civil procedure: filing through trial - wilson elser

Civil Procedure: Filing through Trial

Presented By

LG University PanelSeptember, 2020

What is a civil action?

How plaintiffs retain attorneys USA

• Do attorneys advertise?• In the USA attorneys advertise on TV, Radio, Newspapers, and the Internet

• Are there contingency fees? What are they?• In the USA contingency fees are one third off the top of any settlement or judgment

• Does the plaintiff have to pay if there is no settlement or judgment? • In the USA, the plaintiff does not have to pay his contingency fee attorney if there is no settlement or judgment.

Do you have discovery?

• Does each party pay its own discovery costs?

• Do you have to pay the expert fees for the depositions of expert retained by opposing parties?

• Is there a “loser pays” rule? Does it limit the costs can be recovered by the winner of a lawsuit?

• Are there Consumer protection statutes have special rules allowing plaintiffs to recover attorney fees – not defendants?

Discovery in the USA

• Broad discovery. Each party bears its own costs of discovery compliance except in some e‐discovery where costs can be apportioned.

• Defendants pay their experts. But in some states, the partying taking an expert deposition has to pay the expert for his deposition time.

• No “loser pays” rule.• There are Consumer protection statutes that have special rules allowing plaintiffs to recover attorney fees.

Pre-judgment interest• Can plaintiffs recover PJI?

• Will it run from the date of the accident? • Will it run from the date of filing?• Are rates are specified in statutes?

• Check on this early. Include it in case evaluation calculations

Pre-judgment interest USA• In the USA plaintiffs can recover PJI in some states.

• In some states it will run from the date of the accident • In some states it will run from the date of filing• Rates are specified in statutes

• Again, always check on this early. Include it in case evaluation calculations

What are the stages of Litigation in the USA?

• 1) Pleadings • 2) Discovery • 3) Pre trial motions –motions in limine, summary judgment motions

• 4) Trial • 5) Appeal

What do pleadings in the USA include?• Complaint (by the plaintiff)

• Answer (by the defendants)

• Cross Claim (by codefendants against each other)

• Counter claim (by a defendant back against a plaintiff)

The discovery system is intended to: • Allow each side to gather information sufficient to evaluate its case.

• This allows for informed “settle or defend” decisions

• Allow each party to know what the other party will present at trial.

• Surprises at trial are unfair.


• Both : Written and Oral Discovery

• Written discovery means:• Each party send written questions to the other parties. These are called interrogatories• Each party demands that the other parties produce copies of documents and produce data.


• Oral discovery means depositions:

• Each party must appear for questioning.

• The responses are recorded in a transcript.


• The reasons for depositions are:

• Preserve testimony for trial

• Spontaneous answers are more likely to be truthful

• Efficient discovery of information


• Depositions can be used at trial

• When witnesses are not available

• To impeach witnesses• Impeachment means to show that a person has made inconsistent statements and to suggest that therefore he is not entirely truthful


• Non‐party witnesses can be required to appear for depositions

• Attorneys can serve subpoenas? This means compelling witnesses to appear

Discovery objections in the USA• Courts allow broad discovery of anything that may be lead to relevant evidence in the lawsuit

• Defendants can make written objections to written discovery.

Expert witnesses in the USA

• Experts are allowed to offer opinions at trial

• Each party has to disclose expert opinions in writing• Usually this means that experts prepare reports

• In most states and in federal courts, experts have to also appear for depositions

Affirmative discovery USA• Parties have to produce data relevant to claims and defenses in the lawsuit

• You cannot wait until the other side sends discovery written requests

• Defendants have to produce insurance policies

Discovery System USA• Most of what insurance representatives do in the defense of cases will be to assist in discovery

• Gathering documents from the insured

• Coordinating witnesses from the insured

• Retaining expert witnesses and preparing them for trial

• Later ; making settle or defend decisions.

Civil Procedure Trials USA• Trials proceed on consecutive days

• Plaintiff has the burden of proof

• The standard of proof is a preponderance of the evidence• This is different than in criminal cases

After Lawsuit Filed always check

• Can you object to the jurisdiction of the court?• Jurisdiction means the authority of the court to exercise its power over the parties• There have to be contacts with state where the case is pending.

• When is the venue proper? This means the local court within the state.

• What is the Statute of Limitations on a PL claim? Other claims?

After a lawsuit is filed always check

• Is there a statute of repose?

• A statute of repose is a law that says that there can not be any PL lawsuits when products are very old.

• The time is measured from first sale to a consumer • Some states say over 10 years• Some states say over 15 years, it depends on the state

• Keep in mind statute of repose defenses are complex and take time. You have to prove the date of first sale to a consumer

After a lawsuit is filed always check

• Are punitive damages allowed? Can they be pleaded freely?

• If not, when can punitive damages be pleaded.

Discovery schedule USA• Courts set discovery and trial schedules

• There are scheduling conferences after the service of an answer or statement of defense

• Best to prepare with defense counsel to get a fair schedule. Also best to prepare for E discovery.

Discovery: Pointers USA

• At the beginning of a case, make a list of documents you need.

• Gather readily available documents

• Set a schedule for the remainder

• Any other pointers?

The least you need to know USA

• You need to preserve data. Make a preservation plan

• Prepare for E‐discovery. Make a plan with your defense counsel

• Make early decisions about corporate witnesses and design engineers. Establish criteria to identify candidates. Predict topics

What sophisticated practitioners are doing: USA• Coordinating nationwide and worldwide

• Consistent answers and responsive data

• Plan at the beginning of every case

• Produce defense evidence even if there is no request for it• Make sure it will be admissible at trial.

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Civil Procedure in AustraliaCourts and Jurisdiction

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FEDERAL SYSTEM

Commonwealth Government

6 State & 2 Territory

Governments

Federal CourtDisputes about

Cth laws

State CourtsSee map >

+

High Court of Australia

• Ultimate appeal court• Decisions bind all courts

QUEENSLAND•Supreme Court•District Court•Magistrates Court

NEW SOUTH WALES•Supreme Court (unlimited)•District Court (to $750K)•Magistrates Court (to $100K)

VICTORIA•Supreme Court •County Court•Magistrates Court

TASMANIA•Supreme Court •Magistrates Court

SOUTH AUSTRALIA• Supreme Court• District Court• Magistrates Court

WESTERN AUSTRALIA•Supreme Court•District Court•Magistrates Court

NORTHERN TERRITORY• Supreme Court• Local Court

ACT•Supreme Court •Magistrates Court



Civil Procedure in AustraliaRetention of attorneys

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Are there contingency fees?

▪Contingency fees are not allowed

▪‘no win/no fee’ is allowed

▪an ‘uplift’ on solicitor fees is allowed for successful outcome – 25% cap in NSW

Can claimants get legal aid?- How do claimant’s qualify for legal aid?- How does legal aid affect the prospects for settlement in the case?

▪No legal aid is available for personal injury claims, medical negligence or public liability claims (NSW)

▪Prospects of settlement are affected by:- Plaintiff lawyers’ costs- Recovery rights of workers compensation insurer (in cases involving workplace injuries)



Civil Procedure in AustraliaLoser Pays Rule

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Is there a loser pays rule?

▪Costs are awarded at court’s discretion

▪General principle is ‘costs follow the event’ ie loser pays

▪Where a successful ‘Offer of Compromise’ is served, the court must award costs to the party who served the offer

What may be awarded to the winner?

