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Summary CIVIL LITIGATION REVISION NOTES(JAN)
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CIVIL LITIGATION REVISION NOTES(JAN)
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ACIVIL LITIGATION REVISION NOTES(JAN)
CASE ANALYSIS &
INVESTIGATION
Solicitor’s considerations
Taking instructions:
Letter of advice – confirmation of instructions, factual details and
objectives, initial advice, summary of further information and agreed
next steps.
Retainer – Code of Conduct Chapter 1 – fees, complaints etc.
Costs in civil cases
Solicitor-client costs: profits + disbursements (+VAT).
Party-party costs:
o CPR 44.2(2): General rule – loser pays winner’s costs.
o CPR 44.2(1): Court has discretion to award costs.
Client notified: rare for 100% recovery and any shortfall will have to
be paid by them
Court only provides part of cost in award;
Court only provides for reasonable costs (usually 70%);
The other side may not have any money to recover.
O(1.13): Should advise client from outset that they will not recover all of
their
Funding costs and provide costs information and updates throughout.
arrangements
Conditional Fee Not allowed in family, mostly criminal
Arrangement (CFA): Success fee can be charged
Solicitor’s fees and If C wins, can no longer claim success fee or
expenses payable only in insurance premium from D; however,
specified circumstances damages for non-pecuniary losses are
(no-win-no-fee). increased by 10% in all civil claims.
2005 Regulation requirements:
Must be in writing
Specify particular part of
proceedings which it relates to
Amount of % to increase
Written reasons for level of success fee.
Damage-Based Agreement Max 25% PI, 25% employment, 50% other
(DBA): Solicitor can recover cases.
percentage of damages in Agreement must set out how fee is
event of success calculated, what happens if settlement,
(contingency fee) – now and how % is arrived at
lawful. No hybrid model (DBA + hourly) permitted
State Funding/ Legal Aid: Only available for individuals (including
Limited in civil claims partners) but not limited companies
(possible
Statutory forand
Charge debt,
Costshousing,
Protection Must have sufficient merit and low means to
discrimination) qualify
MERIT AND MEANS TESTED
Successful LA C Successful LA D Unsuccessful LA C Unsuccessful LA D
C’s damages paid by D’s costs paid S.11 Access to Same costs
D. by C. Justice Act: order for protection.
C’s costs are paid by If no £ costs will not excess No s.11(4)
D. recovered, reasonable with application
C report to LAA. statutory charge available.
,A
CIVIL LITIGATION
If shortfall, LAA
REVISION NOTES(JAN)
does not apply. regard to circum. = C makes choice to
applies costs protection. sue
statutory charge LAA funds D’s Court discretion funded D - it is
over cost s.11(4): possible
damages/property shortfall. a) Just and it may not recover
recovered = C’s equitable. damages or costs –
damages b) Financial
reduced to meet hardship. make client aware!
costs.
,A
CIVIL LITIGATION REVISION NOTES(JAN)
PRE-ACTION
CONDUCT
Professional Negligence Pre-Action Protocol: Where bringing an action against a
professional for negligence, breach of contract or breach of fiduciary duty.
5.2: Preliminary Notice to inform potential D in writing when reasonable
chance C will bring a claim providing relevant details.
5.4: Acknowledgement within 21 days.
6: Letter of Claim including details of grounds of claim.
o 6.3: NB sanctions if Letter of Claim is materially different from statement
of case.
7: Letter of Acknowledgement within 21 days of receipt.
8.2: Investigations within 3 months from letter of acknowledgement and
respond to letter of claim
9.2: Letter of Response to claimant’s allegations.
o 9.4.1: If Letter of Response denies and no Letter of Settlement, C can
commence.
Practice Direction for Pre-Action Conduct: Steps prior to issuing a claim –
6(a): C writes to D with details of claim.
6(b): D responds within reasonable time – 14 days – 3 months based on
complexity.
6(c): Key documents disclosed.
8 – 9: ADR, settlement and negotiation considered with litigation as last resort.
Consequences of Non-Compliance
PD PAC 13: Court will look at whether parties have complied in
substance, account for proportionality and will not be concerned
with minor infringements.
PD PAC 15: Where there has been non-compliance, court may order:
o Parties relieved of obligations to comply further with the PDs and
protocols.
o Proceedings stayed while parties comply with PDs and protocols.
o Sanctions applied (costs sanctions; costs on indemnity; interest
not awarded; higher interest rate applied).
CPR 44.2(5)(a): Court will consider conduct of parties in complying with
Commencement of Proceedings
CPR 7:
Less than £100,000 – County Court;
More than £100,000 – County Court or High Court depending on CPR PD 7A,
para 2.4:
o Financial value (not including interest, costs, counterclaim, contributory
negligence);
o Legal complexity of facts/issues/procedures/remedies; and
Transfer between County Court and High Court
CPR 30.3(2): Criteria similar to that set out in CPR PD 7A, para 2.4.
There may be costs sanctions imposed on a party who has started
proceedings in the incorrect court.
CPR 30: If wrongly commenced in the County Court, the court would transfer
the case to the High Court and costs sanction may be imposed.
Tracks:
CPR 27: Claims up to £10,000 – small claims track.
CPR 28: Claims between £10,000 and £25,000 – fast track.
CPR 29: Claims over £25,000 – multi-track (most High Court cases allocated to the
multi-track).
, A
CIVIL LITIGATION REVISION NOTES(JAN)
Pre-Action Disclosure
CPR 31.16: Allows a party to apply to court for pre-action disclosure under CPR
31.16(3) –
(a) Respondent likely to be a party to proceedings
(b) Applicant likely to be a party to proceedings
(c) Had proceedings started, documents would have been disclosed under
standard disclosure
(d) Disclosure desirable to:
o Dispose fairly of proceedings
o Assist in resolution without proceedings
o Save
costs.
Cost-benefit analysis
In favour of litigation Against litigation
Large sums of money at stake Costly – long and complex action, time
consuming and risky
Solicitors have professional indemnity Difficult to prove negligence
insurance (if you are taking on a firm
of solicitors)
Must prove negligence – can be difficult Uncertainty
for defendant to prove he was not
negligent
Public if you want the defendant Risk of paying substantial costs if you
to be held accountable lose if the defendant is likely to be able
to afford top (costly) legal professional.
Case must be watertight (if it is – this is Case must be watertight (if it is not –
MOST IMPORTANT PARTS OF A CIVIL ACTION CLAIM: MUST
beneficial) BE ABLE TO PROVE…
harmful)
DUTY: The defendant owed Express terms in retainer.
the claimant a duty of SGA 1973 (s.13 and s.14).
care. Additional letters constituting retainer.
BREACH: The duty of care Experience and specialism of D.
was Evidence from those similarly qualified
breached. Should the advice have been qualified (e.g. ‘I
cannot say for certain but…’)
CAUSATION: Which The loss must flow from the breach.
caused… The loss cannot be too remote.
The claimant must have relied on the defendant.
DEFENCES: Remoteness,
LOSS: The loss. contributory negligence,
Did the claimant do anything to mitigate or
mitigation. aggravate their loss?
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