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 DETAILED CONTENTS

Preface xxiii
Abbreviations xxv
Table of Cases xxvii
Table of Primary Legislation liii
Table of Secondary Legislation lix
Table of Protocols and Guidance lxxviii
Table of European Legislation lxxxi
Table of International Treaties and Conventions lxxxii

1 INTRODUCTION 1

A THE LEGAL PROFESSION 2

B LAWYERS’ DUTIES 2
C INITIAL INSTRUCTIONS 3
D CONFIDENTIALITY AND CONFLICT OF INTEREST 5
E PRE-ACTION CORRESPONDENCE 5
F MAIN STAGES IN COURT PROCEEDINGS 6

2 FUNDING LITIGATION 10

A DUTY TO ADVISE CLIENTS ON FUNDING 10

B TRADITIONAL RETAINER 11
C LEGAL EXPENSES INSURANCE 13
D AFTER THE EVENT INSURANCE 13
E CHAMPERTY, THE INDEMNITY PRINCIPLE, AND JACKSON 14
F CONDITIONAL FEE AGREEMENT 15
G DAMAGES-BASED AGREEMENT 16
H THIRD PARTY FUNDING 16
I LEGAL AID 17
J IRRECOVERABILITY OF COSTS OF SETTING UP FUNDING 20
Key points summary 20

3 THE CIVIL COURTS 22

A COURT COMPOSITION AND ADMINISTRATION 22

B JURISDICTION 25
C HIGH COURT DIVISIONS 28
viii Detailed Contents
D SPECIALIST COURTS 29
Key points summary 31

4 OVERRIDING OBJECTIVE AND HUMAN RIGHTS 32

A SOURCES OF PROCEDURAL LAW 32

B THE OVERRIDING OBJECTIVE 35
C ACTIVE CASE MANAGEMENT 35
D INTERPRETING THE CIVIL PROCEDURE RULES 37
E APPLICATION OF THE OVERRIDING OBJECTIVE 38
F HUMAN RIGHTS 40
G PROCEDURAL ASPECTS ON RAISING HUMAN RIGHTS POINTS 45
Key points summary 47

5 PRE-ACTION PROTOCOLS 48

A PRE-ACTION PROTOCOLS 48
B CASES NOT COVERED BY PRE-ACTION PROTOCOLS 49
C PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL 49
D PERSONAL INJURY PROTOCOL 52
E INSTRUCTION OF EXPERTS 53
F LIMITATION DIFFICULTIES 55
G SANCTIONS FOR NON-COMPLIANCE 55
H ROAD TRAFFIC ACT 1988 56
I MOTOR INSURERS’ BUREAU 56
J PRE-ACTION PART 36 OFFERS 57
Key points summary 58

6 ISSUING AND SERVING 59

A CLAIM FORM 59
B JURISDICTIONAL ENDORSEMENTS 62
C PARTICULARS OF CLAIM 62
D SPECIALIST CLAIMS 62
E ISSUING A CLAIM FORM 65
F SERVICE 66
G SERVICE OF THE CLAIM FORM 67
H DEEMED DATE OF SERVICE OF THE CLAIM FORM 78
I SERVICE OF DOCUMENTS OTHER THAN A CLAIM FORM 79
J DEEMED DATE OF SERVICE (NON-CLAIM FORM DOCUMENTS) 79
 Detailed Contents ix

K CERTIFICATE OF SERVICE 80
L IRREGULAR SERVICE 80
M FILING 82
Key points summary 83

7 RENEWAL OF PROCESS 84

A POWER TO RENEW 84
B CLAIMS IN RESPECT OF CARGO 87
C MULTIPLE DEFENDANTS 87
D EFFECT OF STAY 87
E PROCEDURE ON SEEKING AN EXTENSION 87
F CHALLENGING AN ORDER GRANTING AN EXTENSION 88

8 PART 8 CLAIMS AND PETITIONS 89

A PART 8 CLAIMS 89
B PETITIONS 91
C WINDING-UP PETITIONS 91

9 PERSONAL INJURY CLAIMS UNDER £25,000 99

A CASES COVERED BY THE RTA AND EL/PL PROTOCOLS 100

B RTA PROTOCOL 100
C STAGE 1: CLAIM NOTIFICATION 101
D STAGE 2: MEDICAL EVIDENCE AND NEGOTIATION 104
E STAGE 3: PART 8 CLAIM TO DETERMINE QUANTUM 106
F CHILD SETTLEMENT APPLICATIONS 108
G LIMITATION 109
H FIXED COSTS UNDER THE RTA AND EL/PL PROTOCOLS 109
I CASES WHERE PARTIES CAN STOP FOLLOWING THE RTA OR EL/PL PROTOCOLS 109
Key points summary 110

10 ALTERNATIVE DISPUTE RESOLUTION 111

A ADR PROCESSES 111

B ADR OR COURT PROCEEDINGS 112
C COST OF ADR 114
D REFERENCE TO ADR 114
E COURT INVOLVEMENT IN ADR 115
Key points summary 117
x Detailed Contents

11 SERVICE OUTSIDE THE JURISDICTION 118

A SERVICE ON A FOREIGN DEFENDANT WITHIN THE JURISDICTION 119

B SUBMISSION TO THE JURISDICTION 119
C CASES OUTSIDE THE GENERAL RULES 120
D RECAST JUDGMENTS REGULATION 121
E ASSUMED JURISDICTION 124
F SERVICE ABROAD 127
G PREVENTING CONFLICTS IN JURISDICTION 128
H INTERIM RELIEF IN SUPPORT OF FOREIGN PROCEEDINGS 130
I JUDGMENT IN DEFAULT 131
Key points summary 131

12 RESPONDING TO A CLAIM 132

A TIME FOR RESPONDING 132

B ADMISSIONS 132
C DEFENCES 133
D ACKNOWLEDGMENT OF SERVICE 133
E AGREED EXTENSIONS 134
F DISPUTING SERVICE OR THE COURT’S JURISDICTION 134
G TRANSFER 135
H SPECIALIST CLAIMS 136
Key points summary 136

