Litigation process summary PDF

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this is a summary of the civil litigation process...

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LITIGATION PROCESS SUMMARY 1.

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LETTER OF DEMAND (PRE-LITIGATION PROCEDURE)  This is ultimately the first step to the litigation process.  It is where the Plaintiff’s lawyer writes a letter to the defendant, prior to the instituting proceedings, which will usually contain just a brief summary about the dispute, the demands the Plaintiff has the time that is required for the demands to be met and the intentions of the Plaintiff if those demands are not met in that time.  During this pre-litigation process – genuine steps must be taken to resolve the dispute.  If genuine steps are not taken then the parties commence/institute proceedings in step 2. STATEMENT OF CLAIM/SUMMONS  To commence proceedings, the Plaintiff will then file a statement of claim or a summons to the defendant.  Statement of claim – the dispute will mainly concern factual issues which is when a statement of claim would be appropriate (such claims include a claim in relation to a tort, or a debt or personal injury or defamation etc. (UCPR 6.3). the statement of claim will usually contain the allegations made against the defendant and the relief that is sought by the plaintiff. In other words, a statement of claim is a pleading which must contain a summary of all the material facts (UCPR 14.7) (not the evidence to prove); and must give all necessary particulars (UCPR 15.1)  Summons – however regarding a summons, the proceedings will generally not have pleadings as the evidence is usually taken on an affidavit. Such proceedings that are commenced by a summons include where there is no defendant or a preliminary discovery application (UCPR 6.4) 2.1. MOTION TO STRIKE OUT – the pleadings may be struck out if it has a tendency to be prejudicial or cause an abuse of process – (UCPR 14.28) SERVICE  Once a statement of claim or summons is drawn up, it must then be served on the Defendant.  The service informs the defendant of the claim that is being made against them and the court will not exercise its jurisdiction unless the defendant has been personally and validly served with the notice of the proceedings.  The document can be served personally (UCPR 10.5) however an exception to personal service is where the solicitor undertakes to accept the service. (UCPR 10.3)  If personal service is not practical then the court may make an order for a substituted service (UCPR 10.14) APPEARANCE/DEFENCE (DEFENDANT’S REPLY/ANSWER)  Defence/counter/cross claim – (response to the statement of claim) The fourth step is for the defendant to respond to the statement of claim or summons as a “defence”. The defendant will either admit; deny or raise a new issue/defence. The defendant may also make a counter claim. o The defendant is limited to 28 days to respond to the service of the statement of claim – (UCPR 14.3)  Appearance – (submission to the court/jurisdiction) An appearance however is the formal step of a defendant response to the originating process stated above. The defendant has to file an appearance before he or she takes any further steps in the proceedings (UCPR 6.1(1)) which can only be done by filing a notice of appearance (UCPR 6.9). o The appearance will show that there has been no irregularity in the service of the proceedings by the plaintiff. o The defendant is also limited to 28 days to enter an appearance – UCPR 6.10 o Plaintiff may wish to file a reply – UCPR 14.4 DEFAULT JUDGMENT  However, if the defendant fails to file an appearance, within 28 days they will be in default of the proceedings and could lead to a default judgment being entered by the plaintiff (UCPR 16.2) which can be done by the plaintiff filing an affidavit of service and a request for judgment – (UCPR 16.3) o In other words, in a default judgment, a court will strike out your case and put it in favour of the party where failure has not arisen on their part. o The court may enter the judgment against you without any further notice to you. o Such a judgment may be costs to the plaintiff for bringing the proceedings.  Therefore, in a default judgment, THERE IS NO DEFENDANT. 5.1. A default judgment may also occur where the pleadings are vexatious or cause an abuse of process, or do not disclose a cause of action (to which the court will see strike out your case and obtain a default judgment)– (UCPR 14.28) MOTION TO STRIKE OUT/SET ASIDE JUDGMENT – The defendant can set aside the default  judgment if it has been irregularly or improperly obtained (such as it being signed to soon or for too much).

