BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Civil Litigation
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Civil Litigation Distinction Notes 2020-21
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Civil Litigation
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BPP University College Of Professional Studies Limited (BPP)
I received a distinction from these notes! The latest notes on the LPC at BPP made this year! These notes are the most concise yet detailed notes which are distinction level. In my opinion they are the best notes for Civil Litigation online. They cover all the knowledge needed for the Civil Litigat...
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Civil Litigation
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Civil Lit Revision
Pre-action considerations:
• Duty- express terms in contract etc./implied terms under SGS or SGSA/ tortious duty to act
with reasonable care and skill, Breach- experience of D, what would other professionals do,
Causation- did breach causes C loss and Loss (remoteness, contributory negligence and
mitigation)
• Costs- unsuccessful party pays successful party’s costs- CPR 44.2 (2) (a) but courts discretion
as to who pays, how much and when-CPR 44.1 (1) and there are factors that affect how much
is payable-CPR 44.2 (4)
• Funding-Chap 1 RA requires solicitor to give information to client about costs and methods of
funding:
-Legal aid funding (only for individuals)- must be a matter of English law excluded matters
contain in LASPO 2012 Sch 1 e.g allegations of personal injury or death,
conveyancing/boundary disputes, employment cases but when given get: legal help, help at
court and legal representation but may need to repay any shortfall in costs at end of case
through statutory charge- s25 LASPO
-Merits test- prospect of success of the case- assess likely costs that will be incurred to
disposes of the claim and likely amount that will be recovered by client
-Means- client must be deemed financially eligible to receive legal aid (Capital- client
disposal capital must not exceed £8k and Income-clients gross monthly income should
be £2657 or less clients disposable income must not exceed £733 per month)
-Insurance-clients claim could be funded by any existing insurance they may hold (BTE) or
after event insurance (ATE- not recoverable from other party if entered into after 1 Apr 2012)
-No win no fee agreements-CFA (agreed legal costs are paid to solicitor and agreed ‘success
fee’)/DBA (solicitor charge percentage of any damages recovered regardless of what their
fees are)- solicitor will not get paid unless case is successful
-Private funding
• Objective- Pre-Action Conduct PD para 3- parties should understand each others position,
make decisions as how to proceed, try to settle dispute without proceedings and consider a
form of ADR to assist with settlement
• Cost consequences of not complying with Pre-Action Conduct PD – para 13 makes it clear that
court will take into account non-compliance with giving directions, para 16 lists examples of
sanctions for non-compliance, CPR 3.1 (4), court could punish non-complying party- CPR 44.2
(5) (a)
▪ Jurisdiction over foreign matters
• Regulation
-Does the regulation apply?
➢ Refer to exact regulation at the start
-Regulation (EU) No 1215/2012
➢ Is there an international element?
-May derive from subject matter of claim or domicile of a party E.g one of parties is
German or crash happened in Spain for example
➢ Establish claim is within material scope-
1
, -Connection to EU MS- Ds domicile (Art 4/62 and 63), Exclusive jurisdiction (Art 24)
and Choice of jurisdiction (Art 25)
-Is it a civil and commercial matter that is not excluded under Art 1? Some claims are
excluded- second half of Art 1 (1) and Art 1 (2)
➢ Establish claim is within temporal scope
-Art 66 and 81 provides that claim/legal proceedings needs to have commenced on or
after 10 Jan 2015
➢ CONCLUDE- does it apply?
-Do the courts of E and W have jurisdiction under the regulation to determine the claim?-
start from bottom of hierarchy for LPC (Art 24 is highest priority in the order)
➢ General rule- Art 4- jurisdiction based on domicile of the D
-If already discuss domicile above and referred to Art 63 and statutory seat for
example
-Special jurisdiction rules which gives claimant a choice under Art 7 (contract, e.g
goods delivered- where is delivery taking place?, tort and branch) and 8 (not likely to
apply on facts given)
➢ Has a choice of jurisdiction been made in the contract- Art 25
-NOT CHOICE OF LAW BUT CHOICE OF JURISDICTION in contract (subject to weaker
party provisions)
➢ Submission under Art 26 (modified in weaker party cases)
-Where D responds by getting an agent to act or taking a step in proceedings but
unlikely to be relevant as claimant seeing at pre-issue stage
➢ Exclusive jurisdiction under Art 24- does it apply?
➢ Conclude- Art 4/7 & 8 likely to apply- do E and W courts have jurisdiction? May have a
choice between domicile and court highlighted by Art 7
-If so, can the courts of E and W actually accept jurisdiction?
➢ Are they other proceedings on similar matters in other courts of any other MS?
➢ Art 29- same cause of action taking place elsewhere
-Court SHALL stay its proceedings
➢ Art 30- related actions taking place elsewhere
-Court MAY stay its proceedings
➢ Conclude- may be no evidence on the facts- on facts does not appear to be same cause
of action nor a closely connected related action so Art 29/30 do not apply
2
, -Conclude- may have choice between two courts for example or can pursue under E and W
courts
➢ Answer the Q- likely to be the same as conclusion at step 2
-No need for permission from courts to proceed-CPR 6.33, must file Form 510 and file
claim form- CPR 6.34
• Common Law Rules
-Address regulation first-, is there international element? YES, is there connection with EU? NO
(make sure not domiciled, not within exclusive jurisdiction, or choice of jurisdiction) then need to
switch to Common Law Rules
➢ Presence
-Serve proceedings on D whilst they are within the jurisdiction (permanent or
temporary)
➢ Submission
-Appoint an agent- instruct solicitor to accept service
-Enter an appearance- take a step
➢ Permission
-Court may grant permission to service on foreign defendant if:
o Jurisdictional gateway- CPR 6BPD 3.1 (contract, tort, others)
o Reasonable prospect of success (low threshold)
o Is England the proper place?
- Is E and W national forum? Residence/place of D, availability of witness,
cost/delay/inconvenience, governing law and local knowledge
- If no, does substantial justice require the case to be heard in E+W anyway?
-If D is outside the jurisdiction at the time the C seeks to serve proceedings, permission of court is
needed to serve proceedings on D- make an application to serve a claim abroad- CPR 23
Domestic D Regulation D Common Law D
CF- issue to service 4 months- CPR 7.5 (1) 6 months- CPR 7.5 (2) 6 months-CPR 7.5 (2)
AoS or Defence 14 days- CPR 10.3/15.4 21 days- CPR 6.35 Depends on country-
(3)(a)/(b) (i) CPR 6.37 (5)/6B PD 6.2-
6.4
Defence if AoS 28 days-CPR 15.4 35 days- CPR 6.35 (b) (ii) Days in table + 14 days-
6B PD 6.4
P4/5- if have a matter with choice of jurisdiction then must not advise without the help of foreign
lawyer to advise of hearing claim within that country
▪ ADR and ARBITRATION
o Arbitration- procedure by which an impartial, independent 3 rd party decides the
outcome of a dispute between two (or more) other parties which will be final and
binding
-s1 Arbitration Act- objective of Arbitration/ s33 General Duty of Tribunal, s40 General
Duty of Parties, s14 Commencement of proceedings
3
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