▪The winner usually recovers:- Attorney (solicitor) fees- Disbursements (ie expert fees, barrister fees and other costs such as court filing fees, e-discovery costs)- On a party/party basis (unless a successful Offer of Compromise is served to support indemnity costs)- Subject to any legislation imposing cost caps (eg if a plaintiff in NSW injury proceedings recovers damages less

than $100,000 then plaintiff’s costs are capped at greater of $10,000 or 20% of amount recovered, plus disbursements)



Civil Procedure in AustraliaLoser Pays Rule

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How are these figures decided by the court?

▪If no agreement between the parties, proceed to formal cost assessment by a cost assessor (can be time consuming and expensive)

How can we collect? What if the claimant has no money?

▪Seek to enforce costs order against plaintiff through garnisheeing wages, lien over property or bankruptcy – but rarely done because often plaintiffs have no assets and no significant income

▪personal cost orders may be available against solicitor if proceeding had ‘no reasonable prospects of success’ – but rare

▪Security for costs application is available – but unusual in product liability or general liability proceedings. Requires balancing between ensuring fair protection is provided to the defendant, and avoiding injustice to an impecunious plaintiff by shutting him/her out of proceedings



Civil Procedure in AustraliaPleadings

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What is the pleading that starts a lawsuit?

▪Proceedings commenced by Statement of Claim (or similar)

▪Some jurisdiction have pre-litigation procedures (eg Queensland, Australian Capital Territory)

▪Defendant can file Cross Claims joining other parties to the proceedings

What is the required content for a statement of claim?

▪The Statement of Claim sets out:- summary of facts (but not evidence)- causes of action (eg negligence, contract, consumer law)- relief claimed- sufficient particulars so the defendant knows the case it must meet- certified by lawyer to have ‘reasonable prospects of success’

▪In injury claims the Statement of Particulars sets out the nature of the injuries and heads of damage claimed



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What is required in a statement of defence?

▪Defence filed within 28 days (unless court grants extension)

▪Responds to factual allegations and alleged basis of liability (admit, deny, do not admit)

▪Pleads any statutory defences (eg s151Z NSW Workers Compensation Act, limitations defences)



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How do courts get jurisdiction over foreign defendants? How must the statement of claim be served ?

▪Supreme Courts have jurisdiction over foreign defendants where there is a connection between the jurisdiction and the defendant’s acts (eg harm suffered in NSW caused by tort committed overseas)

▪Rules apply for service of proceedings on foreign defendants

▪A court will decline to exercise jurisdiction if: - The proceedings were not properly served;- the court is an’ inappropriate forum’ for the trial of the proceeding; or- the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time,

expense and trouble of defending the claim

What if jurisdiction is contested?

▪Defendant can dispute jurisdiction by filing an application asserting the court lacks jurisdiction to hear the case and seeking orders to:

- set aside service of the Statement of Claim; or- stay the proceedings

▪‘clearly inappropriate forum’ test


Civil Procedure in AustraliaDiscovery

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Is there a duty to preserve data? When is it triggered▪ No clear duty but:

- lawyers must not advise clients to destroy, or be a party to the destruction of documents that are of relevance to current or anticipated litigation (eg Legal Profession Regulation (NSW))

- It is a crime to destroy evidence which is or may be needed in legal proceedings (eg Qld Criminal Code)

▪ Difference between;- legitimate destruction of documents in accordance with a document management system; and- deliberate destruction of documents to remove them from the jurisdiction of the court

When is E-discovery conducted?▪ Used in larger, more complex litigation with lots of documents – usually non-personal injury claims

▪ Efficient but expensive



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Is there a discovery system? Is there written discovery? Are there depositions?▪ No depositions

▪ Written discovery:- Further and better particulars- Formal interrogatories (limited use in injury cases – requires ‘special reasons’)- Notices to Admit Facts & Authenticity of Documents

▪ Document discovery :- Subpoenas (third parties)- Notices to Produce- Formal discovery – general discovery or ‘categories’ with List of Documents (limited use in lower courts)- Civil procedure legislation requires disclosure of evidence/investigation reports in some jurisdictions- Pre-action discovery (in some jurisdictions) to enable plaintiff to decide whether to commence proceedings

Are there discovery privileges?▪ Usually not required to disclose documents which are subject to legal professional privilege (ie litigation privilege or

advice privilege), but some exceptions (eg pre-litigation investigation reports in Australian Capital Territory)



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Are there discovery objections? How are discovery disputes resolved? Does the court oversee discovery?

▪Court makes orders for discovery, document production and interrogatories

▪Court may make rulings on scope of discovery or adequacy of compliance

▪Much time spent in disputes over written and document discovery, eg:- about whether a party is entitled to discovery- whether the scope of a discovery request is too broad (ie are the documents relevant to issues in dispute)- whether discovery has been satisfactorily complied with

▪Often resolved by negotiation with the other party


Civil Procedure in AustraliaExperts

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Does the court retain experts? Can the parties retain experts? How are expert opinions disclosed?

▪The parties choose which experts to engage for their case

▪Experts must have specialized knowledge based on training, study or experience

▪Experts owe a paramount duty to the court – to provide objective, impartial assistance to the court – and must agree to be bound by Expert Witness Code of Conduct

▪Experts prepare individual reports which are served on the other party and tendered in court

▪Usually experts are required to attend a conclave and prepare a joint report for the court before trial

▪Experts may give oral evidence and be cross examined at trial

▪Courts often require experts to give evidence concurrently (hot tubbing)


Civil Procedure in AustraliaTrials

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Who has the burden of proof? What is the standard of proof?

▪Plaintiff must prove his/her case on ‘balance of probabilities’ (ie more likely than not)

▪Defendant bears burden on ‘balance of probabilities’ of proving statutory defences (eg limitations defence, consumer law defences for defective goods)

Do trials proceed on consecutive days?

▪Trials proceed on consecutive days based on the parties’ estimate of how many days are needed

▪Often in NSW the Judge who hears the case is not allocated until the day before



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Do witnesses testify? Does the judge question them?

▪Lay witnesses give oral evidence at trial

▪Sometimes lay witnesses give evidence in sworn Affidavits which are tendered at trial, then the witness is cross examined

▪The Judge may ask the witness questions to clarify their evidence

Can experts offer opinion testimony?