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SUMMARY JUDGMENT  If the defendant does not fail to file an appearance, (i.e. acknowledgement of service has been given) then a summary judgment may be issued on the merits of the entire case on discrete issues of the case. o So in other words, there is no dispute regarding the material facts and a decision is made by the court without a full trial.  In a summary judgment, there’s a defendant but THERE IS NO REAL QUALITY OF THE DEFENCE. o Whereas in default judgment - there is no defendant as the defendant has failed to appear/defend his claim.  The plaintiff will have to prove to the court that there is not real question to be tried.  The court may give such judgment to the plaintiff if there is evidence that the defendant has no defence to the claim or part of the claim etc – UCPR 13.1  AON v ANU – Amendment to change defence was not allowed in this case because case management was seen to be more important in the sense of decreasing delays and cost in relation to the parties in trial and other parties waiting to be heard. o s56 CPA – This mends with the courts overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings.  Summary judgment for P on D’s claim – if the defendant has no defence, P can apply for SJ.  Summary judgment for D on P claims – If P’s claim discloses no reasonable cause of action; proceedings are frivolous or vexatious; or the proceeding is an abuse of the court, some jurisdictions will permit the summary disposal of P’s claim – UCPR 13.4 DISCOVERY/INSPECTION & INTERROGATORIES  If the defendant does not fail to file an appearance within 28 days, then a default judgment will not occur and the process of discovery will begin  Discovery – Discovery is the process after the originating process has closed, and refers to obtaining information/documents before a trial such as through demands for the production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath) etc. It is also known as disclosure o The reasoning for discovery is that all parties and representatives will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other party. o The party served with the notice has to provide within a reasonable time all documents in their possession, custody or power and provide any information as to the whereabouts of the specified documents that are not produced – UCPR 21.11  Inspection – inspection is the process of making the document available to the opponent. o The party A by notice served on party B may require party B to produce documents such as a pleading, affidavit or witness state or other document relevant to a fact in issue to be produced for inspection – UCPR 21.10 o a party must give inspection 21 days after giving discovery to which party B must arrange them to be readily accessible –UCPR 21.5  interrogatories – interrogatories are like depositions in the sense that they are a series of questions delivered by one party to the other party under interrogation which they are required to answer (usually under oath). o Designed to obtain admissions or to damage the case of the party under interrogation. o Interrogatories can be ordered at any stage of the proceeding by the court – UCPR 21.1 o Answers may be verified by an affidavit – UCPR 22.1(5) INTERLOCUTORY PROCEDURES  The first type of interlocutory procedure seeks orders that do not make final determination such as (amending of pleadings, extension of time to comply with an existing order, variation of parties, discovery and interrogatories etc.  The second type is designed to preserve the status quo pending the hearing and final determination of a proceeding. For example, injunction (final and interim), search orders, freezing orders, management and custody of property orders etc.  Interlocutory injunctions – to be entitled to an interlocutory injunction the plaintiff must (1) establish that a serious question is to be tried; and (2) they must establish a balance of convenience.  SEARCH ORDER (Anton Piller) – this is where the seizure of documents can be ordered where there is a strong ground for believe that such evidence will be removed or destroyed.

Requirements that govern a search order is a strong prima facie case; potential/actual loss or damage to the A will be serious; R possess important evidentiary material and a possibility R might destroy the material/cause it to be unavailable – UCPR 25.20; Anton Piller KG v Manufacturing Processes Ltd FREEZING ORDER (Mareva Injunction) – this is where the court for example freezes your bank account to prevent you from disposing or removing assets outside of the jurisdiction of the Court to defeat a judgment that is obtained against you – see UCPR 25.11 o

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TRIAL  The rules specify the order in which the parties shall normally present their cases - such as the beginning party (usually the P) opens his/her case then adduces evidence; at the conclusion of P’s evidence/opening statement, the opposing party (D) can elect to adduce or not to adduce evidence to which they may make an opening address if they choose to adduce evidence, and then may close the opening address to his/her case after D closes his/her case, (P) may close his/her case. If the D does not elect to adduce evidence then the P may make an address to close his/her case to which the D may then state his/her case – UCPR 29.6  Trial may be adjourned if a party fails to appear – UCPR 29.7(2)(b)  If D fails to appear to a trial concerning a liquidated claim (specific amount) then an order for the P may be given to the P in that amount due – UCPR 29.7(3) 10. JUDGMENT  A court can make a judgment to the nature of the case regarding whether or not relief is included in that statement of claim/summons – UCPR 36.1  Judgment may be entered by an agreement between the parties – UCPR 36.1A If reasons for the judgment are written, the court does not have to state the reasons – UCPR 36.2 SET ASIDE JUDGMENT – Judgement can be set aside if made irregularly, illegally or was not in good faith – UCPR 36.15  Slip rule - the court can correct an error/mistake in a judgment – UCPR 36.17 11. APPEAL  Where by a party seeks to have their order varied/set aside by an appellate court.  Three types of appeals – rehearing; hearing; stricto sensu 11.1. Rehearing – this determines the rights and obligations of the parties at the date of the rehearing on the record of evidence before trial judge. 11.2. Hearing (de novo) – this involve the re-recording of the evidence 11.3. Stricto sensu – where the court is required to confine its consideration to whether the judgment being entered was correct when given 12. COSTS  Unsuccessful party will usually pay the costs of the successful party 13. ENFORCMENT  Judgment is entered when the court enters in in a computerized system – UCPR 36.11  Stay of execution – a court order temporarily suspending the execution of a court judgment  Writs of execution – court order granted to put in force a judgment of possession obtained by a plaintiff from a court  ...