Practice Direction 6Revisited

Damian GordonBarrister at Law

The Future of LitigationOld Method

See ClientSend letter of Demand or letter responding to demandPleadingsDiscovery/DisclosureInterrogatoriesTrial (Settlement at Court)Exhausted Client (little involvement)

PD6

See ClientLetter setting out case with DocumentsResponse with DocumentsAccept or reject claimMediationClient fully involved in the processRisk Management

Introduction

Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms:Commonly known just as “PD6”Applies to all civil proceedingsParties follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation

Pre-commencement Procedure

Step 1: Paragraphs 3-13 inclusive.The plaintiff sends a letter to the defendant with

the details of the claimThis is supported by copies of the essential

documents which the plaintiff relies on AND

Subject to privileged documents, any documents which may significantly impair the party’s Case.

Pre-commencement Procedure

Step 1 continued:The defendant should promptly acknowledge the

plaintiff’s claim letter and provide a full written response as appropriate

The defendant will either accept the claim in whole or in part and make proposals for settlement or;

State that the claim is not accepted.

Pre-commencement Procedure

The defendant must be precise about what parts of the claim, if any, are accepted and what parts are rejectedThe defendant must provide detailed reasons (including supporting documents) for non-acceptance of the claim

Requires pre-commencement discovery of documents by both sidesPre-commencement procedure should also normally include “the parties conducting, in good faith, genuine and reasonable negotiations with a view to settling the claim economically and without Court proceedings”

The PD6

The PD6

The PD6 is specific as to the need for the parties to consider alternative dispute resolution.

Lawyers are there to solve the problem

Lawyers are there to control the process

Pre-Commencement Procedure

PD6 provides sanctions for non-compliance with the prescribed procedure for pre-action conduct if, in the opinion of the Court, “non-compliance… has led to the commencement of proceedings which might not otherwise have needed to be commenced, or has led to delay or costs being incurred in the proceedings that might otherwise not have been incurred.” per BarrJ NTSCSpadaccini v Grice [2012] 41 at para.46.

The PD6

SanctionsMay go to pre judgement interestNo interest or at a lower or higher rateSCR 63.3 Costs discretion very activeNo Costs to indemnity CostsHow you engage in the pre proceedings determines your strategy for the entire case

The PD6

As part of your case strategy you should be able to provide evidence to the Court to show how you have engaged in alternate means of resolving the disputeThe day of being able to settle a matter because of the relationship which exists between practitioners is fading

The PD6

The first rule in mediation is that both parties have to wish to mediateThis process allows an escape route for your clientsThis process, if engaged in properly, is a shield to any future claim for negligence or argument concerning your legal fees charged

Case Management Conferences

Paragraphs 14-18 introduces the Judicial Eye.Positive duty placed on the Court to ensure the real issues of substance are resolved by the Court.Master’s ability to illicit this means your pleadings will be scrutinized.Therefore the parties and the Legal reps need to attend the conference.

The Proceedings Stage

Disclosure limited to the real issuesThe real issues are determined at the case management conferenceThe entirety of your case relates back to your pre action procedures.

Offers

Offers of Compromise are inextricably joined to the pre-action proceduresThe ability to intimidate with offers is diluted by the need for the parties to embrace in the process of trying to resolve their dispute

Changes Ahead

PD6 will become a SCR.PD6 will be incorporated into Magistrates Court ActionsPD6 will be referred as the Overarching Purpose of disputesThe Court will be able to intervene to ensure the PD6 integrity in Court proceedings is maintained.

Changes Ahead

TimetablesOrdering MediationThe Trial StructurePleadingsDisclosureSubmissions“Overarching Duty” for Lawyers to comply Re: PD6

The Perfect Storm

Spandaccini v Grice [2012] NTSC41Parties were neighboursFence disputeLegal Costs 10 times the amount in agreed damagesThe ability of the Court to award interest and Costs at different parts of the proceeding to reflect the Parties’ attitude during the proceedings.