▪Expert opinion must be based on specialized knowledge based on training, study or experience



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What evidence is admissible?▪ Evidence must be relevant to issues in dispute in the proceedings

▪ Expert evidence must be based on specialized knowledge based on training, study or experience

▪ Must prove the assumptions on which expert opinion is based

▪ Overriding purpose - the ‘just, quick and cheap resolution of the real issues in the proceedings’: Civil Procedure Act (NSW). Court may refuse to allow a party leave to rely on evidence if served late

What is required for a verdict▪ Judge decides the case on ‘balance of probabilities’ after hearing the evidence and closing submissions from the

parties’ barristers

▪ Victoria allows jury trials (6 person/majority verdict) in civil cases. Many injury cases in Victoria proceed by jury trial.Can be beneficial for defendant because juries tend to be less generous than the Judges in Victoria


Civil Procedure in AustraliaThe least you need to know

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You must understand which jurisdiction and which court your case is in

▪Procedural rules differ in each jurisdiction

▪Different damages scales/rules for injury claims in different jurisdictions

▪Different limitation periods

▪Different rules for disclosure (eg Australian Capital Territory requires disclosure of investigation reports)

▪Different rules for ‘cost protection’ offers

▪Different legislation for cost caps

Most injury cases are litigated in the ‘middle level’ courts (eg District Court of NSW) – judge quality is variable & won’t know which judge until the day before

Most cases settle before trial through ADR (ie settlement conferences, mediation)

Australia has a ‘split’ legal profession

▪You will need a solicitor to conduct/prepare the pre-trial case and evidence

▪You will need a barrister (instructed by a solicitor) to appear at trial


What sophisticated practioners aredoing? Australia

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Know your opponent▪ Different plaintiff law firms require different defence tactics (eg early Offers of Compromise, offers on a ‘plus costs’

basis)

Choose your experts carefully▪ Need an expert who will withstand the conclave, joint report and ‘hot tubbing’ process

Early mediation where possible▪ To understand plaintiff’s true expectations and to limit defence cost spend

▪ Choose your mediator carefully

Civil Procedure in BrazilCourts and Jurisdiction• Are there state and federal courts? Which courts have jurisdiction over civil claims?

oDisputes regarding civil law are decided by the State Justice and Federal Justice, depending on thematter discussed and the parties involved in the litigation.

oCases in which the federal government or other federal public entities are a party or the FederalConstitution so determines shall be judged by the Federal Justice.

o In other cases, except for matters concerning special justice (labour, military and electoral justice), thecompetence to settle ordinary disputes shall be attributed to State Justice.

oThe judges of lower courts, as well as the ones of Federal and State Court of Appeals are hierarchicallysubject to the Superior Court of Justice and the Supreme Court, which is the highest body of theBrazilian court system.

▪ How do courts get jurisdiction over foreign defendants?oBrazilian Courts have jurisdiction to analyze conflicts when (i) the defendant, from any country, hasdomicile, agency, branch or subsidiary in Brazil, (ii) the obligation must be fulfilled in Brazil, and (iii) theaction arises from a fact occurred or practiced in Brazil.

Civil Procedure in BrazilRetention of Attorneys▪ Are there contingency fees?

o Yes. Contingency fees (i.e. where the payment is dependent on whether the party is successful) arecommon.

o Parties are free to agree the amount or percentage of contingency fees.

▪ Can claimants get legal aid? How do claimant’s qualify for legal aid?oYes. Any and all natural or legal person, Brazilian or foreign, who cannot afford to pay court costs,procedural expenses and counsel fees is entitled to free legal aid.

oThe request for free legal aid may be made in the complaint, in the answer, in the motion to include athird party in the suit or in an appeal.

oA judge can only deny the request if there are elements in the records that prove the lack of legalprerequisites for the concession of free legal aid, and must, prior to denying the request, determinethat the party prove the fulfilment of the aforementioned requirements.

Civil Procedure in BrazilDiscovery

• Is there a discovery system?

oThere is no specific process for investigating claims or right to discovery of evidence (such as inUSA). The discovery will take place during the law suit.

oAs a rule, each party will present the documents it finds fit to make its case, and additionaldocuments may be presented if determined by the judge (at a party’s request or ex officio).

oHowever, there is a remedy called "Provisional Remedy to Early Production of Evidence" that isfiled with the solemnly purpose of producing evidence before the filing of the claim, as a way ofavoiding future lawsuits by gathering more information regarding the matter; or to collectevidence before it is destroyed to prepare a future claim.

Civil Procedure in BrazilLoser Pays Rule

• Is there a loser pays rule? What may be awarded to the winner? Do attorneys getsuccess fees?oYes, the losing party is responsible for reimbursing all court costs and fees paid by the prevailing partyduring the lawsuit, as well as contingency fees to the prevailing party’s councils.

o However, this liability does not include the fees agreed by the prevailing party with his attorneys totheir work on the dispute, and the additional costs incurred by the prevailing party apart from thosestrictly related to the lawsuit. Attorneys' fees will be fixed by the Judge between 10% and 20% of thetotal amount of the judgment.

▪ . How can we collect? What if the claimant has no money?oThe loosing party has 15 days to pay the total amount awarded (including costs and fees) from thedate it is notified to do so. In case of no payment, creditor is allowed to expropriate assets under aspecific procedure.

o In case the debtor is a beneficiary of legal aid, the creditor will only be able to collect the amountawarded if it demonstrates there was a change in its economic situation.

Civil Procedure in BrazilPleadings• What is the pleading that starts a lawsuit?

oCivil proceedings are deemed commenced with the filing of the complaint and upon subsequent receipt by thejudge, ordering the service of process.

• What is the required content for a statement of claim?o The complaint shall inform:

i. the court to which it is addressed;ii. names and qualification of the parties involved;iii. the factual and legal grounds of the claim;iv. the claim and its specifications;v. an amount to be assigned to the lawsuit;vi. the evidence with which the plaintiff intends to prove the truth of the alleged facts;

▪ How must the statement of claim be served on a foreign defendant?o Service of process of foreign parties is usually made through the issuance of a letter rogatory and, as a rule, theservice of process of a Brazilian party in a foreign proceeding must also be made through a letter rogatory

Civil Procedure in BrazilPleadings

• What is required in a statement of defense?o The defendant should raise all his arguments of defense at the first opportunity to participate in the case.

o It is the defendant’s responsibility to allege, in the defense, all the defense material, stating the reasons of factand law for challenging the plaintiff’s claim and specifying the evidence which he intends to produce.

o If the defendant fails to make a full exposition of its case, contesting each claim specifically, the plaintiff’sallegations may be deemed true

• What if jurisdiction is contested?o The Brazilian CPC states that the court’s jurisdiction is one of the preliminary arguments that the defendant canbring into discussion in its answer.

o In case of allegation of lack of jurisdiction, the defense may be filed in the venue of the defendant’s domicile, afact which must be immediately communicated to the judge presiding over the case.

Civil Procedure in BrazilExperts

▪ Does the court retain experts? Can the parties retain experts?

oA court can on its own initiative or at the request of a party determine the production off the necessary evidence,including expert evidence.

oAs a rule, expert evidence is produced by means of a court‐appointed experts who will give his report to the court,with the possibility of the parties appointing assistant experts to participate in the process and formulate specificquestions to the court‐appointed expert.

• How are expert opinions disclosed?

o The court‐appointed expert is to file the expert report in court, within the deadline determined by the judge atleast twenty days prior to the trial.

oA judge shall appraise the expert evidence, mentioning the reasons which led him to regard or disregard theconclusions of the report in the ruling.

Civil Procedure in BrazilTrials• Who has the burden of proof?

o For a claim to succeed, the burden of proof is on the claimant to prove all its arguments and the facts that giverise to its rights. The respondent has the burden of proving the existence of facts that prevent, extinguish ormodify the claimant's rights.

o In the cases provided for by law (such as consumer cases), or in view of the peculiarities of the action relative tothe impossibility or excessive difficulty of performing the duty, the judge may assign the burden of proofdifferently, provided this is done in a reasoned decision, in which case the party must be given the opportunity tocarry out the assigned charge.

• What is the standard of proof? Preponderance of the evidence?

o The parties can prove their allegations through all means legally admissible in evidence: supporting documents,oral testimony, witnesses, hearing and expert investigation.

o The judge shall valuate the evidence presented by the parties and must indicate the reasoning for beingconvinced in favour of one side or another in its decision.

