CHAPTER 1 minor infringements.
Practice Direction on Pre-Action Conduct The court has the
INTRODUCTION TO CIVIL LITIGATION •
discretion to stay the proceedings until the necessary steps are
taken.
INTRODUCTION:
Statements of case are a set of documents including:
Civil litigation = the use of the court system to resolve civil disputes. • Claim Form
• Particulars of Claim
The CPR: • Defence
• Counterclaim
Court procedures follow the Civil Procedure Rules 1998 (CPR) which are
clarified and interpreted by case law. The claim form and particulars of claim:
The CPR rules are divided into parts, dealing with separate areas of civil Claim form: CPR 7 and 16
procedure. – eg. Part 6 CPR sets out the rules for the service of Proceedings are commenced when C issues a claim form containing the
documents. Rule 3 of Part 6 is referred to as CPR 6.3 or Part 6 Rule 3. claimant’s case.
The rules are supplemented by practice directions which are divided into C must complete the claim form and serve it on the Defendant (D) within
paragraphs. – eg. PD 6 means the practice direction for CPR 6. PD 6, para. 4 months of the date it was issued at court.
4 or 6PD4 refers to Paragraph 4 of PD 6.
Particulars of claim: CPR 16
The overriding objective: The particulars of claim (PoC) is the statement of case which contains full
details of the claimant’s claim.
CPR 1.1 Overriding objective: cases must be dealt with justly and
proportionately – pervasive rule. Three ways to serve the PoC:
1. Include it on the claim form
CPR 1.1 This involves: 2. Prepare it as a separate doc and serve it with the claim form
1. Ensuring that the parties are on an equal footing OR
2. Saving expense 3. Prepare it as a separate doc and serve it within 14 days from
3. Dealing with the case in ways which are proportionate to the deemed service of the claim form if such service is effected
amount of money involved, importance/complexity of the case within 4 months from the date of issue of the claim form.
and the financial position of each party
4. Ensuring the case is dealt with fairly and expeditiously Deemed date of service = the date the court considers a document to be
5. Allotting the court’s resources appropriately, considering the served, irrespectiveof the date it was actually received by D.
need to allot resources to other cases
6. Enforcing compliance with rules, practice directions and orders When serving the PoC, you must also send:
1. Notes for the Respondent
Both the court and parties have a duty to consider the overriding 2. The response pack which includes the Acknowledgment of
objective at every stage of the litigation process and when interpreting service, admission form, a defence and counterclaim form.
rules/practice directions in the CPR.
HRA 1998 and ECHR: Responding to a claim:
The Human Rights Act 1998 (HRA) and the European Convention on If the defendant receives the claim form without the particulars of claim,
Human Rights (ECHR) will affect civil litigation in the UK. it need not respond until the particulars of claim is served.
HRA 1998 Most of the rights/fundamental freedoms found in ECHR are D’s options:
incorporated into UK law. The courts must apply and interpret UK law 1. file a defence
in compliance with the ECHR unless there is primary legislation which is 2. file a defence with counterclaim
incompatible with the ECHR. 3. file an Acknowledgment of Service, or
4. file/serve an admission
Example of ECHR rights:
• Article 6 Right to a fair trial File a defence: CPR 15-16
• Article 8 Right to private and family life If D is to defend whole/part of the claim, file a defence stating their
• Protocol 1, Article 1 Protection of property case. The defence must state which allegations it denies, admits and
which allegations it requires proof.
OVERVIEW OF CIVIL LITIGATION CLAIMS: Time limits:
• File within 14 days of deemed service of the PoC
Pre-action protocols: OR
• If D files an acknowledgment of service within 28 days of deemed
The pre-action protocols lay down the best practice to be adopted by the service of the PoC
parties before issuing proceedings. Find the pre-action protocols in
Section C of the White Book. There is also a Practice Direction on Pre- File a defence with counterclaim: CPR 20
Action Conduct. D may wish to make a counterclaim against C. This may be done without
the court’s permission if it is filed with the defence (and at any other
Aims of the pre-action protocols: time with the court’s permission).
• To force the parties to have a ‘cards on the table’ approach to
settlement. C’s response:
• To encourage the parties to try to resolve the dispute out of C must file and serve their defence to the counterclaim within 14 days
court. – eg. with rules that parties should act reasonably in of the counterclaim’s deemed service or D may seek a judgment in
exchanging docs/information. default on the counterclaim.
