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High Court Litigation Lecture 2nd November 2007 Cormac Fitzpatrick www.cfs-law.com PowerPoint Presentation
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High Court Litigation Lecture 2nd November 2007 Cormac Fitzpatrick www.cfs-law.com. Preparation for Trial. Solicitors role Solicitor's case Solicitor controls the file Solicitor instructs Counsel Solicitor responsible to client. Three Simple Rules. Preparation of pleadings Preparation

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High Court Litigation Lecture

2nd November 2007

Cormac Fitzpatrick

www.cfs-law.com

preparation for trial
Preparation for Trial

Solicitors role

  • Solicitor's case
  • Solicitor controls the file
  • Solicitor instructs Counsel
  • Solicitor responsible to client
three simple rules
Three Simple Rules
  • Preparation
    • of pleadings
  • Preparation
    • of evidence
      • factual
      • expert
  • Preparation
    • coordination for Trial
where to start
Where to start?
  • Pleadings O18

Procedurally complete

Cover all issues

  • Interlocutory Matters

NFBP/Replies O18R12

Interrogatories O26

Inspection O29

Discovery O24

Non-party Discovery O24R8

good litigation
Good Litigation
  • SIGNED STATEMENT
    • After taking clear instructions it is recommended that a statement be prepared for signature by the client. Witness statements also recommended.
  • IDENTIFY PARTIES
    • Careful initial identification of all potential parties can save trouble at a later stage.
  • LIMITATION
    • Always consider limitation and the implications at the outset. Plan where appropriate.
  • STRATEGY
    • From the outset plan and develop a strategy targeting in particular anticipated difficulties.
  • FUNDING
    • Discuss from the outset funding and funding options with the client
good litigation7
Good Litigation
  • PRO-ACTIVITY
    • A solicitor drives the litigation and has the initiative. They must not let the litigation drive them, they must not lose the initiative. Keep client informed. Address problems immediately.
  • DIARY OR CALENDAR
    • The cornerstone to effective litigation is regulation through use of diary/calendar/task bar to ensure continuity.
  • WORK AHEAD
    • A solicitor who simply addresses the correspondence to hand or the task immediately before them is not driving the litigation. Think ahead, work ahead.
  • WORKSHEETS
    • Use of worksheets/checklists, for example witness worksheets, medical evidence worksheets, Rules compliance worksheets reduces possibility of mistakes.
  • HIGH COURT/COUNTY COURT RULES
    • A solicitor must acquaint themselves with the relevant Rules
litigation pitfalls
LITIGATION - PITFALLS
  • Failure to update client with developments.
  • Failure to meet deadlines.
  • Failure to produce essential evidence.
  • Failure to keep a proper note of meeting.
  • Failure to keep a note of telephone calls.
  • Failure to record agreement/settlement.
  • Failure to have client sign form of authority.
  • Failure to explain solicitor/client charge before deducting from damages.
  • Failure to effect strategy for listing.
  • Failure to effectively manage expert evidence
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Close of Pleadings
  • O18 R20
    • 21 days from Reply to Defence,
    • or 21 days after Defence
  • Setting Down
  • O34R2
    • 6 weeks, Plaintiff shall SD
  • O34R2 (2)‏
    • In default
    • Defendant can SD,
    • Or seek dismiss
evidence proofs
Evidence/Proofs
  • Check evidence and pleadings at Defence.
  • Proofs at Close of Pleadings.
  • Comprehensive Brief to Counsel.
  • Action Proofs asap.
  • Only then Set Down.
evidence
Evidence
  • Statement of the client.
  • Witness statements.
  • Civil Evidence (NI) Order 1997.
medical evidence
Medical Evidence

O25

  • Plaintiff must disclose if relied on.
  • Defendant must disclose following examination.
  • Disclosure 10 weeks from close of pleadings.
  • Thereafter within 21 days.

O38 Presentation of Evidence

  • Serve Notice if object to a medical.
order 38 and discovery
Order 38 and Discovery
  • Maps, plans, photographs or models to be disclosed.
  • Objection to be raised by Notice.
  • Check Discovery complete (O24R2/R3).
  • Specific Discovery (O24R7).
  • Non-party Discovery (O24R8).
interesting examples
Interesting Examples
  • Irwin -v- Donaghy (1994). Access to medical records.
  • Clough -v- Tameside HA (1998). Waiver of privilege.
  • Lucas -v- Barking Trust (2003). Waiver of privilege.
  • C2H5OH - Alcohol.
  • Elliott -v- Laverty and Elliott (2005).
counsel and proofs
Counsel and Proofs
  • Brief Counsel early.
  • Deal with Proofs immediately.
  • Arrange consultations asap.
  • Return to Counsel as required.
  • Balance SD and Proofs.
post setting down
Post Setting Down
  • Provisional List 3/4 months.
  • Call Over before Registrar.
  • Proposed listing 4 weeks.
  • Review process.
  • Proactive approach: agree dates.
witnesses
Witnesses
  • Check witness availability at the earliest opportunity.
  • Attempt to agree dates for Trial to suit.
  • Expert witnesses need closest attention.
  • Ensure you confirm Trial date.
  • Subpoena witnesses where necessary (pay viaticum).
  • Ensure early/proper service.
  • Keep witnesses sweet.
trial
Trial
  • Witness worksheet: useful tool.
  • File worksheet recommended.
  • Trial bundles.
  • Brief to Counsel.
  • Expert witnesses: consultations.
conclusions
Conclusions
  • Solicitors should take greater responsibility for handling High Court litigation.
  • There should be less reliance on Counsel.
  • That will require knowledge of the Rules.
  • It will require knowledge of aspects of case law that impact on Rules and procedures.
  • Solicitors will then make more informed decisions.
  • Solicitors will retain the initiative in conducting a case.