Preparing for a civil case

IN1 Initial client interview

IN1.1 Objectives of Initial Client Interview

Establishing a relationship of trust and confidence

Understanding the issue(s)

Understanding the client's aims and expectations

Eliciting relevant information and documentation

Providing initial legal advice and future direction

Setting clear parameters for reporting and costs

Interview Style Considerations

The nature of the interview depends on the lawyer's personal style and the client concerned. An interview with a new, personal, non-commercial client will be conducted quite differently from one with a representative of a corporate client with whom you have had previous dealings.

Client Perspectives

For some clients, being involved in a legal matter can be intensely stressful. The issues involved may be difficult and the source of anxiety. They may be concerned about and even resentful of legal costs. They may have lost perspective, or have no idea of what is involved in the litigation process. On the other hand, they may be very familiar with the process, realistic about costs, and simply see litigation and the risks it involves as an ordinary part of doing business. All these factors will influence the style and format of the interview.

IN1.2 Documentation

It is important to develop a standard client interview form for use in all matters, to ensure that you obtain the basic details and that you address relevant matters of costs, reporting, and potential conflicts of interest. A suggested form is Inter02 — Client instruction/interview sheet. To ensure that the basic issues have been addressed, a similar form should be completed for each new client matter, even if instructions have been received by letter.

More detailed forms can be used to provide a checklist of matters to be addressed as appropriate. A sample form for use in debt recovery is Inter03 — Interview form — debt recovery.

A client interview typically follows these key stages:

Introduction

Getting the client to tell their story

Checking the details

Explaining the legal position and generating options

Deciding future direction

Discussing costs and reporting

All discussions and conclusions should be documented in a follow-up letter (see Inter04 — Sample follow-up letter recording instructions).

IN3.1 Introduction

Begin by introducing yourself and any other staff present (such as a law clerk). If cost is a concern for the client, explain why other staff are present. Be sure to mention if someone is there for training and their time won't be charged.

Obtain the names and roles of everyone attending on the client's behalf.

Outline the interview structure, explaining that you will:

Ask why they've come to see you

Clarify relevant details

Discuss options

Cover costs and reporting

Agree on next steps

IN3.2 Asking the client to tell their story

Ask the client to explain their situation. This step is crucial for all clients, even corporate ones or those whose cases you're already familiar with through documentation.

Letting clients tell their story in their own words reveals what matters most to them. While these concerns may not always be legally relevant, they're often crucial for finding a satisfactory solution (for instance, whether maintaining a business relationship is important). This approach also helps uncover any overlooked facts.

Keep note-taking minimal at this stage. Just record critical points and areas needing further detail.

IN3.3 Checking the details

After hearing the client's story, review the key details. Summarise what you've heard to confirm your understanding, then ask follow-up questions. This is when you should gather additional information, explore legally relevant issues, and identify important documents and potential witnesses.

Use a checklist when appropriate to ensure thorough coverage (see for example Inter03 — Interview form — debt recovery).

IN3.4 Explaining the legal situation and generating options

While you may need to make additional inquiries after the interview, it's important to discuss potential options now to explore possible approaches.

If you've formed an opinion about the legal options, explain them clearly and practically to the client.

Consider solutions beyond purely legal approaches. Aim for outcomes that make both commercial and personal sense. Write down options and examine their pros and cons.

Listen carefully to your client. Help them separate personal concerns from legal issues. While you may need to manage unrealistic expectations, avoid dismissing any option immediately—it might prove viable on further consideration, and dismissal could make the client feel unheard.

IN3.5 Deciding on future direction

After reviewing the options, work with the client to determine the best path forward. You'll likely need more factual or legal information before making final decisions. Ensure the client leaves understanding both your next steps and what they need to provide (such as documents, information, or witness details).

IN3.6 Costs and reporting

Costs and communication are the two main sources of client dissatisfaction with legal services. Clients often find bills unexpectedly high or struggle to reach their lawyers.

Address these issues by establishing clear reporting and billing parameters from the start. While the engagement letter covers these matters, discuss them during the meeting and confirm the client's understanding. Clear expectations improve client relationships and reduce disputes.

Regarding costs, explain your billing frequency and nature. If you can estimate costs, be conservative as they often exceed initial projections. If your firm requires advance payment, explain upfront that it's held in trust and billing will be transparent.

For reporting, discuss frequency (weekly, monthly, or at key stages) and scope. Determine if the client wants copies of all documents, including letters and court filings. Consider how reporting frequency affects costs. Remember that court orders affecting your client must be communicated promptly.

IN3.7 After the interview

Document the interview thoroughly while it's fresh in your mind, including facts, client concerns, and advice given.

After providing the engagement letter, send a follow-up letter to the client:

Confirming instructions

Summarising the issue

Recording next steps (for both you and the client, including deadlines for additional information)

Documenting cost and reporting arrangements (see Inter04 — Sample follow-up letter recording instructions)

Inter02 — Client Instruction/Interview Sheet

Name:	ㅤ	Date:	ㅤ
Address:	ㅤ	ㅤ	ㅤ
ㅤ	ㅤ	ㅤ	ㅤ
Email:	ㅤ	ㅤ	ㅤ
Phone (Home):	ㅤ	Phone (Work):	ㅤ
Fax:	ㅤ	Mobile:	ㅤ
Nature of matter	ㅤ	ㅤ	ㅤ
ㅤ	ㅤ	ㅤ	ㅤ
Legal Aid	☐ Yes	ㅤ	☐ No
Fees arrangement	ㅤ	ㅤ	ㅤ
Method:	ㅤ	Frequency:	ㅤ
Estimate given:	☐ Yes	ㅤ	☐ No
Amount:	$	Reporting arrangement:	ㅤ
Assumptions:	ㅤ	ㅤ	ㅤ
Company search(es) complete:	☐ Yes	ㅤ	☐ No
Conflicts check:	☐ Yes	ㅤ	☐ No
Letter of engagement sent	☐ Yes	ㅤ	☐ No