Which protocol applies? If C wishes to allege facts in answer to a defence which were not included
If a specific protocol applies: in the PoC, it may opt to also file a reply. If there is a counterclaim, the
Follow that specific protocol. reply and defence to counterclaim form one document.
If no specific protocol applies: Acknowledgment of Service: CPR 10
Follow Practice Direction on Pre-Action Conduct: D may file an acknowledgment of service if it chooses to defend the claim
1. Claimant (C) must write to other side detailing the claim. but has not been able to file a defence on time or if it opted to dispute
2. Recipient must send a response letter within a reasonable time: the court’s jurisdiction.
- Accepting the claim
OR Admissions: CPR 14
- Rejecting the claim (in whole/in part) If D admits the whole/part of the claim, it must do so by notice in writing.
C may then enter judgment unless either party is a child/patient.
3. Parties must disclose key documents, start negotiations and
make settlement proposals. Time limits:
• If PoC is separate from the claim form: file within 14 days of of
Consequences for non-compliance: the PoC’s deemed date of service
• The court will consider the overall effect of non-compliance on OR
the other party • If PoC is in the claim form: file within 14 days of the claim form’s
• Most common: costs consequences, but usually no sanctions for deemed date of service
Civil Litigation – Workbook – Notes | Page 1 of 34
,Judgment in default – CPR 12: Expert evidence: CPR 35
An expert is a highly skilled/knowledgeable person whose role is to advise
If D has not filed a defence/acknowledgment of service on time, then C the court impartially on matters within his/her expertise. A court order
may obtain a default judgment. This is judgment on the case without the is needed if you wish to adduce expert evidence at trial. Experts will
need to proceed any further with the litigation process. consider both disclosure and witness statements before finalising their
reports.
Further information/clarification – CPR 18: Part 36 offers:
If a party requires clarification of a statement of case, it should make a Both parties may consider settlement at any point before the trial.
written request to the other party.
CPR 36 Part 36 offer = C or D will make an offer to settle the claim at the
Interim applications – CPR 23-25: likely value of the judgment. If accepted, then the case is settled without
going to trial. If rejected and the party was unreasonable to reject, then
Interim application = a court application to make an order which binds the judge can impose serious costs consequences on the rejecting party.
both parties. – eg. applications for an extension of time, injunctions,
summary judgment and security for costs. Trial and enforcement:
Interim applications may be made before or during the course of Trial:
proceedings. If settlement is not agreed, the outcome of the case will be determined
at trial. After the judgment on liability, the court will also determine the
Allocation – CPR 26: award of damages to make (quantum). The court will also consider which
party should pay the costs of the proceedings.
Once the defence is filed, the court becomes actively involved in the
management of the case. To achieve the overriding objective the court Enforcement:
will have regard to several factors. This will enable the court to allocate If one party is entitled to damages/costs and this is not paid by the
an appropriateamount of its time and resources to the case. This process deadline, then it can apply to the court for enforcement. This may involve
is called allocation. taking control of some of the defaulting party’s assets.
The claim will be provisionally allocated to the small claims track/fast
track/multi-track depending on which is the most suitable. The court will PROCEDURE TIMELINE:
then serve the notice of proposed allocation on the parties.
