Revision notes for the Dispute Resolution module on the LPC at the University of Law. The hyperlinked notes cover all topics on the module, for both civil and criminal litigation, including: pre-action, commencing proceedings, interim applications, settlement, case management, disclosure, evidence,...
DISPUTE RESOLUTION REVISION NOTES
LPC (University of Law)
CIVIL LITIGATION
Pre-Action
Commencing Proceedings
Interim Applications
Settlement
Case Management
Disclosure
Evidence
Trial
CRIMINAL LITIGATION
Criminal Procedure Rules
Police Powers & Duties
First Court Appearance
Case Analysis
Bail
Evidence
Sentencing
All notes correct and Distinction worthy as of
academic year 2020/21
,PRE-ACTION
Initial client interview
Ensure the client’s objectives and the legal issues are identified, their options are explained to
them, and next steps agreed on
Consider professional conduct issues e.g. core duties, confidentiality, conflicts of interest,
authorisation
Discuss funding with the client:
• Conditional fee arrangements (CFA) – are lawful if they are in writing and clearly state the
fees that are to be paid (see p18)
• Damages-based agreements (DBA) – are lawful if they are in writing and do not provide for
a payment above a prescribed amount (see p20)
• Legal expenses insurance – a solicitor should always check if the client has a policy in place
which may cover the claim
• Third party funding – a claimant may be eligible if they are a member of a trade union or
professional organisation
• Legal aid – available in very limited circumstances
Perform case analysis
Consider liability – the cause of action, legal elements to be satisfied, strength of the claim,
limitation period, and types of remedies available
Consider viability – the defendant(s) and their finances, resources and time of the claimant,
whether the burden of proof is likely to be discharged
Consider quantum – evidence available to prove the loss, any issues of remoteness and mitigation
Consider alternatives to litigation
Litigation must be the last resort, so discuss the client’s options with regards to ADR (CPR 1.1, Pre-
Action Protocol 3(c)-(d), 8-11)
• Mediation – a third party meets with each party and their legal representation,
encouraging them to move towards a practical commercial solution, which will only be
binding when signed by both parties
• Arbitration – a third party reaches a decision that is automatically binding on both parties
• Expert determination – an expert makes a binding decision on a technical issue
• Negotiation – parties can discuss reaching a settlement
ADR is often quicker, cheaper, more flexible, and private; however judgements may be non-
binding and less easily enforceable
Consider whether the client wants privacy, cost and time issues, whether expert evidence is
needed, the remedy required, whether there are any relevant contractual provisions, and the
need to preserve any business relationships
Swain Mason v Mills & Reeve: Where a client reasonably believes they have a watertight case,
there is no requirement to engage in ADR, only to consider it
Consider financing the claim
Ask whether the client has any insurance that might cover the costs of making the claim – could
the client take out after the event insurance (AEI) now?
A conditional fee agreement (CFA) which bases fees on whether the client’s case is successful or
not could be an option – they are not necessarily ‘no win no fee’ and are only lawful if they are in
writing and clearly state the fees to be paid
,A damage-based agreement (DBA) which bases fees on a percentage of the damages awarded
could also be used – the maximum that can be charged is half of damages incl. VAT and counsel
Take early action
Check limitation periods – 6 years from date of breach for contractual claims and tort; 3 years for
personal injury from the injury; the later of 6 years from the damage or 3 years from when the
claimant could bring the claim for negligence
Take a proof of evidence, containing a full and accurate set of instructions
Write a formal letter to the client summarising the first interview
Carry out interviews with witnesses to take their proof of evidence ASAP
Identify relevant documents and ensure these are supplied by the client as soon as possible
Consider instructing experts and counsel at this stage, but remember court must give permission
for expert evidence to be relied on and may limit fees recoverable (Pre-Action Protocol 7)
Send pre-action correspondence
Send a letter before claim to the defendant providing the details of the claim (Pre-Action Protocol
6(a))
Include suggestions and warnings to the defendant e.g. to take legal advice, if the letter is ignored
the claimant may begin proceedings
Usually a full response should be given within 14 days of receipt, but if a claim is complex this may
be extended up to 3 months provided a letter of acknowledgment is given within 14 days (Pre-
Action Protocol 6(b))
A letter of response or acknowledgement should be sent by the defendant, confirming whether
the claim is accepted, which facts or parts are disputed, and whether the defendant has a
counterclaim
Any documents requested by the claimant should be provided, and if not, an explanation as to
why not offered
At this point there should be a genuine opportunity to resolve the matter without need for
proceedings, or if possible, narrow the scope of any proceedings
, COMMENCING PROCEEDINGS
Decide on the appropriate court
County Court – for claims worth £100,000 or less
High Court – for claims worth in excess of £100,000 (PD 7A para 2.1)
Complete the Claim Form
Proceedings are issued when the claim form is sealed with the court seal (CPR 7.2(1))
The claim form must include (CPR 16.2)
• Claimant and defendant details – incl. full name and address of each party
• Brief details of claim – a concise statement of the nature of the claim and remedy sought
• Value of the claim – specified or unspecified; whether it is expected to be not more than
£10k, not more than £25k, more than £25k, or the claimant cannot say (CPR 16.3(2))
• Court fee – based on the value of the claim
• Solicitor’s costs – if fixed, if not then “to be assessed”
• Statement of truth (CPR 22) – signed by the claimant, their litigation friend, or their legal
representative
Once issued by the court, the claim form must be served on the other parties either by personal
service, first-class post or DX, fax, leaving it at a specified place (CPR 6.3(1))
The claimant has 4 months from the claim form being issued to serve it on the defendant (CPR 7.5)
The claim form will be deemed to be served on the second business day after the claimant has
completed the required step for the chosen method of service (CPR 6.14)
If a defendant or their solicitor has given in writing the business address of the solicitor and said
this is where documents are to be served, then the claim form must be served there (CPR 6.7(1))
Serve the Particulars of Claim
The particulars of claim are the details of claim, including all the facts upon which the claimant
relies, and if the claim includes interest, a statement to that effect and the details of the basis for
and calculation of that interest (CPR 16.4)
They may be included with the claim form, or sent out in a separate document that must be
served within at least 14 days of the claim form – this must also be done within 4 months of the
claim form being issued (CPR 7.4)
It must include forms for defending or admitting the claim, and a form for acknowledging service
(CPR 7.8(1))
The Particulars, and any document other than the claim form, will be deemed served (CPR 6.26)
• Post or DX – two days after posted, or the next day if that day is not a business day
• Leaving at permitted address – the day of it being left if before 4:30pm, if not, the next
business day
• Fax or email – the day of being sent if before 4:30pm, if not, the next business day
• Personal service – the day of it being served if before 4:30pm, if not, the next business day
Serve the defendant’s response
The defendant can respond by filing an:
• Admission – if they wholly accept the claim
• Defence – which must be a comprehensive response to the PoC stating which allegations
are admitted, denied, and unable to be admitted or denied (CPR 16.5) in the form of a
separate document (or N9B for specified claim, N9C unspecified) and should be verified by
a statement of truth and filed within 14 days of service of the PoC (CPR 15.4)
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