Company Searches (of each party):

Plaintiff:

Defendant:

Inter03 — Interview form — debt recovery

Client Details	ㅤ
Name:	ㅤ
Address/Registered office:	ㅤ
Occupation:	ㅤ
Phone:	Fax:
E-mail:	ㅤ

Creditor Details (if different from client)	ㅤ
Name:	ㅤ
Address/Registered office:	ㅤ
Occupation:	ㅤ
Phone:	Fax:
E-mail:	ㅤ

Debtor Details	ㅤ	ㅤ	ㅤ
Name:	ㅤ	ㅤ	ㅤ
Address/Registered office:	ㅤ	Occupation:	ㅤ
Phone:	ㅤ	Email:	ㅤ
Known Assets:	ㅤ	ㅤ	ㅤ
	ㅤ	ㅤ	ㅤ
Other Information:	ㅤ	ㅤ	ㅤ
	ㅤ	ㅤ	ㅤ
Dependents?	Yes	No	Unknown
	ㅤ	ㅤ	ㅤ
Other debts?	Yes	No	Unknown
	ㅤ	ㅤ	ㅤ
Debt — Amount of debt	ㅤ	How was it incurred?	ㅤ
How was debt incurred?	ㅤ	ㅤ	ㅤ
Goods/services:	ㅤ	Date of supply of goods/services:	ㅤ

Written contract:	Yes	No
Agreed interest rate (if any):	ㅤ	ㅤ	ㅤ
Agreement as to recovery of costs (if any):	ㅤ	ㅤ	ㅤ
Details of any payments made:	ㅤ	ㅤ	ㅤ
Demand made?	Yes	No	ㅤ
Any guarantee?	Yes	No	ㅤ
Any security/potential security?	Yes	No	ㅤ

Gathering information, and analysis and formulation of the claim

Step 1: Investigating the claim

DA1.1 Introduction

Case management is a judge-led means of keeping forward momentum in litigation. It is event-driven so that, at an early stage, the progress of the case is mapped out, with key dates to work towards.

Its origins lay in a widely held belief that, left to their own devices, the parties (that is, the lawyers) had a tendency to let a case drift once the initial furore over the pleadings had died down.

The principal consequence of the case management regime is that, following the first case management review or conference onwards, each case management conference will end with the allocation of a new case management conference date, a court-imposed list of targets for counsel to achieve by that date and a report on progress expected.

The District Court and High Court practices diverge here, reflecting the different forms of trial and resolution offered in the two jurisdictions, but the underlying principles are the same. Early preparation is essential and cooperation by the parties is required. If such is not forthcoming, some robust and hands-on judicial management can follow if it appears that one, some or all of the parties are dragging the chain.

A conference may be convened at any time on the request of one or more of the parties or, reflecting the judge-led nature of the regime, on the judge’s own initiative.

In addition to the judge, the registry will have allocated the proceeding to a case manager, who is responsible for monitoring the progress of the case. The case manager should be your principal point of contact at court for the case. Obtain an email address and if you can a direct dial telephone number.

The Ministry of Justice has centralised phoning the courts to an 0800 number (0800 268 787), and trying to contact a case manager through the call centre can be an extravagant waste of your time.

DA1.2 Timing of first case management conference

There are now different procedures for the first case management conference in the District Court and the High Court.

For a District Court proceeding, the first case management conference must be held — subject to judicial direction to the contrary — no earlier than 25 working days after the date when the first statement of defence is filed, but no later than 50 working days after the filing of the proceeding itself.

In practice, the case manager will list the matter in the first available case management list after the 25-working-day period has expired. It is usual for half an hour to be allocated for the first conference. Note, however, that there are only so many case management conferences that can be accommodated in a day, so even though your local court may have a civil day once a week, there is no guarantee there will be space available on the next list day; it will depend on the level of judicial resourcing in the particular registry and the state of its backlog.

It pays to contact your case manager to ascertain suitable dates for the first case management conference to make sure that it is set down on a date when everyone is available and that allows sufficient time to prepare the required memorandum.

Setting the date should be in consultation with the other parties’ lawyers. The pre-set agenda and the case management regime require prompt contact between the parties in any event. You may have as little as three weeks from the filing of the defence to file the first case management conference memorandum, as the rules require it be filed 10 working days ahead of the first conference. It is expected to be a joint memorandum, which requires consultation ahead of time. (Rule 7.2(4) of the District Court Rules 2014 (DCR 2014) refers to 10 “days” rather than 10 “working days”, but it is clear from the rest of that rule that 10 “working days” is what was intended.)

Diarise the date by which you need to have filed a joint or separate case management conference memorandum and then diarise it again for at least the week before: give yourself plenty of time to discuss the case management requirements with your opposing counsel and your client.

The case manager will be concerned to ensure the proceeding is moving forward and that when it is put before a judge the memorandum filed is a considered and accurate document. If that will take a bit more time, that is likely to be afforded on a reasoned and reasonable request.

