BPP University College Of Professional Studies Limited (BPP)
I completed the LPC (Legal Practice Course) at BPP University in 2017 with a 90% distinction. These detailed and condensed notes cover the entire Civil Litigation module. I have covered every SGS and highlighted all the key statutory references. My friends at other universities, such as the Univers...
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Civil Litigation
All documents for this subject (28)
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Available practice questions
Civil Litigation
Flashcards44 Flashcards
Free23 sales
Flashcards44 Flashcards
Free23 sales
Some examples from this set of practice questions
1.
Disclosure Steps
Answer: Isit a document?
Isit within the party\'s control?
Does it satisfy the test for standard disclosure?
Can the document be withheld from Inspection? - Cases
(Potential Waived Privilege)
Which Part of the List?
2.
Legal Advice Privilege Meaning
Answer: Confidential communication between the lawyer and client for the purpose of giving/receiving legal advice.
3.
Legal Advice Privilege Cases
Answer: Communication between the lawyer and client:
Parry - Attendance note of meeting.
Three Rivers - Client narrowly construed.
For the purpose of giving/receiving legal advice:
Balabel - Continuum of communication
Three Rivers - Presentation advice given through legal spectacles.
Internal repetition:
Bank of Nova - If client repeats advice internally = acts as solicitor agent.
4.
Litigation Privilege Meaning
Answer: Confidential communication between lawyer and client between one of them and 3rd party. The dominant purpose is to obtain legal/advice/info/evidence for the use in litigation which was reasonably in prospect at the time.
5.
Litigation Privilege Cases
Answer: Dominant purpose:
Waugh - If several purposes, the dominant purpose is litigation.
If cant determine dominant purpose:
Re High Grade - Commissioner purpose not the author purpose
Litigation reasonably in prospect:
USA v Phillip - Real likelihood of litigation
6.
W/Out prejudice privilege Meaning
Answer: Docs with genuine attempt to settle the dispute
7.
W/Out prejudice privilege Cases
Answer: Rush - Substance, form e.g. reasonable sum, timing etc.
8.
Waving Privilege Case
Answer: Great Atlantic - Waving Privilege over part, waves privilege over all of the document
9.
What are the parts of the documents list?
Answer: List 1 - Disclosure and inspect
List 2 - Discourse and privilege
List 3 - Doc is no longer in there control
10.
Nature and effect of Part 36 offer
Answer: 1.Defendant or Claimant offer part 36 to settle/force compromise
2. They are consequences if unreasonable refused or unreasonable in amount.
3. The offer is without prejudice
4. The offer is open for not less than 21 days.
Content preview
TIMELINE • If starts proceedings in wrong court = costs sanctions
• CPR 30.3(2) Transfer order criteria
ALLOCATION & CASE MANAGEMENT CPR 26
o Financial value
à ADR/settlement/Part 36 offers from commencement of claim • After defence filed, court provisionally assigns case to a suitable track + sends Notice of Proposed Allocation
o Convenience / fair
• 1) Comply w/ pre-action rules o Availability of specialist judge in regional specialist court o CPR 26.3(6) N181 Directions Questionnaire = filed 28 days after notice deemed served for fast/multi-
à Interim applications from issuing CF CPR 23 o Complexity track (4.30 business day rule, except post) **
• 2) CPR 7.5 Serve CF within 4 months of issue o Public interest § Which court to allocate case, no. of witnesses/experts, estimated trial length, directions sought
• 3) CPR 7.4 Serve Particulars at same time as claim form / if POC sent separately = 14 clear days after CF served o Facilities for disabled/potential witnesses o CPR 29.4 Agreed proposed directions order / if disagree, proposed directions = filed within 7 days
• 4) CPR 10.3 File AoS = 14 days after POC before CMC
• 5) CPR 15.4 If acknowledged service, file defence = 28 days CLAIM FORM § Parties should take standard directions as starting point + adapt it
• 6) CPR 26.3 Notice of proposed allocation VALIDLY SERVED
• N1 Claim Form must be issued within limitation periods CASE MANAGEMENT CONFERENCE
o CPR 15.8 Reply to defence = served w/ DQ
o Sealing CF = starts proceedings + stops limitation period running • CMC: Meeting to narrow issues before trial ∴ sets directions for conduct of action before trial
• 7) CPR 3.13 If multi track:
• Take CF to court w/ copy for each D, 1 for claimant, 1 for court + fee o File case summary before CMC if assists court to understand case
o < £50k: File first page of precedent H w/ DQ
• CPR 7.5 If CF served in this jurisdiction = 4 months to take the “relevant step” • Directions: Court instructions on how to prepare for case, e.g. deadlines, time + place of hearings, how to
o > £50k: File precedent H = 21 days before CMC