At this stage, the parties may request that the court order a ‘stay’ of the From commencement of claim: start ADR, Settlement, Part 36 offers
claim to consider alternative dispute resolution. If this is requested then
the proceedings will be stayed for 1 month. 1. Comply with pre-action rules
Directions – CPR 26-29: CPR 23-25 From issuing Claim Form: start any Interim applications
CPR 29.1 When a case is allocated to the multi-track, there is a set of 2. CPR 7.5 Serve Claim Form within 4 months of issue
model directions for multi-track cases which are the starting point for 3. CPR 16 Serve Particulars of Claim with the Claim Form
directions. If PoC is served separately, 14 days after Claim Form served
4. CPR 10.3 File Acknowledgement of Service 14 days after
Next steps: PoC
1. The parties agree a timetable at this point. 5. CPR 14 Admissions
2. Holding a Case management conference – a hearing attended by 6. CPR 15.4(1)(a)-(b) File the Defence 28 days after PoC (only
both sides’ solicitors. Its aim is to discuss the proposed directions if acknowledged service)
and decide on a directions order. 7. CPR 12 Judgment in default – If Defendant fails to file a
3. The court will look at the costs management of the case by Defence/Acknowledgement of Service
considering how much the parties are proposing to spend on the 8. CPR 26.3 Notice of proposed allocation
case. CPR 15.8 Reply to Defence is served with Directions
Questionnaire
Disclosure and inspection – CPR 31:
9. CPR 3.13 If multi track claim:
Disclosure = process where each party discloses what docs/information If < £50k: File first page of Precedent H with DQ
they have that are relevant to the case. This is done to allow the parties If > £50k: File Precedent H 21 days before CMC
to review their own case and the strengths of the other party’s case. File the budget discussion report 7 days before CMC
Fast track: 10. CPR 26.5 Claim is allocated to a track, hold allocation
The parties simply exchange a list of relevant documents. hearing
11. Case and costs management conference (CCMC) is held
Multi-track: CPR 31.5 12. CPR 26-29 Directions
The court’s disclosure order may be more or less onerous than standard 13. Instruct experts
disclosure, depending on thecircumstances of the case. 14. CPR 31 Disclosure and inspection
15. CPR 32 Exchange witness statements
The court may choose to: 16. CPR 35 Exchange experts’ reports
• to dispense with disclosure completely 17. Preparation for trial
• to disclose documents on which a party relies, and request any 18. Pre-trial checklist
specificdisclosure required from the opponent 19. Trial
• to disclose documents on an issue by issue/train of enquiry basis 20. CPR 52 Appeals
• to order standard disclosure in the usual way, or 21. CPR 70 Enforcement
• any other order the court considers appropriate.
Parties must file and serve a report, 14 days before the first case
WHERE TO ISSUE A CLAIM?
management conference, describing: C must choose the must suitable court in which to bring the proceedings.
• what documents exist
• where such documents are located County Court:
• how they are stored if they are electronic documents The County Court’s jurisdiction derives from the County Courts Act 1984.
• estimates as to the costs of standard disclosure, and Trials are held by Circuit Judges/Recorders. Interim matters are dealt
• which directions relating to disclosure the party is seeking. with by District Judges
After disclosure, certain documents will be available for inspection by High Court:
the other parties. Inspection means allowing the other party to The High Court’s jurisdiction derives from the Senior Courts Act 1981.
physically see an original document or providing them with a copy. High Court trials are conducted by High Court judges. Interim matters
Witness and Expert evidence: are dealt with by Masters or district judges.
Witness evidence: CPR 32 Which Court to choose?
Witness statements help to establish the facts of the dispute. The A claim can only be brought in a court if that court has jurisdiction to
disclosure docs must be reviewed before filing the witness statements as deal with the matter.
the witnesses may need to refer to the documents in their evidence.
Civil Litigation – Workbook – Notes | Page 2 of 34
, First letter:
PD7A para 2.1
Start with the value of claim. – Eg. £125,000 The first interview should be followed by a letter to client.
Less than £100,000 even if complex – County
Court. If deemed complex, case will be Contents:
transferred later. • Summarise the key points covered in the interview
More £100,000 or more – client has a choice: • Include the retainer – the contract between solicitor and client
County Court and High Court has concurrent • Costs and client care information
jurisdiction.
The ‘front loading’ of litigation:
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(5) The pre-action protocols place an obligation on the parties to do a
CPR 16.3(6) CPR 26.8 Financial value = how much we expect to considerableamount of work on a case before the issue of proceedings.
recover minus interest or costs for any counterclaim.
£125,000 is only £25,000 above the High Court threshold of Evidence gathering should cover:
£100,000 – commence the case in the County Court. 1. liability – proving whether D is to blame
(2) Complexity – breach of contract, straightforward AND
Non-payment of an invoice for £125,000, simple debt claim. 2. quantum of damages to be paid if liability is proved.
(3) Importance to the public – not public interest
Use admissible evidence to prove facts in issue:
CPR 30.3(2) – only consider this if it is unclear after all the above. 1. Testimony – Witnesses of fact or expert witnesses
2. Documents
Which High Court division? 3. Real evidence
1. Chancery Division – deals with: land, mortgage, trusts,
administration of estates, bankruptcy, partnerships, probate,
intellectual property, company matters, some contract and tort LIABILITY IN TORT AND CONTRACT:
claims
2. Queen’s Bench Division – deals with: most contract and tort Limitation periods (calculate exact date): Limitation Act 1980
claims, commercial matters, admiralty and judicial review. If not commenced within this time, the claimant is barred damages.