For a High Court proceeding, the registrar will not automatically fix a date for the first case management conference. Instead, the parties must file a joint memorandum (or separate memoranda) addressing the matters specified in r 7.3(2) of the High Court Rules 2016 (HCR 2016). The memoranda must address the matters specified in sch 5 of the HCR 2016, the making of a discovery order, the hearing and — if practicable — the disposal of any outstanding interlocutory applications, the fixing of a close of pleadings date, the fixing of a trial date (for any proceeding classified as an ordinary defended proceeding) along with the making of appropriate trial directions) and a date and arrangements for any further case management conference, issues conference or pre-trial conference.

If the parties are filing a joint memorandum, it must be filed no later than 15 working days after the first statement of defence is filed. If the parties are filing separate memoranda, the plaintiff must file its memorandum of counsel no later than 15 working days after the first statement of defence is filed, and the other parties must file their separate memoranda of counsel no later than five working days after the plaintiff files its memorandum of counsel.

As soon as practicable after receiving the joint memorandum or separate memoranda, the registrar must refer them to a judge. If the judge is satisfied that the memoranda meet the requirements under r 7.3(2), the judge may allocate a trial date and make trial directions or direct that a case management conference or issues conference be held and that there is no requirement for a first case management conference. If the judge is not satisfied that the memoranda meet the requirement under r 7.3(2), the judge may direct the registrar to convene a first case management conference, which must be held no later than 15 working days after the judge directs the registrar to convene the conference.

DA1.3 Tasks

Ensure that you prepare as early as possible for case management conferences and that you cooperate with the other parties.

Ensure that you know the contact details of the case manager.

Liaise with the other party’s lawyer and the case manager to set a suitable case management conference date.

Review all the pleadings to identify their sufficiency and clarity. (See the module Commencement of Proceedings at [BD10] (Step 10. Pleadings checklist) and Civil Litigation Precedents (online ed, Thomson Reuters) at Plead02 — Drafting pleadings.)

Consider whether additional parties should be joined and, if so, who. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC7] (Step 7. Plaintiff and defendant — identifying the parties).) Use as necessary the following in Civil Litigation Precedents:

BC1 Matters to consider

It is important to work out who the key people in the dispute are, for both sides.

Over and above the need for this information to formulate the claim, you must be in a position to establish that your practice has no conflicts of interest. (See Civil Litigation Precedents (online ed, Thomson Reuters) at [IN1] (Conflicts of interest).) Your practice may have acted for the proposed defendant or someone closely connected to the proposed defendant, which may preclude you from acting in the matter.

Once their identities are known, outline statements from the main actors need to be obtained before commencing any proceeding. You should do so in all cases except where there is an imminent deadline that cannot be extended, such as for claims that would be barred by a limitation period.

A pleading prepared without a good working knowledge of the available evidence to establish it at trial may prove to be a millstone round your neck, especially if the evidence of the witnesses departs from or contradicts your central case thesis. Such contradictions can be a very fruitful source of cross-examination material for opposing counsel. You can avoid this problem by getting early written details of the likely evidence so that the pleadings reflect that evidence.

The outline statements will not be in the trial brief form. Nor need they be in the detail necessary for a trial brief. But it is of the utmost importance that you know in a general way what the key people would say in a trial. This sort of information will also be required for a judicial settlement conference. (See the module District Court — Judicial Settlement Conference and Second Case Management Conference at [DB1] (Step 1. District Court — judicial settlement conference).)

From these statements you can cross-reference the witness’s evidence to the documents in the case. In this way you will gain an early feel for the dimensions of the case and how it would best be presented.

You will also know whom you need to keep in contact with over the course of the litigation, so that they can be available for the eventual trial itself. In the event of some unforeseen witness unavailability (such as departure overseas or even death), the statement may be capable of use under the hearsay provisions of the Evidence Act 2006.

BC 1.2 Tasks

Identify the main people involved in the dispute, both as potential parties to the proceeding and as witnesses.

Either contact the witnesses yourself, or have the client contact them with your contact information and request they contact you.

Ascertain whether you or your firm have any potential conflicts of interest, by reason of a previous professional relationship or otherwise.

Obtain outline statements from likely witnesses, either in person or by correspondence. (See [BC6] (Step 6. Plaintiff and defendant — obtaining witness statements) below.)

Obtain dates when the witnesses you are likely to call may be unavailable to give evidence. (Again, see [BC6] below.)

Ascertain whether you can obtain further information by a request under the Official Information Act 1982, Local Government Official Information and Meetings Act 1987 or Privacy Act 2020. (See [BC2] (Step 2. Other sources of information) below.)

BC 1.3Next step

Proceed to [BC2] (Step 2. Other sources of information).

Step 2: Other sources of information

BC2.1 Matters to consider

It is a worthwhile exercise spending some time considering what information third parties may hold, which is relevant to the dispute. If it is personal information about an individual (not a legal entity, such as a company), it can be requested, with that person’s consent, under the Privacy Act 2020.

If it is held by a government department or organisation, or a local authority, it may be accessible through a request under the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987.

If the information holder is likely to be a defendant in the proposed proceeding, you may wish to consider drafting the request yourself, but having the client send it. As a practical matter, a lawyer’s letter may provoke a defensive response, whereas a request directly from the client may not raise the spectre of imminent litigation.

BC2.2 Tasks

Consider whether information, including personal information about an individual, is held by a third party.

If relevant, request information held by a government department or local authority.

Consider drafting information requests yourself in relation to any information holder who is likely to be a defendant.

BC2.3 Further reading

(1) Legislation

Local Government Official Information and Meetings Act 1987.

Official Information Act 1982.

Privacy Act 2020.

BC 2.4 Next step

Proceed to [BC3] (Step 3. Keeping a litigation file).

