutory time limit for starting court proceeding. If a claim is issued after the relevant limitation period has expired, the Defendant will be entitled to use that as a defence to the claim. ! • If proceedings are started to comply with the statutory time limit before the parties have followed the procedure in the PD or the relevant pre-action protocol, the party should apply to the court for a stay of the proceedings while they so complied!

Page 1  of 107 

The principles governing conduct of parties in cases not subject to a pre-action protocol !

• The PD makes clear that the PD must not be used by a party as a tactical device to secure an unfair advantage over another party!

• That PD states that only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issue!

• The PD also states that the costs incurred in complying with pre-action protocol or the PD •

should be proportionate (CPR 44.3(5))! Where parties incurred disproportionate costs in complying with any pre-action protocol or the PD, those costs will not be recoverable as part of the costs of the proceedings!

Guidance on pre-action procedure where no preaction protocol applies! • **Remember— pursuant to the PD where there is a relevant pre-action protocol, the party should comply with that protocol before commencing proceedings !

• Where there is no relevant pre-action protocol, the parties should exchange correspondent and information to comply with the objectives in para 3 of the PD !

• Bearing in mind that compliance should be proportionate (Para 4 & 5 of the PD)! • Para 6 of the PD—The steps will usually include:!

(a) The Claimant writing to the Defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the Claimant wants from the Defendant and if money, how that amount is calculated! (b) The Defendant responding within a reasonable time (14 days is typical in a straightforward case and no more than 3 months in a very complex case). The reply should include conformation as to whether the claim is accepted and if it is not accepted, the reasons why together with the explanations as to which facts or parts of the claim which are disputed and whether the Defendant is making a counterclaim as well as providing details of the counterclaim; and! (c) The parties disclosing documents relevant to the issue in dispute. ! Para 7 of the PD- Experts • The PD also contains specific guidance regarding an experts. It states that the party should be aware that the court must give permission before expert evidence can be relied upon and that the court may make the fees recoverable.! • The PD also states that many disputes may be resolved without expert advice or evidence and goes on to state that it is necessary to obtain expert evidence particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties with the costs shared equally!

Para 8- 11 of the PD— Settlement & ADR • The PD also consider settlements an ADR option and state that litigation should be viewed as a last resort. ! • As part of the relevant pre-action protocol, all the PD itself, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceeding! • Indeed, the party should consider the possibility of reaching a settlement at all times included after the commencement of the proceeding! • Part 36 offers may be made before proceedings are issued! • Parties may negotiate to settle a dispute or may use a form of ADR including:! (a) mediation— where a third party facilitate a resolution! (b) Arbitration— where third party decides a dispute! (c) Early neutral evaluation— where a third party gives an informed opinion on the dispute ! (d) Considering the ombudsmen schemes that may apply! • If proceedings are issued, parties may be required by the court to provide evidence that ADR has been considered!

Page 2  of 107 

• A party silence in response to an invitation to participate or a refusal to participate in ADR might be considered as unreasonable by the court and could lead to the court order that the party pay additional court costs !

Para 12 of the PD— Stocktake & lists of Issues • Where a dispute has not resolved after the parties have followed the pre-action protocols or the PD itself, they should review their respective positions. They should consider the papers, the evidence to see if proceedings can be avoided and at least seek to narrow the issue in dispute before the Claimant issue proceeding. !

The Overriding Objective - CPR Part 1 • CPR 1.1— the CPR has the overriding objective of enabling the court to deal with cases justly •

and at a proportionate costs. ! Dealing with cases justly and at a proportionate costs includes, so far as its is practicable, ensuring that :-! (a) The parties are on equal footing! (b) Saving expense! (c) Dealing with case proportionate to:! (i) The amount of money that is involved;! (ii) To the important of the case;! (iii) The complexity of the issues; and! (iv) To the financial position of each parties! (d) To ensure that the case are dealt with expeditiously and fairly ! (e) Allotting appropriate share of the court’s resources while taking into account the need to allot resources to other cases ! (f) To enforcing compliance with rules, practice directions and orders.!

The application by the court of the overriding objective !

