Legal Training

Taken from the contents of the accompanying manuals

Litigation Conduct

  1. Introduction
  2. Overriding statutory duties
  3. Overriding statutory duty of litigators
  4. Overriding statutory duty of advocates
  5. Hierarchy of duties
  6. Core duties - Justice and the rule of law
  7. Duty to further the overriding objective
  8. Duty to the court overriding duty to client
  9. Duty to conduct litigation economically
  10. Client care obligations
  11. Client's options - ADR
  12. Expense and risk
  13. Deceiving or misleading the court
  14. Deception and misleading
  15. Deception and misleading - Case law
  16. Assisting the court with the law
  17. Drawing the court's attention to content of filed documents
  18. Drawing the court's attention to any procedural irregularity
  19. Constructing facts
  20. Contentions which are not properly arguable
  21. Allegations of fraud
  22. Witnesses
  23. Interviewing witnesses generally
  24. Interviewing witnesses for the other side
  25. Witness whose evidence you know to be untrue
  26. Witness coaching
  27. Advocacy where a member of the firm is a witness
  28. Payment of witness conditional on outcome
  29. Advocacy - are you an appropriate advocate?
  30. Attending on advocates at hearings
  31. Statements to the media
  32. Contentious practice - Discussion questions
  33. Misleading the court - identifying the potential for misleading
  34. Misleading the court - whistle blowing
  35. Misleading an arbitrator
  36. Leading the court to an incorrect appreciation of facts by the way the case is conducted
  37. Advancing contentions which are not properly arguable
  38. Assisting the court with the law I
  39. Assisting the court with the law II
  40. Witness familiarization

Outline of a High Court Case

Project Planning Litigation

  1. What does the Client Want?
  2. The stages of a Project
  3. Scoping the Project
  4. Planning the Project
  5. Identifying and Managing Risk
  6. Learning from Project Management Practices

Jurisdiction

  1. Which regime? - Quick check
  2. Council Regulation - Outline
  3. Other Regimes - Outline
  4. Council Regulation - Interpretation
  5. Scheme of Regulation 44/2001
  6. Application of Regulation - Subject Matter - Art 1
  7. Application of Regulation - Domicile of Defendant - Art 4
  8. Application of Regulation - English Defendant - International Element - Art 4
  9. Application of Regulation - English Defendant - No International Element - Art 4
  10. Application of Regulation - English Defendant? - Domicile Rules - Art 4
  11. Temporal application - Art 66
  12. Other Conventions - Art 71
  13. Satisfying the court that it has Council Regulation jurisdiction
  14. Exclusive Jurisdiction - Art 22
  15. Entry of an Appearance - Art 24
  16. Insurance, employment and consumer contracts - Arts 8 - 21
  17. Jurisdiction Agreements - Art 23
  18. Domicile of the Defendant - Art 2
  19. Special Jurisdiction - Generally - Arts 5 - 7
  20. Special Jurisdiction - Contract - Art 5(1)
  21. Special Jurisdiction - Tort - Art 5(3)
  22. Special Jurisdiction - Other heads - Art 5(2), (4), (5) and (6)
  23. Multiple party actions etc. - Art 6
  24. Lis alibi pendens –Arts 27 - 30
  25. Civil Procedure Rules - English Approach to Jurisdiction
  26. Service within the jurisdiction
  27. Service outside the jurisdiction
  28. Contract
  29. Tort
  30. Procedure and proof
  31. Response by defendant
  32. Non-discretionary grounds for challenging jurisdiction
  33. Forum non conveniens - Outside the Council Regulation/Conventions
  34. Forum non conveniens - Within the Council Regulation/Conventions
  35. Anti-suit Injunctions - Outside the Council Regulation/Conventions
  36. Anti-suit Injunctions - Within the Council Regulation/Conventions
  37. Anti-suit injunctions after Turner v Grovit - Outside Council Regulation
  38. Freezing Orders
  39. Negative Declarations