3. Family Division – deals with: matrimonial and family cases.
Tort: Contract:
PD 29 para 2.2 A claim under £100,000 issued in the High Court will be s.2 6 yrs from cause of action date s.5 6 yrs from breach of
transferred to the County Court unless certain conditions apply. even if unaware of breach and contract. – eg. did not satisfy
damages occurred later. – eg. date of obligations
CPR 26.2 Automatic transfer: when defence is filed in relation to a claim poor advice, not date of retainer
for a specified sum against a person, the claim will be sent to D’s home
court – i.e. the court for the districtwhere D resides/does business. Claim concurrent duties (sue for both tort and contract) and if limitation
period is tight, one claim might still fall within the period.
What if the case is brought in the wrong court?
CPR 30.3 Transfer is likely. Tort - Cause of action structure:
CPR 30.3(2) Transfer order factors: 1. Duty of care: Reasonably competent advice from reasonably
• Financial value, complexity, public interest factors as above competent solicitor. – Sue lawyer in tort and the LLP for breach of
• Convenience, fair to transfer contract (LLP has deeper pockets)
• Availability of specialist judge in regional specialist court 2. Breach: Did the defendant breach their duty? – eg. What was the
• Facilities for disabled/potential witnesses solicitor’s specialism? Would similarly qualified property lawyers
advise differently? Caveated advice?
Sanctions: 3. Causation: Did the defendant’s breach cause the claimant’s loss? –
The court may order C to pay the transfer’s costs. eg. Did the solicitor’s breach cause the loss suffered? Did X rely on
s.51 SCA 1981 Additional sanction for wrongly bringing a claim in the this advice? What would X have done if caveated advice?
High Court instead of the County Court. 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
PRE-ACTION CONSIDERATIONS:
6. Damage:
First interview: Measure of damages:
1. Put claimant in position had the tort not occurred. Be wary of
Discuss: remote damages and contributory negligence.
• All the fact of the case and the client’s objectives 2. Contributory negligence: if the loss have been partly caused by
• Advise on merits of the case, remedies and limitation periods claimant’s own negligence – damages received by the claimant
• The evidence available and advising the client to preserve any will be reduced.
relevant documents and avoid creating potentially damaging
documents 7. Remedies
• The position of the other side
• Professional conduct issues Conclude: Client’s prospects of success? Any missing info? Strengths and
• Alternative ways of achieving the client’s objectives weaknesses of the case?
• Costs of litigation and methods of funding
• Next steps Contract - Cause of action structure:
The position of the other side: 1. Duty: The duties of both parties is set out in the contract governing
Consider the financial status of your opponent early on. If the other side the parties’ relationships. – Look at express and implied terms.
cannot pay there is no point in pursuing a claim against them.
Implied terms:
Ways to gather information about the other side: s.13 SGA 1982 Reasonable care + skill
1. Enquiry agents – private investigators who procure information
on individuals or companies If contract is for Sale of goods also look at the below:
2. Searching Registers – Land Charges Registry, Individual s.14(2) SGA 1979 Satisfactory quality
Insolvency Register, Attachment of Earnings Order Index s.14(3) SGA 1979 Fitness for purpose
(showing any debtors with attachment of earnings order) s.13 SGA 1979 Sale by description, products sold by description
3. Company Searches – revealing the company’s solvency, assets should match the description
and whether the assets are charged.
2. Breach: Did the defendant breach a term of the contract? – eg.
Opponent’s financial status: Express or implied term
• If using legal aid – opponent won’t be able to pay damages. 3. Loss: Did the claimant suffer loss as a result of the breach?
• If risk of opponent dissipating their assets – look into
injunctions to stop him from doing so 4. Damage:
• If opponent is insured – good chance that they will pay Measure of damages:
damages as insurance will pay, professional will usually have 1. Contract claims: Put injured party in position had the contract
insurance. been properly performed. C must mitigate.
2. Debts: it is a claim for a sum owed. No need to mitigate.
5. Remedies
Civil Litigation – Workbook – Notes | Page 3 of 34
, Conclude: Client’s prospects of success? Any missing info? Strengths and
PROFESSIONAL CONDUCT RULES:
weaknesses of the case? Solicitors must comply with ethical/professional standards as set out
by the SRA Standards and Regulations.
COST-BENEFIT ANALYSIS FOR LITIGATION:
They contain 7 Principles, the SRA Code of Conduct for Solicitors, RELs
A solicitor must advise their client about the most suitable way of and RFLs (CCS) and the SRA Code of Conduct for Firms (CCF).
resolving the dispute before advising the client to enter into litigation.
