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• High Court Litigation Lecture
• 2nd November 2007
• Cormac Fitzpatrick
• www.cfs-law.com

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Preparation for Trial

• Solicitors role
• Solicitor's case
• Solicitor controls the file
• Solicitor instructs Counsel
• Solicitor responsible to client

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Three Simple Rules

• Preparation
• of pleadings
• Preparation
• of evidence
• factual
• expert
• Preparation
• coordination for Trial

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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

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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

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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

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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

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Evidence/Proofs

• Check evidence and pleadings at Defence.
• Proofs at Close of Pleadings.
• Comprehensive Brief to Counsel.
• Action Proofs asap.
• Only then Set Down.

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Evidence

• Statement of the client.
• Witness statements.
• Civil Evidence (NI) Order 1997.

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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.

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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).

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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).

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Counsel and Proofs

• Brief Counsel early.
• Deal with Proofs immediately.
• Arrange consultations asap.
• Return to Counsel as required.
• Balance SD and Proofs.

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Post Setting Down

• Provisional List 3/4 months.
• Call Over before Registrar.
• Proposed listing 4 weeks.
• Review process.
• Proactive approach agree dates.

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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.

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Trial

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

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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.

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Self Image
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