BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Civil Litigation
Class notes
Civil litigation revision notes
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Course
Civil Litigation
Institution
BPP University College Of Professional Studies Limited (BPP)
Entire civil litigation course in note form. Notes proceed in logical order and include all topics e.g. general pre-action protocols, drafting a claim form, disclosure and inspection, case management conferences, interim applicatins, jurisdiction and alternatives to litigation.
BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Civil Litigation
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General pre-action protocols
1. Under 6(a), C writes to D with precise details of the claim in a letter before claim including:
a. the basis on which a claim is made;
b. a summary of the facts;
c. what C wants from D and, if money, how the amount is calculated.
2. D responds within a reasonable time—14 days for simple cases, 3 months for complex ones—&
either accepts the claim, or rejects it (in whole/part) with reasons (6(b)).
3. Each party discloses key documents relevant to the issue (6(c)).
4. Parties consider whether ADR might enable them to settle—litigation is a last resort (8).
5. Court will consider PAP compliance for directions (CPR 3.1(4)-(6)) & costs (CPR 44.3(5)(a))
(13).
6. Note: costs of PAP should be minimal: parties should take only ‘reasonable & proportionate’
steps (4 & 5) (see 44.3(5) for meaning of proportionate).
Professional negligence pre-action protocols
1. Once C decides there’s reasonable chance of suing a professional, C must send written notice
(5.1).
2. Under 5.2, this letter—the Preliminary Notice—should:
a. identify C & the other parties;
b. outline briefly the C’s grievance;
c. if possible, give an indication of the financial value of the claim; and
d. be addressed to the professional and ask him to inform his professional indemnity insurers
(5.3).
3. The Preliminary Notice should be acknowledged within 21 days of receipt (5.4).
4. Once C decides to sue the professional, C should write a detailed Letter of Claim (6.1).
5. It should be an open letter and include (6.2):
a. the identity of any other parties involved in the dispute;
b. a clear, chronological summary of the facts on which the claim is based with key documents;
c. the allegations against D;
d. an explanation of how the error caused the loss claimed;
e. an estimate of the financial loss suffered;
6. The Letter of Claim should be acknowledged within 21 days of receipt (7.1).
,Choosing a court
1. Chancery for land, mortgage, trusts, bankruptcy, partnerships, IP, company matters, contract,
tort.
2. QBD for commercial matters, admiralty, judicial review.
3. Family for matrimonial and related matters.
If the value of the claim exceeds £100,000 (or £50,000 for PI) use either HC or CC.
If the value of the claim is less than £100,000, use only the CC (7A PD 2.1).
To value claims disregard: costs, interest, counterclaims, contributory negligence & benefits
(16.3).
If there is a choice, consider 7A PD 2.4 (p113) to see if the claim is sufficiently complex for HC.
Under 29 PD 2.2, a claim under £100,000 issued in the HC will generally be transferred down.
The C may have to pay to transfer the case if it was brought in the wrong court under CPR 30 and
the court may penalise C by deducting up to 25% from any costs award under s.51 SCA.
The criteria the court will use to decide where the case should be tried are in 30.3(2) (p322).
Elements of a claim
1. Duty
in contract, show that there was a contract and that a duty was owed under it.
in tort, show that there was a duty owed under the common law and/or a statutory duty.
2. Breach
in contract, there may’ve been a breach of SGA/SGSA (see p507).
in tort, did D’s standard of care fall below that which could be reasonably expected of him.
3. Causation
show that ‘but for’ the breach, damage has been caused.
4. Damage
show that it was foreseeable and calculate the amount.
in contract, the aim is to put C in the position it would be if the contract was performed
properly.
in tort, the aim is to put C in the position it would be had the tort not been committed.
The burden of proof lies with the party who asserts it e.g. C must prove duty, breach, causation, &
loss and D must prove contributory negligence & why C’s version of events is wrong.
,Bringing a claim—remember clear days under CPR 2.8
1. Proceedings begin when the court issues a claim form (Form N1) at C’s request (7.2(1) & 7A PD
5.1). This must occur within the limitation period:
a. in contract, 6 years from the breach of contract;
b. in tort, 6 years from when the loss or damage was suffered.
2. To issue the CF, C must take/send to court:
a. copies of the CF: for the court, for each D, and for C;
b. a court fee; and
c. if the particulars of claim are contained in or served with the CF, also (7.8(1)):
i. the particulars of claim; and
ii. the response pack (Form N9) containing: a form for admission, form for defending,
and a form for acknowledging service.