• Subject to the further rule which are expressly identified by CPR 1.2, the court must seek to

give effect to the overriding objective when it:! (a) Exercises any power give to it by the Rules; or! (b) Interprets any rule • CPR 1.3— the parties are required to help the court to further the overriding objective ! • CPR 1.4— The court must further the overriding objective by actively managing cases ! • Active case management includes:! (a) encouraging the parties to cooperate with each other in the conduct of the proceedings;! (b) To identify the issues at the early stage;! (c) Deciding promptly at to which issues need full investigation and trial and accordingly disposing summarily to the others;! (d) Deciding the order in which issues are to be resolved; ! (e) Encouraging the parties to use ADR where the court considers that appropriate and facilitating the use of such ADR procedure;! (f) Helping the parties to settle whole or part of the case;! (g) Fixing timetables or otherwise controlling the progress of the case;! (h) Considering whether the likely benefits of taking a particular step justify the cost of taking it;! (i) Dealing with as many aspects of case as it can on the same occasion;! (j) Dealing with the case without the parties needing to attend court;! (k) Making use of technology; and! (l) Giving directions to ensure that the trial of the case proceeds quickly and efficiently !

Page 3  of 107 

Burden & Standard of Proof! Burden of Proof! The law of evidence recognises 2 principal burdens:! 1. The legal burden! • Also known as the ‘persuasive burden” & the “burden of proof”! • Obligation placed on a party to prove a fact in issue! • Whether a party has discharged the legal burden is question to be determined by the tribunal of fact at the end of the trial! 2. Evidential burden ! • Obligation on a party to adduce sufficient evidence to raise a fact in issue, that is, to make a particular issue a “live” issue at trial! • Whether party has discharged the evidential burden is a question of law for the judge! • Judge will assess whether the amount & quality of the evidence adduced by a party is sufficient to raise a fact in issue! • If decided not sufficient— the party has failed to raise the fact in issue & therefore it may not be put before the fact-finding tribunal!

Standard of Proof! • The degree of cogency or persuasiveness required of the evidence in order to discharge a burden of proof!

Civil Proceedings! 1. Incidence of the legal burden Common Law • In civil cases, general rule at common law— legal burden on any fact in issue is burned by the party asserting and not denying: ‘he who asserts must prove not he who denies’!

• C usually bears the legal (and evidential) burden of proving all the elements of his claim! • Similarly, D bears the legal (and evidential) burden of proving any defence and/or counterclaim • • •

against C! This general rule includes negative assertions: “if the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff”! Eg: proof breach of contract (positive assertions), and proof that the items have not been paid (a negative assertion)! However, difficulties arise when it is unclear whether a particular fact in issue is properly classified as a part of the Claimant’s cause in action or the Defendant’s defence. Where this station arises, it is for the court to determine who bears the burden of proof by reference to policy considerations and, in particular, the ease or difficulty that the respective parties would encounter in discharging burden!

Agreement • In contract cases, which party bears the legal burden on a certain issue may be fixed by the express terms of the contract!

• Where the term of the contract are silent as to who bears the burden on a particular issue, it is a matter of construction for the courts!

Statute • The incidence of the legal burden may be fixed by statute! • Eg: in proceedings referred to in the Consumer Credit Act 1974, S. 140A the debtor or any

surety alleges that the credit relationship is an unfair one within the meaning of S. 140A(1) then, under S. 140B(9), it is for the creditor to prove the contrary!

Page 4  of 107 

2. Incidence of the evidential burden !

• General rule in civil proceedings— the party bearing the legal burden on a particular issue will also bear the evidential burden on that issue!

• Judge will decide that the evidential burden has been discharged if evidence is assumed

sufficient to justify the possibility of a finding that the legal burden on that issue has been discharged!

3.Standard of Proof! • In Miller v Minister of Pensions [1947]— Denning J describe the standard of proof as: If the •

• • •

•

evidence is such that the tribunal can say, “we think it more probable than not, the burden is discharged, but, if the probabilities are equal, it is not"! However, there are some exceptional cases where the criminal standard of proof is required:! (a) Committal proceedings for civil contempt of court! (b) Binding over for breach of the peace! (c) Antisocial behaviour orders! (d) Where a person’s livelihood is at stake! (e) Allegations of misconduct amounting to a criminal offence in disciplinary hearings! (f) Where an application is made for football banning order under S. 14B of the Football Spectators At 1989! (g) Where statute requires the criminal stand of proof ! In civil cases where allegation: allegations of child abuse in care proceedings), the standard remains the balance of probabilities! The more serious the allegation, the lower the probability of its being true and so the stronger should be the evidence in order for the court to find that the allegation is proved on the balance probabilities — but such approached was rejected by the HOL in Re B [2009]! It was held that there was ‘no necessary connection’ between the seriousness of an allegation and the probability that it occurred. Therefore, the standard of proof that applied when de-icing whether an allegation occurred, regardless of its seriousness, was the simple balance of probability! According to the Supreme Court in Re S-B(children)(Care Proceedings: standard of proof)[2010] — it is now settled law that there is only one single civil standard of proof, namely proof on the balance of probability !