Civil Procedure in BrazilTrials• Do trials proceed on consecutive days?

oNo. In case the are testimonies, there will be a hearing, on a designated date and time fixed by thejudge. The decision of the judge usually is not rendered at the hearing, but after the partiespresent its final allegations.

• Do witnesses testify? Does the judge question them?oOral evidence is to be produced in a hearing, to hear the witnesses called by the plaintiff and bythe defendant, who shall be interrogated.

oThe judge and the parties question the witnesses separately and successively, first those of theplaintiff and then the defendant’s, and shall take the necessary measures to ensure that one doesnot hear the testimony of the others.

• Can experts offer opinion testimony?oYes, in addiction to the rendering of his report, the expert may be called upon to providetestimony at a hearing. In complex cases, the judge may indicate more than one expert, and theparties may each indicate more than one assistant expert

Civil Procedure in BrazilTrials

• What evidence is admissible?oParties may resort to all legal and morally legitimate means to prove the truth of facts supporting their claims ordefenses and to effectively influence the judge’s findings.

oAmong the admissible types of evidence are: (i) personal deposition of the parties; (ii) admission/confession (where aparty admits the truth of certain facts contrary to its interests and favorable to those of the opposingparty); (iii) presentation of documents (voluntarily or in compliance with a judicial order); and (iv)deposition ofwitnesses (taking of oral evidence); (iv) expert evidence

• What is required for a verdict?

o The verdict is not applicable, as there is no trial or jury trial in civil cases. The judge will present its final decision,which should essentially contain the following elements: (i) the report, which shall include the names of the parties,the identification of the case, with the summary of the claim and of the defense, as well as the registration of themain procedural events that occurred during the proceedings; (ii) the ratio decidendi, in which the judge shall analyzethe points of fact and law; and (iii) the conclusion of judgment, in which the judge shall resolve the main issuessubmitted by the parties.

Civil Procedure in BrazilThe least you need to knowoBrazil is a highly litigated country. Judiciary is accessible and most first instancedecisions will be appealed to second instance and even to Federal Courts. A lawsuitmay last from 4 to 10 years, in average.

oLegal interest applies to amounts awarded in lawsuits, 1% per month (12% per year) ,except if the contract under discussion provides for a different rate. Inflation alsoapplies (currently around 4% per year). Therefore and considering a lawsuit can lastmany years, a solvent party should always evaluate if it is the case to continue tolitigate or to settle.

oBrazil is a continental country and the decisions can vary a lot from state to state. It isnecessary to consider which court the litigation takes place to evaluate chances ofsuccess, There are mechanisms seeking the unification of identical court decisions injurisprudence; and the formulation of binding precedents (“súmula”), but there isstill a uncertainty level about the expected outcome of decisions.

What sophisticated practioners aredoing? Brazil

o We evaluate what is the best dispute resolution mechanism to that case. Arbitration may bebest for very technical cases and/or those which require confidentiality or decisions fasterthan court. . Mediation can also be used in specific cases.

o Complex cases demand high dedication. It is not enough to put your arguments in writing. Itis important to make sure that Judges understood your point. We use oral arguments, directcontact with the judge, legal opinion and presentations.

o Have a strategy. It is very easy to simply move a lawsuit forward, but few lawyers truly havea strategy in order to reach the best solution for the client in that specific case. That is whatwe do at Demarest.

Civil Procedure in CanadaCourts and Jurisdiction

• Are there state and federal courts?• In Canada, there is a provincial and territorial court system. This means that each province and territory have their own courts whose jurisdiction is limited to that region

• However, decisions from these lower courts may be appealed to the Supreme Court of Canada, a court that has jurisdiction over all of the Canadian provinces and territories

• There is also a federal court system which runs parallel to the provincial court systems, these federal courts have jurisdiction to hear matters addressed in specific federal statutes

• Which courts have jurisdiction over civil claims?• In Ontario, the Superior Court of Justice has inherent jurisdiction over civil cases

• How do courts get jurisdiction over foreign defendants?• If there is a “real and substantial connection” between the claim and the province of Ontario:

• The defendant is domiciled or resident in Ontario• The defendant carries on business in the province• The tort was committed in the province • A contract connected with the dispute was made in the province

• If there is no other jurisdiction with a stronger claim to hear the action, an Ontario courts can assert that it is a “forum of necessity”

Civil Procedure in CanadaRetention of Attorneys• Are there contingency fees?

• Ontario lawyers can accept contingency fees if it is “fair and reasonable” in the circumstances • In determining an appropriate % (up to a maximum of 50%), lawyers consider the following factors:

• The likelihood of success, the nature and complexity of the claim, the expense and risk of pursuing the claim, the expense and risk of pursuing the claim, the amount of the expected recovery, who is to receive an award of costs, and the amount of costs awarded

• However, lawyers are prohibited from accepting contingency fees for family law matters

• Can claimants get legal aid?• How do claimant’s qualify for legal aid?

• In order to qualify for legal aid in Ontario, an individual must have a serious family law (ex. Child protection) or an immigration/refugee law matter AND have a maximum gross annual income of $13,635.

• How does legal aid affect the prospects for settlement in the case? • The source of a litigant’s funding for legal representation should not affect decisions made by counsel regarding the suitability of settlement

Civil Procedure in CanadaLoser Pays Rule

• Is there a loser pays rule?• Generally, yes.• The decision to award costs is always within the discretion of the court rather than a fixed rule • However, losing parties to litigation can anticipate there is a strong likelihood they will have to pay costs

• What may be awarded to the winner?• If costs are awarded, the losing party must pay some or all of the winning party’s legal fees and “disbursements”, which cover expenses such as expert fees and court filing fees

• How are these figures decided by the court?• A court may order 3 different types or “scales” of costs with different prescribed hourly rates for lawyers’ fees

• Partial indemnity (most common) approximately 50‐60% of a lawyer’s fees• Substantial indemnity approximately 70‐95% of a lawyer’s fees• Full indemnity (rare!) 100% of a lawyer’s fees (only available when there’s reprehensible conduct)

• How can we collect? What if the defendant has no money?• The court orders a judgment enforceable against the defendant, however if the defendant does not have any assets the claimant may not recover anything despite the judgment

Civil Procedure in CanadaPleadings• What is the pleading that starts a lawsuit?

