Civil Procedures Week 1

Tort – week one Civil procedure – not on exam Civil Courts- Where filed • County Court- generally most cases where amount in dispute < £50,000 (for personal injury). Circuit judges and district judges •High Court- over £50,000, or £100,000 if not PI. High Court justices, some circuit. •Civil Procedure rules apply in both, generally the same. Overriding objective to deal with cases justly and proportionately, to be achieved by active case management. Civil Procedure Rules •Civil Procedure Rules (CPR) adopted in 1999. New code of procedure, due to complaints of delay and excessive cost of prior rules, due to hands-off approach of courts and delaying tactics by lawyers. Rules and practice directions. •Significant changes in 2013 as a result of Jackson LJ Review of Civil Costs, which found high cost of litigation a significant problem. Changes appear to have helped, but costs still high, sometimes more than amount in dispute. Pre-Action Protocols Generally require that claimant (C) write defendant (D), explaining basis of claim and enclosing key documents. D should respond within 3 months whether and why liability or damages is disputed and disclosing key documents. •Parties should attempt to agree on experts. •Goal is to settle many claims by ADR or without litigation. Litigation Funding •Tort Litigation is funded mainly by Ds and insurers. Legal aid not available for tort claims, with a few exceptions. English law generally says loser pays both his own costs and his opponent’s, although court has discretion to vary this. Recent change for personal injury claims Cs commonly have no win/no fee agreement with lawyers. Pre-LASPO Regime C’s solicitor could generally get uplift, up to 200 % of normal hourly fee. This meant Ds paid for cases they lost and won before LASPO changed this; now uplift comes from damages. Defendant's pay for cases they lose – insurance policy of claimant’s - loser pays. Cs frequently obtained after the event insurance against their liability for D’s costs. The cost of the ATE insurance was recoverable from D if C won pre-LASPO. ATE insurers acted as gatekeepers. Now Cs not liable for costs if lose in most cases. Important Supreme Court decision, Lawrence v Fen Tigers (No. 3), [2015] UKSC 50, rejected argument that pre-LASPO costs regime violated ECHR, with significant dissent. LASPO •Comprehensive report in 2010 by Jackson LJ recommended changes to cost and funding practice, partially implemented by LASPO 2012; effective 4-1-2013. •Principal changes: Cs can no longer recover uplifts and ATE Insurance from Ds; instead they come out of damages, but capped at 25 percent of certain damages. •Cs now generally not liable for costs in personal injury cases, and damages increased by 10 percent. Liability Insurance is Critical •Most individuals are not worth suing if no insurance. - only if they have liability insurance is someone worth sueing. •Liability insurance compulsory for road traffic, employers, solicitors and other professionals. •Businesses generally buy insurance against other tort claims, but some self-insure, as does government. Price of insurance is sensitive to claims history, but only weakly. •Thus we all pay for tort claims, either through taxes, liability insurance or cost of products and services. Initial Stages •C starts suit by having court issue a claim form. •Either court or C serves the claim form on D. •Either accompanied or followed by Particulars of Claim, consisting of concise statement of facts and some itemised damages (e.g. interest, aggravated damages). Other Pleadings •D must respond within 28 days with Defence responding to allegations, not mere denial. •If no response, C can obtain default judgment. •Counterclaims, Replies and Third-party claims. •All Statements of Claim must include a Statement of Truth. Allocation to Tracks •Small claims track if < £10,000 (£1000 for personal injury). Informal procedures, low costs. Lawyers unnecessary. Fast track if between £10,000 and £25,000). 1 day trial, few experts (generally joint), streamlined costs. Trial in 30 weeks. •Multi-track for complicated or high value cases. Court holds case management conferences to narrow issues etc. Costs budgets. Will generally include directions for remaining steps. Narrowing Issues •Striking out claims/defences if no reasonable basis (CPR 3.4) •Summary judgment (CPR 24) if no reasonable prospect of success or defence. •Especially useful for claims/defences that fail as a matter of law (e.g. no duty of care owed). •Claims/defences may also be struck out as sanction for misconduct, but only if lesser sanction (e.g. costs) is not enough. Disclosure •Parties prepare lists of documents and exchange them. •Must disclose documents you rely on, adverse to your case or another party’s case, or that support another party’s case. •Can request additional documents (specific disclosure). Especially common in Multi-Track Cases. Part 36 Offers D makes offer to pay and C has 21 days to accept or reject. •If reject and C recovers less, C generally must pay D’s costs after. •C can also make offer, if rejected and D does worse, higher interest, indemnity costs. Trial •Vast majority of cases tried without jury. Exceptions for false imprisonment, fraud and malicious prosecution. Formerly defamation. •Parties exchange witness statements in advance of trial. •Generally these stand as witness’s evidence in chief. •Other side can cross-examine. •Experts likely to testify by report only unless important. •In many cases court will prefer single joint expert. Even if parties hire experts, their duty is to the court. Court renders Judgment •Generally includes written reasons, but in fast track may rule immediately. •Court will award costs (including legal fees, but generally less than