Class notes
Civil Litigation Notes.
- Course
- Institution
Civil Litigation Revision Notes
[Show more]
Seller
Follow
BestGradez
Content preview
CIVIL LITIGATIONCASE 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 costs and provide costs information and updates throughout.
Funding
Conditional Fee Arrangement Not allowed in family, mostly criminal
arrangements
(CFA): Solicitor’s fees and Success fee can be charged
expenses payable only in specified If C wins, can no longer claim success fee or insurance
circumstances (no-win-no-fee). premium from D; however, damages for non-pecuniary
losses are 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 (DBA): Max 25% PI, 25% employment, 50% other cases.
Solicitor can recover percentage of Agreement must set out how fee is calculated, what
damages in event of success happens if settlement, and how % is arrived at
(contingency fee) – now lawful. No hybrid model (DBA + hourly) permitted
State Funding/ Legal Aid: Limited in Only available for individuals (including partners) but
civil claims (possible for debt, not limited companies
housing, discrimination) Must have sufficient merit and low means to qualify
MERIT AND MEANS TESTED
Statutory Charge and Costs Protection
Successful LA C Successful LA D Unsuccessful LA C Unsuccessful LA D
C’s damages paid by D. D’s costs paid by C. S.11 Access to Justice Same costs protection.
C’s costs are paid by D. If no £ recovered, Act: order for costs will No s.11(4) application
C report to LAA. statutory charge not excess reasonable available.
If shortfall, LAA applies does not apply. with regard to circum. = C makes choice to sue
statutory charge over LAA funds D’s cost costs protection. funded D - it is possible
damages/property shortfall. Court discretion s.11(4): it may not recover
recovered = C’s damages a) Just and equitable. damages or costs –
reduced to meet costs. b) Financial hardship. make client aware!
, CIVIL LITIGATION
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).
, CIVIL LITIGATION
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 for Uncertainty
defendant to prove he was not negligent
Public if you want the defendant to be held Risk of paying substantial costs if you lose if the
accountable defendant is likely to be able to afford top (costly)
legal professional.
Case must be watertight (if it is – this is beneficial) Case must be watertight (if it is not – harmful)
MOST IMPORTANT PARTS OF A CIVIL ACTION CLAIM: MUST BE ABLE TO PROVE…
DUTY: The defendant owed the Express terms in retainer.
claimant a duty of care. SGA 1973 (s.13 and s.14).
Additional letters constituting retainer.
BREACH: The duty of care was Experience and specialism of D.
breached. Evidence from those similarly qualified
Should the advice have been qualified (e.g. ‘I cannot say
for certain but…’)
CAUSATION: Which caused… The loss must flow from the breach.
The loss cannot be too remote.
The claimant must have relied on the defendant.
LOSS: The loss. Did the claimant do anything to mitigate or aggravate their
loss?
DEFENCES: Remoteness, contributory negligence, mitigation.
, CIVIL LITIGATION
THE CLAIM FORM, RESPONSE AND JUDGMENT IN
DEFAULT
The Claim Form
CPR 7.2: To commence proceedings fee + claim form (three copies (unless multiple defendant) – one for
court, one for you and one to serve on defendant(s)).
Fee for a claim greater than £200,000 is £10,000.
CPR 7.4(1)(b): Where claim form and Particulars are not served together, the Particulars must be served
by the claimant within 14 days of serving the claim form.
CPR PD 7, para 5.1 and 5.2: Issuing claim form stops the limitation period running.
Serving claim form:
o Claim form served on defendant by claimant or court (with or without particulars of
claim attached).
o CPR 7.5 and CPR 7.4(2): Claim form and particulars of claim must be served on the
defendant by midnight on the calendar day 4 months after the date of issue of the claim
form.
o CPR 6.14: Deemed service – 2nd business day after completion of the relevant step.
Address for service (CPR 6.7 – 6.11):
o Where solicitor authorised to accept service, must be served on solicitor
o Where solicitor not authorised, parties must give address
o If no address given, service effected in accordance with CPR 6.9.
Service of Other Documents
CPR 6.26:
Post – 2nd day after date of positing if on a business day.
o If not on business day, the next business day after that day.
Delivery to address/Fax/Email/personal service – before 4:30pm on that
business day.
o If not business day or after 4:30pm, the next business
day after that day. CPR 6.23: Address of service –
If solicitor authorised to accept, must be served on solicitor.
If no solicitor, parties must give address in UK or EEU (if none, must give
Response by Defendant
D must do one of three things 14 days after service of the Particulars of Claim:
CPR 14: Admit all or part of the claim;
CPR 15: File a defence; or
CPR 10: File an acknowledgement of service.
Time Limits
Acknowledgement of Service Defence
CPR 10.3: Period for filing: If CF and Particulars filed together =
If CF and Particulars filed together = 14 days after service.
14 days after service. If CF and Particulars served separately =
If CF and Particulars served separately = 14 days after service of Particulars.
14 days after service of Particulars. Where acknowledgement of service is
filed… you have 14 days from the service
of acknowledgement to file your defence.
CPR 15.4(1)(b) *** Key: maximum of
28 days after Particulars served to file
defence.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller BestGradez. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $14.45. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
76669 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now