Pre-action Procedures

  1. Importance of appropriate pre-action behaviour
  2. Existing Pre-action Protocols
  3. Failure to adopt appropriate pre-action behaviour
  4. Cases in which advanced warning of the case is not appropriate
  5. Planning the pre-action stages of a dispute
  6. Tactical issues
  7. Pre-action Disclosure
  8. History of s 33(2) Supreme Court Act 1981
  9. Rules of Court - CPR 31.16
  10. Validity of Amendments to s 33(2)
  11. Application Procedure
  12. "...under any Act..."
  13. Evidence
  14. Authorities on CPR 31.16
  15. Scheme of CPR 31.16
  16. First Jurisdictional Threshold
  17. Second Jurisdictional Threshold
  18. Third Jurisdictional Threshold
  19. Fourth Jurisdictional Threshold
  20. Fifth Jurisdictional Threshold?
  21. The Discretion
  22. Form of Order

Part 36

  1. Introduction
  2. Outline of central provisions
  3. The relevant period
  4. Changing win outcomes to lose outcomes
  5. Expected Monetary Value (EMV)
  6. Decision Analysis
  7. Decision Analysis and Part 36
  8. Formal requirements for Part 36 offers
  9. Offer including costs
  10. Service of Part 36 offers
  11. Non-conforming offers
  12. How much is the offer worth?
  13. Interest
  14. Costs
  15. Deferred payment
  16. Instalment payments
  17. Other matters
  18. Issues within and outwith the litigation
  19. Claimant's offer not accepted, claimant beats own offer at trial
  20. Exercise of court's power not to allow Part 36 consequences
  21. Claimant's offer not accepted, claimant fails to match or beat own offer at trial
  22. Defendant's offer not accepted, claimant fails to beat defendant's offer at trial
  23. Defendant's offer not accepted, claimant beats defendant's offer at trial
  24. Claimant's offer accepted
  25. Defendant's offer accepted
  26. Withdrawal or amendment of offer
  27. The without prejudice nature of Part 36 offers
  28. Without prejudice except as to costs
  29. No communication to trial judge
  30. Part 36 and the law of contract
  31. The law of offer, acceptance and consideration
  32. Abolition of rule that offer must be communicated
  33. Requirement that acceptance be in writing
  34. Modification of postal acceptance rule and instantaneous communication rule
  35. Abolition of the rule that an offer cannot be accepted after it has been withdrawn
  36. Abolition of the rule that a counteroffer impliedly rejects an offer
  37. Abolition of the rule that communication of withdrawal of an offer before acceptance prevents a contract arising
  38. Civil Procedure Act 1997

Costs

  1. Introduction
  2. Solicitor & own client costs
  3. Contract for services
  4. Entire Agreement
  5. Contentious Business
  6. The Indemnity Principle
  7. Conditional fee agreement rules
  8. Contingency fee arrangements
  9. Permitted conditional fee agreements
  10. Additional conduct rules where acting under a CFA
  11. Conflicts of interest arising in connection with CFA
  12. Insurance arrangements in conjunction with CFA
  13. Advocacy under a CFA
  14. Orders for costs
  15. Liability for costs
  16. Basis of costs
  17. Summary assessment of costs
  18. The General Rule
  19. Summary assessment where costs claimed arise under a CFA
  20. Procedure
  21. Detailed Assessment
  22. Order for costs
  23. Procedure for detailed assessment
  24. Form of bill of costs
  25. Specimen bill of costs
  26. Cost estimates
  27. Occasions for cost estimates
  28. Form of cost estimates
  29. Relevance on assessment of estimates of costs previously given
  30. The amount of costs
  31. The Approach to Costs
  32. Proportionality
  33. Factors to be taken into account in deciding the amount of costs
  34. Conditional fee agreements with a success fee
  35. After the event insurance premiums
  36. Guideline figures for solicitors' hourly rates
  37. Solicitor advocates
  38. Counsel fees
  39. VAT