actual costs), generally to successful party. CPR 44. •But court can make a different order, especially if parties have wasted costs, or Part 36 offers. Sometimes award indemnity (full) costs. •In tort mainly award damages. Not an order for D to pay. Rather, authorises C to try to collect from D by having bailiffs seize property, charge orders, attaching debts/earnings, etc. Appeal •Not a right- must have leave from trial court or appeal court so you are persuading them and before they grant it they need to be satisfied if the appeal has a chance of success. •Generally requires real chance of success. •Deferential review of facts- mainly concerned with issues of law. •Appeal to Supreme Court requires leave, granted only for issues of public importance. Limitations Issues • Limitations Act 1980 bars C from suing after time passes. General purpose is to prevent stale claims, promote repose by Ds. • General tort limit is 6 years- LA s. 2. • Special limit in s. 11 for personal injury claims 3 years. Applies to actions for negligence, nuisance or breach of duty. •Runs from date of knowledge if later- s. 14 defines. •Court may extend the 3 year period if equitable- s. 33. •Limitations and Intentional Torts •Stubbings v Webb, [1993] AC 498 (HL): held that 6 year statute applied to claim for sexual abuse, but no extension allowed. Not claim for breach of duty. Rape – not claim for breach of duty •A v Hoare, [2008] 1 AC 844 (HL) overrules Stubbings and holds that rape is a claim for breach of duty. Thus 3 year extendible statute applies, runs from the date of knowledge. • Major impetus for historical sex abuse claims, along with recent rulings on vicarious liability. Limitations (continued) •What must you know? Enough to warrant investigation into whether you have claim; need not be enough to actually bring viable claim. AB v Ministry of Defence, [2012] UKSC 9 (claims for cancer etc. from exposure to radiation time-barred even though Cs still don’t know enough to have viable claim on causation; 4-3 ruling). ● • Discretion to extend- standards set forth in B v Nugent Care Society, [2010] 1 WLR 516 (CA): quality of evidence available, reasons for delay, size and strength of C’s case; see also AB. Intentional Interference with the Person Historically three torts- assault, battery and false imprisonment Two recent: harassment and Wilkinson v Downton- Next Week plus defences A. Many but not all actionable per se. B. Intent required is fairly minimal 1. Intent to cause the contact etc., not intent to harm. But generally must be D’s purpose or he must know it is substantially certain. 2. Need not be at fault- e.g. trespass to land, where D liable even if did not know it was C’s land, not if D was thrown onto land by tornado or other people. C. Justification and Excuse defences are specific- no general reasonableness defence. D. Important modern use is to test limits of rights and statutory authority, especially by police and medical professionals. E. Property-based intentional torts not covered here- trespass, conversion. Also omit intentional economic torts, and several others. Battery Battery is generally an intentional unconsented-to touching of another. Need only intend the touching; no intent to harm is required. Wilson v Pringle, [1987] 1 QB 237, CA. Must be intentional or at least careless. Fowler v Lanning, [1959] 1 QB 426 (CA) (not enough to say D shot C). Letang v Cooper, [1965] 1 QG 232, CA suggests that intent to injure required. Better view is that no battery because no intent to touch. Must the touching be hostile? Wilson suggests yes, but disapproved by Lord Goff in In re F, [1990] 2 AC 1, 73; general exception for contact generally acceptable in the ordinary conduct of everyday life. This formulation approved in Wainwright v Home Office, [2004] 2 AC 406, 417 (HL) (Lord Hoffman). Collins v. Wilcock, [1984] 1 WLR 1172- PC who touched C to prevent her leaving committed battery. Normal touching in crowds etc. is impliedly consented to. Innes v Wylie, 174 ER 800: no assault if D just stood in C’s path. If intentional can be indirect. Scott v Shepherd, (1773) 96 ER 525 (D threw firework which others threw onto C). ASSAULT Assault is acting to put someone in fear of imminent battery. 1. No assault if D actually unable to deliver blow. Thomas v NUM, [1986] Ch. 20 (striking miners restrained by police). 2.Mbasago v Logo Ltd, [2006] EWCA Civ 1370 (no assault where no immediate threat to C from mercenaries). 3. Words can be enough if cause fear of imminent battery. Read v Coker, (1853) 138 ER 1437 (D rolled up sleeves and threatened to break C’s neck); R v Ireland, [1998] AC 147 (silent phone calls; criminal case). 4. Words can also negate threat. Tuberville v Savage, (1669) 86 ER 684. False Imprisonment You imprison someone by restricting her freedom of movement to a confined area. Bird v Jones, (1845) 7 QB 742 (no imprisonment where C could leave by one route but not another). B. C need not know she has been restrained. Murray v Minister of Defence, [1988] 1 WLR 692, HL. C. R v Bournewood Community & Mental Health NHS Trust, [1999] 1 AC 458 (HL) (sedated mental patient who showed no desire to leave not imprisoned even though he would have been stopped if he tried). But see HL v UK, (2005) 40 EHRR 32 (did violate Art. 5 of ECHR). D. D must perform a positive act, not an omission. Iqbal v Prison Officers Assn, [2009] EWCA Civ 1312: illegal strike by prison guards, which led to Cs being confined to cells, not false imprisonment. E. D probably does need to intend to imprison C, per Smith LJ in Iqbal. F. Not false imprisonment if D simply reports suspicions to another who decides to arrest C. Davidson v Chief Constable, [1994] 2 All ER 597 (CA). But may be malicious prosecution. Martin v Watson, [1996] 1 AC 74 (HL).