13 DEFAULT JUDGMENT 137

A WHEN DEFAULT JUDGMENT MAY BE ENTERED 137

B EXCLUDED CASES 139
C PROCEDURE FOR ENTERING DEFAULT JUDGMENT 139
D FINAL JUDGMENT AND JUDGMENT FOR AN AMOUNT TO BE DECIDED 141
E DECIDING THE AMOUNT OF DAMAGES: DISPOSAL HEARINGS 142
F SETTING ASIDE DEFAULT JUDGMENTS 143
G STAY OF UNDEFENDED CASES 146
Key points summary 146

14 STATEMENTS OF CASE 147

A FORM OF STATEMENTS OF CASE 148

B PARTICULARS OF CLAIM 151
 Detailed Contents xi

C DEFENCE 154
D COUNTERCLAIMS AND SET-OFFS 157
E REPLY AND DEFENCE TO COUNTERCLAIM 159
F SUBSEQUENT STATEMENTS OF CASE 159
G DISPENSING WITH STATEMENTS OF CASE 159
H SCOTT SCHEDULES 160
I INTERRELATION WITH CASE MANAGEMENT 160
J USE OF STATEMENTS OF CASE AT TRIAL 161

15 TRACK ALLOCATION AND CASE MANAGEMENT 162

A PROCEDURAL JUDGES 163

B DOCKETING 163
C PROVISIONAL TRACK ALLOCATION 164
D FILING DIRECTIONS QUESTIONNAIRES 164
E TRACK ALLOCATION 173
F ALLOCATION RULES 174
G NOTICE OF ALLOCATION 176
H ALLOCATION DIRECTIONS 176
I ADR AND STAYS TO ALLOW FOR SETTLEMENT 177
J TRANSFER TO APPROPRIATE COURT 178
K TRIAL IN THE ROYAL COURTS OF JUSTICE OR ROLLS BUILDING 178
L CHANGING TRACKS 178
M SUBSEQUENT CASE MANAGEMENT 179
N PRE-TRIAL CHECKLISTS 179
O SHORTER TRIALS AND FLEXIBLE TRIALS SCHEMES 181
Key points summary 182

16 COSTS MANAGEMENT 183

A ELEMENTS OF COSTS MANAGEMENT 184

B CASES GOVERNED BY COSTS MANAGEMENT 184
C COSTS BUDGETS 185
D COSTS MANAGEMENT ORDERS 187
E COSTS BUDGETS AND CASE MANAGEMENT 188
F JUDICIAL CONTROL OF COSTS BUDGETS 189
G IMPACT ON COSTS ORDERS 189
Key points summary 190
xii Detailed Contents

17 COSTS CAPPING AND PROTECTION 191

A COSTS CAPPING ORDERS 191

B BEDDOE ORDERS 192
C PROTECTIVE COSTS ORDERS 193
D JUDICIAL REVIEW COSTS CAPPING 194
E AARHUS CONVENTION CASES 194
F COSTS LIMITATION ORDERS 195
Key points summary 195

18 REQUESTS FOR FURTHER INFORMATION 196

A THE REQUEST FOR FURTHER INFORMATION 197

B THE RESPONSE 198
C OBJECTING TO REQUESTS 200
D ORDERS FOR RESPONSES 200
E PRINCIPLES 201
F COLLATERAL USE 202

19 PARTIES AND JOINDER 203

A DESCRIPTION OF PARTIES 203

B PARTICULAR CLASSES OF PARTY 203
C LITIGANTS IN PERSON 213
D VEXATIOUS LITIGANTS 214
E JOINDER 214
F REPRESENTATIVE PROCEEDINGS 215
G REPRESENTATION OF UNASCERTAINED PERSONS 216
H INTERVENTION 216
I CONSOLIDATION 217
J STAKEHOLDER CLAIMS 217
K ASSIGNMENT 218
L GROUP LITIGATION 219
Key points summary 219

20 ADDITIONAL CLAIMS UNDER PART 20 221

A NATURE OF ADDITIONAL CLAIMS 221

B RELATED PROCEDURES 221
C SCOPE OF PART 20 222
 Detailed Contents xiii

D STATEMENTS OF CASE IN ADDITIONAL CLAIMS 226

E CONTRIBUTION NOTICES 228
F PROCEDURE 228
G RELATION TO THE MAIN CLAIM 230
Key points summary 230

21 LIMITATION 231

A LIMITATION PERIODS 231

B ACCRUAL OF CAUSE OF ACTION 235
C CALCULATING THE LIMITATION PERIOD 241
D DISCRETION 244
E EQUITABLE REMEDIES, LACHES, AND ACQUIESCENCE 247
Key points summary 248

22 AMENDMENT 249

A AMENDMENT BY CONSENT 249

B AMENDMENT WITHOUT PERMISSION 249
C PRINCIPLES GOVERNING PERMISSION TO AMEND 250
D AMENDMENT AFTER THE EXPIRY OF THE LIMITATION PERIOD 254
E PROCEDURE ON AMENDING 259
Key points summary 260

23 INTERIM APPLICATIONS 261

A JURISDICTIONAL RULES 262

B TIME TO APPLY 262
C PRE-ACTION INTERIM REMEDIES 263
D OBLIGATION TO APPLY EARLY 263
E APPLICATIONS WITHOUT NOTICE 264
F APPLICATIONS WITH NOTICE 267
G INTERIM HEARINGS 274
H SUMMARY DETERMINATION OF INTERIM COSTS 275
I VARYING OR REVOKING INTERIM ORDERS 276
Key points summary 276

24 SUMMARY JUDGMENT 277

A TIME FOR APPLYING FOR SUMMARY JUDGMENT 277

B DEFENDANT’S APPLICATION: NO DEFAULT JUDGMENT 278
xiv Detailed Contents
C EXCLUDED PROCEEDINGS 278
D PROCEDURE 279
E ORDERS AVAILABLE 279
F AMENDMENT AT HEARING 289
G SOME OTHER COMPELLING REASON FOR A TRIAL 289
H DIRECTIONS ON SUMMARY JUDGMENT HEARING 290
I SPECIFIC PERFORMANCE, RESCISSION, AND FORFEITURE IN PROPERTY CASES 290
Key points summary 290