Witness Statements

  1. Introduction
  2. Making sure witness statements are complete
  3. Making sure you are not criticised by the judge
  4. Planning the witness interview
  5. Planning check list
  6. Scope the interview
  7. Prepare an agenda
  8. Tell the witness what to do in advance
  9. Prepare the witness bundle
  10. Consider what other documents are needed
  11. Structure the witness statement
  12. Practical arrangements
  13. Proof of evidence
  14. Exhibits
  15. Witness statements for interlocutory hearings
  16. Witness statements for trial
  17. Waiver of privilege
  18. Lawyer's authority to waive privilege
  19. Methods of waiving privilege
  20. Reference to privileged document in witness statement
  21. References in correspondence
  22. Extent of waiver
  23. Purpose of rule against cherry picking
  24. Waiver for restricted purposes
  25. Professional conduct
  26. Putting forward a known untruth
  27. Duty to check the truth
  28. Duty to include the whole truth?
  29. Rehearsing, practising and coaching witnesses
  30. Collaboration between witnesses
  31. No property in a witness
  32. Advising a witness not to speak to the other side
  33. Speaking to witnesses who are still on oath
  34. Conditional payments to witnesses
  35. Questioning techniques
  36. Objectives of witness interview
  37. Legitimate purpose for questions
  38. Style of questions
  39. Formalities
  40. Generally
  41. Witnesses who cannot read or sign
  42. Witness statements in a foreign language
  43. Defective witness statements - trial or other hearings
  44. Procedural matters
  45. How to prove evidence of witnesses
  46. Witness statements generally
  47. Witness statements for use at trial
  48. The witness gives oral evidence
  49. Evidence by video link
  50. The party calling the witness puts the statement in as hearsay
  51. The other party puts the statement in as hearsay
  52. Consequence of failing to serve a witness statement for use at trial
  53. Witness statements for use at hearings other than at trial
  54. Trial - where no witness statement can be obtained
  55. Giving evidence
  56. The status of witness statements
  57. Specimen witness statement

Expert Witnesses

  1. Introduction
  2. The role of the expert
  3. Codes of Practice
  4. Restriction on expert evidence
  5. Experts' fees
  6. Limitation on inter partes recovery
  7. Limitation on fees payable to expert
  8. No conditional fees for experts
  9. Locking out experts
  10. Form of expert evidence
  11. Failure to disclose report
  12. Written questions to experts
  13. The right to put questions
  14. Timing and purpose of the right to put questions
  15. Answers treated as part of the report
  16. Failure to provide answers
  17. Discussions between experts
  18. Use of other side's expert report
  19. The expert's right to seek directions
  20. Court orders affecting experts
  21. Single joint experts
  22. Expert's appointment
  23. Expert's instructions
  24. Information to be provided
  25. Experts' acceptance of instructions
  26. Withdrawal
  27. Power of the court to direct a party to provide information
  28. After receipt of experts' reports
  29. Amendment of reports
  30. Attendance of experts at court
  31. Witness summonses

Claim form

  1. Part 7 or Part 8?
  2. Part 7 Claim Form - Formal Requirements
  3. Contents of Part 7 Claim Form
  4. Claim Form and Particulars of Claim
  5. Details relating to the Claimant
  6. Details relating to the Defendant
  7. Statement of Value - Money Claims Generally
  8. Statement of Value - Money Claims in the High Court
  9. Statement of Value - Money Claims - Personal Injuries
  10. Statement of Value - Money Claims - What to include in the figure
  11. Statement of Truth
  12. Claim Form to be served, without permission, out of the Jurisdiction
  13. Sample Claim Form
  14. Service of claim form
  15. Time for service
  16. Deemed service
  17. Solicitors nominated to accept service of claim form
  18. Meaning of "last known residence"
  19. Extending time for service of claim form
  20. Extending time for service of claim form - Procedure
  21. Challenging a decision not to extend time
  22. Extending time for service of claim form - Exercise of Court's powers
  23. Applications under CPR 7.6(2) - Application made within period of validity
  24. Applications under CPR 7.6(3) - Application made after period of validity
  25. Applications under CPR 6.9 - Claim forms received in time but deemed late
  26. Using CPR 6.9 to circumvent extension of time rules
  27. Extension of time followed by order dispensing with service
  28. Alternative service

