County courts

Posted on February 14, 2012 by

Choosing a county court to start a claim – is it important ?

The short answer to this question is yes, where it’s possible and subject to 3 items that will need to be checked or to be aware of :-

1. There are some types of cases where the claim must be started in the nearest County Court, one example being residential property possession claims – always phone the court if in doubt or ask your lawyer.

2. the potential advantages of issuing your claim in the bulk processing system available, generally for debt collection type matters.

3. If a defendant is defending the claim, on the balance of convenience, if that defendant requests the case be transferred to a county court near to where he, she or it is/are, the case may well be transferred to that court.

Why choice of courts can be important

The short answer to this is that whilst standards are monitored and justice should be justice, the courts vary in terms of efficiency and other factors. some are more busy than others, and this can have a significant effect on case. With some courts which cover a fairly large inner city area, Bow County Court being an example, a visit to the court will show that the building is packed with many people waiting for hearings, and many of these hearings are listed for a narrow time slot before a Judge. It is not unusual to have 5 hearings listed for a slot between 10-11 am for example. What happens is that parties may well discuss the case between them or through their lawyers at court, and this can result in some settlements or agreed directions which are then put before the Judge and may be rapidly turned into an order. On the other hand, on many occasions, the overlisting means your case is not heard at the agreed time, may be put back hours while you wait, and may not even be heard that day. If you have a lawyer representing you, this is incredibly frustrating as you are paying high costs for waiting around. Other courts are less busy and we are not singling out Bow County Court, but choice of court is a factor you should think about, just as deciding to start legal proceedings should never be taken lightly.

Limitation Act 1980 & issuing civil proceedings

Posted on January 16, 2012 by

Civil Litigation: The Limitation Period

The purpose of this article is to bring to the attention of a claimant, a key issue that they must bear in mind when deciding whether to bring a claim.

The Limitation Act 1980 provides for fixed periods of time for issuing the various types of proceedings and if the prescribed period of time elapses without proceedings being issued, the case becomes statute barred. Although this would not prevent the claimant from bringing a claim, this would ensure that the defendant would be provided with a sturdy defence.

For a claim, specifically ones founded on contract or tort, the basic rule is that the claimant has 6 years from the date when the cause of action accrued to commence proceedings. However, specifically in relation to breaches of contract, the claimant should also look to case law to establish when the cause of action accrued, as this is usually a question of fact.

In tort, the cause of action accrues when the tort is committed, but in some instances, such as the tort of negligence, the action accrues only when damage occurs. This can be later than when the tort is committed, and therefore the claimant should look to case law on this point also.

Where fraud, concealment or mistake is concerned, time does not run until after its discovery or when such fraud could have been discovered, albeit with reasonable diligence by the claimant.

There are also specific rules which arise for example when the person to whom the right of action applies is disabled and under the age of 18, or a person of unsound mind as per the Mental Health Act 1983. In this instance the limitation period will not begin to run until the Claimant ceases to be under that disability.

The claimant must also carefully read any applicable contract. If there is a contractual limitation period, this will apply and it is usual for a contractual period to be shorter than the statutory limitation period. The limitation period is likely to have been varied from the statute or may have been excluded in its entirety. The Statue of Limitations Act can be varied or extended by agreement between the parties. Where the parties have an agreement which varies the limitation period, the Court may be less willing to intervene and may enforce the contractual limitation period to ensure that the parties are on an equal footing.

If a claimant commences proceedings, when the Court received the claim form, this will stop the time from running and will therefore protect the claimant’s position for that cause of action. The proceedings can then be put on hold to continue attempts at negotiation or mediation although it is worth noting that the claimant cannot then bring a new cause of action in to the existing proceedings.

If the claimant is successful in their claim, the defendant has the opportunity to apply for permission to appeal under Part 52 Civil Procedure Rules 2010. Time limits for this are strict and the defendant would have 21 days from the date of the decision to apply.

Therefore, both parties must be aware of any time limits when bringing or defending a claim, as although on one hand missed deadlines can create problems for one party, conversely they may work to the other party’s advantage.

This article from Maya Bhatiani, litigation solicitor at Darlingtons Solicitors. You may wish to contact Darlingtons for expert advice on any litigation issue.