25 INTERIM PAYMENTS 291

A PROCEDURE 291
B GROUNDS 292
C AMOUNT TO BE ORDERED 294
D FURTHER APPLICATIONS 295
E NON-DISCLOSURE 295
F ADJUSTMENT 296
Key points summary 296

26 SECURITY FOR COSTS 297

A PROCEDURE 297
B THE RESPONDENT 299
C CONDITIONS FOR GRANTING SECURITY FOR COSTS 299
D DISCRETION TO ORDER SECURITY FOR COSTS 302
E AMOUNT 304
F ORDER 305
G SUCCESS BY THE CLAIMANT 305
Key points summary 305

27 SMALL CLAIMS TRACK 306

A PROVISIONS OF THE CPR THAT DO NOT APPLY 306

B STANDARD DIRECTIONS 307
C SPECIAL DIRECTIONS 307
D DETERMINATION WITHOUT A HEARING 308
E FINAL HEARINGS 308
F COSTS 308
G REHEARINGS 309
 Detailed Contents xv

28 FAST TRACK 310

A ALLOCATION DIRECTIONS 310

B LISTING DIRECTIONS 313
C STANDARD FAST TRACK TIMETABLE 313
D AGREED DIRECTIONS 314
E VARYING THE DIRECTIONS TIMETABLE 314
F LISTING FOR TRIAL 314
G FAST TRACK TRIALS 315
H COSTS IN FAST TRACK CASES 316
Key points summary 316

29 MULTI-TRACK 317

A AGREED DIRECTIONS 317

B CASE MANAGEMENT CONFERENCES 319
C FIXING THE DATE FOR TRIAL 322
D PRE-TRIAL CHECKLISTS 322
E LISTING HEARINGS 323
F PRE-TRIAL REVIEW 323
G DIRECTIONS GIVEN AT OTHER HEARINGS 324
H VARIATION OF CASE MANAGEMENT TIMETABLE 325
Key points summary 325

30 STRIKING OUT, DISCONTINUANCE, AND STAYS 326

A THE MAIN RULE 327

B PROCEDURE ON APPLICATIONS MADE BY PARTIES 327
C REFERENCES BY COURT OFFICERS 328
D GENERAL TEST 328
E NO REASONABLE GROUNDS FOR BRINGING OR DEFENDING THE CLAIM 329
F ABUSE OF PROCESS 330
G OBSTRUCTING THE JUST DISPOSAL OF THE PROCEEDINGS 333
H POWERS AFTER A STRIKING-OUT ORDER IS MADE 333
I DISCONTINUANCE 334
J STAYS 335
Key points summary 337
xvi Detailed Contents

31 DISCLOSURE 338

A LAWYERS’ RESPONSIBILITIES 341

B CLIENTS’ RESPONSIBILITIES 342
C STAGE WHEN DISCLOSURE TAKES PLACE 342
D DISCLOSURE ORDERS 342
E STANDARD DISCLOSURE 343
F MENU OPTION DISCLOSURE 345
G BUSINESS AND PROPERTY COURT DISCLOSURE 348
H DUTY TO SEARCH 349
I LIST OF DOCUMENTS 350
J PRIVILEGE 351
K INSPECTION 360
L ORDERS IN SUPPORT OF DISCLOSURE 360
M DOCUMENTS REFERRED TO IN STATEMENTS OF CASE, ETC. 362
N ADMISSION OF AUTHENTICITY 362
O COLLATERAL USE 362
Key points summary 363

32 WITNESS STATEMENTS, AFFIDAVITS, AND DEPOSITIONS 364

A TYPES OF WRITTEN EVIDENCE 364

B WITNESS STATEMENTS 365
C WITNESS SUMMARIES 369
D AFFIDAVITS AND AFFIRMATIONS 370
E DEPOSITIONS 371

33 HEARSAY 372

A THE HEARSAY RULE 372

B REAL EVIDENCE 373
C ADMISSIBILITY OF HEARSAY EVIDENCE 373
D NOTICE PROCEDURE 375
E TRIAL 377
Key points summary 378

34 ADMISSIONS AND DOCUMENTARY EVIDENCE 379

A NATURE OF ADMISSIONS 379

B PRE-ACTION ADMISSIONS OF LIABILITY 380
C PERMISSION TO WITHDRAW AN ADMISSION 380
 Detailed Contents xvii

D NOTICE TO ADMIT FACTS 381

E PROVING DOCUMENTS 383

35 EXPERTS 385

A ADMISSIBILITY OF EXPERT EVIDENCE 385

B CONTROL OF EVIDENCE 388
C PRIVILEGED NATURE OF EXPERTS’ REPORTS 388
D DISCLOSURE OF EXPERTS’ REPORTS 389
E WRITTEN QUESTIONS TO EXPERTS 393
F WITHOUT PREJUDICE DISCUSSION 394
G EXAMINATIONS BY EXPERTS 394
H TRIAL 396
I EXPERTS’ IMMUNITY FROM SUIT 398
J USE OF EXPERTS’ REPORTS AFTER TRIAL 398
Key points summary 398

36 OFFERS TO SETTLE 399

A INTRODUCTION 399
B CALDERBANK OFFERS 400
C OFFERS TO SETTLE 400
D MAKING A PART 36 OFFER 407
E ACCEPTANCE OF A PART 36 OFFER 407
F REJECTIONS, COUNTER-OFFERS, AND SUBSEQUENT OFFERS 409
G WITHDRAWAL AND CHANGE OF PART 36 OFFERS 409
H FAILING TO OBTAIN JUDGMENT MORE ADVANTAGEOUS THAN
A PART 36 OFFER 410
I ADVISING ON PART 36 OFFERS 412
J NON-DISCLOSURE TO JUDGE 413
K PART 36 OFFERS IN APPEALS 413
Key points summary 413

