Progressing the Case

The strength of a good performance at court lies in a good case plan. Managing the case before it reaches court will ensure that you are able to present the best possible version of your client’s story.

Familiarity with all aspects of your case will also enable you to deal with any unex­pected issues as they arise. By drawing on the strong factual elements of your case you will find that you are able to improvise and provide ‘on the spot’ responses or argu­ments. The nature of the allegations may change, or new facts emerge in which case it is important to review existing court documents that have been drafted or filed and consider whether amendments are needed. In civil proceedings it is possible to amend statements of case (all the documents setting out the issues in a case) at any time before they are served on the other party after which an amendment can only occur with consent of the other party or permission of the court (see CPR Part 17).

It is also important in civil proceedings to ensure that the correct defendant has been joined to the proceedings. It is always possible to add additional defendants later (see CPR 20.7) by applying for permission from the court to add an additional claim and amend existing statements of case.

2.8.1 The Jurisdiction of the Court

Before starting a case in court, an advocate will need to consider which court the case should be started in and why. Determining the jurisdiction of the court is an important first step for an advocate. This will help an advocate to understand which court their client's case should be started in and therefore the correct procedure the advocate will need to follow and any additional special rules that they will be bound by.

For civil cases, the starting point is to consider the type and value of the claim as this will determine the most suitable court to issue proceedings. For example, CPR PD 2C para 1.1 provides that any civil claim can be started in a County Court unless a particular rule, practice direction or statute provides otherwise. Judicial review applica­tions must be made in the High Court (s. 31 of the Senior Courts Act 1981, CPR PD 54A and Schedule 1 of the Senior Courts Act 1981). Personal injury claims must be worth a minimum value to be issued in the High Court (£50,000 - see CPR 16.3(5)(c)). For money claims generally, the High Court minimum value is £100,000 (see CPR PD 7A para 2.1).

In addition, cases will be placed on specific ‘tracks' in the civil courts according to the amount of money claimed or the complexity of the issues in the case. The small claims track is reserved for claims of £10,000 or less or where a claim is made under the Pre­action Protocol for Personal Injury Claim Below the Small Claims Limit in Road Traffic Accident Cases (see CPR PD 27B). For housing disrepair cases the small claims track value is reduced to £1,000 (see CPR Part 27.1). For personal injury cases that arise from a road traffic accident the limit is not more than £5,000. This is reduced to £1,000 if the accident took place before 31st May 2021 and involved a child or a protected party. In any other types of personal injury cases the small claims limit is not more than £1,000 (see CPR Part 26.6 and 26.6A).

2.8.2 Pre-Action Protocols

In civil proceedings there is a further requirement on advocates to ensure that the case preparation has first followed a relevant pre-action protocol or the Practice Direction on Pre-action Conduct. These prescribe steps that should be taken before proceedings are started. There are different pre-action protocols for different types of civil proceed­ings. For example, pre-action protocols exist for personal injury claims, clinical dispute claims, professional negligence claims, housing disrepair cases, resolution of package travel claims and judicial review actions to name but a few. Details of all the pre-action protocols that are in existence can be found on the government website www.gov.uk.

The protocols are designed to help narrow the areas of dispute between the par­ties and also allow the party to consider alternative means of settlement through Alternative Dispute Resolution (‘ADR’). They require a proposed claimant to first send a ‘letter of claim’ to the defendant outlining the nature of their claim (often with a copy to be sent to the defendant’s insurers) and giving sufficient detail to enable a defendant to assess their potential liability. The defendant is then given a period of time to respond to the letter. This period varies between the different protocols but can be between three and four months on average.

The civil courts will expect all parties to comply with the relevant protocol and can make costs orders where a party has failed to follow the protocol.

2.8.3 Drafting Witness Statements and Defence Statements

In civil proceedings some applications must be supported by a sworn affidavit (see CPR PD 32 para 2-16), but most interim applications are supported with a witness statement as the parties do not give oral evidence at interim hearings. Witness state­ments will usually be used at the trial itself. In civil proceedings the format and con­tent of witness statements is prescribed (see CPR Part 32 and PD 32 para 19.1).

In criminal cases the prosecution will be responsible for drafting witness statements from prosecution witnesses and these must comply with the Magistrates’ Court Act 1980, s. 9 (known as ‘section 9 statements’). However, the defence will set out their case in a defence statement. This is a written statement that sets out the nature of the defence, the facts that are disputed, any alibi details and any relevant law. A defence statement is optional in the Magistrates’ Court but compulsory in the crown court (see the Criminal Procedure and Investigation Act 1996, ss. 5 and 6).