• In Ontario, the usual method to start a lawsuit is to file a Statement of Claim which must be served on the defendant within 6 months of the filing date

• However, it is also possible to first file a Notice of Action and then file the Statement of Claim within the next 30 days (both must be served on the defendant within 6 months of filing)

• What is the required content for a Statement of Claim?• The Statement of Claim sets out the wrong the plaintiff has suffered, the material facts to establish the plaintiff’s claim (but not the evidence relied on to prove those facts), and the relief the plaintiff is seeking from the court – damages (money) or a declaration or injunction prohibiting behaviour

• How must the Statement of Claim be served on a foreign defendant? • The rules of service will ultimately depend on whether or not the country in which the foreign defendant is ordinarily resident or carries out business, is a “objecting” or “non‐objecting” state to the Hague Convention on the Service Abroad of Judicial or Extrajudicial Documents in Civil or Commercial Matters

• If non‐objecting Can serve the defendant privately by mail or through judicial officers, officials, or other competent persons of the foreign state

• If objecting Service must be through the Central Authority of the foreign state

Civil Procedure in CanadaPleadings

• What is required in a Statement of Defense?• The defendant should consider admitting alleged material facts in the plaintiff’s claim that the defendant does not dispute – but such admissions are rarely given

• The defendant must expressly deny any alleged facts in the plaintiff’s pleading that it does not agree with, or it will be deemed to have admitted those facts (unless the defendant pleads a lack of knowledge regarding such facts)

• If the defendant intends to prove a different version of facts than those pleaded by the plaintiff, the defendant must set out its own version of the facts and any alternative facts they wish to rely on

• What if jurisdiction is contested? • If the defendant contests jurisdiction of an Ontario court in a civil matter, they must avoid attorning to the jurisdiction of the Court, and bring a motion that the Ontario Court does not have jurisdiction

• If the defendant attempts to respond to the claim other than to challenge jurisdiction, it is likely that the court will find that the defendant has consented to the jurisdiction of the court through their participation in the lawsuit (this is called attornment)

• Ultimately, such a challenge can delay resolution of the plaintiff’s claim as it may not proceed until after the jurisdictional challenge is addressed and resolved

Civil Procedure in CanadaDiscovery

• Is there a discovery system?• Yes, the discovery system for civil law matters is an important pre‐trial stage in the development of a civil lawsuit

• Any information that is relevant to material facts at issue in the civil law dispute must be disclosed and this obligation is ongoing throughout all stages of the litigation process

• Is there written discovery?• Written requests for discovery rarely take place in Ontario since lawyers are not allowed to carry out an oral examination of a witness and also request answers to written questions

• Are there depositions?• In Canada, the discovery procedure that is similar to a deposition is known as an “examination for discovery”

• It is the process by which counsel obtains sworn oral testimony of an opposing counsel’s witness that may be used for discovery purposes or entered into evidence at trial

• Are there discovery privileges?• Yes, certain documents may be subject to solicitor‐client privilege and may not be disclosed to opposing counsel

Civil Procedure in CanadaDiscovery•Are there discovery objections?

• A party to a civil lawsuit may object to a request from opposing counsel to provide certain documents on the basis that the documents are not relevant or they are privileged. Objections must be dealt with strategically, and can be used to shut out evidence at trial

•How are discovery disputes resolved?• A party can bring a motion in court asking the court to order the opposing party to provide them with the requested documents

•Does the court oversee discovery?• The discovery procedures take place out of court, although the court may be required to resolve disputes regarding the discovery process

Civil Procedure in CanadaDiscovery

• Is there a duty to preserve data? When is it triggered?• There is a legal duty for parties to preserve relevant data that arises in each civil law matter and it is triggered as soon as the party is aware that it may be relevant to a dispute, or when a party receives a pleading that makes the data relevant – whichever is sooner

• Who is E‐discovery conducted?• In the Ontario Civil Rules of Procedure, the term “document” includes data and information in electronic form

• With this in mind, the concept of “e‐discovery” is included in the general discovery process under Ontario’s Rules of Civil Procedure

• Parties are required to disclose all relevant data and information to opposing counsel including meta data

Civil Procedure in CanadaExperts • Does the court retain experts?

• A judge may, on the court’s own initiative, appoint an independent expert to inquire into and report on any relevant questions of fact or opinion (although this is a rare occurrence in civil law disputes)

• Can the parties retain experts?• Yes, all parties to an civil law action may retain expert witnesses – up to three per issue

• How are expert opinions disclosed?• A party seeking to rely on an expert report must serve the report no later than 90 days before the pre‐trial conference on every other party to the action.

• If a party intends to call an expert witness at trial to respond to the expert witness of another party to the lawsuit, they must serve the report on all other parties no later than 60 days before the pre‐trial conference

• Any supplementary reports must be served on all other parties no later than 30 days before the trial

Civil Procedure in CanadaTrials • Who has the burden of proof?

• Generally, the party bringing the claim, in other words the plaintiff in the civil lawsuit

• What is the standard of proof? Preponderance of the evidence?• The standard of proof for all civil matters is on a “balance of probabilities”

• Do trials proceed on consecutive days?• Trials are often set for consecutive business days, but in the event of adjournments trials may take place over prolonged periods of time

Civil Procedure in CanadaTrials • Do witnesses testify? Does the judge question them?

• Witnesses in civil trials testify and give accounts of their observations or experiences• In the common law system, it is the role of legal counsel to present evidence to the court by asking witnesses questions either on direct (if it is their witness) or cross‐examination (if it is opposing counsel’s witness)

• It is the judge’s responsibility to exercise reasonable control over the questions asked of a witness • Since a judge is required to be a neutral party, it is improper for a judge to step into the role of counsel by questioning the witness as this undermines the fairness of a trial by giving a perception of bias to one party over another – however, judges often question witnesses

• Can experts offer opinion testimony?• Unlike regular witness, experts may give opinions on matters falling within their area of expertise • To present expert evidence to the court, a party must apply to have the expert qualified and provide the opposing counsel with copies of any expert reports before the trial takes place

• This is to allow the opposing counsel the opportunity to engage their own expert and provide sufficient time to respond to such evidence

Civil Procedure in CanadaTrials • What evidence is admissible?

• For evidence to be admissible, it must be relevant , meaning it proves or disproves a material fact in dispute, or has probative value to making one of the essential elements of a case more or less likely

• Evidence that is not unfairly prejudicial, irrelevant, privileged, or based on hearsay (a statement, other than one made by the declarant while testifying, that is offered for the truth of its contents)

• Admissible evidence may include oral evidence provided by witnesses including experts or a broad range of physical evidence (documents, photographs, objects etc.)

• What is required for a verdict• A “verdict” is any formal decision of a jury in a court proceeding

• A jury must be satisfied that the plaintiff has presented enough evidence establishing each element of their claim on a balance of probabilities to give a verdict in favor of the plaintiff

• Otherwise, the jury must give a verdict in favor of the defendant• Almost all civil cases in Canada are tried by judges without juries• Parties may request a jury trial in some civil matters ,but courts still have discretion to strike juries and proceed with a judge‐only trial

• In other civil law matters, there are statutory bars to jury trials and the matters must be decided by a judge (family law, claims against municipalities, small claims matters)

Civil Procedure in CanadaThe least you need to know Be aware of the limitation period that applies to your claim (usually within two years of the date that you discovered the claim)

If you bring or defend a civil lawsuit, you should be aware of the risk of paying the other side’s legal fees and consider opportunities for settlement when appropriate

It is important to be aware of the notice and service deadlines when bringing or responding to a civil lawsuit

The burden of proof is always on the party bringing the claim: the plaintiff

The standard of proof is on a “balance of probabilities”

What sophisticated practitioners aredoing? Canada• Avoid attorning to the jurisdiction of Ontario – consider whether the litigation can be fought in your home jurisdiction.

• Provide an offer to settle as early as you can. It is not a sign of weakness in our system of litigation, and if you beat the offer to settle you can obtain significant legal costs paid from the date of the offer.

• If an opponent refuses to produce relevant evidence, take steps to document the requests. Failure to produce relevant evidence at pre‐trial can be grounds to cause the opponent to be prevented from calling the evidence at trial with the benefit that you can call the evidence and the opponent cannot respond.