37 SANCTIONS 414

A NON-COMPLIANCE WITH PRE-ACTION PROTOCOLS 414

B NON-COMPLIANCE WITH THE CPR 414
C NON-COMPLIANCE WITH DIRECTIONS 415
D PRESERVATION OF TRIAL DATE 416
xviii Detailed Contents
E APPLICATION FOR SANCTIONS 416
F UNLESS ORDERS 418
G NON-COMPLIANCE WITH AN UNLESS ORDER 418
H EXTENDING TIME AND CORRECTING ERRORS 419
I RELIEF FROM SANCTIONS AND SETTING ASIDE 420
J IMPLIED SANCTIONS DOCTRINE 422
Key points summary 423

38 LISTING AND PRE-TRIAL REVIEWS 424

A LISTING FOR TRIAL 424

B PRE-TRIAL REVIEWS 428
C LISTING IN THE ROYAL COURTS OF JUSTICE 428
D ADJOURNMENTS 428

39 TRIAL 429

A WITNESSES 429
B TRIAL DOCUMENTATION 432
C TRIAL LOCATION 433
D ALLOCATION TO JUDICIARY 434
E IMPARTIALITY OF JUDGE 434
F PUBLIC OR PRIVATE HEARING 435
G RIGHTS OF AUDIENCE AND THE RIGHT TO CONDUCT LITIGATION 436
H McKENZIE FRIENDS 436
I CONDUCT OF THE TRIAL 437
J PRELIMINARY ISSUES 440
K TRIAL BY JURY 441
L NON-ATTENDANCE AT TRIAL 442
Key points summary 442

40 REFERENCES TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 443

A QUESTIONS WHICH MAY BE REFERRED 443

B MANDATORY REFERENCES 443
C DISCRETIONARY REFERENCES 444
D PROCEDURE IN ENGLAND 446
E PROCEDURE IN THE COURT OF JUSTICE OF THE EUROPEAN UNION 447
F COSTS 447
 Detailed Contents xix

41 JUDGMENTS AND ORDERS 448

A SETTLEMENTS 448
B ORDERS MADE AT HEARINGS 449
C FORM OF JUDGMENTS AND ORDERS 450
D GENERAL RULES RELATING TO DRAWING UP ORDERS AND JUDGMENTS 455
E REGISTER OF JUDGMENTS 457
Key points summary 457

42 INTERIM INJUNCTIONS 458

A JUDGES ABLE TO GRANT INJUNCTIONS 459

B PRE-ACTION APPLICATIONS FOR INTERIM INJUNCTIONS 459
C APPLICATIONS DURING PROCEEDINGS 461
D PRINCIPLES 462
E DEFENCES 474
F THE ORDER 475
G UNDERTAKINGS 477
H INQUIRY AS TO DAMAGES 478
I DISCHARGE 479
J BREACH 479
K EFFECT OF NOT APPLYING FOR INTERIM RELIEF 480
Key points summary 480

43 FREEZING INJUNCTIONS 481

A PROCEDURE 481
B PRINCIPLES 482
C THE ORDER 486
D EFFECT OF THE ORDER 490
E VARIATION OR DISCHARGE OF A FREEZING INJUNCTION 490
F FREEZING INJUNCTIONS AFTER JUDGMENT 491
G PROPRIETARY CLAIMS 492
H WRIT NE EXEAT REGNO 492
Key points summary 492

44 SEARCH ORDERS 493

A PROCEDURE 493
B PRINCIPLES 494
xx Detailed Contents
C REAL RISK OF DESTRUCTION 495
D FORM OF THE ORDER 496
E PRACTICE ON EXECUTION OF SEARCH ORDERS 496
F PRIVILEGE 498
G DISCHARGE AND VARIATION OF SEARCH ORDERS 499
H AFTER EXECUTION 499
I COLLATERAL USE 500
Key points summary 500

45 NORWICH PHARMACAL AND RELATED DISCLOSURE ORDERS 501

A NORWICH PHARMACAL ORDERS 501

B MERE WITNESS RULE 504
C BANKERS TRUST ORDERS 504
D DISCLOSURE BEFORE PROCEEDINGS START 505
E DISCLOSURE BY NON-PARTIES 507
F DISCLOSURE OF MEDIATION EVIDENCE 508
G INSPECTION OF PROPERTY DURING PROCEEDINGS 508
H INTERIM DELIVERY-UP OF GOODS 509
Key points summary 510

46 COSTS 511

A COSTS ORDERS: GENERAL PRINCIPLES 512

B COSTS FOLLOW THE EVENT 514
C RANGE OF POSSIBLE COSTS ORDERS 517
D INTERIM COSTS ORDERS 518
E INFORMING THE CLIENT 520
F INDEMNITY PRINCIPLE 520
G BASIS OF QUANTIFICATION 521
H PROPORTIONALITY 521
I SUMMARY ASSESSMENT 522
J DETAILED ASSESSMENT 523
K FAST TRACK FIXED COSTS 524
L FIXED AND SCALE COSTS 525
M COSTS AND TRACK ALLOCATION 525
N PUBLICLY FUNDED LITIGANTS 525
O PRO BONO COSTS ORDERS 526
P COSTS AGAINST NON-PARTIES 526
 Detailed Contents xxi

Q WASTED COSTS ORDERS 526

Key points summary 528

47 QUALIFIED ONE-WAY COSTS SHIFTING 529

A CASES WHERE QOCS APPLIES 529

B EFFECT OF QOCS 530
C LOSS OF QOCS PROTECTION 532
Key points summary 533

48 ENFORCEMENT 534

A ENFORCEMENT OF MONEY JUDGMENTS 534

B ENFORCEMENT OF JUDGMENTS FOR THE DELIVERY OF GOODS 543
C ENFORCEMENT OF JUDGMENTS FOR THE POSSESSION OF LAND 543
D RECEIVERS BY WAY OF EQUITABLE EXECUTION 544
E CONTEMPT OF COURT 544
F ENFORCEMENT OF FOREIGN JUDGMENTS 546
Key points summary 547

49 JUDICIAL REVIEW 548

A PARTIES 548
B LOCUS STANDI 549
C PUBLIC LAW 549
D REMEDIES IN JUDICIAL REVIEW 551
E JUDICIAL REVIEW PRE-ACTION PROTOCOL 552
F APPLYING FOR PERMISSION TO PROCEED 553
G SUBSTANTIVE HEARING 555
H CONVERSION TO A COMMON LAW CLAIM 557
I CONSENT ORDERS 558
Key points summary 558

