New Certification Requirements for Civil Proceedings

August 30, 2011 | Posted by Brett Hogan

The Civil Procedure Act 2010 (CPA) introduced new obligations on solicitors and parties to matters where legal proceedings are issued in the civil jurisdiction. Solicitors are now required to expressly certify to the court that a dispute taken to the court has a proper basis. In addition to this, the person behind the civil action is also obliged to personally certify to the court that they will adhere to what the CPA refers to as overarching obligations. There may be serious consequences for those who fail to adhere to these new requirements.

The Government enacted the CPA to facilitate the just, timely and cost-effective resolution of the real issues in dispute, based largely on the model adopted in the UK. The CPA sets out that the overarching obligations include: the duty to act honestly, that there is a proper basis for the claim, that the party only take steps to resolve or determine the claim, to cooperate with other parties, to narrow the scope of the issues in dispute, to ensure legal cost are reasonable and proportionate, to minimise delay and to disclose documents.

The solicitor representing a party has an obligation to certify that there is a proper basis for the claim, or defence, being alleged in the proceeding. The solicitor is to comply with the overarching obligations despite the instructions or the wishes of the client. Therefore the solicitor is obliged to comply and to advise the client in such a way as to ensure that the client does not contravene the overarching obligations in the conduct of the proceedings.

The party to the proceeding, that is the person taking legal action, or in the case of a company, a person who stands behind the legal action, is required to certify that they have read and understood the overarching obligations at the time of the commencement of the proceedings. The person must sign a form to be filed with the court stating that they personally understand their obligations to comply in the proceedings. This certification will usually be filed with the first document filed with the court, such as the writ, originating motion or complaint.

The parties are to comply with the obligations at all stages of the proceedings and this includes interlocutory steps, alternative dispute resolution conferences and appeals. The issue of non-compliance can be raised by a party to the proceeding or at the courts own instigation. The court has broad powers where a party has been found, on the balance of probability, to have failed to comply with, or contravenes an overarching obligation. These include imposing sanctions on the party in breach, or in making any orders appropriate in the interest of justice when exercising the powers of the court.

Anyone considering initiating legal action in the civil jurisdiction must be fully appraised of these obligations and discuss their implications with their solicitor before issuing proceedings. Non compliance or breach of the obligations once proceedings have commenced will attract sanctions from the court that may well include costs orders against the party at fault.

Please contact Brett Hogan for further information.

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