Drafting Statements of Case

  1. Case Analysis
  2. Legal research
  3. Recording the fruits of this work
  4. Exercises
  5. Precedents
  6. Pleading skills
  7. Ethics
  8. Statements of truth
  9. Rules applying to all statements of case
  10. Drafting Particulars of Claim
  11. How should you express yourself?
  12. How much detail?
  13. Embarrassing pleading
  14. Particulars
  15. Format
  16. Formalities for Particulars of Claim
  17. Structuring Exercise

Defences and subsequent statements of case

  1. Introduction
  2. Failing to Deal with an Allegation
  3. General approach to drafting a defence
  4. Good Practice
  5. Pregnant negatives
  6. Useful Phrases for Drafting Defences
  7. Disputing Claimant's Statement of Value
  8. Formalities
  9. Statement of Truth
  10. Defence of Set Off
  11. Limitation
  12. Tender before action
  13. Counterclaims
  14. Reply and defence to counterclaim
  15. Function of a Reply
  16. Statement of Truth
  17. Defence to Counterclaim
  18. Subsequent statements of case

Case Management Conferences

  1. When will a CMC take place?
  2. Form N150 - Allocation Questionnaire
  3. When must a CMC take place?
  4. The court's decision to convene a CMC
  5. What happens at a CMC?
  6. Who should attend the CMC?
  7. Who conducts the CMC?
  8. Issues to be considered at the CMC
  9. Preparation for the CMC
  10. Agreeing directions
  11. Case Summary
  12. The Court's powers regarding case management
  13. Sanctions for failure to comply with case management directions
  14. Failure to comply with directions

Summary Judgment

  1. Introduction
  2. The test for summary judgment
  3. General
  4. Whole of a claim or on a particular issue
  5. No real prospect of succeeding
  6. No other compelling reason
  7. No mini trial
  8. The orders that can be made
  9. When can an application be made?
  10. Earliest date
  11. Preferred date
  12. Latest date
  13. The procedure
  14. Application by a party
  15. Initiative taken by the court
  16. In either case
  17. Before whom should the application be listed?
  18. Documents
  19. Applicant's documents
  20. Respondent's documents
  21. Applicant's rebuttal evidence
  22. The application notice
  23. The evidence
  24. Form of evidence
  25. Content of evidence

Disclosure of documents

  1. Meaning of "disclosure" and "inspection"
  2. Orders for disclosure
  3. Meaning of "document" and "copy"
  4. Disclosure of data stored in electronic media
  5. Standard disclosure
  6. Train of Inquiry Documents
  7. Scope of Standard Disclosure
  8. Conduct duties and disclosure
  9. A duty to warn the client not to destroy documents
  10. A duty to advise the client to take active steps to preserve documents
  11. A duty to take steps to ensure that a list of documents is not incomplete
  12. Duty to notify court or withdraw if client fails to comply with disclosure requirements
  13. Duty to advise person who signs disclosure statement.
  14. General approach to disclosure
  15. The Search for Documents
  16. The general search obligation
  17. Documents which have never been under the disclosing party's control
  18. Searching for electronic documents
  19. Disclosure or inspection in stages
  20. Listing the documents
  21. Disclosure Statement
  22. Practice form N265
  23. Failure to give proper disclosure
  24. Specific Disclosure
  25. Other sanctions for failing to give proper disclosure
  26. Document cannot be relied upon
  27. Adverse inferences
  28. Procedure for Inspection
  29. Withholding documents from inspection
  30. Redaction of documents before inspection
  31. Physical inspection or provision of copies
  32. Inspection of documents referred to in statements of case etc.
  33. Electronic inspection
  34. Failure to allow proper inspection
  35. Authenticity of documents admitted
  36. Restriction on the use of documents obtained on disclosure
  37. Continuing duty of disclosure