SGS 2! Limitation— Limitation Act (LA) 1980 Accrual of cause of action ! Tort Claims • Section 2 LA— Tort claims shall not be brought after the expiration of 6 years from date on which the cause of action accrued ! • In respect of the accrued of cause of action in tort in Sime, it states that the general rule that in addition to proving D is guilty of some wrongful conduct, liability in tort can only be established on prove of damage. Usually, damage is the final matter that come into existence. So, the usual rule is the time runs in tort from the date when damages sustained. ! • The important date— is the date of the damage is sustained, not the date which the Claimant discovered the damage ! Contact Claims • Section 5 LA—An action founded in simple contract shall not be brought after the expiration of 6 years from date on which the cause of action accrued !

Page 5  of 107 

• In terms of accrual of the cause of action in contract claims, Sime—it states that time runs from the breach of contract !

Contribution Claims! • Where two or more people are liable for causing a loss, the claimant will not necessarily sue both. If the claimant sues defendant 1 and defendant 1 is found liable in damages, defendant 1 may bring a claim against defendant 2 for a contribution towards the damages that defendant 1 has to pay.! • Section 10 LA— where under Section 1 of the Civil Liability Contribution Act 1978, any person becomes entitled to a right to recover contribution in respect to any damage from any person, no action recover contribution by virtue of that right shall be brought after the expiration of 2 years from date on which the cause of action accrued ! • In terms of accrual of the cause of action for contribution claims, in Sime— it states that contribution claims accrued on the date the amount of the underlying liability is fixed disregarding any possible appeals Personal Injury Claims! • Section 11 LA—the period applicable for personal injury is 3 years from the date of which the cause of action accrued or the date of knowledge if later of the person injured! Fatal Accident Claims • Section 12 LA— No actions shall be brought after the expiration of 3 years from the date of death or the date of knowledge of the person for whose benefit the action is brought (whichever is the later)! Definition of the date of knowledge • Section 14 LA—provides the definition of the date of knowledge for the purpose of S. 11 & 12 of the Limitation Act! • By that S. 14, which states in part that, subject to Subsection to 1A, references to the person’s date of knowledge or references to the date on which he first has knowledge of following the facts:! (1) The injury in question was significant; and! (2) That the injury was attributable in whole or in part to the act or omission which is alleged to the constitute negligence, nuisance or breach of duty; and! (3) The identity of the Defendant; and! (4) If it is alleged that the act or omission of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant ! • Knowledge of the act or omission did or did not as the matter of law involved negligence, nuisance or breach of duty is irrelevant! • For the purposes of S. 14, an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceeding for damages against the Defendant who did not dispute liability and was able to satisfy a judgment ! • For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably has been expected to acquire— ! (a) From facts observable or ascertained by him; or! (b) From facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek! • But the person shall not be fixed under that Subsection with knowledge of a fact ascertainable only with the help of expert advice so long he has taken all reasonable steps to obtain and where appropriate to act on that advice! Latent Damages Claims • Section 14a LA— Sets out a special time limit for negligence actions where facts relevant to the cause of action are not known at the date of accrued! • **Note— S. 14a states that it applies to any action for damages for negligence other than one to which S. 11of the applies (Personal injury claims) and it will apply where the starting date of reckoning the period of limitation under Subsection (4b) of S.14a falls after the date on which the cause of action accrued!

Page 6  of 107 

• An action where a S. 14a applies—shall not be brought after the expiration of the period application in accordance with the subsection (4) of Section 14a!

• Subsection (4) states that the period is either 6 years from the date of which the cause of action •

•

•

•

• •

• •

accrued or 3 years from the stating date as defined by Subsection (5)! If that period expires later than the period mentioned in subsection (4a), in Subsection (5) it makes clear that the purpose of S.14a the s...