Lecture notes
LPC Dispute resolution and civil litigation
- Institution
- Birmingham City University (BCU)
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CONTENTS1. PRE-ACTION STEPS – Overriding Objective, Conduct.
2. PRE-ACTION STEPS - Limitation Periods and Jurisdiction, Funding
3. PRE-ACTION STEPS – Funding cntd.
4. PRE-ACTION STEPS – Further Funding and Conduct for Funding.
5. PRE-ACTION STEPS – Arbitration and Alternative Dispute Resolution (ADR)
6. PRE-ACTION STEPS – Types of Alternative Dispute Resolution (ADR)
7. PRE-ACTION STEPS – Types of ADR & Advantages and Disadvantages
8. PRE-ACTION STEPS - Case Analysis – Breach.
9. PRE-ACTION STEPS - Case Analysis - Negligence
10. PRE-ACTION STEPS –Burden of Proof, Viability, Liability, Quantum & Limitation Periods.
11. PRE-ACTION STEPS – Pre-Action Protocols
12. PRE-ACTION STEPS – Professional Negligence Pre-Action Protocols
13. PRE-ACTION STEPS – STEPS under Practice Direction for Pre-Action Conduct.
14. Practice Direction for Pre-Action Conduct and Protocols
15. Practice Direction for Pre-Action Conduct and Protocols
16. PRE-ACTION STEPS – Letter before claim checklist - p.40 para 3.1
17. SAMPLE Letter before Claim from Workshop
18. Appendix B1 – Letter before Claim under Practice Direction on Pre-Action Conduct
19. Appendix B2 – Letter of Claim under Professional Negligence Pre-Action Protocol
20. Appendix D2 – LETTER BEFORE CLAIM
21. STATEMENTS OF CASE – Where to hear the claim? County, High Court or Central Office
22. Claim Form – What to include
23. Claim Form – What to include (2)
24. PD 22 – Statements of Case
25. PD 22 – Statements of Case
26. Court Fees and Statements of Truth
27. Drafting the Particulars of Claim
28. Interest calculation – table.
29. Interest Calculation for Specified Amounts
30. Particulars of Claim – Appendix B(3)
31. Particulars of Claim – Appendix D(4)
32. Acknowledgment of Service & Service of the Claim Form
33. Service of Documents
34. Deemed Dates of Service of Documents
35. Options Following Service of Forms
36. Default Judgment
37. Drafting the Defence and Counterclaim
38. Interim Applications and Costs of Applications
39. Amending a Statement of Case and Drafting Application Notice N244
40. Notes for Guidance – Form N244
41. Example Application Notice (N244)
42. Example Application Notice (N244)
, PRE-ACTION STEPS
THE OVERRIDING OBJECTIVE – (OO)
The OO must be borne in mind by the court (r.1.2) and the parties and their legal advisors
(r.1.3). Each party is required to help the Court further the OO, but has no duty or obligation
to their opponent.
OO = the court should deal with cases justly and at proportionate cost (CPR 1.1(1)).
This means, as far as practicable: (CPR 1.1(2) (a) – (f))
Ensuring the parties are on an equal footing.
Saving expense
Dealing with the cases in ways which are proportionate:
o To the amount of money involved;
o To the importance of the case;
o To the complexity of the issues; and
o To the financial position of each party.
Ensuring cases are dealt with expeditiously and fairly
Allotting an appropriate share of the court’s resources to each case, bearing in mind the
needs of other cases.
The OO must always be borne in mind by the court: CPR 1.2 – the court must seek to give
effect to the overriding objective when it exercises any power given to it by the rules.
CPR1.3 – The parties have a duty to help the court further the overriding objective – there is
the expectation that there will be a high level of co-operation and realism from the legal
representatives in their dealings with each other and the court.
CONDUCT
PRE-ACTION STEPS: Questions to ask:
Who is my client?
Conflict of interest? Confidentiality?
Am I authorized to act?
I
Client’s objectives?
What do they want to achieve and what can realistically be achieved?
I
Who can we sue and can they be located?
Do they have the finances to make them worth suing?
I
Check jurisdiction.
Check that claim is within the limitation period
I
Discuss funding options.
Conduct Issues
Ensure you are not in breach of your duty of confidentiality to another client (O4.1)
and that you are able to represent the client’s best interests in terms of full disclosure
Ensure there are no conflicts of interests (O3.5).
Money laundering – check identity of client (usually with two or three pieces of
identification).
Check who is actual client and his authorization to act – you will be liable to pay for any
steps taken without property authority.