Privilege

  1. Introduction
  2. Duty to disclose documents virtually unqualified
  3. Procedure for claiming right to withhold documents
  4. Reasons for refusing to allow inspection of disclosed documents
  5. Privilege generally
  6. Legal professional privilege
  7. Legal professional privilege and the solicitor's duty of confidentiality
  8. Legal Advice Privilege
  9. Introduction
  10. Confidential communications
  11. Who is a lawyer for legal advice privilege?
  12. Chains of communication
  13. Solicitors' Files
  14. Documents created by third parties to enable lawyers to advise
  15. Communications with the dominant purpose of instructing a lawyer to act
  16. Communications made in pursuance of fraud or crime
  17. Summary - Legal advice privilege
  18. Litigation Privilege
  19. Dominant purpose for litigation
  20. Proceedings in contemplation
  21. What is litigation?
  22. What litigation must be in contemplation?
  23. Probability of litigation
  24. Must there be a lawyer involved in the communication?
  25. Experts' instructions
  26. Summary - Litigation privilege
  27. Copying and gathering documents
  28. Common interest privilege
  29. Introduction
  30. Common interest privilege - shield and sword
  31. Examples of common interest privilege
  32. "Without prejudice" communications
  33. Introduction
  34. Labels
  35. Mediation
  36. Exceptions
  37. Summary - Without prejudice communications
  38. The privilege against incrimination.
  39. Duration of privilege
  40. Public interest immunity
  41. General principle
  42. Class and contents claims
  43. National security
  44. Diplomatic relations and international comity
  45. Confidentiality and confidential relationships
  46. Generally
  47. Information relating to the investigation of crime and revenue fraud
  48. Journalists' sources
  49. Waiver of privilege
  50. Lawyer's authority to waive privilege
  51. Methods of waiving privilege
  52. Reference to privileged document in witness statement
  53. References in correspondence
  54. Extent of waiver
  55. Purpose of rule against cherry picking
  56. Waiver for restricted purposes

Risk Assessment in Litigation

  1. Introduction
  2. What does a percentage likelihood of success mean?
  3. BATNA
  4. Expected Monetary Value (EMV)
  5. Decision Analysis
  6. Cumulative uncertainty
  7. Decision Analysis and Part 36
  8. What do decision trees tell us?
  9. Shortcomings of EMV
  10. Expected utility value (EUV)
  11. Sensitivity analysis
  12. Cumulative probability tables

Mediation

  1. Introduction
  2. The Theory
  3. The Practical Challenge
  4. Integrative bargaining in practice
  5. Identifying the Integrative Opportunities
  6. Differences between the parties
  7. Non-competitive similarities
  8. Economies of scale
  9. Reducing transaction costs
  10. Theory for Practitioners
  11. Bringing the Parties Round to Problem Solving Negotiation
  12. Participating in a Problem Solving Negotiation
  13. Getting to YES
  14. Criticism of Getting to YES
  15. A Balanced View of Integrative and Distributional Bargaining
  16. Building Relationships During Negotiation
  17. Problem solving negotiation with positional players
  18. Preparing for a problem solving negotiation
  19. Conducting a problem solving negotiation
  20. Other mediation orientations
  21. Conclusion
  22. Further Learning
  23. Select Bibliography

Interim Injunctions

  1. Introduction
  2. Jurisdiction
  3. Principles - Interim injunctions generally
  4. Is there a serious question to be tried?
  5. Would damages be an adequate remedy?
  6. Narrow balance of convenience
  7. The Undertaking as to Damages
  8. Without Notice Applications
  9. Applicant's duties where application made without notice to respondent
  10. Procedure at without notice hearing
  11. Procedures - Interim injunctions generally
  12. Must there be a claim for a final injunction?
  13. When can an interim injunction be sought?
  14. Who has power to grant an injunction?
  15. Injunctions sought before proceedings have been started
  16. Injunctions sought by defendants
  17. Applying for an injunction without notice
  18. Evidence in support
  19. Proceedings outside the jurisdiction
  20. The effect of a subsequent stay of the proceedings
  21. Freezing Orders
  22. Freezing Injunctions - Power to grant
  23. Worldwide freezing injunctions
  24. A cause of action justiciable in England and Wales
  25. Good arguable case
  26. Risk of dissipation
  27. Just and convenient
  28. Freezing Injunctions - International Jurisdiction
  29. Procedural Checklist - Freezing Injunctions
  30. The Documents Required for a Freezing Order
  31. Ancillary Orders
  32. At the hearing for a Freezing Injunction
  33. After the hearing
  34. Full and Frank disclosure on without notice applications
  35. Generally
  36. What are material facts?
  37. Where should the disclosure be made?
  38. Points made by the other side before the hearing
  39. An on-going duty
  40. When are disputes over adequacy of disclosure resolved?
  41. Disclosure of without prejudice material
  42. Sanctions for failure to disclose material facts