Step 3: Keeping a litigation file

BC3.1 Matters to consider

Once documents and statements start arriving in your office, you will need to keep them in a way that provides for ease of access and reference. How you do so may be dictated by your practice’s office systems, but litigation files generally are organised in a large tab-separated ring binder along the following lines:

Pleadings.

Applications with supporting affidavits and memoranda.

Case management memoranda.

Orders and directions.

Notices given and received.

Evidence:

Witness statements.
Principal documents.

If you are filing documents electronically, you will keep these documents in a folder with subfolders corresponding to the tabs you would use if you were keeping a hard-copy file.

Whether the statements and documents are contained in the same file will of course depend on how many there are.

This form of litigation file provides for ease of reference during the administration of a court proceeding. However, it is not necessarily the same as the trial file, because the latter is more focused on evidence and how it will be presented.

BC3.2 Tasks

Open a litigation documents file. A tab-separated ring binder file is preferable. Alternatively, keep an electronic file with subfolders.

File documents (pleadings, applications, orders and so on) under the appropriate tab or subfolder, as and when they arrive.

Copy the documents to the client as and when they arrive (subject to the client’s wishes).

BC3.3 Next step

Proceed to [BC4] (Step 4. Plaintiff and defendant — fact analysis).

Step 4: Plaintiff and defendant - fact analysis

BC4.1 Matters to consider

Once you have bolted down the legal nature of the claim, the next step is to ascertain what sources of proof are available to establish it to a judge’s satisfaction.

The starting point is always: what are the legal ingredients of the cause of action or ground of defence? These ingredients give rise to the necessary factual allegations you must plead and prove in order to establish a right to redress by a court.

It is also at this stage where the statements of claim or defence begin their initial formulation.

In a five-column table, you will need to summarise what you need to prove, the evidence to prove it, the source of that evidence, the corresponding paragraph in your pleading, and an audit column for later.

For example, in a contract dispute for failure to deliver goods the following allegations could be:

Allegation	Evidence	Source	Paragraph	Audit
Plaintiff a company	Certificate of incorporation
Defendant a company?
Agreement to purchase a desktop computer	Contract
Failure to deliver	Oral
Notice to supplier of default	Oral / letter
Business interruption as a result of not having the computer delivered	Oral

Tip

You can undertake this exercise even before you obtain the initial witness statements; it will serve to guide your preparation and direct what inquiries need to be made in a more focused manner. You will have worked out the basics of what needs to be proved and can direct your client to provide you with (at least) the names of the people involved in those particular aspects of the case.

The table can be completed as and when the source information arrives.

A good place to file it is at the beginning of the Evidence tabs or subfolders in the litigation file. (See [BC3] (Step 3. Keeping a litigation file) above.)

BC4.2 Tasks

Identify all causes of action available.

Identify the persons against whom those causes of action can be pleaded in the proceeding, and whether any other interested people or organisations ought to be named as parties in the proceeding. See [BC7] (Step 7. Plaintiff and defendant — identifying the parties) and [BC8] (Step 8. Representation of other interested parties) below.

Even when acting for the plaintiff, identify possibly available defences.

Identify the facts required to establish the causes of action or defences.

Identify the sources of proof for those facts.

Using the outline statements previously obtained as a guide, obtain formal witness statements. (See [BC6] (Step 6. Obtaining witness statements) below.)

Identify the legal remedy sought. In the case of a money claim, make an initial assessment of the quantum of the loss. (See [BC5] (Step 5. Quantum of the claim) below.)

Report on progress to the client and obtain instructions on how to proceed. (See [BC9] (Step 9. Reporting to the client) below.)

In a legal aid case, report on prospects of success to Legal Aid Services and seek a confirmed grant of legal aid. (See [BC9.3] (Billing for work done) below.)

BC4.3 Next step

Proceed to [BC5] (Step 5. Plaintiff — quantum of the claim)

Step 5: Plaintiff — Quantum of the claim

BC5.1 Matters to consider

If your claim is for a fixed amount pursuant to contract, quantification is a simple matter.

If what is sought is some form of compensation for loss, your initial inquiries need to take that fact into account. Quantifying loss can be a complex matter, frequently requiring expert evidence from accountants or other professional witnesses.

It is all very well to have a clear-cut legal claim, but unless the amount of the resulting recovery (as well as the ability to recover itself) is worthwhile, when weighed against the cost of establishing the legal claim, the advisability of a court proceeding must be in question.

The amount of the claim may also determine the court in which the proceeding must be commenced. In the District Court the amount of the claim will also have a bearing on the mode of trial directed. An early estimate of the amount of the dispute is therefore required for case management purposes.

The statement of claim also needs to put a dollar value on the amount sought, even for unliquidated claims, so the initial investigation of the claim needs to address the issue of quantum.

Importantly, if you are suing for the reasonable price of goods or services, even if the contract does not specify the amount, you can still frame the claim as one for a liquidated demand under the rules. Doing so may enable your client to obtain a default judgment if no defence is filed. (See the module Judgment by Default and Formal Proof (If No Defence Is Filed) at [CA1] (Step 1. Judgment by default).)

In this case your investigations need to address the manner by which a reasonable price can be established.

For special damages, see r 5.33 of the High Court Rules 2016 and r 5.36 of the District Court Rules 2014. Special damages are particular items of loss that can readily be quantified, such as damage to property or lost wages. They fall outside the scope of a general damages award and must be specifically claimed in the statement of claim before they can be recovered. (For special damages, see Civil Litigation Precedents(online ed, Thomson Reuters) at [PH3.2] (Application for relief).)

