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A. INTRODUCTION

BASIC CONCEPTS OF PROCEDURE AND PRACTICE

USEFUL DEFINITIONS

"Civil action": an action brought to enforce, redress or protect private rights.

"Civil procedure": "the methods, procedures and practices (whether developed by law, custom or otherwise used to give effect to legal rights in a civil action.

"Procedure": the mode of proceeding by which a legal right is enforced as distinguished from the substantive law which gives or defines the right, and which, by means of the proceedings the court is to administer.

"Practice": the form or mode or proceeding in courts of justice for the enforcement of rights or the redress of wrongs."

"Substantive law": that part of the law which creates, defines, and regulates rights, as opposed to "adjective or remedial law" which prescribes method of enforcing the rights or obtaining redress for their invasion.

"Jurisdiction": (i)the authority by which courts and judicial officers take cognizance of and decide cases. (ii)the physical area (land, sea and air) over which the laws of a particular territory or state are recognised and exercised by virtue of its domestic law or by international law.

CIVIL PROCEDURE AND PRACTICE

Civil procedure and practice is a branch of procedural law and refers to the prescribed rules or legal formalities that are to be followed in a civil action. A civil action is an action brought to enforce, redress or protect private rights. Civil actions are brought in the civil courts of your jurisdiction, which include the civil division of the Court of Appeal, the High Court and the civil division of the Magistrates’ Court.

Note: Civil procedure and practice deal only with civil actions. Therefore, we are looking at the procedure and practice in the civil courts as opposed to the criminal courts. In this course our primary focus is on the procedure and practice in the Supreme Court/High Court.

PROCEDURAL LAW VS. SUBSTANTIVE LAW

Procedural law must be distinguished from substantive law. Substantive law deals with the determination of rights, liabilities and duties by defining, creating or conferring legal rights, status or obligations. Procedural law, on the other hand, prescribes and regulates the manner in which legal rights, status or obligations are to be pursued, recognized, enforced and protected by a court of law. Procedural law and the substantive law are intrinsically related as procedural law is founded on the application of the substantive law. Procedural law regulates the machinery by which the substantive law is put into motion.

SOURCES OF CIVIL PROCEDURE AND PRACTICE

In the majority of Commonwealth Caribbean jurisdictions the main source of civil procedural law is contained in the Civil Procedure/Proceedings Rules (CPR). These Rules govern the procedure in civil actions in the High Courts and are in force in the Eastern Caribbean States (ECS) jurisdictions.

The West Indies Associated States Supreme Court Order 1967 in the OECS (Antigua, Dominica, Grenada, St. Christopher, Nevis & Anguilla, St. Lucia and St. Vincent).

Note: The CPR consists of rules and practice directions. The practice directions are directions as to the relevant practice in relation to the rules and should be read with the relevant rule and vice versa.

GENERAL OVERVIEW OF THE CIVIL PRACTICE/ PROCEEDINGS
RULES (CPR)

A. GENERAL OBSERVATIONS

The CPR requires a new approach to litigation. A culture of change must be adopted for the Rules to be effective and for attorneys to practise efficiently under them. They require: • greater knowledge and application of substantive law governing case at an early stage; mastery of the facts of the case; • greater efficiency in management of cases and files;

• a transformation from the adversarial to a cooperative litigation culture; • a more client-friendly culture;
• attorneys to seen themselves as problem-solvers rather than litigators; • greater flexibility in seeking solutions whether it be through the litigation process or through mediation – before or during the litigation process; • acceptance of the new powers of the court regarding management of the case; • appreciation of the case management conference as the crux of the litigation process which transforms litigation from being “rules centred” to being “case centred.

C. THE AIMS OF THE CPR

1. To introduce case management. Case flow management (administrative) – a system of rules to guide proceedings putting in place rules to invoke sanctions for breach of rules. Case management (judicial) is different where judge takes control of the matter directing the conduct of the case through the court system. 2. To establish in-built mechanisms for settlement (Mediation Act). Rules for court annexed mediation under review and when implemented will 3. To encourage greater use of ADR.