Time to go back to quills or calculators ?

Posted on December 20, 2011 by

You may recall the debacle over the multi-millions spent on what was supposed to be an online system to join up the NHS fully. This was closely followed by big ideas and expenditure for bringing IT in the courts into the 21st century. Well, it looks as though the court system may even be worse than the NHS one, although from recollection that has been effectively scrapped now.

In credibly, it appears that the IT system in the UK Courts Service cannot calculate basic figures or perform other basic accounting functions, according to officials at the National Audit Office who requested data from HMCS on financial figures such as revenues received from fines and other receipts. This is quite incredible when you think about it, and not in a good way.

Not only does the lack of information make it impossible for the Treasury to get realistic budgets it also indicates that the possibility of collecting perhaps much of the estimated £1.4 billion in unpoaid fines must be poor, if the records are not accurate.

There are plenty of individuals and companies who faiul to pay fines in any event, but the above information is hardly likely to encourage even those who would ordfinarily pay to pay.

Anyone foresee a Human Rights challenge by someone who has paid a fine or as defence tro enforcement for not paying a fine ?!

Comments please.

Investec enters litigation funding market

Posted on November 20, 2011 by

Litigation funding becoming more mainstream ?

Litigation funding has been around for a few years but is now starting to develop as a preferred option for commercial litigation, offering the benefits of cashflow, hedging of risk and potentially attractive returns for the investor. The development of the market is shown by the fact that the first bank to become directly involved has entered the market tentatively over the last few months. The bank in question, as reported this week in the legal press, is Investec.

The potential downsides for companies involved in a commercial dispute will include a degree of loss of control, possibly high costs or a high share of the proceeds going to the funder and it is worth noting that there are very few funders at the moment who are prepared to look at cases which have a value of less than £250,000.00.

The litigation funding market is a fascinating part of the new litigation and legal landscape, so is worth keeping an eye on, and it does represent a welcome step forward in terms of flexibility in situations where cases which are strong on the merits are not pursued or settled early simply due to fears about costs or perceived or actual inequality of bargaining position simply due to availability of resources.

How to prepare witness statements

Posted on September 8, 2011 by

Drafting a Witness Statement: Civil/Commercial Litigation: Civil Procedure:

This article is aimed towards those starting out in law, or Litigants in Person. It is not intended to be a guide, but more of an aide-memoire.

The litigation rules that govern the making of a Witness Statement are set out in the Civil Procedure Rules 1998, Part 32.8. The contents are set out at the Practice Direction to Part 32. The Statement should be signed by the maker with a Statement of Truth under Part 22 of the Civil Procedure Rules 1998.

Under Practice Direction 17.1 of the Civil Procedure Rules 1998, the Statement should be headed with the name of the Court, the Case number, and the names of the Parties.

At the top right hand of the first page of the Statement, and on the back page, there should be the following information, which is set out under Practice Direction 17.2 of the Civil Procedure Rules 1998:

The initials and surname of the person making the Statement, whether the Statement is made on behalf of the Claimant/s or the Defendant/s, the number of the Statement in relation to that Witness, the number of Exhibits attached to the Statement, the date the Statement was signed, and the date the Statement was filed.

The statement should be made on A4 paper with a 3.5cm margin. The Statement should state the full name, occupation, and address of the Witness, including confirmation that they are duly authorised to make the Statement on the Claimant’s/Defendant/s behalf; Confirm on what basis they support or oppose other evidence; Confirm what evidence is theirs and is within their own knowledge, and what evidence is relied upon as information from others.

That evidence should be in the Witness’s own words and writing. The Statement should be clear and legible.

Paragraphs should be numbered, and individual pages, paginated. Writing should only be on one side of a page, and not double-sided.

Be careful to ensure that what you say in your Witness Statement is truthful and accurate. There are potential dire consequences if you are found to have fabricated evidence or to have misled the Court which would lead to a potential Contempt of Court, and a referral to the Attorney-General’s office with a recommendation for prosecution for contempt of Court which could lead to a fine or imprisonment, or both.

David J Rosen

The writer is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons, Solicitors in London, a member of the London Solicitors’ Litigation Association, and a visiting Associate Professor of Law at Brunel University.

