PI Practitioner, January 2017

16/01/17. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Excluding parties from court

In Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764 the Court of Appeal considered whether the judge at first instance was wrong to exclude one claimant from court whilst his co-claimant gave evidence.

The case concerned an allegedly fraudulent road traffic accident. The second defendant (the first defendant's insurer) applied at the outset of the trial to exclude each claimant whilst the other gave evidence. The judge allowed the application and eventually found that the claims were fraudulent.

The Court of Appeal stated that a party has a prima facie right to...

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Moving on, After Waiting for Godot - Jon Lang & Denise O'Connor, Independent Mediators

14/01/17. Positive momentum. It’s probably one of the best antidotes to procrastination, and often the difference between the parties resolving a commercial dispute at mediation and having to see each other in court. Are there particular circumstances which may merit co-mediation, with the clear objective of increasing the pace of that positive momentum?

The ‘down time’ logistics dilemma

Mediations involving more than three defendants are by no means unheard of, in disputes involving a claim alleging professional negligence as against a law firm. No matter how well the legal advisers have sought to manage their clients’ expectations in advance, by explaining that part and parcel of the mediation process is a waiting game, the temperature in one or more of the rooms can plummet, if positive momentum is (or perceived to be) lost. One party may lose patience, and be tempted to throw in the towel: toys in another room may inch perilously close to the pram's edge. No matter how proficient, human limitations dictate that a solo mediator will only be able to move things on at a certain pace, leaving parties twiddling their thumbs (and possibly losing focus, hope or patience) for what can become prolonged periods of time. Some people talk about mediator envy – a negative emotion felt by a party left alone for what they consider to be too long in the knowledge that their mediator is spending (too much) time with other parties. Dividing the task of working with the defendants between two mediators can help to inject more pace, in turn avoiding mediation fatigue taking grip of proceedings or mediator envy creeping in. This approach may result in the claimant’s room being kept busier than would otherwise be so, but generally speaking that extra activity will help, not hinder, progress.

The ‘side issue’ dilemma

Imagine (and it’s easy to do, drawing on real examples) a dispute where two law firms are among the defendants being pursued, the two law firms disagreeing as to during which of their respective watches the alleged negligence occurred. The claimant (and, to varying degrees, the other defendants) may view the dispute between the two law firms as something of a side issue, but not tackling it may block – or ultimately derail – resolution of the wider dispute which has brought the parties to mediation. Given the attention of two mediators, one could spend time with (and shuttling between) the two law firms, reaching agreement on the side issue, while in tandem the second mediator investigates how the claim is constructed and what the attitude is of the remaining defendants.

The ‘difficult’ defendant

In multi party disputes, what seems like a disproportionate amount of time can be spent with a difficult defendant, punctuated with phone calls to that party’s HQ, discussions about reserve limits, and the occasional side bar comment about the possibility of there being a problem about the insurance cover. One mediator can be working through what are essentially internal issues, while the second mediator continues apace to progress discussions with the other defendants.

In all the circumstances cited above, and in other circumstances which naturally lend themselves to co-mediation being of real, substantive value, it’s key that:

• The parties buy into the objective of the approach increasing positive momentum;
  
  

• The mediators’ individual styles and skill sets are complementary;

• The mediators have trust in, and a strong rapport with, each other;
  
  

• There is an agreed road map both as to the division of tasks and joining the dots.

With these dynamics in situ, the pace of sustained positive momentum should be demonstrably faster than what even the most able of mediators could have created solo.

A note about the authors

Jon Lang and Denise O’Connor are colleagues, both being members of In Place Of Strife Mediation Chambers. Jon is recommended for his commercial astuteness, deftly placed humour, and unerring ability to read a room; Denise is recommended for her pro-active and effective approach, and out of the box thinking. Jon and Denise are on the same page, in concurring on key factors which do (and do not) assist the successful outcome of mediating professional negligence disputes.