50 APPEALS 559

A ROUTES OF APPEAL 560

B PERMISSION TO APPEAL 561
C TIME FOR APPEALING 564
D PROCEDURE ON APPEALING 565
E RESPONDENT’S NOTICE 566
F APPLICATIONS WITHIN APPEALS 567
xxii Detailed Contents
G STAY 568
H STRIKING OUT APPEAL NOTICES AND SETTING ASIDE OR
IMPOSING CONDITIONS 568
I HEARING OF APPEALS 568
J APPEAL COURT’S POWERS 571
K APPEALS BY WAY OF CASE STATED 573
L APPEALS TO THE SUPREME COURT 573
Key points summary 574

Index 575
 PREFACE

Any lawyer practising in the civil courts needs a thorough grasp of practice and procedure.
Indeed, knowledge of procedure is probably as important as knowledge of the substantive
law. It is not sufficient to have a strong case on the law and facts. It is also important to
be able to advance a claim effectively and efficiently from its early stages through to trial
(if needs be) in order to ensure the client attains the best result possible given the strengths
and weaknesses of the case. Every year a great many cases are won and lost on purely pro-
cedural grounds. Further, good use of court procedure can result in a case being materially
strengthened. The converse is that poor use of procedure can cause avoidable harm to the
client’s prospects of success.
Civil procedure can be a very daunting subject. First, there are a number of statutes
dealing with the jurisdiction of the civil courts. Secondly, there is a substantial rule book
comprising detailed rules of court (the Civil Procedure Rules 1998 (SI 1998/3132))
supplemented by numerous practice directions. The Rules and practice directions are
available at <http://www.justice.gov.uk>. They are also printed in full in practitioners’
books, such as Blackstone’s Civil Practice and the White Book. There are also official
court guides that deal with the practice, sometimes in considerable detail, in the Queen’s
Bench and Chancery Divisions of the High Court and also the specialist courts, such
as the Commercial Court. Statutory provisions, rules, and practice directions can only
deal with what should happen in the general run of cases. The courts are, on a day-to-
day basis, faced with claims that are unusual, with cases where exceptions should be
made to rules worded in a general way or where a more sophisticated approach may
be required, and with cases that have not been conducted fully in accordance with the
rules. There is therefore a substantial body of relevant case law dealing with procedural
issues. Furthermore, there are some areas where procedural and substantive law issues
converge.
What the student and newly qualified litigator need is an accessible introduction to the
subject. I hope this new edition of this book will continue to perform this function. It
seeks to explain the various procedures that either may or must be followed as a claim
progresses from its early stages through its interim stages and on to trial, enforcement,
and any possible appeal in a straightforward way, but with sufficient detail for the new
practitioner to be able to cope with most problems that commonly arise. A number of
forms and precedents are included in this book to bring to life the procedures that are
discussed. Often they are far shorter than ones that would be met in practice in order to
concentrate on what the documents look like, and it should also be borne in mind that
there are usually several different approaches used by different lawyers in drafting court
documents.
The 22nd edition includes all the changes up to those published on 10 March 2019.
These include a range of statutory instruments and updates to the Civil Procedure Rules
and practice directions, up to and including the Civil Procedure (Amendment) Rules
2019 and the 105th Update. I have included references to the SRA Standards and Regu-
lations 2019, which were published in draft in February 2019. These are expected to
come into force in July 2019. I am grateful to Derek French, who referred me to the
Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, which were laid
xxiv Preface
before Parliament on 8 March 2019. Whether these Regulations actually come into force
depends on what transpires on the Brexit arrangements, so I have made only passing
references to the Regulations in this edition.
Over the years I have benefitted from the expertise and experience of numerous colleagues
at the Treasury Solicitor’s Office, chambers, and the City Law School. Carlotta Fanton and
the staff of Oxford University Press have done an excellent job in the preparation of the
new edition. I am especially grateful to my wife Wendy for her encouragement and support
during the period when the book was being written.
Stuart Sime
London
March 2019
Another Random Scribd Document
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The Project Gutenberg eBook of The Life of
General Garibaldi
 This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
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eBook.

Title: The Life of General Garibaldi

Author: Giuseppe Garibaldi

Translator: Theodore Dwight

Release date: November 24, 2015 [eBook #50544]

Most recently updated: October 22, 2024

Language: English

Credits: Produced by Carlo Traverso, readbueno and the Online

Distributed Proofreading Team at http://www.pgdp.net
(This
file was produced from images generously made
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by The Internet Archive)

*** START OF THE PROJECT GUTENBERG EBOOK THE LIFE OF

GENERAL GARIBALDI ***
 i

ENGRAVED BY T.B. WELCH, (PHILA) FROM A

DAGUERROTYPE BY M.A. & S. ROOT.

G. Garibaldi
 THE LIFE

OF

GENERAL GARIBALDI,
TRANSLATED FROM HIS PRIVATE PAPERS;

WITH

THE HISTORY OF HIS SPLENDID EXPLOITS

IN ROME, LOMBARDY, SICILY AND NAPLES,
TO THE PRESENT TIME.
BY

THEODORE DWIGHT,
AUTHOR OF "A TOUR IN ITALY IN 1821,"

"THE ROMAN REPUBLIC OF 1849,"

ETC. ETC.

Embellished with a Fine Engraved Portrait on Steel,

AND
 AN AUTOGRAPH LETTER TO THE TRANSLATOR.

NEW YORK:
DERBY & JACKSON, 498 BROADWAY.
1861.
Entered according to Act of Congress, in the year 1861, by
DERBY & JACKSON,
In the Clerk's Office of the District Court of the United States
for the Southern District of New York.

W. H. Tinson, Stereotyper.

Geo. Russell & Co., Printers.

 INTRODUCTION.