BC5.2 Tasks

Consider the amount of the claim in order to determine the court in which you will commence the proceeding.

Determine a dollar value on the amount sought in anticipation of including it in the statement of claim.

Consider, if suing for a reasonable price, whether you want to claim for a liquidated demand.

Quantify and categorise items that you wish to include in a claim for special damages.

BC5.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 5.35 Amount of money claim.

DCR 2014, r 5.36 Special damages.

(2) High Court Rules 2016

HCR 2016, r 5.32 Amount of money claim.

HCR 2016, r 5.33 Special damages.

BC5.4 Next step

Proceed to [BC6] (Step 6. Plaintiff and defendant — obtaining witness statements).

Step 6: Plaintiff and defendant — Obtaining witness statements

BC6.1 Matters to consider

Get proposed witnesses to draft their own statements. Doing so will enable you to gauge the language the witness ordinarily uses and how they communicate the facts of the case. The sooner you do so, the better: memories will be fresher the closer in time to the events the statement records.

The statements should be type-written if possible and double-spaced for ease of reading.

They should also:

be in chronological order of events;

refer to people involved in the events themselves (it is also useful if the statement refers to other people present at the time, even if they did not participate in the events themselves — these people may be able to confirm the contents of conversations and so on, backing up the evidence of your main witness); and

refer to the documents in the case, how they came into existence, and by whom and when they were used.

In addition to providing the witness with these instructions, it may be useful to provide the witness with a specimen statement as an example of the structure you want the statement to take.

Once you have the witness statements, you will be able to assess whether further information needs to be sought, or whether you are finally in a position to embark on a pleading. You should also be in a position to ascertain the likelihood of using the person’s evidence at trial. Where witnesses are likely to be called, it is good practice to establish if they have any significant travel plans, or other reasons why they would not be available as a witness, for the following 12 months or so.

If so, make a note of the likely period of unavailability. You will need this information for the case management phase when the judge is looking to allocate a trial date.

BC6.2 Tasks

Ensure that witness statements are in chronological order and refer to:

people involved in the events; and
the documents relevant to the case.

Ascertain the likelihood of using any witness statements at trial.

Ascertain when witnesses will be available to give evidence at trial.

BC6.3 Next step

Proceed to [BC7] (Step 7. Plaintiff and defendant — identifying the parties).

Step 7: Identifying the parties

BC7.1 Matters to consider

Once the basic facts have been investigated, the final question to be answered before drafting the pleading is: who is/are the appropriate person(s) to sue?

Again, this question applies equally to plaintiff and defendant litigation. A defendant on the receiving end of a statement of claim may have a counterclaim against the plaintiff and against others not currently named in the proceeding. A defendant may also be entitled to have third parties contribute to paying out an injured plaintiff, giving rise to a need to issue third party notices. (See r 4.4 of the District Court Rules 2014 and r 4.4 of the High Court Rules 2016.)

The general rule is that the proceeding should be limited to those people:

whose presence before the court is necessary to justly determine the issues arising; and

who ought to be bound by any judgment given.

It follows that you must undertake a rigorous analysis not only on what prospective defendants have done, but also in what legal capacity.

Usual examples are:

A person was acting as an agent for another. The principal may be equally (or exclusively) liable as a result. Conversely an agent may have failed to disclose the existence of the agency and be personally liable under the doctrine of the undisclosed principal. (A director may be acting for a limited liability company, but give the outward appearance of being a sole trader. In those circumstances, the agent may not be able to hide behind the company’s limited liability status.)

A person was a trustee, with no beneficial interest in the trust.

If two or more people are involved in the dispute, the question needs to be asked: are they properly co-defendants, or should they be separately named first defendant, second defendant and so on? Again your legal analysis of the respective capacities in which they acted will provide the answer to this question.

Under r 4.3 of the District Court Rules 2014 and r 4.3 of the High Court Rules 2016, someone may be joined jointly, individually or in the alternative as defendants if it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment or bylaw.

On its face this provision is wide in scope, but a scattergun approach to naming defendants is to be avoided. The more defendants there are, the more opponents you have to deal with; you will wish to limit the number of fronts on which to face battle. Obviously the costs risks also multiply.

BC7.2 Tasks

Consider who is the appropriate person to sue.

Consider whether parties are co-defendants, or whether they should be named separately as first and second defendants.

Consider whether there is a counterclaim against the plaintiff and others not named in the statement of claim.

Consider whether there may be other parties from whom a contribution may be sought.

Consider whether any parties should be joined jointly, individually or in the alternative as defendants.

BC7.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 4.1 Limit on parties.

DCR 2014, r 4.3 Defendants.

DCR 2014, r 4.4 Third parties.

DCR 2014, Form 5 Third party notice.

(2) High Court Rules 2016

HCR 2016, r 4.1 Limit on parties.

HCR 2016, r 4.3 Defendants.

HCR 2016, r 4.4 Third parties.

HCR 2016, Form G 14 Third party notice.

BC7.4 Next step

Proceed to [BC8] (Step 8. Plaintiff — representation of other interested parties).

Step 8: Plaintiff — Representation of other interested parties

BC8.1 Matters to consider

Depending on the nature of the case, you may need to consider whether you should name individuals as defendants even though no actual redress is sought against them. If the interests of a person or class of persons could be adversely affected by the outcome of the litigation, as a general rule that person or class ought to be served with the proceeding.

