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

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

3. Preparation for Trial Solicitors role • Solicitor's case • Solicitor controls the file • Solicitor instructs Counsel • Solicitor responsible to client

4. Three Simple Rules • Preparation • of pleadings • Preparation • of evidence • factual • expert • Preparation • coordination for Trial

5. 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

6. 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

7. 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

8. 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

9. 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

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

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

12. 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.

13. 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).

14. 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).

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

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

17. 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.

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

19. 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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