The following pages are principally written by the pen of the hero
of our age, that pure-hearted man—that devoted patriot, and noble,
generous, and disinterested philanthropist—that spirited, undaunted,
and indomitable warrior, whose splendid deeds have dazzled the
world, and whose career, according to his own recent declaration,
will be brought to its close by a final triumph, for which he is now
preparing, to be gained early in the present year.
While General Garibaldi resided in New York and its vicinity, in the
years 1850 and '51, the author of this book enjoyed his
acquaintance, and the favor of receiving from him his private
memoirs, with permission to translate and publish them.[1] They had
just been prepared for the press, when Garibaldi requested that they
might be withholden from the public while he remained in this
country, probably because he preferred to be unnoticed, being at
that time employed in making candles on Staten Island, and
naturally fond of retirement.
The first part of this volume, to page 210, contains a literal
translation from his original private manuscripts, in which a clear,
unadorned English style was adopted, as nearly corresponding, as
the translator's abilities would allow, to the manly and pure Italian of
the author. No attempt was made to change, by dilating or polishing,
as the translator believed it to be almost as hopeless to improve his
style as to rival him with the sword. That portion of the volume
relates to his early life, and the fourteen years he spent in the
service of the Republican cause in South America.
The succeeding pages are devoted to his services in Italy in the
revolutions of 1849, 1859 and 1860; and a large proportion of their
contents is occupied by his proclamations and other documents of
his own, in translating which the same efforts have been made to
render them correctly.
The author has received assistance from some of the countrymen
of Garibaldi in New York, for information not otherwise to be
obtained, several of whom have been his fellow-soldiers. Many
extracts have been taken from the most authentic and interesting
descriptions, by intelligent eye-witnesses, of scenes in the two last
campaigns in Italy. A personal acquaintance with Italy and Italians
has enabled the writer to select, arrange, and explain the vast
amount of materials presented by those most extraordinary seasons,
in a manner perhaps best adapted for his readers. Some omissions
were necessary, in composing a work of this kind, but nothing of
essential importance.
The reader can hardly fail to bear in mind, while here reviewing
the life of this wonderful man, the most formidable of modern times,
who is at the same time one of the most gentle and amiable at
heart, that even now the present pause in his career is a solemn
one, as it is speedily to be followed by a scene of excitement,
conflict and consequences, perhaps unequalled by those which are
past. The results none can foresee: but it is evident that they must
be momentous and extensive, whether prosperous or adverse; and
no intelligent American can anticipate them without deep emotion.
Well may we look to heaven for the protection and success of the
noble hero of Italian independence and liberty, the avowed enemy of
the Papal Anti-Christ, whom he unmasks and denounces, and for the
diffusion among his countrymen of that pure and undefiled
Christianity, of which he declares himself a believer, and which he so
earnestly claims for the religion of Italy.
The efforts, sacrifices, and sufferings of thousands of Italians for
the independence, freedom, and happiness of their country, have
been such, in past years, as to present pages worthy of record in
history for the honor of mankind, and lessons for other nations.
Many of the purest men have been suffering the pains and sorrows
of exile in our own land, some of them after long and cruel
punishment in the dungeons of Austria, those of the brutal kings of
Naples, or of the Pope of Rome. With a patience and magnanimity
astonishing to witness, they have justly excited the respect, love,
and admiration of Americans who knew them, and ever showed
themselves sincere and cordial friends of our country, our
institutions, and state of society. Unlike too many other foreigners,
they have been content with the protection which they enjoyed, and
never sought for office or power, much less to act as the servants of
European despots, to undermine American liberty. Some of these
noble men, on returning to Italy, left with us records of their lives,
which may, perhaps, hereafter be published, according to their
desire, to promote a warm attachment between our countrymen and
their own, for which those writings are admirably adapted.
The following pages contain the translation of one of the
collections of manuscripts here referred to, and it is most gratifying
to the translator to bring before the American public, at this time, so
appropriate, interesting, and authentic a biography of the admired
man of our age, under his own authority, and from his own pen.
Could there be a character better adapted as a model for
American youth, in training them to just views of the value of what
has been called the humble virtues of common life? The example of
Garibaldi displays those virtues which adorn every pure, honest, and
disinterested character, in happy contrast with the false and selfish
principles which are too generally approved, admired, and
recommended to the young. How much the world owes him, for his
disinterested career, his devotion to the good of others, his refusal of
rewards of every kind, and his preference of simple life in a lonely,
rocky island, with only his son and daughter, and a few true friends,
to all the honors, riches, and luxuries of the European capitals!
And how noble an example, also, have the Italians given us of
union!
 CONTENTS