exchange witness statements/expert reports, consider ADR
o File agreed budget discussion report 7 days before CMC
o If parties ≠ agree directions = case and costs management conference
• 8) CPR 26.5 Claim = allocated to a track / holds allocation hearing
o If agree = no CMC + separate costs management conference
• 9) Case + costs management conference
• 10) Directions CPR 26 ALLOCATION CPR 26.6
• 11) Instruct experts • Small claims track < £10k + personal injury claims
• 12) Disclosure + inspection CPR 31 • Fast-track £10k – £24,999
• 13) Exchange witness statements CPR 33 o Lasts < 5 hours
• 14) Exchange experts’ reports CPR 35 o Requires 1 expert per party
DEEMED SERVED
• 15) Preparation for trial à Best time to make Part 36 offer, b/c ↑ is disclosed • Multi-track > £25k
• CPR 6.14 Claim form = deemed served on 2 nd business day after “relevant step” is taken
• 16) Pre-trial checklist
o E.g. If posted on Friday = deemed served on Tuesday • CPR 26.5 Claim = allocated to a track / holds allocation hearing
• 17) Trial
• CPR 2.8 Counting time *ALWAYS REFER TO CPR 2.8 WHEN STATING DEADLINES! • CPR 26.8(2) Factors, e.g. nature of remedy sought, complexity, no. of parties, views + circumstances of parties
• 19) Appeals CPR 52 o (3) Count “clear days” ≠ incl. first day / if last day ends w/ event (hearing), then add a day o Claim value ≠ incl. ££ not in dispute/interest/contributory negligence
• 18) Enforcement CPR 70 o (4) If period is 5 days or less ≠ incl. weekends + bank holidays
COURT POWERS
CASE ANALYSIS § E.g. Notice served at least 3 days before hearing (Friday 20 Oct) ∴ last date of service = Monday 16 Oct
• CPR 3.1 General management powers, e.g. require party to attend court, but cannot choose their lawyer
• Limitation periods *Claim concurrent duties, b/c ↑ successful + if only 1 = may start w/ earlier limitation period o ∴ If period is > 5 days = incl. weekends
§ E.g. PoC served within 14 days of CF. If CF deemed served on 3 Feb, last date of service = 17 Feb o (2)(m) Sweep-up provision to take any step/order to manage case + further overriding objective
o Contract: 6 years from breach of contract, even if unaware of breach + damage occurred later, e.g.
• CPR 3.3(4) Power to make orders on its own initiative, regardless of hearing / representations
letter w/ poor advice EXAM STRUCTURE FOR COUNTING DAYS • CPR 3.4(2)(a) Power to strike out a statement of case
o Tort: 6 years from when damage was suffered, e.g. when bought property • 1) What doc is served? If CF, CPR 7.5 / If ≠ CF, CPR 6.26 o 1) No reasonable grounds for bringing/defending claim, e.g. no explanation, nonsensical /
• 1) Duty? • 2) How has it been served? o 2) Abuse of court’s process, e.g. vexatious claims, claims already decided
o Contract: Reasonable skill + care o If CF, deemed served on 2nd business day / o 3) Failed to comply w/ rule/PD/court order
o Tort: Reasonably competent solicitor *Sue company = deepest pockets o If ≠ CF: If post = 2nd business day, otherwise 4.30 business day rule *VS. Summary judgment = ends proceedings if other side has “no real prospect” of success + “no
• 2) Breach? • 3) Clear day rule: If last day ends w/ hearing, then add a day other compelling reason” to go to trial
o E.g. Solicitor’s specialism? Would similarly qualified property lawyers advise differently? Caveated advice? o Period < 5 days ≠ incl. weekends
SANCTIONS
• 3) Causation? E.g. Did X rely on this advice? What would X have done if caveated advice? o Period > 5 days = incl. weekends
• Court consider if ≠ comply w/ pre-action protocol, b/c may have avoided litigation if complied
• 4) Loss suffered? E.g. £5m loss for property, but damages recoverable = £3.5m premium
WHERE TO SERVE CLAIM FORM? • 1) Impose sanction immediately /
• 5) Damages?
• Solicitor’s address / if no solicitor, D’s last known place of residence / company’s principal office o 1. Strike out whole/part of case
o Contract: Put injured party in position had the contract been properly performed
• ≠ Matter if CF was actually received, despite serving party knew other party wasn’t there o 2. Prevent party putting forward evidence
o Tort: Put claimant in position had the tort not occurred
o Unless claimant has reason to believe party no longer there = reasonable steps to find address o 3. Costs order
o But remote damages / contributory negligence (occurs before) / mitigate loss (occurs after: what did X
o 4. ↑/↓ Interest
do to stop ↑ damage?) WHO SERVES CLAIM FORM ON D?
o 5. Order to pay ££ into court
• Court by post / claimant (file certificate of service = within 21 days of service, unless all Ds filed AoS)
• 2) Unless order: Unless party complies w/ relevant rule, sanction will be enforced
COMMENCEMENT OF CLAIM
OTHER DOCS
EXTENDING DEADLINE
OTHER DOCUMENTS = DEEMED SERVED e.g. separate particulars of claim, defence, AoS
• 1) Which CPR was breached? E.g. CPR 3.14
• 2) Deadline for compliance expired / extended by parties or court?
