LPC BPP Civil Litigation
Case Analysis
Causes of Action
Claim in Contract Claim in Tort
(1) Duty The duty of care can arise in the contract through both express Duty of care arises by virtue of the common law to exercise the
and implied terms. Contract for solicitor’s negligence claim will be reasonable care and skill to be expected of a reasonably competent
a retainer. solicitor.
There may be express terms in the contract which refers to the In the event that the solicitor is a specialist in a certain area, the
duty of care which is owed to the claimant. standard of care is the reasonable care and skill to be expected of
There are implied terms within a contract which arise by way of a reasonably competent solicitor specialising in X field.
statute:
§ Contract for Service – implied term to exercise the reasonable
care and sill to be expected of a reasonably competent
professional.
§ Contract for Goods:
o Sold by description – implied term that goods correspond
to that description.
o Which are defective – implied term that goods are of
satisfactory quality when the seller sells in the course of
business.
o Fit for particular purpose – if you told seller who was
selling them in the course of business that you wanted
goods to be fit for a particular purpose then there is an
implied term that they will be.
(2) Breach Express Duty Did the advice provided by the solicitor fall below the requisite
Has the claimant performed their side of the contract to make it standard of care. It will have if the advice differed from the advice
binding on the defendant. How has the defendant breached their which would have been given by a reasonably competent solicitor.
duty owed to the claimant by not honouring their obligations under Consider the area in relation to which the advice was given. If the
the contract. relevant area of law is complex, was the advice caveated to reflect
Implied Duty the fact that it is a grey area of the law.
Did the advice provided by the solicitor fall below the requisite
standard of care. It will have if the advice differed from the advice
which would have been given by a reasonably competent solicitor.
Consider the area in relation to which the advice was given. If the
relevant area of law is complex, was the advice caveated to
reflect the fact that it is a grey area of the law.
(3) Causation But for the negligent advice provided by the defendant, the But for the negligent advice provided by the defendant, the claimant
claimant would not have acted in the way they did. would not have acted in the way they did.
Will be necessary to prove that the claimant relied upon the Will be necessary to prove that the claimant relied upon the
negligent advice provided and that such reliance resulted in loss. negligent advice provided and that such reliance resulted in loss.
Did the breach of duty cause loss. Did the breach of duty cause loss.
(4) Loss Loss suffered by the claimant cannot be too remote and must be Loss suffered by the claimant cannot be too remote and must be
reasonably foreseeable. reasonably foreseeable.
Claimant is under a duty to mitigate their losses. Claimant is under a duty to mitigate their losses.
Defendant may have limited their liability by way of express clause Defendant may argue contributory negligence on the part of the
in the contract. claimant in a bid to limit losses.
Remedies Remedy is damages. Underlying principle is that claimant should Remedy is damages. The underlying principle is that the claimant
be put in the position they would have been in had the contract should be put in the position they would have been in had the
been performed correctly i.e. the position they would have been negligent advice not been given.
had the advice not been negligent.
Limitation Limitation Act 1980 s.5 – 6 years from the date of the breach of Limitation Act 1980 s.2 – 6 years from the date of the cause of
contract. action i.e. 6 years from date negligent advice given.
Claimant cannot recover damages if claim brought after expiry of Claimant cannot recover damages if claim brought after expiry of
limitation period. limitation period.
Concurrent Claimant can sue defendant for negligence in both contract and tort. Contract is the easier of the two to prove.
Duties
, Cost-Benefit Analysis for Litigation
Advantages Disadvantages Cost considerations
May recover 100% of damages. Complex litigation is expensive and is time Solicitor/client costs - the claimant will be
consuming. responsible for their solicitor’s costs.
The prospect of litigation and the reputational There can be greater difficulty proving negligence in CPR 44.2(2)(a) party/party costs – the
implications may force the defendant to make a complex cases. unsuccessful party will pay the other side’s costs.
settlement offer.
If suing a professional advisor, they are likely to Litigation is risky and an uncertain course of action. CPR 44.2(1)(a) – the court will take into account the
have professional indemnity insurance which will The uncertainty can result in a lot of stress. conduct of the parties throughout the litigation when
cover the damages you are seeking. deciding on costs. The court has a wide discretion
as to costs and will look at the factors within CPR
44.2(4)-(5) when deciding.
Opportunity to prove your case and provide There is a risk that you could lose and be ordered to As a general rule, the client will never recover
resolution to the issues. pay a substantial portion of the defendant’s legal 100% of their costs from the defendant if
costs as well as your own. successful and will only recover around 60-70%.
