Saturday, 27 June 2015

Dealing With The Substantive Claim Part 2

Disclosure of documents 
 An Applicant will then need to produce what is called a Disclosure List.  This is a list setting out all relevant documents it has (or had) in its possession which are relevant to the current legal proceedings.  This exercise in complex fraud proceedings can be very onerous indeed.  
It is not uncommon now for large volumes of documents to be stored electronically (especially in large scale frauds) and parties often need to agree the parameters of any electronic search for documents (what is called “e-disclosure”). If necessary, the parties will need to appoint an independent IT expert to undertake searches of relevant databases by way of agreed key word search criteria.  
It should be borne in mind that this process is in addition to the more traditional review and cataloguing of all hard copy documents which in large scale cases can also be a very lengthy and time consuming exercise.  
However, disclosure is of paramount importance in claims of this nature. Failure to properly undertake the disclosure process can result in a Respondent making applications against an Applicant for specific disclosure of relevant documents and in very exceptional circumstances can even lead to a party making an application against the other party to have its claim struck out for failure to properly complete the disclosure exercise.
There are also costs consequences for failing to properly cooperate with any Order of Court.  Even if your primary case is stronger and likely to succeed, a failure to comply with any Order of Court can lead to interim cost orders against you before trial.
Once disclosure lists have been completed, they are exchanged with the Respondent who will in turn send their own list. Each party can then request copies of some or all of the documents on the opponents list or alternatively go to inspect the originals (such requests must be made within a specified time limit). In large cases the inspection and copy process can take considerable time. Even when complete, the Applicant and its legal advisors will then need to sift through all the documents to understand their important or otherwise in the claim thus extending the time taken up by the disclosure process.
Witness statements
 The next stage of the directions process is commonly the preparation of witness statements (or affidavits in certain types of proceedings), detailing for each individual who has direct knowledge of the issues relevant to the claim, their evidence in relation to the substantive case.  In complex fraud cases these statements can be very lengthy indeed but are crucial to get right.  The statements set out the factual basis of an Applicant’s claim and commonly witness statements are required from various different individuals and even third parties to the litigation.  They will also exhibit all the key documentation to support an Applicant’s claim.
It is critical that these statements are properly produced as, ultimately, the Applicant will only be able to rely upon the details contained in these statements at trial. These documents can often take a number of months to prepare and complete.
Once complete, the witness statements will be sent to the Respondent and they will likewise send theirs to the Applicant. It is then necessary to review the Respondent’s statements in detail and begin to gauge the quality of their evidence and whether it will ultimately “stand up at trial”.
Expert evidence
 If the claim involves, for example, complex financial matters or allegations of forgery etc, it is likely that the parties will need to agree to the appointment of an independent expert (eg a forensic accountant) to provide an expert’s report dealing with certain aspects of the alleged fraud. That person will also be required to give evidence at court. More often than not the court will insist on a single expert being instructed by both parties, but on occasion it might be that each party will seek to rely upon its own expert on a particular issue.
Experts need to be fully briefed and instructed pursuant to the Civil Procedure Rules 1998 and there are strict guidelines as to how this is to be done to ensure the independence of the expert in the proceedings is maintained.
Interim Applications
 Throughout the entire litigation process, either party to the proceedings may make an Interim Application. Essentially this is the ability to apply to court for various types of orders, such as:
  1. A Respondent seeking to vary the terms of an Order;
  2. A Respondent seeking to discharge an  Order;
  3. Applications to strike-out some or part of a party’s pleaded case;  
  4. Applications for specific disclosure;
  5. Requests for Further Information in circumstances where a party’s pleaded case is unclear;
  6. An application for security for costs;
  7. An application for committal of a Respondent to prison for not complying with the terms of a Freezing Order.
Often, these types of applications cannot be foreseen at the outset of the proceedings but their possibility must be factored into proceedings of this nature as it is unusual to run a case without making (or facing) at least some interim applications.
Preparation for trial
 The parties will then need to make time and / or resource to prepare for trial.  In large cases, this is an extensive exercise as it is the Applicant’s responsibility to prepare all of the relevant paperwork in to paginated bundles ready for the court. Often many duplicate sets need to be produced so that all relevant parties have a single set of files from which to work from.
As part of the preparation for trial, it is very common to have meetings with the Barrister acting for the Applicant and these need to be factored into any proceedings.  Dependant on when the Barrister was instructed, a brief will also have to be delivered detailing all of the background to the case, enclosing all of the pleaded documents and any ancillary evidence and providing detailed instructions as to what is sought.  This Brief can take some time to prepare, as it effectively is an extension of the evidence in support of the claim.  The barrister (unless previously involved) will come in cold and have to read such documents to come up to speed and understand the claim.
Equally, there is often considerable correspondence between the parties to the claim, together with correspondence with the Court, third parties, such as the experts, forensic accountants and investigators.
 Ultimately, if the matter is not capable of settlement and / or the parties not willing to enter in to amicable settlement, the case will end up at trial.   Trials in complex cases involving fraud can be lengthy indeed due to the very detailed nature of the allegations and the number of witnesses often required to attend Court (including expert witnesses).  
Complex cases are likely to last a minimum of 10 days and representatives of the Applicant needs to be aware that attendance at Court throughout this period is required.
If the Applicant is a person, or has a nominated individual (where a company brings a claim), to provide evidence then that individual will usually be required to attend the trial and be cross-examined by the Defendant’s barrister on the evidence in support of the claim (and any other evidence filed in the proceedings).