2.8.4 Meeting Time Limits

As part of the overriding objective to deal with cases justly and proportionate to costs, the court expects all parties’ legal representatives to adhere to the strict time lim­its imposed by the procedural rules. The court will enforce compliance with the rules and practice directions as part of the overriding objective in CPR Part 1 and CrimPR Part 1 as well as the courts’ general case management powers.

2.8.5 Damages and Interest

In civil proceedings, part of the case planning will involve deciding on the type and nature of the remedy that is suitable for a case. For example, should the claim include solely a claim for monies or is there another issue to be resolved such as forcing a defendant to take a particular course of action or refrain from a particular course of action? If so, an injunction might be more suitable or should be combined with a claim for monies (see for example Senior Courts Act 1981, s. 50). The CPR Part 25 sets out the different types of remedies that can be applied for such as a ‘mandatory injunction’ (to force a party to act) or a ‘prohibitory injunction’ (to prevent a party from acting in a certain way) or a ‘freezing injunction’ (to temporarily prevent a party accessing a particular financial source) or ‘stop and search’ to permit entry and search of a property where evidence may be concealed.

However, it is also possible to apply for damages as a remedy and this would also bring an entitlement to claim interest on the damages in the county court (see the County Court Act 1984, s. 69) and the High Court (see the Senior Courts Act 1981, s. 35A).

Compensatory damages put the claimant back in the position as if the loss, injury or damage had never happened whereas aggravated damages are additional to com­pensatory damages and are intended to compensate for injury to the claimant’s pride and dignity, e.g.

Exemplary (punitive) damages are awarded to punish the defendant for his/her con­duct and are in addition to compensatory damages. If the claimant has not suffered damage or loss then exemplary damages cannot be awarded.

Contemptuous damages however occur where the claimant wins the case, but dam­ages are small. These are awarded to indicate the court's displeasure at the way the claimant has behaved. An advocate will need to consider the type of damages or other remedy that they wish the court to make.

In personal injury cases in the civil courts, there are also special categories of dam­ages to consider. For example, the court can make an award for provisional damages'. This is an exception to the usual rule that damages are decided once and only for a particular case. If evidence in a personal injuries case suggests the claimant may go on to develop a disease or that there may be a deterioration in the claimant's condi­tion at a later date post trial, the court can assess damages but make an order that if the specified disease or deterioration does occur then the claimant can come back to court for an assessment of further damages (see CPR Part 41).

In personal injury cases, damages are also divided between special damages (those losses that occur pre-trial and can be quantified) and ‘general damages' (post-trial future damages that can only be estimated based on actuarial evaluations).

2.8.6 Costs

An advocate will need to have in mind how and whether the costs of the case can be recovered from the other party. In criminal proceedings the court has power to award costs by virtue of various statutes including the Prosecution of Offences Act 1985 (ss. 16-19B) and the Legal Aid, Sentencing and Punishment of Offenders Act 2012. An order for costs can be made in favour of a defendant and defence costs can be paid out of Central Funds (see Prosecution of Offences Act 1985, ss. 16 and 16A). Equally a convicted defendant or an appellant who has been unsuccessful in an appeal can be ordered to pay costs (see s. 18 of the 1985 Act). The court can also make wasted costs orders against legal professionals and their firms.

In civil proceedings, in addition to wasted costs orders against legal professionals, the courts can order summary assessment of costs after each interim hearing or a one-day fast track trial (see CPR Parts 44.6 and 47). Fixed costs are also recoverable for some steps taken in proceedings such as steps to enforce a judgment that has been made against a defendant (see CPR Part 45.8). Fixed costs also apply in low value road traffic accident cases (see CPR 45.9-CPR 45.15). A completed Schedule of Costs form should be filed with the court prior to any interim hearing where costs ares sought. All court forms including Schedule of Costs can be obtained from the government website at www.gov.uk.

Civil costs are also awarded at the end of a trial (see CPR Part 47 and PD 47). However, costs do not necessarily follow a successful outcome. As we have discussed above, a Part 36 offer can decrease or increase the costs a party might otherwise have received at the end of a trial. The court also has powers under s. 51 of the Senior Courts Act 1981 to impose ‘cost capping' to limit the amount that a party can claim from an opponent. This can be done at the court's discretion or on an application being made by a party (see CPR 3.19-21). In certain courts (multi-track) the court can also order that the parties file and exchange a ‘costs budget' to help the court manage costs as part of the overriding objective. Only costs which are proportionate and reasonable are recoverable. If there is any doubt as to whether an item of costs is ‘proportionate' then this is usually decided in favour of the party paying the costs (known as ‘the standard basis' - see CPR 44.3(2)). If however the court feels a party has behaved in a way that the court regards as unacceptable then they can resolve any question of proportionality in the receiving party's favour (this is known as ‘the indemnity basis' - see CPR 44.3(3)).