Set out time limits at the bottom of the CPR book.
Litigation Exam: Civil 65%, Criminal 35% - two exams on the same day
PROCEDURE TIMELINE
From commencement of claim: start ADR, Settlement, Part 36 offers
1. Comply with pre-action rules
CPR 23-25 From issuing Claim Form: start any Interim applications – extension of time, summary judgment, injunction,
security for costs
2. CPR 7.5 Serve Claim Form within 4 months of issue
3. CPR 16 Serve Particulars of Claim with the Claim Form
If Particulars is served separately, 14 days after Claim Form served
4. CPR 10.3 File Acknowledgement of Service 14 days after Particulars
5. CPR 14 Admissions
6. CPR 15.4(1)(a)-(b) File the Defence 28 days after Particulars of Claim (only if acknowledged service)
7. CPR 12 Judgment in default – If Defendant fails to file a Defence/Acknowledgement of Service
8. CPR 26.3 Notice of proposed allocation
CPR 15.8 Reply to Defence is served with Directions Questionnaire
9. CPR 3.13 If multi track claim:
If < £50k: File first page of Precedent H with DQ
If > £50k: File Precedent H 21 days before CMC
File the budget discussion report 7 days before CMC
10. CPR 26.5 Claim is allocated to a track, hold allocation hearing
11. Case and costs management conference (CCMC) is held
12. CPR 26-29 Directions
13. Instruct experts
14. CPR 31 Disclosure and inspection
15. CPR 32 Exchange witness statements
16. CPR 35 Exchange experts’ reports
17. Preparation for trial (Good time for a Part 36 offer, as all evidence is disclosed)
18. Pre-trial checklist
19. Trial
20. CPR 52 Appeals
21. CPR 70 Enforcement
CASE ANALYSIS
LIABILITY IN TORT AND CONTRACT:
Limitation periods (calculate exact date): Limitation Act 1980
If not commenced within this time, the claimant is barred damages.
Tort: Contract:
s.2 6 yrs from cause of action s.5 6 yrs from breach of
date even if unaware of breach contract – eg. did not
and damages occurred later. – satisfy obligations
eg. date of poor advice, not
date of retainer
Claim concurrent duties (sue for both tort and contract) and if limitation period is tight, one claim might still fall within
the period.
Tort - Cause of action structure:
1. Duty of care: Reasonably competent advice from reasonably competent solicitor. – Sue lawyer in tort and the LLP for
breach of contract (LLP has deeper pockets)
2. Breach: Did the defendant breach their duty? – eg. What was the solicitor’s specialism? Would similarly qualified
property lawyers advise differently? Caveated advice?
3. Causation: Did the defendant’s breach cause the claimant’s loss? – eg. Did the solicitor’s breach cause the loss
suffered? Did X rely on this advice? What would X have done if caveated advice?
4. Remoteness: Was the damage suffered reasonably foreseeable?
5. Loss suffered: Must be foreseeable not too remote. – eg. £5m loss for property, but damages recoverable = £5m
premium
Civil Litigation – All chapters – Revision notes | Page 1 of 34
,6. Damage:
Measure of damages:
1. Put claimant in position had the tort not occurred. Be wary of remote damages and contributory negligence.
2. Contributory negligence: if the loss have been partly caused by claimant’s own negligence – damages received by
the claimant will be reduced.
7. Remedies
Conclude: Client’s prospects of success? Any missing info? Strengths and weaknesses of the case?
Contract - Cause of action structure:
1. Duty: The duties of both parties is set out in the contract governing the parties’ relationships. – Look at express and
implied terms.
Implied terms:
s.13 SGA 1982 Reasonable care + skill
If contract is for Sale of goods also look at the below:
s.14(2) SGA 1979 Satisfactory quality
s.14(3) SGA 1979 Fitness for purpose
s.13 SGA 1979 Sale by description, products sold by description should match the description
2. Breach: Did the defendant breach a term of the contract? – eg. Express or implied term
3. Loss: Did the claimant suffer loss as a result of the breach?
4. Damage:
Measure of damages:
1. Contract claims: Put injured party in position had the contract been properly performed. C must mitigate.
2. Debts: it is a claim for a sum owed. No need to mitigate.
5. Remedies
Conclude: Client’s prospects of success? Any missing info? Strengths and weaknesses of the case?
COST-BENEFIT ANALYSIS FOR LITIGATION:
Pros:
• If large amounts at stake: may win the case and get large amounts in compensation
• If the defendant has deep pockets such as indemnity insurance: likely that any compensation will be paid
• Publicity: the defendant will not want the publicity brought by court hearing and may prefer to settle before going
to court.
Cons:
• Litigation is expensive
• Time-consuming and requires complex steps
• May need to pay legal fees upfront and may not recover the whole costs even if wins
• Litigation is risky and uncertain
• Difficult to prove negligence
• If the case is lost, C will likely have to pay substantial costs – CPR 44.2(2)(a)
COST CALCULATIONS:
Retainer = contract between solicitor and client. Client must instruct solicitor who must then agree to act. Initial
interview = not retainer.
Solicitors’ costs:
1. profit costs (hourly rate x numbers of hours spent) plus VAT
2. disbursements
Bill your time every 6 minutes.
Who pays costs?
Solicitor/client costs: The client is responsible for their solicitor’s costs.
CPR 44.2(1)(a) court will take into account the conduct of the parties.
CPR 44.2(2)(a) Party/party costs: unsuccessful party pays successful party’s costs
Court’s wide discretion:
CPR 44.2(1) Who pays how much and when
CPR 44.2(4)-(5) Factors affecting how much: whether or not you have acted reasonably throughout the case. You will
only recover 60%-70% of the costs even if you win – client pays the shortfall.