• CPR 1.1 Overriding objective: Ensures cases dealt w/ justly + at proportionate cost • 3) Did applicant apply for extension before deadline expired?
o If no, apply for relief from sanctions *E.g. fails to exchange disclosure list/witness statements/expert reports on time
PRE-ACTION RULES o If yes, in-time application
PRACTICE DIRECTION – PRE-ACTION CONDUCT Chartwell v Fergies
• Para 3 PDPAC Court expects parties to have: - Applications made before deadline expired ≠ application for relief from sanctions
o 1) Exchanged sufficient info to understand each other’s position PARTICULARS OF CLAIM § Even if court deals w/ application after deadline expired
o 2) Consider ADR • CPR 7.4 Serve Particulars at same time as claim form / if POC sent separately = 14 clear days after CF served
o 3) ↓ Costs of resolving dispute Teresa Baker
o CPR 7.4(2) CF must be served within 4 months
• Para 8 Litigation = last resort - Allows reasonable applications made before deadline expires, if ≠ disrupt conduct of litigation
ACKNOWLEDGEMENT OF SERVICE + DEFENCE § Give reasons for delay, but court likely to allow extension if no hearing is imperilled
• Para 13 PDPAC When giving directions, court considers non-compliance, not minor/technical breaches
• CPR 44.2(5) When making costs orders, court considers non-compliance w/ pre-action protocols before + • CPR 10.3 File acknowledgement of service = 14 clear days after POC *after CF & POC served together /
after separate POC served • 4) CPR 3.9 Application for relief from sanctions
during proceedings Denton
• CPR 15.4 File defence = 14 days after POC / If acknowledged service, file defence = 28 clear days after POC
PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL - When considering relief from sanctions, test =
• Applies to claims against professionals, not construction/healthcare providers EXTENDING TIME 1) Seriousness / significance of breach, e.g. 45 mins ≠ serious, repeat offenders = ↑ serious
• Para 5.4 If reasonable chance of bringing claim against potential D, send Preliminary Notice = must be • CPR 15.5 Parties may agree to extend time to serve defence by up to 28 clear days from service of CF § If no, grant relief
acknowledged within 21 days o Notify court in writing 2) If yes, legitimate reason for breach, e.g. overworked ≠ count
• Para 6.1 Once claimant decides grounds, sends open Letter of Claim • If needs ↑ time, apply for interim application to extend time § If yes, grant relief
• Para 8.2 Potential D has 3 months to investigate claim, then sends: 3) If no, evaluate all circumstances of case to ensure case dealt w/ justly, w/ particular weight to
JUDGMENT IN DEFAULT
o Open Letter of Response w/ reasoned answers to allegations +/ CPR 3.9(1) requirements
• Judgment w/o trial in default of D responding to proceedings
o W/o prejudice Letter of Settlement § (a) For litigation to be conducted efficiently + at proportionate cost +
• 1) CPR 12.3 (On day 15), apply promptly for judgment in default = claimant is successful
• Para 9.4 If offers to settle / admits part, parties negotiate up to 6 months from Letter of Acknowledgement § (b) Enforce compliance w/ rules/PDs/orders
• 2) Setting aside judgment in default – § If none apply, likely to impose sanctions / “despite breach, minor + doesn’t imperil CMC/trial date”
• Para 14.3 If ≠ agree, claimant gives written notice = 14 days before issuing proceedings o CPR 13.2 Mandatory: Court must set aside if –
§ AoS/defence = served within time limit / COST MANAGEMENT
CHOICE OF COURT *Trick Qs: Diff to allocation to track. County court can also deal w/ fast-track + multi-track
§ Claim admitted claim before JID / COSTS BUDGET
• County Court < £100k *Despite complex, commence in CC then transfer
§ D applied for summary judgment / strike out before JID • Costs budget: Estimate of reasonable + proportionate costs that party intends to incur during proceedings
• High Court – If > £100k = choice
o CPR 13.3(1) Discretionary: Court may set aside if – o Tactical: High budget scares opponent into mediation/low budget makes other’s seem unreasonable
o 7A PD 2.4 *if high value, but no difficulties = County Court
§ D has real prospect of defeating claim / • Precedent H: Costs budget for incurred + future costs
§ Financial value > £100k *Disregard possible counterclaims
§ Good reason to set aside, e.g. length + reasons for D’s delay o May lead to Costs Management Order (CMO) + early settlement
§ ≠ Incl. ££ not in dispute/interest/contributory negligence
• Precedent R: Budget discussion report = agreed figures for each phase + summary of grounds of dispute
§ Complex: Debt claims = simple OTHER STATEMENTS OF CASE
o May lead to early settlement
§ Public interest: Debt claims ≠ likely to affect 3rd parties • CPR 20.4 Counterclaim (w/ defence), right to withhold debt b/c claimant owes other ££
o Queen’s Bench (contract, tort) / Chancery Division (if linked w/ type of claim it deals w/ e.g. IP, land) • CPR 15.8 Optional Reply to Defence = filed + served w/ DQ **
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