• Be wary of Canadian counsel who recommend a motion for summary judgment –they are expensive and very difficult to win in Canada.

Civil Procedure in FranceCourts and Jurisdiction• Are there state and federal courts? France is a central state. Regional district courts

• Which courts have jurisdiction over civil claims?

First instance: • Civil Courts Tribunal Judiciaire• Commercial courts Tribunal de Commerce

Appeal:• Appellate courts Cour d’appel (districts)• Supreme court Cour de Cassation ; Constitutional court Conseil Constitutionnel• Supra‐national: ECJ and ECHR

• How do courts get jurisdiction over foreign defendants?• EU Regulation No. 1215/2012 of 12/12/2012 “on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”

• e.g.: Contract – option to sue in the place of performance of a contractual obligation (Art. 4) ; Tort – place where the harmful event occurred or may occur (Art. 4) ;Consumer law ‐ option for the consumer to sue in the place where the consumer is domiciled (Art. 18)Insurance – option for the policyholder, the insured or a beneficiary to sue a foreign (EU) insurer in the place

where they are domiciled

Civil Procedure in FranceRetention of Attorneys

•Are there contingency fees?• Principle: contingency fee arrangements prohibited• Exception: written fee arrangements with both a fixed and a contingent fee are permitted, when the calculation is set out in advance

• Can claimants get legal aid? Legal aid available

• How do claimant’s qualify for legal aid?• Inadequate resources • The envisaged action or defense is not obviously inadmissible or unfounded • Related to action or defense• No legal costs insurance available

• How does legal aid affect the prospects for settlement in the case?• It may cover only partially the costs incurred during proceedings / trial

Civil Procedure in FranceLoser Pays Rule

• Is there a loser pays rule? “Partie Succombante”: The losing party bears the court fees and other expenses

• What may be awarded to the winner?

• Attorney fees? Lump‐sum party‐to‐party costs taking into account equity and financial resources of the losing party

• Expert Fees? Court‐appointed expert / private expert

• Costs? Court expenditures, costs of translations and service

• How are these figures decided by the court? • Attorney fees: the court freely determines the compensation is fair • No legal scale

• How can we collect? What if the claimant has no money? Award by the enforceable court decision

• Do attorneys get success fees? How much? Prohibition of contingency fees

• Are success fees returned to the client? No – agreed for each instance with a retainer

Civil Procedure in FrancePleadings

• What is required in a statement of defense?Same as in a statement of claim:

• No limitation• Evidenced and motivated on law and facts• Additional evidence and claims may be filed after the first brief

• What if jurisdiction is contested?

• Prior to any defense on the merits• Possibility of a preliminary ruling

Civil Procedure in FrancePleadings• What is the pleading that starts a lawsuit?Writ of summons (“assignation”)• What is the required content for a statement of claim?

• Presentation of the facts and evidence• Legal grounds of the claim• Summoning to appear in Court on a specific date

• How must the statement of claim be served on a foreign defendant?Statement of claim transferred by French bailiff, for service in accordance with the foreign regulations:

• EU: regulation No. 1393/2007 of 11/13/2007 • International: Hague Service Convention in civil or commercial matters of 11/15/1965

Civil Procedure in FranceDiscovery

•Are there discovery objections? >> N/A

•How are discovery disputes resolved? >> N/A

•Does the court oversee discovery? >> N/A

Civil Procedure in FranceDiscovery

• Is there a duty to preserve data?• When is it triggered

Comments on duties to preserve data

• Discoveries (also: e‐discoveries) carried out in the EU: prior declaration DPA (CNIL) and data transfer to be in accordance with GDPR requirements

• EU GDPR imposes retention periods and orders the deletion of data following these periods (“right to be forgotten”)

• Legal professionals (attorneys, bailiffs, state notaries), authorities: subject to duties to preserve data / keep records for a certain period (general: 10 years)

• Specific rules for claims handling involving special categories of data (health …)

Civil Procedure in FranceExperts

• Does the court retain experts?• Judicial surveyor appointed by the court (“expert judiciaire”)• “Adversarial” principle – involvement of all parties in the assessment by the expert

• Can the parties retain experts?“Private experts” as technical advisor / loss adjuster

• How are expert opinions disclosed?• Court‐appointed experts: filing of a written report with the court • Private experts: provided as written evidence

Civil Procedure in FranceTrials

• Who has the burden of proof?“A person who demands the performance of an obligation must prove it. Reciprocally, a person who claims to be released from an obligation must prove the payment or the fact that caused the extinction of his obligation.” (Art. 1353 Civil Code).Specific presumptions may be provided by law: simple reversal of the burden of proof, or irrefutable presumptions; example: a tenant deemed responsible for damages to the rental object during the period of lease• What is the standard of proof? Preponderance of the evidence?

• Claims must be proven by written means or by a document in writing evidencing the claim

• A party will disclose the documents he whishes to use to establish the fact in the case• Do trials proceed on consecutive days? French Civil proceedings essentially written, no lengthy trialsPleadings by the lawyers (about 30 mins)


•Do witnesses testify? Does the judge question them?Testimony in writing:

•No witness hearings•No cross examinations•No readings of depositions

• Can experts offer opinion testimony?•No hearing of expert‐witnesses• Possible to request experts to be heard, but not common in practice• Court‐appointed surveyor’s opinions being content with filing reports


•What evidence is admissible?• Written evidence• Filing of court‐appointed surveyor reports

•What is required for a verdict• Court hears the pleadings•Only written briefs bind the court in civil procedure• Before commercial courts, the parties can lead their case orally / in addition to the pleadings filed

• Pleading file

Civil Procedure in FranceThe least you need to know

• Production of evidence: • Case to be decided on basis of the facts presented by the parties• Evidence is mainly provided as written documents• Importance of court-appointed experts for the preparation of a trial in PL /

construction matters• Unlike the US: no discovery, hearings limited to pleadings by counsels

• Fees and Costs: low court costs

• Right to appeal judgments: little restrictions

What sophisticated practioners aredoing? France

• Constructive strategy in assessment of case perspectives and early settlement approaches

• Preparation of the trial

• Case management: proactive defense team (claims handler, technical advisor, lawyer)

Civil Procedure in GermanyRetention of attorneys• Are there contingency fees?

• In principle, no.• In very rare exceptions permissible, but requires a very detailed individual contract outlining why this is necessary.

• Can claimants get legal aid?• Legal aid is very popular in Germany (and also legal aid insurance 25 mill Policies)• A high percentage of average earning employees (but not companies) qualify for receiving legal aid.

• It requires an application for legal aid including • financial situation (not visible for other parties)• promising claim.

• In almost all situations when the facts of the case are not completely clear, the court will grant the application for legal aid.

• How does legal aid affect the prospects for settlement in the case?• It does not have any negative effect on a settlement, as the court usually will be either guiding the settlement discussions or will have to record the settlement.

Civil Procedure in GermanyCourts and Jurisdiction•Are there state and federal courts?

• Only in public law.• In civil law there is just a three instance system:

• District Courts / Regional Courts• Higher Regional Court• Supreme Court (Karlsruhe)

•How do courts get jurisdiction over foreign defendants?• European Regulation 1215/2012 (Bruxelles 1a Reg.)• Code for Civil Procedure

Civil Procedure in GermanyCourts• Except for regional courts, all 1st and 2nd instance do have chambers / senates with at least 3 professional judges.