It is common in trust cases for beneficiaries to be separately represented from the trustees, particularly if there is an allegation that the trustees have acted contrary to their trust obligations, or there are different classes of beneficiary with inconsistent interests. In those circumstances, there may be a need for an application to the court for directions as to service and for representation orders.

BC8.2 Tasks

Consider whether you should name as defendants individuals whose interests may be adversely affected, even though no actual redress is sought against them.

BC8.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 4.27 Representation by other persons.

DCR 2014, r 20.7 Applications for directions as to service.

(2) High Court Rules 2016

HCR 2016, r 4.27 Representation by other persons.

HCR 2016, r 18.7 Applications for directions as to service.

BC8.3 Next step

Proceed to [BC9] (Step 9. Reporting to the client).

Step 9: Reporting to the client

You should report your findings to the client at this juncture and advise in a preliminary way on the merits of the case, for and against.

BC9.1 Reporting to the plaintiff

It may be that your advice to the client is to walk away. You may reach this conclusion for many reasons, and only one of them is that the claim is not likely to succeed. The quantum of loss may be rivalled by the cost of taking the case to trial and the litigation risk too high to justify the expenditure. The stress of ongoing litigation may be such that it would not be in the client’s best interests to take the case. Alternative dispute resolution may, on reflection, be a better way to resolve the dispute. (See Civil Litigation Precedents (online ed, Thomson Reuters) at [CP2] (Alternative dispute resolution (ADR) and mediation).) Very frequently, the defendant against whom a proceeding would be commenced has no means to satisfy a judgment and no prospect of ever having them; in those circumstances, litigation is simply throwing good money after bad.

BC9.2 Reporting to the defendant

When acting for a defendant the issue is slightly different; there is a proceeding on foot and, unless steps are taken to defend, it is likely that the client will be in receipt of a default judgment sooner rather than later.

If a defendant has no defence or a poor one, the best option will probably be to see what terms of settlement can be obtained. In a claim for damages there may well be a genuine dispute as to quantum. In that event, the amount of the claim should be defended (or better still agreed upon).

BC9.3 Billing for work done

The client should be billed for work done to date with a request for written confirmation for instructions on how to proceed.

In a legal aid case you will need to report to Legal Aid Services with your opinion on whether there are reasonable prospects of success. You will need to address both the legal and factual elements of the claim or defence to support your conclusion that a grant of legal aid is justified.

BC9.4 Tasks

Report all findings to the client and give preliminary advice on the merits of the case.

Consider whether alternative dispute resolution is a better way to resolve the dispute.

Advise defendants that a failure to defend the proceeding is likely to result in a default judgment against them.

Bill for work to date.

Request written confirmation for instructions on how to proceed.

BC9.5 Next step

Proceed to [BC10] (Step 10. Contact with defendant by plaintiff’s lawyer).

Step 10: Contact with Defendant by Plaintiff’s lawyer

BC10.1 Matters to consider

Once the plaintiff has approved, the next step you may wish to consider is whether this is the appropriate time to contact the proposed defendant.

You will have enough information to write a letter setting out the general nature of the dispute and seeking an early resolution.

Pre-commencement correspondence of this nature is often referred to as a letter of demand, at once limiting its function and setting the tone of its contents. Demands do not generally meet with positive responses, whereas a more conciliatory tone may be all that is needed to get the defendant to the bargaining table. There are three sample letters of demand in

Civil Litigation Precedents

(online ed, Thomson Reuters) that can be used as guidance:

Intro02 — Simple letter of demand.

Intro03 — Sample letter of demand — ongoing issue.

Intro04 — Sample letter of demand — settlement not possible.

It is the lawyer’s role to help in resolving disputes and that objective should inform the initial contact with the defendant. A bellicose letter demanding submission to the plaintiff’s wishes within a short time frame is traditional, but of questionable efficacy.

A letter suggesting the parties meet or undergo some form of alternative dispute resolution, such as mediation, may engender a desire to resolve matters without the unpleasantness and expense of litigation.

The letter can also yield practical advantages for litigation if that is where things end up:

It may bring the matter to a quick and early close.

You may be able to tie the defendant down to a particular address for subsequent service purposes if the defendant responds to a letter sent to a particular address.

If solicitors are instructed as a result, they may accept service on the client’s behalf, thus avoiding the expense and delay of personal service.

The correspondence from the defendant or the defendant’s solicitors may provide you with further information about the dispute from their side of things. This further information can be invaluable, as it may put you on to further lines of inquiry helping you to formulate the claim. It will also serve to sharpen the focus of your statement of claim when it comes time to draft it, as you will have a better idea of what issues are actually in dispute.

If there is no option but to make a demand, make sure that you are in an immediate position to make good on your threats. If you state that a proceeding will be commenced within 14 days, the statement of claim should be finalised before you send the letter. An empty threat undermines your position. If opposing counsel concludes that you have a tendency to bluff, you will have damaged your ability to be effective in the matter, quite possibly for the rest of the litigation.

BC10.2 Tasks

Consider whether it is now appropriate to contact the proposed defendant(s).

Confirm by letter that you are instructed on the plaintiff’s behalf, outlining the dispute in general terms and seeking to open a dialogue with a view to resolving the matter. (See Intro02 — Simple letter of demand, Intro03 — Sample letter of demand — ongoing issue and Intro04 — Sample letter of demand — settlement not possible.)

Request the view that the proposed defendant(s) has/have of the dispute.

Diarise a date for a response.

In the event of a response, copy it to the client and take further instructions.

Review if necessary Plead02 — Drafting pleadings (a pleadings checklist).

