This document covers all the SGS's and provides tips on how to answer questions in a civil litigation exam at BPP university. Colour coded for ease of reference.
,Details about exam
2 hr 45 mins paper
Section A – 10 MCQs on a variety of topics
Roughly 2 marks per question. 20 marks in total
Section B-
Will be asked to amend a Particulars of Claim (PoC), Defence or Witness statement
(for either trial or an interim application).
Will be asked to conduct a case analysis of breach of contract/tortious scenario
80 marks in total
Permitted materials
CPR Handbook 1 & 2
PCR standards and Regulations
In exam, try and copy out the relevant statutes as accurately as you can when
answering a question!
Only refer to cases highlighted in chapter notes.
,SGS 1: Pre-action considerations
Ritchisons Investments case study
Ritchisons Investments (RI) wants to bring a claim against its former solicitors Bono Weller (BW) for
giving legal advice regarding building a new shopping centre which amounted to RI suffering a
significant loss. BW told RI that they can build past a certain level when in reality, this was not
allowed! RI did not suffer any damage until they acted on BW’s advice so in this case, limitation
begins on the day they completed.
*Note: The purpose of contractual damages is to put the claimant in the position they would have
been had the contract been properly performed.
s.5 Limitation Act 1980 -Limitation period for CONTRACT claims = 6 years. Starts to run from
when the cause of action accrues (from the date of the breach of contract). E.g. if breach
occurred on 4 April 2021, limitation period expires 4 April 2027. Claimant will be barred from
obtaining damages after this time.
s.2 Limitation Act 1980 - Limitation period for TORTIOUS claims = 6 years. Starts to run from
the date of actionable damage. E.g. RI completed on 13 November 2018 so limitation expires
on 13 November 2024.
*Note: A retainer is the contract between solicitor and client. The client first instructs a solicitor who
must then agree to act.
*Note: a claimant has a duty to mitigate loss
Types of terms found in a contract
Express oral terms
Express written terms
Implied terms to provide goods that are of satisfactory quality and fit for purpose pursuant
to the Sale of Goods Act 1979, s.14
*Note: The relevant implied term for a contract for the supply of GOODS is found in s.14 Sale of
Goods Act 1979- (satisfactory quality and fitness for purpose).
*Note: The relevant implied term for a contract for the supply of SERVICES is found in s.13 Supply of
Goods and Services Act 1982 -(reasonable skill and care)
Technology and Construction Court -for matters requiring SPECIALIST CONSTRUCTION KNOWLEDGE
Contractual duty
Section 13 Supply of Goods and Services Act 1982 - implied into contracts to supply services
"reasonable care of skill" by supplier in course of business matter
,When carrying out a CASE ANALYSIS for a breach of contract scenario, follow this structure:
1. Case analysis –Liability
State the contractual duty:
E.g.
BW solicitors is a specialist commercial property lawyer and their skill and judgment are relied on by
the claimant. The defendant has the professional duty to exercise reasonable care and skill.
State the relevant legislation:
E.g.
s.14(2) SGA 1979 -Sale of goods
s.14(3) SGA 1979 -Fitness for purpose
s.13 SGA 1979 -Sale by description, should match the description
s.13 SGA 1982 -Reasonable care + skill
State how there has been a breach of the contractual duty. APPLY the scenario:
E.g.
The solicitor at BW did not make it clear to RI that the definition of height in the restrictive covenant
is open to interpretation.
*Note: if a solicitor gives the wrong advice on an area of law which is clearly set out, they are likely
to be found negligent. An advisory expert may be needed to determine how the restrictive covenant
on not building past a certain height would have been interpreted.
2. Case analysis – Causation and defences
Causation
State that claimant relied on defendant’s advice and specify the loss suffered:
E.g
If solicitor had not given negligent advice, RI would not have bought any land and so would not have
built the hypermarket. If hypermarket was not built, RI would not have had the opportunity to make
a profit in the first place and would not have suffered a loss of profit. Therefore, although this is a
loss, it is not recoverable. The only thing that can be recovered are the costs of funding and building
costs (as they would not have spent this money if correct advice had been given)
*Note: Purpose of damages is to put client in position they would have been in had the breach not
occurred or the tort not been committed.
Defences
, RI did not mitigate their losses as they were so desperate that they paid a huge sum for the land.
They did not search for any cheaper options.
3. Case analysis –damages owed to claimant
State the measure for damages
E.g.
Contract - Injured party must be put in the position he would have been in had the contract been
properly performed.
Tort – Claimant should be placed in a position they would have been in had the tort not occurred.
4. Case analysis- Strengths and weaknesses
State all the strengths of the case
State all the weaknesses
*Note: It is possible for claimant to claim concurrent duties by suing in both contract (express or
implied term under s14(3) SOGA) and tort under the common law duty at the same time.
Costs
CPR Handbook pg 467
Bill your time every 6 minutes
*Note: Client will never recover the full amount from the other side
SGS 2 & 3: Commencing proceedings and statements of case
Claim form and POC
A party who receives a claim form and attached particulars of claim in the post, has to file an
acknowledgement of service or a defence to the claim within 14 days.
*Note:
Pre-action stages
*Note: 14 days written notice needs to be given to a party before commencing proceedings.
*Paragraph numbers will refer to the Professional Negligence Pre-Action Protocol
The Claimant sends the professional a letter of claim as soon as there are grounds for the
claim - 6.1
The professional acknowledges the preliminary notice within 21 days of receiving it - 5.4
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