• Judges are appointed for life‐time and

very young when they start.

• Often court have specialized chambers, for example for property / liability insurance / medmal / construction etc

Civil Procedure in GermanyLoser Pays Rule

▪ Is there a loser pays rule?- Yes.

▪ What may be awarded to the winner?- Attorney fees according to the German fee schedule (RVG)

Civil Procedure in GermanyPleadings

• What is the pleading that starts a lawsuit?• Application for legal aid (it suspends limitation)• Complaint• Application for Court Payment Order

• What is the required content for a statement of claim?• Correct Address• No John Does• Exact quantification of claims• Exact statement of all relevant facts and offer to provide evidence

• Additionally: Advance Payment for Court costs!

• How must the statement of claim be served on a foreign defendant?• Attention: Service through the court system – not the parties!• Within EU Regulation 1393/2007 (service in various ways, but still many differences in every country)• Within Hague Convention on service – full translation (translation of enclosures?)• German Rules of Civil procedure – potentially public announcement

Civil Procedure in GermanyPleadings

•What is required in a statement of defense?• Application if claim is to be fully or partially dismissed.• Statement which facts are disputed and which not.

•What if jurisdiction is contested?• Jurisdiction needs to be contested as soon as possible. The latest point in time is the statement of defense, but this depends on the court.

• International jurisdiction: Mainly regulated by European law (Bruxelles Ia, Lugano). If jurisdiction is denied, the case is dismissed.

• Local jurisdiction: If the jurisdiction is denied, the case will be transferred to the competent court. A court in Berlin could thus transfer a case to the court in Cologne with binding effect for the parties and the court.

Civil Procedure in GermanyDiscovery

• Is there a discovery system?• No.• There is no pre‐trial phase at all.

• Is there written discovery?• No.

• Are there depositions?• No. Witnesses will only be heard in trial.

• Are there discovery privileges?• In general, each party will need to provide all witnesses and documents. Only in exceptional cases, documents need to be provided by the opposing parties. They have to be specified. For example in pharmaceutical product liability proceedings some documents can be demanded.

Civil Procedure in GermanyDiscovery

• Is there a duty to preserve data?

• There is no general duty to preserve data due to legal proceedings, but it obligations under the insurance contract might include such obligation.

• If evidence is destroyed this can lead to a shift of burden of proof.

•How is E‐discovery conducted?• There are no rules on E‐discovery.

Civil Procedure in GermanyExperts •Does the court retain experts?

• Yes. • The court will demand an advance payment from the party that has the burden of proof.

• The Court will ask parties for suggestions and the experts must be clear of conflicts. • Under certain circumstances, expert reports retained by prosecution can be used in civil procedure.

• Can the parties retain experts?• Yes.• However, the parties’ experts’ reports are of lower value than the report by the expert that is appointed by court.

•How are expert opinions disclosed?• The court’s expert will send the final report to court. • Then parties may rise written objections. • After that another report will be made by the expert.• Finally an expert might be questioned in a hearing.

Civil Procedure in GermanyTrials• Trials are prepared via written submissions. • Courts will usually organize a first hearing after approx. 9 – 12 months.• Court will try to settle the case.• Mediation is still uncommon. • Court will then often give its preliminary view of the case. • Hearings are short and even in major cases most often will only last for 1 to 2 hours. • Courts can appoint a technical experts. The duration of the proceeding will depend on the volume of the case. Often the expert will require a year to finalize the report.

• The court decides which witnesses will be heard in trial.• The court will raise first questions. • There is no jury.

Civil Procedure in GermanyTrials •Who has the burden of proof?

• Under German law, this is a matter of the applicable substantive law. Therefore the burden of proof depends on the matter, for example

• Sales contract – burden of proof for defect at time of delivery in b2b with buyer, in b2c with seller for first six months.

• Medical Malpractice – burden of proof for causation of injury will depend on the fact if malpractice, which patient has to prove, was caused by slight negligence or gross negligence.

•What is the standard of proof? Preponderance of the evidence?• Normally, court needs to be convinced of the fact evidence so “that all doubts remain silent, without totally excluding them”. This give the court flexibility and can be assessed with a standard of 90%.

• Concerning amount of damages, preponderance of more than 50% will suffice.•Do trials proceed on consecutive days?

• Normally not. There can be several months or a year between the hearings.

Civil Procedure in GermanyTrials

•Do witnesses testify? Does the judge question them?• If the facts are disputed, yes.• The judge will raise the fist question, then the parties may raise questions.• This will normally last only a few minutes. • The judge summarizes the statements and will dictate them.

•Can experts offer opinion testimony?• Yes. However, experts normally provide written reports.• The parties’ expert will very rarely be heard in oral proceedings.

Civil Procedure in GermanyTrials

•What evidence is admissible?• Experts appointed by court• Visual inspection• Questioning of Parties• Witnesses• Documents

•What is required for a verdict?• If all relevant facts are proven to the assessment of the court, the court will schedule a date on which the verdict will be send out to the parties and – if parties show up – will be read in court.

Civil Procedure in GermanyThe least you need to know

Most German proceedings deal with car accidents and do not last more than 9 months.

German court hearings are very short and not spectacular.

German courts are totally overloaded.

Judges are rated by ratio of finished cases, not quality.

Often, final decision are made by non‐specialized chambers in the European Court of Justice

What sophisticated practitioners aredoing? Germany

Defense counsel will try to dispute all facts and cause major troublefor claimant to prove all relevant facts.

Then defense counsel will use the judge as assistant to settle thecase in a first hearing.

Judges will listen to very qualified lawyers – lawyers do not need toconvince a jury, but a professional judge. Legal knowledge isdecisive, not being a great speaker.

What is a civil action? United Kingdom

• The UK comprises 3 separate jurisdictions with different judicial systems:‐ England and Wales (based on Common Law)‐ Scotland (hybrid, based on Roman Code and Common Law)‐ Northern Ireland (based on English Common law)

• Like the US, the UK is a common law jurisdiction, involving a system of rules based on evolving legal precedent rather than codified statutes. A judge has to take into account earlier decisions in similar cases and reach consistent legal findings.

• A civil action (brought before a civil court as opposed to a criminal court) typically involves a claim or dispute between private citizens and/or corporations for compensation arising from e.g. personal injury, breach of contract, negligence, medical malpractice, fraud etc .

• The burden of proof rests with the claimant. In most cases, the civil standard is applied. This means that the claimant must prove its case on the balance of probabilities

Court Structure in the UK

▪ United Kingdom:

Supreme Court Justices

Rolls BuildingCommercial Court

How are lawyers retained in the UK?

Solicitors Barristers

Solicitors work for law firms. They have direct contact with clients and prepare the case for trial (if not resolved through negotiation or mediation). They have limited rights of audience at some lower courts.

Barristers (or “Counsel” / “Queens Counsel”) work independently, in collectives known as “chambers”. They have rights of audience in higher courts and are appointed by solicitors to act as the client’s advocate in Court hearings. Many are highly specialist and skilled, lending credibility to legal argument. They may also be instructed to produce a written Opinion on the merits of the case.

Legal Fees United Kingdom

Is there a “Loser Pays rule”?