3. Where CF has been served within the jurisdiction, it’s valid for 4 months from the date of issue
& must be served on D in this time (7.5(1)). C may exceptionally apply for an extension under
7.6.
This jumps up to 6 months if the CF is being served outside the jurisdiction (7.5(2)).
4. CPR 6.14: CF deemed served on 2nd business day after completion of relevant step in 7.5 (p108).
If the particulars are attached, they will be deemed served with the CF.
The court will permit service by alternative means if there is good reason for doing so
(6.15(1)).
Where a solicitor is authorised by his client to accept service and the other party has received
written notification of this, the CG must be served on the solicitor (6.7(1)).
5. If particulars are served separately, serve them within 14 days of service of CF (7.4(1)(b)). In
this case, the particulars are deemed served according to CPR 6.26 (p90) & they must be verified
by a separate statement of truth (7A PD 6.1(2) & 7.2).
If served separately, serve particulars within the period of CF’s validity i.e. 4/6 months
(7.4(2)).
6. D doesn’t have to react until it receives the particulars (9.1(2)). Within 14 days of deemed service
of the particulars, under 9.2, D may:
a. file or serve an admission of part or all of the claim (14.2(1)(a));
b. file a defence (15.4(1)(a));
c. file an acknowledgement of service (10.3(1)(a)).
7. D files an acknowledgement if either:
a. needs longer than 14 days to file its defence; or
b. if it wishes to dispute that the court has jurisdiction to hear the claim.
If D does file an acknowledgement, it extends the deadline for serving the defence to 28
days after deemed service of the particulars (15.4(1)(b)).
8. Extending deadlines for the defence:
i. D & C can agree an extension for serving defence of up to 28 days (15.5) i.e. D can serve
its defence up to a max of 56 days from deemed service of particulars.
ii. For further extensions D must make an interim application before expiry of the deadline,
and a Master/DJ will decide whether an extension should be granted (3.1(2)(a)).
iii. The court will consider the OO when deciding on extensions.
iv. If D or C applies for summary judgement, D doesn’t need to file a defence in time
(24.4(2)).
9. If D fails to file a defence or acknowledgement within the time limit, C can submit a request for
judgement in default (CPR 12). To obtain JiD, under 12.3 C must show:
a. the particulars have been served;
b. the time has expired for filing a defence or acknowledgement and neither was filed;
, c. the claim has not been admitted or satisfied; and
d. no application for summary judgement or strike out has been made.
C then files a ‘request for judgement’ for the amount sought; fixed costs; and interest accrued.
Either the court or D can set aside JiD:
i. if it was wrongly entered i.e. any of points (a)-(d) above were incorrect; or
ii. the court may exercise discretion if it believes D has a ‘real prospect of successfully
defending the claim’ (an ‘arguable’ defence is insufficient), or some other good
reason.
10. A court officer decides on a track and serves on the parties a notice of proposed allocation
(26.3(1)).
The claim form
1. Heading (7A PD 4.1 and 4.2)
The title should clearly state:
a. the number of the proceedings (for QBD: 2020-HC-1234 or for chancery: HC-20-C-1234);
b. the court and/or division in which they’re proceeding;
c. the full name of each party; and
d. the party’s status in the proceedings.
2. Parties and addresses of the parties
Layout
Sole trader Fred Flagstone (trading as Fred’s Café).
If being sued, an alternative is: Fred’s Café.
Partnership (1) Fred Flagstone
(2) Bill Rouble
and/or
Flagstones (a Firm)
Company Rock Limited
LLP Flagstones LLP
C includes the address where D is served (6.6(2)). See 6.9 if no address is given & no solicitor is
acting.
3. A concise statement of the nature of claim
4. The remedy sought by C
If interest is claimed, this must be stated (16.4(2)). The right to interest may be contractual or
statutory, under s.35A SCA for HC & s.69 CCA 1984 for CC.
5. Statement of the amount claimed
This is required by 16.3. It can be set out in three ways under 16.3(2):
a. where the amount is specified, the amount of money claimed set out in figures;
b. where unspecified, an estimation of either:
i. The claimant expects to recover less than £10,000;
ii. ...between £10,000 - £25,000;
iii. ...more than £25,000; or
c. a statement saying: ‘I cannot say how much I expect to recover’.
6. Jurisdictional endorsement
In relation to a money claim and if it CF is to be issued in the HC, it must:
a. state that C expects to recover more than £100,000;
b. state some other enactment provides that the claim may be commenced only in the HC;
c. if the claim is for PI, state that C expects to recover more than £50,000; or
d. state that the claim to be in one of the specialist HC lists and state which list.
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