Simple Rules for Complex
Cases
Andrew Beck B.L.
Context
• Viewed from defence perspective
• Drawn primarily from professional negligence
and multi-party litigation
• Not exclusive to these types of cases
Rule 1: Check if a conditional appearance
should be entered.
• Often a rush to enter a standard appearance
• Complex, multi-party litigation can contain EU/
international dimension
• Check Choice of Jurisdiction and Law Clause
Rule 1: Check if a conditional appearance
should be entered.
• Jurisdiction = competence of Courts. Choice of
Law = substantive law to be applied.
• Omission of clause + EU/international element =
EU regulations/private international law.
Rule 2: Check if there is an arbitration
clause.
• Judicial policy favours arbitration
• ‘Enforcement bias’ – even badly drafted clauses will
be enforced
• Avoid taking a “step in proceedings” until assess
Rule 2: Check if there is an arbitration
clause.
• Step = Act which invokes jurisdiction of court and
demonstrates election O’Dwyer v. Boyd [2002] SC. Halsbury
cited: filing afft in summary summons; delivery of a
defence; applic. for extension of time for defence
• Commentary - remains case under Arbitration Act 2010
Rule 3: Get the full file from the insured quickly.
• See Rule 4.
• If delay – invoke/threaten claims co-operation
clause (express or implied)
Rule 4: Check if there is a third party to be
joined.
• If so, join and join quickly. Imperative to move
“as soon as is reasonably possible” Civil Liab. Act
• Get (1) file; (2) expert input; and (3) legal input.
Rule 4: Check if there is a third party to be
joined.
• In past TP Notices served with delays of 15 to 18
months were not set aside.
• Changed ethos –Greene v. Triangle [2008] HC –
“delays which may have been considered appropriate
in the past will no longer be tolerated”
Rule 4: Check if there is a third party to be
joined.
• Lyons v. Delaney, Locke & Thorpe [2015] HC delay of
5 months led to set aside of TP Notice - CA upheld
• “Viewed by itself, a delay of five months may not
seem that long … but such applications are rarely, if
ever, concerned with such an elementary step”
Rule 5: If you are the third party, consider
setting aside third party notice.
Greene v. Triangle [2015] CA “[The Court will
consider] not only … the explanations which were
given by a defendant for any purported delay, but
[will] also … make an objective assessment as to
whether, in the whole circumstances of the case
and its general progress, the third party notice
was or was not served as soon as is reasonably
possible.”
Rule 6: Check if the Statute of Limitations
applies.
• Not just black and white cut off.
• Are cases where parts of claim barred.
Rule 6: Check if the Statute of Limitations
applies.
• Financial loss Gallagher v. ACC Bank plc [2012] SC.
Rooted in facts of the case as pleaded. Fennelly J.,
“[Plaintiff] suffered damage by the very fact of
entering the transaction…”
• BUT alternative approach, “where obligations of
management and investment were undertaken”.
Rule 7: Check if security for costs should
be sought.
• Consider plaintiff company.
• Consider calling in accounts from CRO.
Rule 7: Check if security for costs should
be sought.
Interfinance Group Limited v. K.P.M.G. [1998]
• Establish prima facie defence to the plaintiff's claim
(In complex cases will involve expert report - cost.)
• If Plaintiff fails in action, it will not be able to pay the
moving party's costs.
Rule 7: Check if security for costs should
be sought.
Interfinance Group Limited v. K.P.M.G. [1998]- approved SC
• Plaintiff can establish special circumstances, for example,
that Defendant is the cause of its poverty.
• “Causal connection” required Connaughton Road [2009]
HC
…and a suggestion: Write down your first
impressions.
• Write down before noise of case settles in.
• BUT not always right – biases etc.
• Malcom Gladwell – intuition has a value where
informed by experience i.e. Getty kouros statue.
“About 530 BC,
or modern forgery”
- Getty Museum
catalogue
Simple Rules for Complex
Cases
Andrew Beck B.L.