Recommended wording

Resources

Greener Litigation’s Court Engagement working group has drafted some recommended wording for litigators to use when corresponding at the pre-action stage and that could be incorporated into draft directions orders at the CMC. These are made available for anyone, whether a Greener Litigation Pledge signatory or aspiring signatory, to adapt and use as they see fit in the conduct of litigation. This is intended for those conducting civil litigation in England and Wales under the Civil Procedure Rules; practitioners in other jurisdictions are encouraged to adopt an equivalent approach making such adaptations as required.

If you have any suggestions for other resources which might benefit the Greener Litigation community please contact us.

Recommended wording

It is in all the parties’ interests to conduct this dispute in a sustainable manner.*  Accordingly, where possible and appropriate, we intend to use secure electronic means for communication and correspondence [(for the avoidance of doubt, this intention does not constitute an agreement to accept service by email, which is dealt with separately)]; to use electronic bundles and to avoid unnecessary travel by the parties and their legal representatives. We would welcome your agreement to conducting this matter in this way or your views on how the parties could conduct this dispute in a sustainable manner.

*Footnote (optional) – [Please note that [Firm name] is a signatory to the Greener Litigation Pledge and we are committed to taking and promoting active and practical steps to reduce the environmental footprint and emissions arising from the disputes in which we are involved. [If your firm is not already a member of Greener Litigation, we encourage you to visit https://greenerlitigation.org/ for more information, including the specific steps set out in the Pledge and to consider becoming a signatory.]

  1. 1. Sustainable conduct
    1. 1.1 The parties agree to have regard to the environmental impact of these proceedings and to take all reasonable steps to reduce the same. In particular, the parties agree that:
      1. 1.1.1 Service of documents in these proceedings shall be permitted and solely executed by email to addresses specified by the parties’ legal representatives as follows: [insert applicable email addresses];
      2. 1.1.2 Correspondence between the parties’ legal representatives will be solely via electronic means;
      3. 1.1.3 They and their legal representatives (solicitors and counsel) will endeavour to work from electronic documents (including bundles) as far as reasonable and encourage witnesses and instructed experts to do likewise. Where hard copy documents are required, these will be printed double sided and printing limited to the minimum required copies;
      4. 1.1.4 They will consider on a case by case basis whether any hearing (in whole or in part) could be appropriately heard remotely, and liaise with the Court accordingly, in sufficiently good time so as to ensure:
        1. 1.1.4.1 all necessary preparations for a remote hearing are undertaken, including electronic bundle preparation and remote video platform arrangements; and
        2. 1.1.4.2 any applications necessary to convert an in-person hearing to a remote hearing are made to the court;
      5. 1.1.5 They will consider the appropriateness of witness and expert evidence being given remotely for any hearing and/or trial; and
      6. 1.1.6 They and their legal representatives will seek to keep general travel relating to these proceedings to a minimum, including for any hearing and/or trial.

Guidance Note

This language can be used by litigation parties who are putting together an order for directions down to trial (eg to be given at a pre-trial review).  For the purposes of this drafting it does not matter whether the parties included sustainable conduct language in the CMC directions order or whether any of the parties or legal advisors involved is a signatory to the Greener Litigation Pledge.

The language is intended to serve as a reminder to parties and their legal advisors, as they start preparing for the final stages of litigation, that there remain decisions to be made which will affect the environmental impact of the litigation, and the carbon footprint of the parties, their advisers and others involved in the litigation.

Parties should also consider asking the judge for some or all of the trial to be conducted on a hybrid basis, so that people wishing to attend (eg to see a witness’ evidence, or for a junior lawyer’s professional development) would be able to do so remotely and without having to travel.  This would require the court’s permission, and close coordination with the listings office to ensure appropriate facilities are available.  Parties will also want to keep information security in mind when making arrangements eg for the electronic transfer of documents.

Where appropriate, this language should be included in the first draft of any order for pre-trial directions whether being given at a hearing or on the papers without a hearing.

Sustainable Conduct

  1. The parties agree to have regard to the environmental impact of these proceedings and to take all reasonable steps to reduce the same. In particular, the parties agree that:
    1. correspondence between the parties’ legal representatives will be solely via electronic means;
    2. they and their legal representatives (solicitors and counsel) will endeavour to work from electronic documents (including bundles) as far as reasonable and encourage witnesses and instructed experts to do likewise. Where hard copy documents are required, these will be printed double sided and printing limited to the minimum number of copies; and
    3. they and their legal representatives will seek to keep general travel relating to these proceedings to a minimum including for trial.

Factual / expert [delete as appropriate] evidence to be given remotely[1]

  1. Pursuant to CPR 32.3, [identify relevant witness(es)] [has/have] permission to give their evidence at trial through a video link. In relation to this evidence:
    1. the parties shall make appropriate arrangements for the provision of the evidence of their respective witnesses in accordance with Annex 3 of Practice Direction 32, including in relation to: the timetabling of such evidence, taking into account time zone differences (paragraph 5); liaising with the Listing Office to ensure the provision of appropriate equipment in the Court room (paragraphs 8, 10, and 15), including cameras to enable the witness to see the legal representative asking questions and the Judge (paragraph 21); the location of the remote site from which the witness will be giving evidence and the presence of other individuals at that remote site (paragraphs 1 and 20); the provision of appropriate equipment at the remote site from which the witness will be giving evidence (paragraph 10); liaising with the Listing Office to ensure the provision of a video link to the witness; the appropriate oath or affirmation to be taken by the witness (paragraph 16); and provision to the witness of the documents to which they will be referred in a manner which enables the witness to refer to those documents whilst giving evidence (paragraphs 17 and 18);
    2. [where any witness will give video evidence from another jurisdiction] pursuant to paragraph 4 of Annex 3 of Practice Direction 32, the [party whose witness(es) are giving evidence remotely] shall make enquiries with the Foreign, Commonwealth and Development Office, and/or with local law firms, to establish if the countries from which [witness(es) identified] will be giving evidence raise any objections at a diplomatic level to the giving of evidence before an English Court by means of video link.

Further directions hearing to take place remotely

  1. If a further directions hearing is required before trial, it shall take place remotely via video link, and the parties shall liaise with the Listing Office [in relevant court] with regard to the logistics.

[1] An application for permission to call evidence by remote means will have to be made.