Pre-Action Considerations
First interview with client
(1) Take instructions from client.
(2) Obtain all the facts relevant to the case.
(3) Ascertain the client’s objectives.
(4) Consider the circumstances of the other side. Namely, their financial condition and whether you would be able to recover the sums
sought. Also consider whether a party is likely to comply with a judgement if given in client’s favour.
(5) Discuss costs with the client and ensure that understand the basis on which solicitor’s fees are charged. Ensure that client knows
they are responsible for their solicitor’s costs. Discuss any likely disbursements which will be incurred and give an overall estimate
as to costs for the litigation as a whole. Also give a figure in relation to imminent next steps which will need to be taken in relation to
the claim (start-up costs).
, Commencing Proceedings & Statements of Case
Pre-Action Protocols
Objective Practice Direction–Pre-Action Conduct and Protocols, para 3 - Before commencing proceedings, 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 ADR to assist with settlement;
(e) Support the efficient management of those proceedings; and reduce the costs of resolving the dispute.
Implications of non- Practice Direction–Pre-Action Conduct and Protocols, para 13 – the court will take into account non-compliance when giving directions for
compliance the management of proceedings and when making orders for costs. Court will only be interested in substantial non-compliance.
Para 16 lists the examples of sanctions for non-compliance.
CPR 3.1(4) – when court gives directions it will take into account whether party has complied with pre-action protocol.
CPR 44.2(5)(a) – there can be negative costs implications for party who unreasonably fails to comply with pre-action protocol.
PAP for Professional The Pre-Action Protocol for Professional Negligence applies to all claims against professionals other than construction professionals and
Negligence healthcare providers.
Which Court should proceedings be commenced in
County Court PD 7A 2.1 – claims that are less than £100,000 in value.
High Court PD 7A 2.1 – If a claim is over £100,000 in value, the claimant will have the option to commence proceedings in either court.
PD 7A 2.4 – sets out the factors you need to consider when you have the option to commence the claim in the high court or the county court:
(a) Financial value of the claim;
(b) Complexity of facts, legal issues, remedies or procedures involved; and
(c) The importance of the outcome of the claim to the public in general.
Queens Bench Division – for contract and tort claims. Professional negligence claims.
Chancery Division – land and trust cases, intellectual property and commercial disputes. Professional negligence claims.
Transfer The transfer criteria in CPR 30.3(2) should be considered before issuing proceedings to minimise the chance of the case subsequently being transferred.
between The provisions of CPR 30 provide that a claim may be transferred between courts and costs sanctions could be imposed if a claim is started in wrong
courts court.
Value of Claim CPR 16.3(6) – when calculating the value of the claim, should disregard any interest, costs, contributory negligence or counterclaim by defendant.
Statements of Case
Purpose (1) Inform parties about each other’s case, (2) enables the parties and the court to identify points which are in dispute and (3) provides the judge with a
concise statement of each parties’ case.
Merely set out the factual allegations in support of the claim. Must contain all material facts necessary to establish a party’s case.
Documents (1) Claim Form;
(2) Particulars of Claim;
(3) Defence; and
(4) Replies to defence.
Counting CPR 2.8(2) – provides that you must use the clear days rule when counting time. CPR 2.8(3) - When counting clear days, the day on which the time
Time period begins is not included and if the end of the period is defined by reference to an event, the day on which that event occurs will not be included.
CPR 2.8(4) – where the specified period is 5 days or less, do not count weekends or bank holidays.
Claim Form (form N1) – CPR 7
Issuing Solicitor must provide the court with:
§ Court fee and Copies of the claim form to be issued (one for court, one for claimant to keep and one for each defendant.)
The court will seal the claim form which has the effect of issuing proceedings. Sealing the claim form stops the clock regarding limitation.
CPR 7.2(1) – proceedings are started when the court issues a claim form at the request of the claimant.
CPR 7.2(2) – claim form is issued on the date entered on the form by the court.
Serving Claim from must be served on the defendant before midnight on the calendar day four months after it has been issued (CPR 7.5(1)).
Deemed CPR 6.14 – claim form is deemed to be served on the second business day after completion of the relevant step under CPR 7.5(1).
Service
Method of Service Step required
First class post, DX or other service which provides delivery the next business day Posting, leaving with, delivering to or collection by relevant provider.