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FREE BOOK CHAPTER: Why Get an Expert? (From 'On Experts: CPR35 for Lawyers and Experts' by David Boyle)

10/01/17. Court cases normally involve the interaction of evidence, law and procedure, albeit that often one or more of those aspects withers on the vine. The legal and procedural aspects of the case should fall outwith this volume, which concentrates on evidential issues, although there are clearly circumstances where the expert's evidence actually pertains to legal or procedural matters.

In the normal course of events, the parties to litigation are able to provide evidence to the court. Whilst parties are under a duty to disclose relevant documentation,¹ the starting point for evidence is normally a witness statement, setting out the oral evidence which a party would give at trial.² That statement must, if practicable, be in the intended witness’s own words, should be expressed in the first person, and must indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, together with the source for any matters of information or belief.

Those requirements of 32PD.18 are important, because, if followed properly, they limit a witness’s evidence to factual statements. If one writes in the first person, it naturally limits the narrative to matters within one’s own knowledge, even if the information is not directly known, but comes from another.³ Importantly, when one strays into opinion, it is difficult to avoid saying so, either expressly or impliedly.⁴ That, in turn, is important because whilst a lay witness can give evidence of fact, he cannot give opinion evidence. It is inadmissible as a matter of law.

That means that, whenever a litigant needs to prove something beyond his own knowledge, or capacity to give evidence, he needs, in theory at least, evidence from somebody who, as a matter of law, has that knowledge and/or specific skill and competence to opine on the subject. This ties in with the concept of ‘judicial notice’ whereby if a specific fact is so well known that there can be no doubting it,⁵ or is officially recorded,⁶ there is no need for formal evidence to be called to prove the point.

In an age where proportionality is fundamental to the litigation process, there is a temptation to presume that the court will take judicial notice of more and more, but there is a very real need to take care not to overstep the mark. It is easily done, but it is not for lawyers, or judges, to impose their personal view of a situation and assume the position of expert in a case. The reason is relatively obvious, but nevertheless often ignored. Whilst we spend our lives making judgment calls on the specific facts before us, if those facts fall outwith our understanding, often because we cannot appreciate the macro scale, we fail to have adequate regard to the bigger picture. Unless one has specific understanding, one cannot comprehend how often an event might take place, and without that comprehension, one cannot simply guess at the effects when it occurs on a specific occasion.

To give an example of our lack of understanding of scale, imagine that the UK appointed an annual Public Philosopher, to whom each person in the UK paid one penny a week to think radical thoughts on their behalf. 63½M people would pay their weekly penny (because even a child might find a penny) and at the end of the year our philosopher would have been paid £33,020,000. Most people would struggle to understand what that amount of money might actually mean. It isn’t lack of intellect or education which restricts that comprehension, but a lack of experience. Time and again we hear of lottery winners who spent everything they’d won – they simply did not understand the meaning of money.

In those circumstances, the question as to whether one needs an expert is, to some extent, a question of judgment for the lawyer, the litigant or the case managing judge. The difficulty is that the judge in question is unlikely to be the tribunal at trial. A district judge, trying to impose a sense of proportionality on a case, might baulk at permitting the parties to spend more than the potential value of the claim on an expert whose evidence might only serve to rubber stamp the contentions made by the litigants, only for the case to take a twist at trial which renders that evidence necessary and the claimant’s case (and it will normally be the claimant’s case) compromised by its absence.

The court, however, is mandated by CPR35 to restrict expert evidence to that which is reasonably required to resolve the proceedings. There is inevitably an onus on the party wishing to rely on an expert to justify the need for that evidence, and that means that there needs to be a clear understanding of the litigation process and the issues which are going to arise in the specific litigation before instruction is actually made. That normally involves the parties engaging in constructive discussion about what falls to be determined, or, alternatively, the claimant’s advisors having a sound basis to believe that the point in issue will need to be resolved in due course.