INTRODUCTION, 3
CHAPTER I.
My Father—My Mother—Her Influence on my Life—Incidents of my
Childhood—My First Schoolmasters, 13
CHAPTER II.
First Impressions of a Young Sailor—My First Voyage—My
Accomplished Captain—My Second Voyage—First Visit to Rome—
Impressions—My Prayers—Join the Secret Society—Sentence of
Death—Escape to France—Incidents at Marseilles, 17
CHAPTER III.
Voyage to Brazil—First Meeting with Rosetti—We Engage in Trade
—Zambeccari's Arrival—The United Provinces—Engage in the Service
of Rio Grande—Sail—My First Prize—Conduct of my Men—My Rule
for Treating Prisoners—Reception at Maldonado—Sudden Departure,
23
CHAPTER IV.
Two Brazilian Vessels—My First Battle—My First Wound—Results—
My own Condition—Burial of my Friend Fiorentino, 29
CHAPTER V.
Arrival at Gualaguay—Reception—My Wound Healed—My Sudden
Departure and Return—Cruel Treatment—Señora Aleman—Tribute to
that Noble Lady—Go to Bajada, 33
CHAPTER VI.
At Montevideo—Incognito—Departure for Rio Grande—March with
the Army of the President, Bento Gonzalez—His Character, Family
and Friends—Agreeable Society, 38
CHAPTER VII.
 At the Galpon of Charginada, Repairing the Launches—My Friend,
John Griggs—A Battle—Results—Tribute to a Fair Friend, 44
CHAPTER VIII.
Description of the Lake or Lagoon Dos Patos—The Enemy
Command the Lake—Plan to Enter it—Transportation of Launches
Over Land—Results of the Experiment—Breakers—Shipwreck—Sad
Catastrophe, 50
CHAPTER IX.
Treatment Experienced by the Survivors of the Shipwreck—
Expedition of Canabarro to Laguna—Results—Effects on my mind of
the Loss of my Old Friends—My Resolution—Remarkable Meeting
with Anna—Our Marriage—New Launches Built—Leave the Lagoon—
Cruise at Sea—Prizes Taken—Fight with a Brazilian Ship of War—
Results, 57
CHAPTER X.
Discontent of the People of St. Catharine's—Revolt at Jamaica—
Attack on that town—Conduct of the Troops—Retreat to the Lagoon
—Pursued—The Imperialists Gaining Strength—Col. Terceira's
Expedition Against Mello—Our Disaster—Rally, 65
CHAPTER XI.
The Enemy still held in Check—Necessity of Retreat—Preparation—
Commencement—Progress—Result—Arrival at the Town of Lages, 76
CHAPTER XII.
My High Estimate of the "Sons of the Continent"—Defects in
Discipline—I Descend the Serra—Difficulties of the March—Reach
Malacara—General Jorge—Gens. Netto and Canabarro—Two Large
Armies Meet at Pineirino, on the Taguare—Patriotism of the
Republicans—A wish for Italy—Result of the Expedition, 81
CHAPTER XIII.
San Jose Del Norte—Its Capture—Ill Conduct—Its Results—
Disasters of the Republicans—I go to San Simon—Birth of my First
Child—My Solitary Journey to Procure Necessary Clothing for my
Little Family—Trials and Oppressions—Sad Discovery on My Return,
92
CHAPTER XIV.
 The River Kapivari—My New Camp—Canoe Voyages to the Lake
Dos Patos—State of the Republican Army Declining—Death of my
Bosom Friend, Rosetti—Retreat—Difficulties and Sufferings—Anna's
Exposure—Our Infant—Kindness of the soldiers, 97
CHAPTER XV.
Hunting Horses—Catching Wild Colts—Enter the Province of
Missiones—Headquarters Established at San Gabriel—Love for my
Parents—I turn Cattle-Drover—Results—Reach Montevideo—Teach
Mathematics—Warlike Preparations—Join the Oriental Squadron, 104
CHAPTER XVI.
Origin of the War between Montevideo and Buenos Ayres—
Character and Conduct of Rosas, Ouribes—The Centralists, called
Unitarians, Opposed to the Republicans, 109
CHAPTER XVII.
Condition of the Italians at Montevideo, and elsewhere—My
Wishes and Designs for their Benefit—In Command of the
"Constitucion"—At Martin Garcia—A Battle with the Enemy—
Providential Results—Proceed to Bajada—At Cerito—Another Fight—
Cavallo-Quattia—Low Water—Join the Republican Flotilla—Labors
and Difficulties, 114
CHAPTER XVIII.
The Enemy Appear under General Brown—We Fight—Labors and
Fatigue by Night—Desertion—Preparations to Renew the Battle—
Another Fight—Vessels Burned—Landing in Small Boats—Land Travel
—Treatment by the Inhabitants—Traverse the Province of Corrientes
—Reach San Francisco—Notice of the Battle of Arroyo Grande, Dec.
6, 1842—Sent by Gen. Aguyar to Versilles with the Vessels—Strange
Presentiment—Catching Horses—Bad News, 122
CHAPTER XIX.
Public Dismay—Enthusiasm of the People Rising—I Return to
Montevideo—Ourives Coming to Besiege it—Preparations for Defence
—General Paz—I am Ordered to Collect a Flotilla—A Fortunate
Accident, 134
CHAPTER XX.
The Enemy reach Montevideo—Gen. Rivera's Movement on their
Left Flank—Gen. Paz Commands in the City—Services by the French
and Italian Corps—Treachery—Mismanagement—Gen. Pacheco
Corrects it—Attack on the Besiegers—Italian Legion Distinguished—
Anzani—Services of the Flotilla—A Providential Event—Commodore
Purvis—British Intervention—Negotiation, 139
CHAPTER XXI.
Exploits of the Italian Legion during the Siege—Tres Cruces—The
Pass of Bojada—The Quadrado—General Rivera Defeated at India
Muerta, but without Discouraging Efforts, Intervention Continued—
An Expedition in the Uruguay, the Flotilla being under my Command,
148
CHAPTER XXII.
The Expedition Proceeds for the Uruguay—Colonia Taken by It—
Burned—Page, a Suspicious Frenchman—Martin Garcia Taken, 154
CHAPTER XXIII.
First Meeting with a "Martrero"—Description of his Habits and
Character—Another Martrero, Juan de la Cruz—The Rio Negro—
Joseph Mundell—The severity of the Enemy Drive the Martrero and
People to us, 157
CHAPTER XXIV.
The Expedition Proceeds—Surprise Gualeguayechu—Reach the
Hervidero—Accompanied by an English and a French Officer—A large
Estancia, and its numerous Horses and other Animals—I leave the
Vessels in Charge of Anzani—Go with the Martreros—La Cruz and
Mundell—Attack on the Hervidero—Battle of Arroyo Grande, 163
CHAPTER XXV.
The Province of Corrientes calls General Paz from Montevideo—
Alliance with Paraguay—I go to Salto with the Flotilla, to relieve it
from a Siege—With La Cruz and Mundell attack Lavalleja—Return to
Salto, 171
CHAPTER XXVI.
Urquiza Besieges us in Salto with all his Forces—Our Defences
Incomplete—A sudden Attack—Repulsed Sorties—Bold Operation on
the opposite Bank of the River—Surprising Feats of the Horsemen—
Their Habits, 178
CHAPTER XXVII.
 The Siege of Salto Continued—Night Attack on the Enemy's Camp
—Successful—General Medina approaching—Send Gen. Baez and
Anzani to Meet him—A Great Surprise—Almost Overwhelmed by the
Enemy—Fight till Night—Retreat, 184
CHAPTER XXVIII.
Preparations for our Retreat—Attacked on the Way—Bravery of my
Italians—I never Despaired of Italy—The noble Character of Anzani—
Reach Salto—Kindness of French Physicians—Collect and Bury the
Dead, 191
CHAPTER XXIX.
Effects of the Revolution in Montevideo—Change of Duties of the
Italian Legion—No Important Military Movements—My Occupation
with the Marine—Diplomatic Negotiations—The Temporizing Policy of
Rosas—Change of English and French Agents and Admirals—Evil
Consequences—Rivera in favor in Montevideo—My Operations at
Salto Continued—Surprise Vergara's Camp—Leave it to Return, 196
CHAPTER XXX.
On the March Back to Salto—Sudden Attack—Desperate Defence—
Flight and Pursuit—The "Bolla"—Excellence of the Horsemen—
Incidents, 203
CHAPTER XXXI.
I Return to Montevideo, with the Flotilla—Rosas Gains Strength—
The Army of Corrientes Destroyed by Urquiza—Rivera's
Mismanagement—The Intervention Misdirected—Fall of Salto—
Defence again reduced to Montevideo—High Deserts of its
Defenders, Natives and Foreigners, not yet appreciated—An interval
occurs, not marked by important events—The Revolutions in Europe,
208
OUTLINES OF GENERAL GARIBALDI'S CAREER IN ITALY DURING
THE YEARS 1848 & 1849, 211
Principles of the Italian Republicans, in opposition to the claims of
Popery, 213
The Condition of Rome, 216
Official Report of the Repulse of the French advance of 8,000
men, under General Oudinot, under the Walls of Rome—The First
Battle: April 30th, 1849, 221
 From an Account of the same Battle of April 30th, by Carlo
Rusconi, 227
Spirited Proclamation to the People of Rome, by their
Representatives, the day after the first Battle, 228
Proclamation by the Committee of the Barricades, two days after
the first Battle, 229
The Neapolitan Invasion, 230
Proclamations of the Triumvirate, at the time of the Neapolitan
Invasion, 231
The Battle of Palestrina, 232
General Garibaldi's Account of the Battles of Palestrina and Velletri,
234
The Battle of Velletri, 235
General Garibaldi's Account of the Action of June 3d, 1849, with
the French, at Villas Corsini and Vascello, 238
Official Bulletin of events which took place on the 25th and 26th of
June, 1849, 243
THE BATTLE OF JUNE 30TH, 249
The City to cease her resistance, 250
Roman Republic, 251
The Constitution of the Roman Republic adopted—The Constituent
Assembly Dissolved, 253
Proclamation of the Minister of War, 255
Garibaldi's Departure from Rome with his remaining troops, and
his Celebrated Retreat to the Adriatic, 255
 TEN YEARS LATER.

