BPP University College Of Professional Studies Limited (BPP)
A document consolidating all of the SGS content and actives (with model answers) for the Civil Litigation module, also includes past / practice paper questions with model answers.
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Civil Litigation
All documents for this subject (28)
7
reviews
By: olusolaerioluwa • 1 year ago
By: kokosher • 2 year ago
By: richardekwadzofio • 3 year ago
By: smakap • 3 year ago
By: lawstudentnotes • 3 year ago
Reply deleted by the user
By: retroroses • 3 year ago
By: lawstudentnotes • 3 year ago
Hi. I’d appreciate your feedback as to why you only gave these notes one star?
By: jenniferkim1148 • 4 year ago
By: soniakiran • 4 year ago
Seller
Follow
lawstudentnotes
Reviews received
Content preview
2/3: Commencing Proceedings & Statements of Case
Pre-Action protocols
What is the objective of the pre-action protocols?
Before commencing proceedings, the Court will expect the parties to have exchanged
sufficient information to –
(a) Understand each other’s position;
(b) Make decisions about how to proceed;
(c) Try to settle the issues without proceedings;
(d) Consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) Support the efficient management of those proceedings; and
(f) Reduce the costs of resolving the dispute.
See Para 3 of the Practice Direction – Pre-Action Conduct
To achieve this objective, all the protocols do the following:
1. Encourage pre-action contact, discussions and an early exchange of information;
2. They ensure full pre-action investigation of the claim;
3. They encourage the parties to resolve the claim early and fairly by negotiation and
ADR without the need for litigation, which should be a last resort (see paragraph 8 of
the Practice Direction – Pre-Action Conduct).
What costs consequences are there of not complying with the practice direction – pre-action
conduct?
Paragraph 13 of the Practice Direction – Pre-Action Conduct makes it clear that the Court
will take into account non-compliance when giving directions for the management
proceedings and when making orders for costs. It also makes clear that the Court will be
interested in substantial non-compliance, not technical or minor shortcomings.
Paragraph 16 of the Practice Direction – Pre-Action Conduct lists examples of sanctions for
non-compliance.
[CPR 3.1(4) states that where the Court gives directions it will take into account whether or
not a party has complied with the Practice Direction – Pre-Action Conduct or any relevant
pre-action protocol. Directions are considered in SGS 4]
In terms of costs, the Court could punish a party who unreasonably fail to comply with the
pre-action protocols. CPR 44.2(5)(a) states that the conduct of the parties includes conduct
both before and during the proceedings and includes the extent to which the parties follow the
relevant pre-action protocols.
Ritchisons Case Study:
Which pre-action protocol applies?
Here, the Professional Negligence Pre-action Protocol applies, as this applies to all claims
against professionals other than construction professionals and healthcare providers – as per
1.4 of the Protocol.
What is the letter of claim?
The letter of claim is a document which sets out the claimant’s case. It sets out how the
claimant believes the defendant owed the claimant a duty which was breached and caused the
claimant subsequent loss. If the case does not settle, then it is likely that the particulars of
claim will contain very similar information to that contained in the letter of claim.
1
,High Court / County Court Jurisdiction
Assume you are a trainee at Price Prior. You are instructed to commence a claim by your
client Whitefly Cleaners Limited which is suing Deepvale Buildings PLC. The claim is for an
unpaid invoice of £125,000. You have complied with the Practice Direction – Pre-Action
Conduct (Please provide full CPR references for your answers):
A. In which court could your client commence proceedings?
High Court – for cases that aren’t personal injury, you cannot generally commence
proceedings in the High Court unless you expect to recover more than £100,000 – 7A PD 2.1.
There are a few exceptions – e.g. Judicial Review but beyond scope of module
B. If you have a choice, which factors will the court consider?
Under 7A PD 2.1, Whitefly Cleaners Ltd therefore has a choice as the High Court and
County Court both have concurrent jurisdiction when the amount the Claimant expects to
recover is more than £100,000.
If there is a choice, it is necessary to consider the factors in 7A PD 2.4. These include:
(i) The financial value of the claim (i.e. how much the Claimant expects to recover
disregarding interest or costs or any counterclaim – see CPR 16.3(6))
(ii) The complexity of facts, legal issues, remedies or procedures involved; and
(iii) The importance of the outcome of the claim to the public in general
Here, we are given limited information about the claim except the Claimant is suing for non-
payment of an invoice for £125,000. Such claims tend to be debt claims and are relatively
simple. We are not informed about the importance of the outcome to the public but debt
claims are unlikely to affect other parties. Here, as the amount being claimed is only £25,000
above the High Court threshold of £100,000 it is likely to appropriate to commence the cases
in the County Court.
Ritchisons Case Study:
The amount of the claim (£4,525,000) and its complexity both strongly indicate that the
Ritchisons case against Bono Weller & Co LLP should be brought in the High Court based
on the factors in 7A PD 2.4.
In which division of the High Court could the case be brought?
Professional negligence claims can be commenced in either the Queen’s Bench Division or
the Chancery Division. Generally, the Queen’s Bench Division deals with contract and tort
cases whilst the Chancery Division deals with land and trust cases.
Here, as the case involves both contract/tort issues and land issues, it could justifiably be
issued in either the Queen’s Bench Division or the Chancery Division.
What is likely to happen if the case were brought in the County Court? Please provide full
CPR references for your answer.
You should try to commence proceedings in the court which is most appropriate for the
proceedings up to and including trial. The rules on transfer between courts (and between the
different divisions of the High Court) are set out in CPR 30.
The transfer criteria in CPR 30.3(2) should be considered before issuing proceedings to
minimise the chance of the case subsequently being transferred. The criteria in CPR 30.3(2)
2
,are broadly similar to those set out above in 7A PD 2.4 considered above. There may be
costs sanctions imposed on a party who has started proceedings in the incorrect court.
As the Ritchisons case study clearly ought to be commenced in the High Court (for the
reasons set out above), if it were commenced in the County Court it would be transferred
under CPR 30 to the High Court and costs sanctions could well be imposed.
NB – don’t confuse High Court and County Court Jurisdiction with tracks (considered in
SGS 4). There are three tracks (CPR 26.1(2)) – small claims CPR 27; fast track CPR 28 &
multitrack CPR 29.
Claim Form
What do you need to take to court to start the claim?
How many copies of each such document do you need to take with you? You take the fee
plus a number of copies of the claim form (one to file at court, one for you and one to serve
on each defendant).
What is the effect of the court sealing the claim form?
When the court seals the claim form, it starts (‘issues’) proceedings. It also stops the
limitation period running; in other words, it allows the parties to work out whether or not
proceedings have been brought in time.
What happens once the court issues the claim form?
The claim form (and particulars of claim if they are being served in or attached to the claim
form) is served on the defendant(s) either by the claimant or by the court.
The claim form and particulars of claim must be served on the defendant, if within the
jurisdiction of England and Wales, by midnight on the calendar day four months after the
date of issue of the claim form - see CPR 7.5 and CPR 7.4(2).
3
, Time and Judgment in Default
The rules for Claim Forms (with or without particulars of claim attached) are subject to CPRs
6.14 and 7.5(1).
The rules for all other documents are subject to CPR 6.26 (i.e. particulars of claim separately,
acknowledgments of service, defences etc)
Deemed date of service – for a claim form this will be the second business day after
completion of the relevant step under rule 7.5(1).
For all other documents you need to consult the table in CPR 6.26:
4
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 lawstudentnotes. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $21.29. You're not tied to anything after your purchase.