4. To provide for pre-action protocols.
5. To reduce costs in litigation.
6. To achieve trial date certainty.

B. THE PRE-LITIGATION PROCESS

THE INITIAL INTERVIEW

Among the purposes of the client interview are:
(1) Obtaining information from the client;
(2) Testing the client's version of the facts;
(3) Explaining the legal process to the client;
(4) Explaining the likely course and consequences of the present lawsuit or of any lawsuit that the client may file; (5) Exploring non-adjudicative dispute resolution alternatives; (6) Evaluating the client as both a client and as a witness at deposition and at trial; (7) Conveying the attorney's professionalism and competence to the client; (8) Working to obtain the active participation of the client in the matter; and (9) Generally developing attorney-client rapport.

In order to conduct effective client interviews and achieve these multiple goals, attorneys must pay attention to the structure of the interviews and their own questioning and listening techniques.

Matters to consider at the Interview: An attorney should pay particular attention to the following points: • Ensure that there is a viable cause of action;
• Ensure that there is sufficient evidence to discharge the burden of proof place on him; • Realistically test the client’s story and advising the client on the viability of success in any court action and length and various stages of court proceedings; • Secure all witness statements, corroboration of client’s story and other evidence necessary to prove case; • Explore possible defences, counterclaim or set-off of proposed defendant/respondent; • Investigate any unspoken factors that may impact on the case at a later stage: limitation periods, hidden third parties, proper names and parties, capacity of parties; • Advise the client of his duty to retain all documents for discovery purposes; • Explore prospects of alternative dispute resolution or settlement; • Consider the ability of proposed defendant/respondent to comply with remedy sought; • Secure the proper address and method of serving court process on proposed defendant/respondent; • Consider whether the remedy required by client is the most appropriate remedy in the circumstances; • Estimate the likely cost of litigation.

ACTION/STEPS TO BE TAKEN AFTER THE INITIAL INTERVIEW

1. Review the notes made and the documents provided by the proposed client during the initial interview and put into a coherent, comprehensible form. Write an attendance note of the meeting.

Attendance Notes: Every time you work on the case, including any telephone conversation, meeting, and reading and considering (known as 'perusing') of the file, you should make a full note of the work done/conversation/meeting and the date and time spent. This is known as an attendance note. It should be typed, but is often inserted in the file in handwriting. The purpose of an attendance note is to:  Keep a note of events, not only for your benefit but because others may work on or take over the file;  Display evidence of the work so that its cost can be recovered at the end of the case from the other side, if they are ordered to pay your costs, or from your client.

Attendance notes are important evidence in 'taxation' hearings at the end of the case where the question of the costs recoverable is dealt with.

2. Determine whether you are willing and able to act for the proposed client.

3. Open a file - At the beginning of the case, a file should be opened. The documents in the file should be maintained in a logical and efficient order. Each attorney or firm will have his/its own standard filing system and layout.

4. Do any necessary preliminary research.

5. Determine an estimated cost of pursuing the matter and a financial retainer, that is, the amount to be paid by the client to the attorney as a deposit to retain his services.

6. Write to the client:
(i) Confirming what was discussed at the meeting including the nature of the client’s problem, any advice given including any risk assessments, and the client’s instructions (if any were provided).

(ii) Giving a costs estimate and the sum for the financial retainer.

(iii) Requesting instructions (if none were provided) in relation to proceeding with the matter which will likely involve conducting further research, investigations and initiating litigation.

It is very important that these instructions be provided in writing and this is usually done by the attorney arranging for the client to sign a written retainer which may be enclosed in the letter to the client for him to sign and return to attorney or arrange for the client to come into the attorney’s office to sign where it can be explained to him.

This written retainer is the contract for services between the attorney and the client and is of utmost importance because it defines the nature of...

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