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High Court Litigation Lecture 2nd November 2007 Cormac Fitzpatrick PowerPoint Presentation
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High Court Litigation Lecture 2nd November 2007 Cormac Fitzpatrick 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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Presentation Transcript
High Court Litigation Lecture

2nd November 2007

Cormac Fitzpatrick

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
    • After taking clear instructions it is recommended that a statement be prepared for signature by the client. Witness statements also recommended.
    • Careful initial identification of all potential parties can save trouble at a later stage.
    • Always consider limitation and the implications at the outset. Plan where appropriate.
    • From the outset plan and develop a strategy targeting in particular anticipated difficulties.
    • Discuss from the outset funding and funding options with the client
good litigation7
Good Litigation
    • 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.
    • The cornerstone to effective litigation is regulation through use of diary/calendar/task bar to ensure continuity.
    • A solicitor who simply addresses the correspondence to hand or the task immediately before them is not driving the litigation. Think ahead, work ahead.
    • Use of worksheets/checklists, for example witness worksheets, medical evidence worksheets, Rules compliance worksheets reduces possibility of mistakes.
    • A solicitor must acquaint themselves with the relevant Rules
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
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
  • Check evidence and pleadings at Defence.
  • Proofs at Close of Pleadings.
  • Comprehensive Brief to Counsel.
  • Action Proofs asap.
  • Only then Set Down.
  • Statement of the client.
  • Witness statements.
  • Civil Evidence (NI) Order 1997.
medical evidence
Medical Evidence


  • 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.
  • 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.
  • Witness worksheet: useful tool.
  • File worksheet recommended.
  • Trial bundles.
  • Brief to Counsel.
  • Expert witnesses: consultations.
  • 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.