Summary
Summary: Dispute resolution civil litigation
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A document setting out everything you need to know for civil litigation in dispute resolution on the LPC.
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Outcome #Initial steps in dispute resolution, including case analysis 2
Methods of ADR and their appropriateness 3
Funding options 3
Practice Direction – Pre-Action Conduct and Protocols and the Professional Negligence 4
Pre-Action Protocol
Write a letter of advice 5
Evaluate the effect of further evidence upon case analysis 9
Write a letter before claim 10
Responses to a letter before claim 11
Draft particulars of claim and interest 12
Draft defences and counterclaims 15
Explain options on receipt of a claim 16
Calculate deemed dates of service 17
Grounds of judgment in default 17
Draft a claim form 18
Draft an interim application notice (Form N244) and order 24
Practical and tactical considerations in making applications to the court 33
Settlement offers (Part 36) 36
Court’s case and costs management powers and duties 37
Disclosure 40
Draft a case summary 43
Standard directions order in a multi-track claim 44
Witness statement rules 46
Instructing expert witnesses 48
Expert evidence rules 48
Draft a witness statement 50
Tomlin orders 52
Steps for preparation before trial 54
Trial conduct 55
Post-trial practical and tactical considerations 56
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,Initial steps in dispute resolution, including case analysis
Identify the parties, your client, and the legal personality of each.
Case analysis:1
- What is the cause of action?
- What elements must be proved for the claim to succeed?
- What evidence is already available?
- What evidence do we need?
- Remember contractual or statutory limitation periods!!2
o For claims founded on contract or tort, the statutory limitation period is six years
from when the cause of action accrues (either when the contract was breached or
when the tort was committed) [LA 1980 ss 2 and 5]
o For latent damage, the limitation period is six years from the date on which the
cause of action accrued, or three years from the date of knowledge of certain
material facts about the damage, if this period expires after the six year period [LA
1980 s 14A]
Case analysis for breach of contract:
Legal elements Facts to prove Evidence we have Evidence we need
Offer, acceptance, Written/oral?
consideration Date?
Entered into by whom and
how?
Express terms
Implied terms SGA/SGSA?
Business-to-business
contracts automatically
apply SGSA
Breach of terms
Factual consequences of What caused the loss? Was
loss it the breach?
Quantum
Calculating quantum:
Outgoings if contract properly performed: X
Outgoings because of breach: Y (including loss of profits and new contract)
Total: (Y-X)
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,Methods of ADR and appropriateness3
Determinative ADR:
- Litigation
- Arbitration
- Expert determination4
Non-determinative:
- Negotiation
- Mediation5
Factors to take into account:6
- Contract – any DR provisions?
- Publicity – want to clear name or keep quiet?
- Jurisdiction – issues can be avoided in arbitration
- Precedent – need to settle complex questions?
- Cost/time
- Relief required
- Future relationship between parties
- Expert evidence
Funding options
Insurance:
- Consider whether the client’s liability for costs may be covered by legal expenses insurance
cover, and whether the likely outcome justifies the expense involved
- After-the-event legal insurance provides cover for the other side’s costs and the client’s own
disbursements in the event of losing a case. The premium payable depends on the strength
of the client’s case and the level of cover required
- Before-the-event legal insurance might cover the costs of litigation. Solicitors should always
invite their client to bring along a copy of any insurance policy that may cover them
Conditional fee agreements (CFAs):7
- This is when fees are only paid in specified circumstances, namely whether or not the client
succeeds with their claim [s.58(2)(a) Courts and Legal Services Act 1990]
- This can be no or lesser fees if the client loses, or normal or higher fees if the client wins
- These must be agreed in writing, and must state the percentage of the success fee (the
amount the normal fee is to be increased by under the CFA)
- The success fee cannot exceed 100% of the solicitor’s normal charges [CFA Order 2013]
- If the client is covered by before-the-event legal expenses insurance, then a CFA won’t be
necessary
- Disbursements are not covered by CFAs, and so these will still be payable to the solicitor
- If the client loses the case under a CFA, he may not have to pay his own fees, but would still
have to pay for the other party’s fees, including disbursements
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, Damages-based agreements (DBAs):8
- These are when the solicitor receives a proportion of the damages obtained by a client, if
damages are recovered [s.58AA CLSA 1990]
- These must be in writing and must not provide for a payment (including VAT) above 50% of
the damages [CLSA 1990 s 58AA)3)(a) and DBA Regs 2013] (but doesn’t include
disbursements)
- The terms and conditions of a DBA must specify:
o The claim or proceedings or part of them to which the agreement relates
o The circumstances in which the representative’s payment, expenses and costs, or
part of them, are payable, and
o The reason for setting the amount of payment at the level agreed
Costs judgments9
- If the client loses, he will have to pay his own solicitor’s costs and normally, in addition, his
opponent’s costs [r 44.2(2)(a)]
- If the costs recoverable are less than the costs incurred (usually costs judgments are only
around 80% of costs), the client will be responsible for paying the remainder of his costs
Pre-Action Protocols10
These set out the tasks that must (or should) be completed before an action is commenced.
The Practice Direction – Pre-Action Protocol specifically applies to situations where no pre-action
protocol approved by the Master of the Rolls applies.
Aims to help the parties:
- Understand each other’s position
- Make decisions about how to proceed
- Try to settle the issues without proceedings
- Consider ADR
- Support the efficient management of those proceedings
- Reduce the costs of resolving the dispute
Parties are not required to attempt ADR, but they should consider it. An unreasonable refusal to
attempt ADR will be judged by the court.
If a dispute has not been resolved after following the PD-PAC, then they should seek to narrow the
claim before commencing proceedings.
If the limitation period expires while the parties are complying with the PD-PAC but proceedings
have been launched in order to comply with the limitation time limit, the parties may apply to the
court for a stay of the proceedings.
The claimant should:
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