BC10.3 Next step

Proceed to the next module Commencement of Proceedings (starting at [BD1])

Acting for the defendant

BF1.1Matters to consider

After receiving a statement of claim, the lawyer acting for the defendant will be under immediate time pressure.

Once you have established the due date for filing the statement of defence, you will need to conduct the same level of investigation for the defence as you would if you were acting for the plaintiff, including obtaining outline witness statements. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC3] (Step 3. Keeping a litigation file).)

With a District Court proceeding, unless your client has the documents immediately to hand, it is best to ask for copies of all the documents in the plaintiff’s initial disclosure list. In the High Court, of course, the plaintiff should have served the initial disclosure bundle with the statement of claim.

If the plaintiff has served a certificate instead asking for the documents when they are available (within 10 working days of service of the proceedings), an extension of time for filing the statement of defence could be sought until that occurs.

Any agreement to defer the time for filing a statement of defence needs to be in writing; you do not want there to be any uncertainty about the date by which a statement of defence must be filed. You may even wish to reduce the matter to memorandum form and have the registrar make a consent order.

If the plaintiff is not willing to give you the extension, you will need to make an application to extend time. If one of the reasons for the extension is that the plaintiff has failed to make initial disclosure within the rules or provide the documents on request, the extension is more than just likely.

You should make it clear that you will seek costs on the extension application in these circumstances, and this should be in writing; it may well have to be produced in court as an exhibit.

BF1.2Tasks

Contact the plaintiff’s solicitor. (See the module Interviewing the Client and Dealing with Fees and Other Costs at [BB6] (Step 6. Follow-up action after first meeting — defendants).)

Request copies of all documents in the plaintiff’s initial disclosure list (District Court only), preferably by email.

Consider requesting an extension of time for filing the statement of defence if the plaintiff has not provided initial disclosure. (Again, see the module Interviewing the Client and Dealing with Fees and Other Costs at [BB6].)

Assess legal aid eligibility and complete as much of an application as possible. (See [BF2] (Step 2. Legal aid — defence) below.)

Ascertain whether the plaintiff was either bound to issue the proceeding in a different court or proceed by other means such as binding arbitration. (See [BF5] (Step 5. Correct registry? — defence) and [BF4] (Step 4. Protest to jurisdiction — defence) below.) If so, draft, file and serve either an interlocutory application for a change of venue or a protest to jurisdiction. (See the module Interlocutory Applications starting at [DE1].)

Assess the sufficiency of the statement of claim. Does it contain sufficient detail to respond to? If not, draft and serve a notice requiring a more explicit pleading, detailing which paragraphs of the statement of claim require greater specificity and request an extension of time for filing the statement of defence as a result.

Serve the notice on the plaintiff’s solicitor.

Consider whether there is a counterclaim. (See [BF7] (Step 7. Counterclaim) below.)

Prepare the statement of defence and any counterclaim and initial disclosure. (See [BF6] (Step 6. Statement of defence pleadings) below.) Use as necessary the following in Civil Litigation Precedents (online ed, Thomson Reuters):

Review the checklist in Civil Litigation Precedents at Plead02 — Drafting pleadings.

Obtain the funds necessary for the filing fee for statement of defence or draft a fee waiver application. (See the module Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE3] (Step 3. Filing fees).)

Under a covering letter, file the statement of defence and list of documents relied on (District Court only) with the filing fee.

Check the details of the addresses for service and means of service provided by the plaintiff, as contained in the memorandum endorsed at the end of the statement of claim.

Contact the plaintiff’s solicitor to ascertain if any other defendants have been served and what address for service and service instructions have been provided. If service has not yet taken place, request notification of service when it takes place.

Serve the statement of defence and (High Court only) bundle of documents or (District Court only) list of documents on the other parties at their respective addresses for service or in accordance with the service instructions in the memoranda. (See [BF9] (Step 9. Filing and serving the statement of defence) below.)

As and when other defendants provide the plaintiff with service instructions, serve the documents on them in accordance with the service instructions.

Report to the client.

Step 2: Legal aid - Defence

BF2.1 Matters to consider

There is a looming date for filing a defence with filing fees to be paid. If an application for legal aid has been made, you can file a fee waiver with the statement of defence, pending the outcome of the legal aid application. The client must sign the form, so it should be completed at practically the first client meeting, and certainly when you have confirmed you will take the case.

Doing so will allow you to file the statement of defence at no immediate cost to the client.

Contact the Legal Aid Services office dealing with civil claims and discuss the matter with a grants officer. Grants officers are at their most amenable to something a little out of the ordinary if you keep them informed of what you are doing and why. Outline your client’s position and the fact that a statement of defence must be filed within a matter of days. Agree to provide such information as is not presently to hand within a reasonably short period.

Ask the grants officer to email you a confirmation that an application for aid has been made, as this confirmation needs to be appended to the fee waiver application. (See Ministry of Justice “Apply for help to pay the court fees for a civil or family case” <www.justice.govt.nz>.)

BF2.2 Tasks

Complete as much of the financial information in the application form as circumstances allow. (See the module Interviewing the Client and Dealing with Fees and Other Costs at [BB9] (Step 9. Legal aid).)

Forward the application form to the appropriate Legal Aid Services office, either by email or fax. Include a copy of the statement of claim and any other application filed by the plaintiff.

Specify the filing date for the statement of defence and your request for urgency.

Step 3: Sufficient detail in the Statement of Claim?

BF 3.1Matters to consider

Does the statement of claim disclose a cause of action? Does it contain sufficient particularity to respond to it?

Both are important questions, but a negative answer to either will not prevent the entry of a default judgment if a statement of defence is not filed.