Delivery of document or leaving it to relevant place Delivery of document or leaving it to relevant place
Fax or other electronic method Completing transmission of fax or sending the email
Personal Service under CPR 6.5 Completing the relevant step required by CPR 6.5(3)
, Particulars of Claim
Serving CPR 7.4(1) - Particulars of claim must either:
(a) be contained in or served with the claim form (and if served with claim form, CPR 6.14 will apply in relation to deemed service), or
(b) if sent separately from the claim form, be served on the defendant within 14 days after deemed service of the claim form.
CPR 7.4(2) – Particulars of claim must be served on the defendant no later than the latest time for serving a claim form (under CPR 7.5).
Deemed CPR 6.26 – all statements of case other than a claim form are deemed to be served on the day shown below.
Service
Method of Service Deemed Date of Service
First class post or other service which The second day after it was posted, left with, delivered to or collected by the relevant service provider provided
provides delivery the next business day that day is a business day or if not, the next business day after that.
DX The second day after it was left with, delivered to or collected by the relevant service provider provided that day
is a business day or if not, the next business day after that.
Delivering the document to or leaving it at a If it is delivered to or left at the permitted address on a business day before 4:30pm, deemed service will be on
permitted address that day. If after 4:30pm, deemed service will be the next business day.
Fax If transmission of fax is completed on a business day before 4:30pm, deemed service will be on that day. If
after 4:30pm, deemed service will be the next business day.
Other electronic method If email or other electronic transmission sent on a business day before 4:30pm, deemed service will be on that
day. If after 4:30pm, deemed service will be the next business day.
Personal service If the document is served personally on a business day before 4:30pm, deemed service will be on that day. If
after 4:30pm, deemed service will be the next business day.
Response to Claim Form / Particulars of Case
Option 1 – CPR 10.1(3) – defendant is able to file an acknowledgement of service if he is unable to file a defence in time or he wishes to dispute the court’s
Acknowledgement of jurisdiction.
Service CPR 10.3(1) – acknowledgement of service must be filed within 14 days of deemed service of either (a) particulars of claim (if served
separately from claim form) or (b) claim form (if particulars of claim are contained within).
CPR 10.2 – if defendant fails to serve acknowledgment of service within the required time period and does not serve a defence or admission,
the claimant may obtain default judgement if CPR 12 allows it.
Option 2 – Defence CPR 15.2 – defendant who wishes to defend all or part of a claim must file a defence.
CPR 15.4(1)
(a) – defence must be served 14 days after service of the particulars of claim; or
(b) – if the defendant has served an acknowledgement of service, defence must be filed within 28 days of service of particulars of claim
(acknowledgement of service buys an extra 14 days).
CPR 15.5(1) – the defendant and the claimant may agree an extension of up to 28 days for the filing of the defence.
CPR 15.5(2) – court must be notified of any extension in writing.
CPR 15.2 – if defendant fails to file a defence, the claimant may obtain default judgement if CPR 12 allows it.
Option 3 – Admission CPR 14.1
(1) A party may admit the truth of the whole or any part of another party’s case.
(2) Admission must be form of written notice.
CPR 14.2(1) – admission must be filed within 14 days of deemed service of either (a) particulars of claim (if served separately from claim
form) or (b) claim form (if particulars of claim are contained within).
Judgement in Default – CPR 12
Claimant will be able to apply to the court for a Judgement in Default where the conditions under CPR 12.3 are satisfied. Such conditions being:
(1) Defendant has not filed an acknowledgment of service or defence within 14 days in response to particulars of claim;
(2) Defendant has filed acknowledgment of service in response to particulars of claim but has failed to file a defence within 14 days of this;
(3) Defendant has not applied or claimant’s statement of case to be struck out or has not applied for summary judgement; and
(4) Defendant has not satisfied the whole claim.
Application to set aside Judgement in Default – CPR 13
Mandatory CPR 13.2 – the court is obliged to set aside a Judgement in Default if it was wrongly entered. It will be wrongly entered if the conditions under CPR
12.3 have not been met i.e. relevant time limits for replying to particulars of claim have not expired or defendant has settled the claim.
Discretionary CPR 13.3(1) – court may set aside the Judgement in Default if:
(a) The defendant has a real prospect of successfully defending the claim (not enough for defendant to show that they have an arguable defence); or
(b) It appears to the court that there is some other good reason why the judgement should be set aside or varied or the defendant should be allowed to
defend the claim.
