1

Introduction

2

Litigation Conduct

2.1

Introduction

2.2

Overriding statutory duties

(a)

Overriding statutory duty of litigators

(b)

Overriding statutory duty of advocates

(c)

Hierarchy of duties

2.3

Core duties - Justice and the rule of law

(a)

Duty to further the overriding objective

(b)

Duty to the court overriding duty to client

(c)

Duty to conduct litigation economically

2.4

Client care obligations

(a)

Client’s options - ADR

(b)

Expense and risk

2.5

Deceiving or misleading the court

(a)

Deception and misleading

(b)

Deception and misleading – Case law

(c)

Assisting the court with the law

(d)

Drawing the court’s attention to content of filed documents

(e)

Drawing the court’s attention to any procedural irregularity

(f)

Constructing facts

(g)

Contentions which are not properly arguable

(h)

Allegations of fraud

2.6

Witnesses

(a)

Interviewing witnesses generally

(b)

Interviewing witnesses for the other side

(c)

Witness whose evidence you know to be untrue

(d)

Witness coaching

(e)

Advocacy where a member of the firm is a witness

(f)

Payment of witness conditional on outcome

2.7

Advocacy – are you an appropriate advocate?

2.8

Attending on advocates at hearings

2.9

Statements to the media

2.10

Contentious practice – Discussion questions

(a)

Misleading the court – identifying the potential for misleading

(b)

Misleading the court – whistle blowing

(c)

Misleading an arbitrator

(d)

Leading the court to an incorrect appreciation of facts by the way the case is conducted

(e)

Advancing contentions which are not properly arguable

(f)

Assisting the court with the law I

(g)

Assisting the court with the law II

(h)

Witness familiarization

3

Outline of a High Court Case

4

Project Planning Litigation

4.1

What does the Client Want?

4.2

The stages of a Project

4.3

Scoping the Project

4.4

Planning the Project

4.5

Identifying and Managing Risk

4.6

Learning from Project Management Practices

5

Jurisdiction

5.1

Which regime? – Quick check

5.2

Council Regulation - Outline

5.3

Other Regimes - Outline

5.4

Council Regulation - Interpretation

5.5

Scheme of Regulation 44/2001

5.6

Application of Regulation – Subject Matter - Art 1

5.7

Application of Regulation – Domicile of Defendant - Art 4

5.8

Application of Regulation – English Defendant - International Element - Art 4

5.9

Application of Regulation – English Defendant – No International Element - Art 4

5.10

Application of Regulation – English Defendant? – Domicile Rules - Art 4

5.11

Temporal application – Art 66

5.12

Other Conventions – Art 71

5.13

Satisfying the court that it has Council Regulation jurisdiction

5.14

Exclusive Jurisdiction – Art 22

5.15

Entry of an Appearance – Art 24

5.16

Insurance, employment and consumer contracts – Arts 8 - 21

5.17

Jurisdiction Agreements – Art 23

5.18

Domicile of the Defendant – Art 2

5.19

Special Jurisdiction – Generally – Arts 5 - 7

5.20

Special Jurisdiction – Contract – Art 5(1)

5.21

Special Jurisdiction – Tort – Art 5(3)

5.22

Special Jurisdiction – Other heads – Art 5(2), (4), (5) and (6)

5.23

Multiple party actions etc. – Art 6

5.24

Lis alibi pendens –Arts 27 - 30

5.25

Civil Procedure Rules - English Approach to Jurisdiction

5.26

Service within the jurisdiction

5.27

Service outside the jurisdiction

5.28

Contract

5.29

Tort

5.30

Procedure and proof

5.31

Response by defendant

5.32

Non-discretionary grounds for challenging jurisdiction

5.33

Forum non conveniens – Outside the Council Regulation/Conventions

5.34

Forum non conveniens – Within the Council Regulation/Conventions

5.35

Anti-suit Injunctions – Outside the Council Regulation/Conventions

5.36

Anti-suit Injunctions – Within the Council Regulation/Conventions

5.37

Anti-suit injunctions after Turner v Grovit – Outside Council Regulation

5.38

Freezing Orders

5.39

Negative Declarations

6

Pre-action Procedures

6.1

Importance of appropriate pre-action behaviour

6.2

Existing Pre-action Protocols

6.3

Failure to adopt appropriate pre-action behaviour

6.4

Cases in which advanced warning of the case is not appropriate

6.5

Planning the pre-action stages of a dispute

6.6

Tactical issues

6.7

Pre-action Disclosure

6.8

History of s 33(2) Supreme Court Act 1981

6.7

Rules of Court – CPR 31.16

6.8

Validity of Amendments to s 33(2)

6.9

Application Procedure

(a)

“...under any Act…”

(b)

Evidence

(c)

Authorities on CPR 31.16

(d)

Scheme of CPR 31.16

(e)

First Jurisdictional Threshold

(f)

Second Jurisdictional Threshold

(g)

Third Jurisdictional Threshold

(h)

Fourth Jurisdictional Threshold

(i)

Fifth Jurisdictional Threshold?

(j)

The Discretion

(k)

Form of Order

7

Part 36

7.1

Introduction

7.2

Outline of central provisions

7.3

The relevant period

7.4

Changing win outcomes to lose outcomes

7.4.1

Expected Monetary Value (EMV)

7.4.2

Decision Analysis

7.4.3

Decision Analysis and Part 36

7.5

Formal requirements for Part 36 offers

7.6