CHAPTER I.
Garibaldi Waiting his Time—The Island of Caprera—His Confidence
in the Approach of Italian Deliverance, expressed in his preceding
Autobiography, and at New York—His Personal Appearance—
Injustice Done to his Character and Style of Writing—M. Dumas'
Book—Preparation of the Italian People for Union and Liberty, by
Secret Societies—Changes Of Policy—The Principles of the Italian
Patriots adopted by France and England—Consequences, 257
CHAPTER II.
Policy of Louis Napoleon since 1849—His Position in 1859—Causes
of the War in Lombardy—Austrian Army Threatens Piedmont—
French Troops sent to the Aid of Victor Emanuel—Garibaldi called
into Service—Marches North—Apprehensions of his Friends—His
Brilliant Successes at Varese and Como, 263
CHAPTER III.
Como—Approach of General Urban with 40,000 Austrians—
Garibaldi Retires—Como Taken—Count Raimondi's Daughter—
Garibaldi Returns and Expels the Austrians—The Battle of Camerlata
—The Austrians Demand the Disbanding of Garibaldi's Troops—
Refused—They Advance—The Canals Opened—They Retire—The
Battles of Palestro, Montebello, and Magenta—The Mincio and its
Banks—The Battle of Solferino, 270
CHAPTER IV.
The State of the Contending Parties—Specimen of the Barbarity of
some of the Austrian Officers—The Armistice, 279
CHAPTER V.
The Character of Italian Patriots—How it has been Displayed by
Exiles in the United States—Ignorance of Italy in America—
Garibaldi's Appearance and Character—His Band—His "Englishman,"
Col. Peard, 287
CHAPTER VI.
Garibaldi with an Army at Rimini—General Lamoricière at Pesaro—
Victor Emanuel Apprehends a Premature Collision—Garibaldi goes to
Piedmont—Nice and Savoy Ceded to France—Garibaldi at Caprera—
The Sicilian Revolution Commenced—Garibaldi's Expedition for Sicily
—The Island—The People, 292
CHAPTER VII.
Accounts of the Expedition for Sicily—Voyage—Touch at Talamone,
in Tuscany—Proceed to Marsala—Landing—March—Occurrences on
the way to Palermo, 298
CHAPTER VIII.
Preparations to Attack Palermo—Night March—Attack—Battle—The
Bombardment, 311
CHAPTER IX.
Journal of an Eye-witness Continued—Palermo after the Capture—
Garibaldi in a Dangerous Crisis—The Archbishop of Palermo and
many of the Heads of Convents with Garibaldi—Address of the
Corporation—Incidents in Palermo—Garibaldi's Decree for Poor
Soldiers and their Families, 319
CHAPTER X.
Garibaldi Solicited by the Sicilians to Accept the Dictatorship—
Demand for Arms—Garibaldi's Proclamation Establishing a
Government, etc.—His Different ways of Treating Good Priests and
Jesuits—Reasons—The King of Naples' Liberal Decree—Rejected, 326
CHAPTER XI.
Medici's Expedition from Piedmont to Aid Garibaldi—Preparations,
Departure, Voyage, Arrival, etc.—Capitulation of Messina, etc.—
Garibaldi at Messina—His Reception, Manners, and Simple Habits—
Difficulties in Arranging his Government—Letter from Victor Emanuel
Forbidding him to Invade Naples—Garibaldi's Reply, 332
CHAPTER XII.
Garibaldi's Position—A Pause in Hostilities—A Period of Preparation
—Public Anxiety—The Sicilian Fortresses—Catania—Milazzo —Boats,