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, PRE-ACTION STEPS: LIMITATION PERIODS AND JURISDICTION
Where there is no contractual limitation clause, the following limits apply:
Contract Tort Latent Damage
6 years from when the 6 years from when the Where damage was
breach occurs (s.5 LA tort is committed (s.2 not evidence at the
1980) or from when LA 1980). date of cause of
the intention of one action:
party not to perform is 3 years from the date of
made clear knowledge if this is later
(Hochester). than the tort date (s.14A –
12 years for a deed. LA 1980).
Long-stop: 15 years.
Note:
The relevant date is the date the court received the Claim Form, not when it is
issued.
For minors – the clock starts ticking from their 18th birthday.
FUNDING
1) Private Funding 4) Trade Union Funding
2) Before the Event Insurance 5) Conditional Fee Arrangement (CFA)
3) Public Funding 6) Damages based agreement (DBA)
Fixed Fees
If a solicitor specifies a fixed fee for a service, he will be “obliged to complete the work, to
the ordinary standard of care, even if it has become unremunerative” – Inventors Friend Ltd
v Leathes Prior (a firm) [2011] EWHC 711 [76]
INSURANCE
Before the Often sold as an add-on to motor, or household insurance policies.
Event Legal The insurer will indemnify the client’s legal fees up to a certain
Expenses amount providing their claim falls within the terms of the policy.
Insurance Solicitor should normally invite the client to bring such a policy to
(BTE/BEI/LEI) the initial interview so the solicitor can deduce whether the client
may benefit from it (Sarwar v Alam [2001] EWCA Civ 1401).
If the client has LEI there will be no need for them to enter into a
CFA.
After the Event If the client does not benefit from a BTE policy, they may wish to
Insurance purchase ATE to protect against the risk of them paying their
(ATE/AEI) opponents costs in the event that they lose.
The disadvantages of this are that because it is an after-the-event
policy, the premiums tend to be expensive.
The premium is not recoverable from the other side since LASPO
2012.
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, PRE: ACTION – FUNDING CONTINUED
Conditional Colloquially known as a “no win, no fee agreement”
Fee It is an agreement with a person providing advocacy or litigation services
Agreements which provide for his fees and expenses, or any part of them, to be payable
(CFA’s) – “no only in specified circumstances. It does not cover any payable disbursements
win, no fee or costs incurred by the opponent (payable if the client loses).
agreement”. CLIENT LOSES
1. They will not have to pay their own solicitor’s legal costs
2. But will have to pay adverse costs awarded to the other side if the court
orders them to do so
CLIENT WINS
1. They will have to pay their own solicitor’s costs.
However a proportion of these costs may be paid for by the other side if
the court orders them to pay the claimant’s costs. This is rarely, however,
100% of the client’s costs.
2. They may have to pay a success fee of up to a maximum of 100% of their costs
(limit set by s5, Conditional Fee Agreements Order 2013 (SI 2013/689).
The success fee is unrecoverable from the other side (Legal Aid, Sentencing and
Punishment of Offenders Act 2012).
Damages If the client succeeds and recovers damages, his solicitor will be entitled to an
Based amount equal to an agreed percentage of those damages.
Agreements This amount will cover solicitor’s costs + VAT + counsels fees.
(DBA’s) It will not cover any disbursements which will be owed on top of this sum.
TO BE ENFORCEABLE….
To be valid, the DBA must meet the requirements of by s58AA(4) of the CLSA
1990:
1. The DBA must be in writing.
2. Must not provide for a payment above the “prescribed amount”
This is set by the Damages-Based Agreements Regulations 2013 (SI
2013/609).
Solicitor’s costs, + VAT + counsel’s fees can be a maximum of 50% of the
damages award.
This cap does not include any disbursements other than counsel’s fees.
3. Must comply with such other terms and conditions as are prescribed (by the
DBA Regs 2013):
The DBA must specify:
o The claim or proceedings or parts of them to which the DBA relates.
o The circumstances in which the representative’s payment, expenses
and costs, or part of them, are payable.
o The reason for setting the amount of the payment at the level agreed.
4. Must be made only after the solicitor has provided “prescribed information”.
“Prescribed information” regulations currently only cover employment
matters.
DBA EXAMPLE
Client wins a judgment of £250,000 damages + £40,000 costs. During the litigation, counsel was
instructed at the cost of £15,000, and expenses were incurred of £4,500.The client was funded by
a DBA set at 20%.The solicitors are therefore due a payment of £50,000 to cover costs, VAT and
counsels fees + £4,500 to cover the disbursement = £54,500 total. The defendant will pay £40,000
towards this, leaving £14,500 outstanding which must be paid by the client. The client will
therefore get £235,500 total. The solicitor will be responsible for paying counsel’s fees, which will
leave the firm with £35,000 for his fees + VAT.
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