• Generally, yes – but Personal Injury (including clinical negligence) claims are subject to “Qualified one‐way costs shifting” (QOCS) whereby a defendant will be ordered to pay the costs of a successful claimant but will not usually recover its own costs if it successfully defends the claim (unless the claim is found to be fundamentally dishonest or an abuse of process).

• However, if a claimant fails to beat a defendant’s Part 36 offer to settle at trial, a claimant is at risk for the defendant’s costs from the end of the offer acceptance period (capped at the level of damages and interest recovered).

Are Contingency fees permitted in the UK?

• Contingency fees, or damages‐based agreements (DBAs), have been permitted since 2014 for contentious work. This means that lawyers can conduct litigation and arbitration in this jurisdiction in return for a share of any damages. They are subject to a 25% cap in PI and clinical negligence claims; 50% cap in most other cases.

Are there other forms of litigation funding?

• Legal Aid is now very limited, but litigation can be conducted under:

• conditional fee agreements (CFAs), where they can charge a success fee (up to 100% of the normal fee) if the case succeeds and nothing, or sometimes a discounted fee, if it is lost

• Litigation funding, where a third party funds the litigation in return for a share of the proceeds. Litigation funders are regulated by a voluntary code of conduct

• CFA success fees and ATE insurance premiums are no longer recoverable from the losing party.

What are the stages of Litigation? UK

• Pleadings – Statements of Case / Particulars of Claim (setting out cause of action), Defence and counterclaim, Reply, claims for contribution

• Requests for further information

• Case management (continuing) – Court hearing

• Costs budgeting

• Disclosure of documents (including electronic)

• Exchange of witness statements

• Exchange of expert reports

• Pre‐Trial Review

• Trial

• Judgment

• Appeal

Pre‐judgment interest UK

A successful claimant may (at the court’s discretion) be awarded pre‐judgment interest on damages above £200 in PI claims• Interest accrues from the date of service of the claim form until the date of trial.• Interest on general damages (non‐pecuniary loss i.e. pain and suffering, loss of amenities) is awarded at the rate of 2% a year.

• With regard to interest on Special Damages (the claimant’s monetary costs and losses), under the Supreme Court Act 1981 and the County Courts Act 1984, a claimant is entitled to simple interest at a rate the court deems fit, to fairly compensate the claimant for loss of use of money.

• Interest on Special Damages is at half the “special investment account rate” (a special interest rate applied to court funds which varies over time, but tracks the Bank of England base rate which was reduced to 0.1% earlier this year).

• A claimant can additionally claim Post‐Judgment Interest on the judgment sum where the judgment sum is not paid within the time prescribed in the order.

“Discovery” in the UK

“Discovery” was abolished by Lord Woolf in the late 1990s. It was replaced by “Disclosure”, more limited pre‐trial disclosure of documentary evidence. Disclosure of documents • At an early stage in proceedings, parties have to file and serve a report, verified by a statement of truth, which describes:

• what documents exist that may be relevant to the matters in issue;• where they may be located;• the broad range of costs that could be involved in giving standard disclosure;• which directions relating to disclosure the party is seeking.

• An Electronic Documents Questionnaire should be filed with the report (“e‐disclosure”).• At least 7 days before the first case management conference before the court, the parties must discuss and seek to agree

proposals in relation to disclosure. “Standard disclosure” (documents which support or adversely affect any party’s case) remains the default position for personal injury and clinical negligence cases; in other cases the Court decides (from a menu ofoptions) the basis and format of disclosure required in order to deal with the case proportionately and justly.

• “Fishing expeditions” are not permitted.• The court may approve the parties’ proposals without a hearing, where appropriate.• There is no entitlement to pre‐action disclosure of the insurance policy of a solvent insured Insurance policies not disclosable

save where…

Other methods of written discovery UK

• Requests for production of specific documents and inspection

• Requests for further information or clarification / Interrogatories – a formal set of written questions posed by one party to the other in order to clarify matters of fact, usually arising from the pleadings, and verified by a statement of truth (CPR Part 18)

• Notices to Admit Facts – designed to save costs by encouraging the admission of undisputed facts so they do not need to be proved at trial (CPR Part 32)

Oral discovery / Trails UK

• No deposition procedure

• Written statements of witnesses of fact (including signed statement of truth) exchanged by parties in accordance with order of court

• Witness must give oral testimony at trial and be cross‐examined, unless parties agree otherwise

• Evidence may be disregarded or ruled inadmissible e.g. if opinion, hearsay or legal argument

• Witness credibility is weakened if oral testimony is inconsistent with witness statement

• A witness (including non‐party witnesses) may be served with a witness summons to attend trial (unless ill or abroad)

• Written reports of expert witnesses (opinion evidence) exchanged by parties in accordance with order of court

• Court approves both the area of expertise and issues on which expert evidence required

• Expert owes a primary duty to the court, not the instructing party

• Expert must give oral evidence at trial and be cross‐examined

• “Hot‐tubbing” is infrequent

Civil Procedure in the UKTrials

• Claimant must prove case on balance of probalilities. Must also prove loss

• Trials proceed on consecutive days based on parties’ agreed estimate and court’s availability

• Counsel for each party sets out case (“opening submissions”/”skeleton arguments”)

• Witnesses of fact give oral evidence at trial (evidence in chief) and are cross‐examined (unless evidence is agreed)

• Admissibility and weight of evidence is a question for the judge. Evidence is admissible if of sufficient relevance to prove or disprove facts in issue, subject to exclusionary rules (e.g. properly obtained, hearsay, opinion).

• Expert witnesses give oral evidence at trial and are cross‐examined (unless evidence is agreed)

• The judge tends to direct any questions to Counsel, but can address the witness directly

• Counsel for each party summarises case (“closing submissions”)

• Judge determines matters of law and fact. There is no jury. Judgment usually “reserved” to a later date.

UK civil procedure ‐ The Least You Need to Know

• Separate jurisdictions between England & Wales, Scotland, and N. Ireland

• Split profession – solicitors and barristers

• Common law system, based on legal precedent – but we also have statutes

• A plaintiff is called a “claimant”

• Principal causes of action: tort (negligence/nuisance), breach of contract and breach of statutory duty

• Defences based on limitation and applicable law & jurisdiction are a useful tool

• Witness statements and expert reports are exchanged ahead of trial. No deposition procedure.

• Jury trials are restricted to criminal cases, save in civil cases involving fraud or defamation

• Damages are compensatory although punitive damages can be awarded where tortfeasor has malicious intent or is grossly negligent

• Damages are quantified by judges

• Legal fees are recoverable from losing party (save in PI actions where a defendant cannot recover its costs from an unsuccessful claimant (“QOCS”)

• Contingency fees (DBAs) are permitted, as well as Conditional Fee Agreements

What Sophisticated PractitionersAre Doing UK

• Consolidated Litigation ‐ Multi‐claimant cases (“group actions”) managed by the Court through a Group Litigation Order (“GLO”).

‐ Opt‐in, not opt‐out‐ Costs protection for claimants‐ Common in pharmaceutical and medical device product liability litigation, also shareholder collective redress actions

• Cross‐border litigation and international arbitration, often involving global supply chains• Grenfell Tower litigation – impacting buildings regulation requirements internationally• Business Interruption and Denial of Access claims arising from Covid‐19• Increase in claims arising from Terrorism, riots, political risks, trade credit• Increase in advisory work arising from Brexit and global supply chain regulatory compliance