Any alternative method must aid the client in achieving their objectives. The principles:
Apart from litigation, client may negotiate a settlement, use The Principles define a solicitor’s core values and form an overarching
arbitration or alternative dispute resolution (ADR). framework within which the Codes of Conduct can be understood.
Pros for litigation: The Principles include:
• If large amounts at stake: may win the case and get large 1. Acting in a way that upholds the rule of law and the proper
amounts in compensation administration of justice
• If the defendant has deep pockets such as indemnity insurance: 2. Acting in a way that upholds public trust and confidence in the
likely that any compensation will be paid profession and in legal services industry
• Publicity: the defendant will not want the publicity brought by 3. Acting with independence, honesty and integrity
court hearing and may prefer to settle before going to court. 4. Acting in a way that encourages equality, diversity and inclusion
5. Acting in the best interests of each client.
Cons of litigation:
• Litigation is expensive Key rules:
• Time-consuming and requires complex steps
• May need to pay legal fees upfront and may not recover the CCS 1.2 Do not abuse your position by taking unfair advantage of
whole costs even if wins clients/others.
• Litigation is risky and uncertain
• Difficult to prove negligence CCS 1.4 and 2.1 to 2.7 Dispute resolution and proceedings before courts,
• If the case is lost, C will likely have to pay substantial costs – CPR tribunals and inquiries.
44.2(2)(a)
CCS 1.4 Do not mislead/attempt to mislead your clients, the court or
others, either by your own acts or omissions or allowing or being
COST CALCULATIONS: complicit in the acts or omissions of others (including your client).
The client is primarily responsible for their solicitor’s costs. These are CCS 2.1 and 2.2 Do not misuse or tamper with evidence or attempt to do
known as solicitor/client costs. so. Nor shouldyou seek to influence the substance of evidence, including
generating false evidence or persuading witnesses to change their
Retainer = contract between solicitor and client. Client must instruct evidence.
solicitor who must then agree to act. Initial interview = not retainer.
CCS 2.3 Do not provide or offer to provide any benefit to witnesses
Solicitors’ costs: dependent upon the nature of their evidence/the outcome of the case.
1. profit costs (hourly rate x numbers of hours spent) plus VAT
2. disbursements CCS 2.4 Only make assertions/put forward statements, representations
or submissions to the court/others which are properly arguable.
Bill your time every 6 minutes.
CCS 2.5 Do not place yourself in contempt of court and comply with all
Who pays costs? court orders.
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. CCS 2.6 Do not waste the court’s time.
CPR 44.2(2)(a) Party/party costs: unsuccessful party pays successful
party’s costs CCS 2.7 Draw the court’s attention to relevant cases and statutory
provisions, or procedural irregularities of which you are aware and which
Court’s wide discretion: are likely to have a material effect on the outcome of the case.
CPR 44.2(1) Who pays how much and when
CPR 44.2(4)-(5) Factors affecting how much: whether or not you have Conflict of interests:
acted reasonably throughout the case. You will only recover 60%-70% of
the costs even if you win – client pays the shortfall. CCS 6.1 Do not act for more than one client on a matter if there is a
CPR 44.4 The amount paid conflict of interests or a significant risk of one between clients. Do not
CPR 44.7 When they pay act for both parties whose interests are in direct conflict (such as a C and
D in litigation).
Solicitor’s duty in respect of costs:
CCS 6.2 Exception: where the clients have a substantially common
interest.
8.7 Code of Conduct for Solicitors (CCS) Ensure that clients are informed
as to how their matter will be priced and about the likely overall costs of Confidentiality and disclosure:
the case. Inform them at the outset and keep them updated throughout.
If acting under a conditional fee agreement: CCS 6.3 You have a duty of confidentiality.
Inform the client about: When will the client become liable for their CCS 6.4 You also have a duty of disclosure.
solicitor’s costs and if you intend to seek payment from client. If so, You have a duty not to put confidentiality at risk by acting, but there are
advise client of their right to have those costs assessed. exceptions to this so that you may continue to act in certain
circumstances with the client’s consent.
If acting for a legally aided client:
Explain how the client’s legal aid affects the costs, including:
• when they could become liable to pay for solicitor’s costs
• how the statutory charge works
• the client's duty to pay any fixed or periodic contribution assessed
and the consequence of failing to do so
• that even if the client is successful the other party may not be
ordered to pay costs/may not be able to pay.
Civil Litigation – Workbook – Notes | Page 4 of 34