5 litigation and civil dispute tips

Posted on August 30, 2011 by

5 Frequently Asked Questions relating to settling a case before, during, or after Proceedings.

These responses are for guidance only. They are to be read as an aide memoire to the explanatory notes accompanying various Parts of the Civil Procedure Rules 1999. This response does not cover any part of Part 36.

1. I want to issue proceedings/sue in Court. Is there anything I need to do beforehand?

Yes. Pre-Action Protocols dictate that a Letter before Action otherwise known as a Letter of Claim must be sent by you as the proposed Claimant against a person or a Company, the proposed Defendant beforehand. There are Pre-Action Protocols relating to specific subjects such as Defamation, Professional Negligence, Housing, Medical Negligence Claims, Personal Injury etc…in the event that no specific protocol applies to your claim, Part 4 to the Practice Directions of the Pre-Action Protocol will apply, and you must follow Annex A, to comply with what contents your letter should cover. You have to give a reasonable time to await a response. If you do not comply with the pre-action protocols, you may suffer adverse costs against you, even if you were to win your case.

2. I have complied with the relevant Pre-Action Protocol. What next?

Have you tried speaking to the other side to resolve matters? Either directly, or indirectly through a mediator ?

Why as a Litigator, would I not be pushing for you to proceed to Court? The answer is that there is a positive duty on all Parties to try and resolve matters without reverting to Court by way of Alternative Dispute Resolution. This could be by way of Arbitration, Mediation, Conciliation, or some other form of dispute resolution. If you have a contractual relationship, there may be an arbitration clause in which case you will need to follow the dictates of the Contract. If in doubt, consult a Solicitor.

3. Ok, nothing has worked and I now want to go through the Courts. What do I do ?

If you have now exhausted all routes of negotiations, then proceed as follows but remember that you could always refresh talks at any time, and settling a case by way of amicable compromise is ALWAYS preferable to going through the stress, strain, and costs of Court.

4. What is unreasonable behaviour ?

The Court may deem not complying with pre-action protocols as unreasonable behaviour. Also, if you bring a claim which is frivolous, spurious, or vexatious, or are generally unco-operative with the Court, or the other Party, you may find yourself on the receiving end of a costs Order against you, even if you win the case.

5. I have an allocation questionnaire and there are questions asking if I want to stay proceedings. What are the effects of a ‘stay’ of proceedings ? What happens if I do not agree to a stay, and I do not want to talk at all to the other side but simply want my day in Court ?

A Stay of proceedings means a halt or ‘time-out’ from the case. The Court timetable is frozen usually for 28 days to allow the Parties to try and resolve the case.

If you do not want a stay of proceedings, it has to be for good reason. There is a positive duty on all Parties to try and settle matters without a full hearing. Costs are usually imposed as a penalty if you did not try to settle matters and a case was settled. See Dunnet v Railtrack. There are however, other cases where if the Parties are so diametrically opposed, or there is and cannot be any common ground, then in certain circumstances, a stay of proceedings would not be productive or conducive. Such a decision must not be taken likely because of the duty to try and settle, and you should seek independent legal advice.

Simply wanting your day in Court when the case is capable of being resolved, would not be a good reason for not agreeing to a stay of proceedings.

David Rosen is a Solicitor-Advocate, Partner and Head of Litigation at Darlingtons, a prominent firm of Solicitors. He is a member of the London Solicitors’ Litigation Association, and an Associate Professor of Law at Brunel University.

Legal aid cuts, court system and DIY litigation

Posted on August 7, 2011 by

There is an excellent article in yesterday’s Guardian explaining that with the proposed massive reductions in legal aid, there will be a big increase in the number of individuals representing themselves. the article can be found here.

As the Guardian article points out, it is inevaitable that a far greater amount of court time will be eneeded with people reprsenting themselves. This also has a cost, and as has been suggested by many grouops and organisations, the proposed costs may save money in on eway, and increase costs in other ways.

The writer has some experience of regular civil court attendances over the years. Anyone who has spent time at courts such as Bow County Court or Willesden County Court will know that at the best of times these courts can be chaotic and whole days wasted due to cases taking longer than listed and such like. who knows what they will be like in the future if these cuts are implemented.