Preparation for trial

  1. Pre-trial checklist (Listing questionnaires)
  2. Pre-trial review
  3. Trial timetable
  4. Settlement or discontinuance after trial date fixed
  5. Rules of evidence relevant to trial bundle preparation
  6. Documentary evidence
  7. Production in evidence
  8. Disclosure of documents
  9. Proof of documents
  10. Bankers' books
  11. Proof of statements within documents
  12. Trial bundles
  13. Responsibility for preparation
  14. Date for filing trial bundles
  15. Trial bundles - contents
  16. Trial bundles - Pagination
  17. Trial bundles - Binders
  18. Trial bundles - Experts reports
  19. Trial bundles - Legibility
  20. Trial bundles - Agreement
  21. Trial bundles - Supply of copies
  22. Drawing the court's attention to content of filed documents

The Trial

  1. Court sittings
  2. Hearings in public
  3. Failure of a party to attend trial
  4. Representation at trial
  5. Protection of witnesses
  6. Order of events at trial
  7. Original documents to be available at trial
  8. Exhibits at trial
  9. Recording of proceedings
  10. Public availability of judgments

Trial Advocacy

  1. Using law in court
  2. Recognise the nature of the tribunal
  3. Articulate a rule or principle
  4. Plan an approach to every favourable and adverse authority
  5. Favourable authorities
  6. Adverse authorities
  7. Judicial precedent
  8. Binding authority (stare decisis)
  9. Standard rules for the citation of authority
  10. Bundle of Authorities
  11. Which Law Report to cite from
  12. Which series of reports?
  13. Unreported case law
  14. In what form should I place law reports before the court?
  15. Referring to Authorities Appropriately
  16. Referring to Judges and Courts
  17. Statutes and Subordinate Legislation
  18. Referring to statutory material correctly
  19. Interpretation of Statutory Material
  20. Civil Procedure Rules
  21. Citation of a textbook
  22. Skeleton Arguments
  23. Purpose.
  24. Skeletal
  25. Interim applications
  26. Trials
  27. Appeal (Part 52 CPR)
  28. Commercial Court Guide
  29. Chronologies
  30. Reference to authorities in skeletons
  31. Opening Speech
  32. Purpose
  33. Structure of opening speech
  34. Examination in chief
  35. Exchange of witness statements in civil cases
  36. Calling witness and establishing his or her name and address
  37. Formalities
  38. The order in which to call witnesses
  39. Procedure
  40. The examination
  41. Questioning techniques
  42. The transition
  43. The point of reference.
  44. Documents and real evidence
  45. Elicit useful information
  46. Undermine your opponent's case
  47. Witness convicted of a crime
  48. Previous inconsistent statements
  49. Prepare ground for putting your case effectively.
  50. Questioning techniques
  51. Limitations on cross-examination
  52. Re-examination
  53. Generally
  54. Releasing the witness
  55. Expert witnesses
  56. Generally
  57. Examination-in-chief of experts
  58. Presentation techniques.
  59. Cross-examination of experts
  60. Closing speech
  61. Generally
  62. Structure

Appeals

  1. Introduction
  2. To which court must any appeal from the decision be made
  3. The standard appeal route
  4. Where the case was on the multi-track and the decision was a final one
  5. The route where the decision was itself a decision made on appeal.
  6. Permission to appeal - Procedure
  7. Permission to appeal - Grounds
  8. Time limits for appeals
  9. Appeal procedure
  10. Appellant's notice
  11. Respondent's notice
  12. Notification of hearing
  13. Appeal Questionnaire in the Court of Appeal
  14. Hearing of the appeal
  15. Orders which may be made on appeal
  16. Substantive appeal issues - Review of decision, not rehearing
  17. Substantive appeal issues - Fresh evidence
  18. Substantive appeal issues - Grounds for allowing appeal
  19. No discretion if either ground made out
  20. The decision of the lower court was wrong
  21. Unjust because of a serious procedural or other irregularity