CPR 44.4 The amount paid
CPR 44.7 When they pay
Civil Litigation – All chapters – Revision notes | Page 2 of 34
, FUNDING
LEGAL AID FUNDING:
Which type of claims might qualify?
The following will not be funded – alternative funding needed:
1. personal injury or death,
2. conveyancing; boundary disputes; wills; trust law; defamation; company/partnership law, contract claims;
3. employment cases; negligence; and consumer cases.
What type of funding is available?
Legal help: helping with preparing a case, but not litigation
Help at court: allows advocates to speak for the client at a court hearing without acting formally – one-off help for one
trial.
Legal representation: covers preparation + litigation + representation.
Assessing whether a client qualifies for help:
Only available to individuals. Must pass both the merits + means test.
Merits:
Moderate prospect of success is enough.
Will be refused if: unlikely to win more than the case costs, alternative funding available, suitable for the small claims
track, complaints procedure/ADR is not exhausted, unreasonable for the public to fund the case
Means:
If the client or their partner receives benefit (e.g. income support) they are eligible.
If no benefits, then consider client’s capital and income:
1. Capital: disposable capital is max. £8,000. (+ Look to partner)
2. Income: gross monthly income is max. £2,657 + disposable income is max £733 per month. (+ Look to partner)
Costs consequences of legal aid funding:
Statutory charge on the money/property:
If client wins damages of £20,000
Court orders costs of £4,000, LAA costs of £5,000
Statutory charge on damages: £5,000 - £4,000 = £1,000
NO WIN NO FEE AGREEMENTS:
Conditional fee agreements (CFA):
If the client wins the case:
Pays to the solicitor: basic fee, disbursements, success fee (pays out of pocket), insurance premium (pays out of
pocket).
Recovers from the other side: solicitor’s basic fee, solicitor’s disbursements, damages
If the client loses the case:
Pays to the solicitor: disbursements, insurance premium and damages if there is a successful counterclaim
Recovers from the other side: nothing
Damages based agreements (DBA):
If lawyers lose the case, they do not recover any fees.
If lawyers win the case, the max recoverable amount is capped:
1. at 25% of the damages in personal injury cases,
2. 35% of damages in employment tribunal cases and
3. 50% of damages in all other cases.
INSURANCE:
Insurance premium is not recoverable from the other side if the policy-holder wins at trial and is awarded its costs.
Before the event (BTE) insurance: After the event (ATE) insurance:
BTE insurance provides the client with an Criteria: merits of the case + the level of cover required,
indemnity for the cost of any legal fees incurred as i.e. whether a particular insurance company is willing to
a result of any such future litigation. BTE premiums take on the risk and on what terms. ATE premiums are
are relatively low (less than 1% of the insurance more expensive (more than 25% of the insurance cover).
cover).
Civil Litigation – All chapters – Revision notes | Page 3 of 34
, COMMENCEMENT OF CLAIM
CPR 1.1 Overriding objective: cases must be dealt with justly + proportionately
Statements of case are: Claim Form + Particulars (if separate from Claim Form) + Defence + Counterclaim
PRE-ACTION RULES:
Para 3 Practice Direction on Pre-Action Conduct Parties must:
1. Exchange adequate info to understand each other’s position
2. Consider ADR
3. Lessen the costs of resolving the dispute
Para 8 PD PAC Litigation should be the last resort, consider ADR first
Para 13 PD PAC When giving directions, court takes into account non-compliance but not minor/technical breaches
CPR 44.2(5)(a) When making costs orders, court takes into account non-compliance with pre-action protocols before
and during proceedings
PROFESSIONAL NEGLIGENCE PRE-ACTION RULES:
For claims against professionals only (eg. not cleaners).
Para 5.4 If reasonable chance of bringing claim against potential D, send Preliminary Notice. Acknowledge this within 21
days.
Para 6.1 When claimant decides on the grounds, sends Letter of Claim
Para 8.2 Other side has 3 months to investigate claim, then sends:
• Letter of Response with response to allegations and/or
• Without prejudice (WP) Letter of Settlement
Para 9.4 If offers to settle or admits part of the claim, parties negotiate for max 6 months from Letter of
Acknowledgement
Para 14.3 If don’t agree, claimant sends written notice 14 days before issuing proceedings
WHICH COURT?
Easy to confuse this question with allocation to tracks. (Small claims track, fast track, multi-track)
Which Court to choose?
PD7A para 2.1
Start with the value of claim. Eg. £125,000
Less than £100,000 even if complex – County Court. If deemed complex, case will be
transferred later.
More £100,000 or more – client has a choice: County Court and High Court has concurrent
jurisdiction.
If there is a choice, consider the factors in PD 7A para 2.4:
(1) Financial value – over £100,000 by much?
CPR 16.3(6) CPR 26.8 Financial value = how much we expect to recover minus
interest or costs for any counterclaim.
£125,000 is only £25,000 above the High Court threshold of £100,000 -
commence the case in the County Court.
(2) Complexity – breach of contract, straightforward
Non-payment of an invoice for £125,000, simple debt claim.
(3) Importance to the public – not public interest
CPR 30.3(2) – only consider this if it is unclear after all the above.
Which High Court division?
• Queen’s Bench Division – contract, tort
• Chancery Division – IP, land
• Family Division – family law cases
What if the case is brought in the wrong court?
CPR 30.3 Transfer is likely.
CPR 30.3(2) Transfer order factors:
• Financial value, complexity, public interest factors as above
• Convenience, fair to transfer
• Availability of specialist judge in regional specialist court
• Facilities for disabled/potential witnesses
Civil Litigation – All chapters – Revision notes | Page 4 of 34