Court claims data

Posted on July 17, 2011 by

Court claims on decline

Some interesting facts come out of the latest Judicial Statistics. Divorce claims are on the rise, which isn’t a great surprise, but most other types of court claims are on the decline which perhaps somewhat contradicts the suggestion by the Government that litigation and legal aid are out of control.

County court claims (non-family)

Just over 1,600,000 civil claims were started during 2010, equating to a 14% reduction from 2009. The majority of these remain debt collection claims
Particular areas of law with reduced claims includes debt claims (19%), insolvency (14%) and repossession (9%). This correlates with the fact that many creditors have decided there is no point taking action whilst economic conditions are so bad, many are waiting until there is an improvement
Of these types of claims, nearly 300,000 defences were lodged and there were 63,000 trials and small claims hearings in 2010
There were just under 450,000 applications for enforcement in 2010, just under 280,000 were for bailiff enforcement.

Lasting Power of Attorney – some basics

Posted on June 13, 2011 by

Termination of an LPA

Revocation by the donor

There are two ways in which an LPA can be revoked by the donor:

The donor may choose to revoke the LPA at any time whilst the donor has capacity to do so (section 13(2), MCA 2005).
The donor must notify the attorneys and the Public Guardian that the LPA has been revoked (regulation 21, LPA Regulations 2007)

An LPA in respect of the donor’s property and affairs will be automatically revoked by the donor becoming bankrupt (section 13(3), MCA 2005). If the donor is bankrupt because of an interim bankruptcy restrictions order, the LPA is suspended (rather than revoked) for as long as the order remains in effect.

An LPA will automatically come to an end if the donor dies (regulation 22, LPA Regulations 2007).

Revocation by an attorney

Section 13(6) of the MCA 2005 specifies the circumstances in which an event involving an attorney will terminate the attorney’s appointment and may revoke the LPA (section 13(6) events).

The section 13(6) events are:

The attorney disclaims their appointment. If the LPA is registered, the disclaimer must be made using Form LPA005, which should be completed and sent to the donor. A copy of the form should be sent to the other attorneys and to the Public Guardian (regulation 20, LPA Regulations 2007). If the LPA is unregistered, the attorney should notify the donor that they have disclaimed the role.
The attorney becomes bankrupt. This only affects an LPA in respect of property and affairs, not a personal welfare LPA. If the attorney is subject to an interim bankruptcy restrictions order, the attorney’s appointment is suspended for as long as the order remains in effect.
The attorney dies.
The marriage or civil partnership between the donor and the attorney is dissolved or annulled. The donor may specify in the LPA that this will not terminate the attorney’s appointment or revoke the LPA.

Cancellation may be ordered by the Court, on the ground that the requirements for creating a valid LPA were not met :

Or on the ground that the LPA has been revoked or otherwise come to an end (paragraph 18(b), Schedule 1, MCA 2005).
on the grounds that fraud or undue pressure were used to induce the donor to make the LPA, or any of the attorneys is behaving in a way that contravenes the attorney’s authority or is not in the best interests of the donor

For more information on lasting power of attorney or on revoking a will or revoking power of attorney, please get in touch with Darlingtons Solicitors for specialist legal advice in London.

Disclosure in court cases

Posted on June 2, 2011 by

Disclosure of documents in civil proceedings

The purpose of disclosure is to make available documents which either support or undermine the respective parties’ cases ? it is designed to allow the court to do justice between the parties with “all the cards on the table”.

Key points to note:

Disclosure means formally stating that documents or classes of documents exist or have existed.
All parties to civil proceedings in England and Wales must give disclosure, subject to some very narrow exceptions.
Your opponent, subject to some very important exceptions, has the right to inspect and/or take copies of disclosed documents.
Privileged documents must be disclosed but may not be inspected.
Ordinarily, parties will be required to give disclosure of documents which assist or harm the case of any of the parties to the dispute.
The parties must carry out a reasonable search for documents, bearing in mind all of the circumstances of the case, the value of the dispute and the overriding objective of dealing with cases justly.
The obligation is to search for, and disclose, documents currently or formerly in a party’s control.
A “document” includes all media on which information is recorded – it includes electronic information, and can, in principle, extend to deleted data and metadata