BF3.2Tasks

Review the statement of claim (see Plead02 — Drafting pleadings).

Serve a notice requiring further particulars or more explicit pleading. Use as required:

Request (if necessary) an extension of time for filing the statement of defence.

BF3.3Further reading

(1)District Court Rules 2014

DCR 2014, r 5.24 Notice requiring further particulars or more explicit pleading.

(2)High Court Rules 2016

HCR 2016, r 5.21 Notice requiring further particulars or more explicit pleading.

CA1

CA1.1 Introduction

If the defendant does not file a statement of defence within the prescribed time limit, the plaintiff may seek judgment by default. Depending on the relief claimed, judgment by default is obtained either by filing an affidavit of service and sealing judgment or by listing the proceeding for formal proof.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G16 — Affidavit of service.

DCR016 — Affidavit of service — Form 16.

SDCR016 — Sample affidavit of service (Form 16).

CA1.2 Liquidated demand or recovery of land or chattels

If the claim is for either a liquidated demand or the recovery of land or chattels, the plaintiff can obtain judgment by default by sealing judgment and filing an affidavit of service of the statement of claim and notice of proceeding, along with the prescribed fee. If the statement of claim and notice of proceeding have not been served personally on the defendant or on a solicitor accepting service on the defendant’s behalf, the plaintiff must also file an affidavit verifying the statement of claim.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

J1 — Judgment by default in case of liquidated demand.

J2 — Judgment by default in proceeding for recovery of land.

DCR032 — Judgment by default in case of liquidated demand — Form 32.

SDCR032 — Sample judgment by default in case of liquidated demand (Form 32).

DCR033 — Judgment by default in proceeding for recovery of land — Form 33.

If interest and costs are sought, make your calculation of both clear. If the registrar has difficulty in understanding how either is calculated, you jeopardise your ability to obtain judgment on the spot.

Bear in mind that, if your default judgment is rejected for filing, you will have given the defendant a de facto extension of time for filing a statement of defence.

A memorandum of costs is required in addition to the judgment in the prescribed form, but it is good practice to draft a memorandum covering both interest and costs. Table format is sufficient in simple cases.

CA1.3Claims other than for liquidated demand or recovery of land or chattels

If the claim is for anything other than a liquidated demand or the recovery of land or chattels, the plaintiff can obtain judgment only on formal proof of the claim. (See [CA2] (Step 2. Formal proof) below.)

CA1.4Tasks

In the case of a liquidated demand or for the recovery of land or chattels, if the defendant does not file a statement of defence within time, draft and file a judgment by default. Use as necessary:

Calculate the costs payable on (usually) the 2B scale with any filing fees and other disbursements included. Include a breakdown by cost heading, either in the covering letter to the registry or in a footnote to the judgment by default. (See the module Commencement of Proceedings at [BD7] (Step 7. Interest and costs).)

If the plaintiff claims interest, calculate the interest to the date of judgment using the formula set out in the prayer for relief in the statement of claim. Again, provide a breakdown so that the registrar can clearly see how the interest has been calculated.

By way of a covering letter, file the default judgment for sealing. Make sure you have also paid the required filing fee and filed sufficient service copies of the judgment for all parties. In addition, file the affidavit of service and (if required) the affidavit verifying the statement of claim.

Step 4: Protest to jurisdiction

BF4.1 Matters to consider

If you file a statement of defence, your client has submitted to the jurisdiction of the court and it is unlikely you will be able to challenge the forum once the statement of defence has been filed. However, if you file a protest to jurisdiction, the plaintiff cannot obtain a default judgment until a judge has determined the issue.

In cases where the parties or the subject matter has an international dimension, the preliminary question is: what country’s courts may hear and determine the dispute? Does this case need to be litigated in a different jurisdiction?

Even domestically there are numerous examples of ouster provisions depriving the courts of jurisdiction. The court’s jurisdiction can be ousted by agreement or statute (see for example claims for compensation under s 100I of the Biosecurity Act 1993), with binding arbitration the usual form of mandated dispute resolution. In such cases the courts’ jurisdiction may be challengeable.

The arbitration requirement may be an “all disputes arising” clause or may be limited to certain types of disagreement. You will need to check if either applies. Does the contract contain a binding requirement to submit the dispute to arbitration? Is the dispute within the terms of the arbitration provisions?

Where a plaintiff has filed a proceeding in the District Court, the defendant will also need to consider whether to apply to have the proceeding transferred to the High Court. Under s 86 of the District Court Act 2016, a defendant may generally require a proceeding to be transferred to the High Court if the amount of the claim or the value of the property or relief claimed or in issue exceeds $90,000. Otherwise, a defendant may apply to have the proceeding transferred to the High Court under s 87 of the 2016 Act, if the grounds for transfer in that section are met.

The next, and less than obvious, question is: are the client’s interests served by protesting the jurisdiction? Commercial arbitrations are becoming increasingly complex and expensive. The short and simplified trial procedures under the DCR may be quicker and cheaper than a full-scale commercial arbitration.

BF4.2 Tasks

Consider whether you have grounds to file a protest to jurisdiction.

Consider whether the client's interests are served by filing a protest to jurisdiction.

BF4.3 Further reading

(1)Biosecurity Act 1993

BA 1993, s 100I Compensation.

(2)District Court Rules 2014

DCR 2014, Form 13 Appearance under protest to jurisdiction.

(3)High Court Rules 2016

HCR 2016, Form G 7 Appearance under protest to jurisdiction.

BF4.4Next step

Proceed to [BF5] (Step 5. Correct registry? — defence).