Hafsah Nawaz
Civil Litigation Exam Consolidation
Case Analysis and Investigation
Overriding objective of the Civil Procedure Rules (CPR)
CPR 1.1(1) – To enable the court to deal with cases justly and at proportionate cost
CPR 1.1(2) – This involves-
o Ensuring that parties are on equal footing
o Saving expense
o Dealing with the case in ways which are proportionate to the amount of money involved,
the importance of the case, the complexity of the issues and the financial position of each
party
o Ensuring the case is dealt with expeditiously and fairly
o Allotting to each case an appropriate share of the court’s resources, taking into account
the need to allot resources to other cases
o Enforcing compliance with rules, PDs and orders
Elements of a cause of action in contract and applicable remedies
1. D owes a contractual duty to C (in respect of goods/services) (express or implied)
2. D has breached that duty or an express term of the contract
3. C has to show that he has suffered loss as a result of D’s breach
4. C has to set out the losses he alleges he has suffered as a result of D’s breach
Remedies (subject to remoteness and mitigation):
Right to reject in sale of goods contracts whereby C recovers the price and also consequential loss
In supply contracts, the remedies available to the consumer depend on the severity and
consequences of the breach
Limitation periods
In contract, time runs from the date of breach.
In any event, the limitation period is 6 years per the Limitation Act 1980.
Elements of a cause of action in tort and applicable remedies
1. D must owe a duty of care to C
2. D must have breached that duty
3. C has suffered damage
a. Causation – ‘but for’ test
b. Remoteness
4. Contributory negligence- reduces damages the claimant receives so acts as a partial defence
Remedies:
Damages
Limitation periods
In tort, time runs from the date the damage is suffered.
In any event, the limitation period is 6 years per the Limitation Act 1980.
Pre-action protocols
Aim? To set out the best practice that should be adopted by the parties before the court is
involved.
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Non-compliance? The court may appoint costs and interest consequences, including potentially
staying proceedings until the relevant steps are completed(Pre-Action PD 15). The court is unlikely
to be bothered by minor infringements. (Pre-Action PD 13)
Which court should proceedings be brought in?
Options of court in civil claims:
High Court (Senior Courts Act 1981)
o Divisions:
Chancery- land, mortgage, trusts, other company and tort matters
Companies and Insolvency Court – deals with applications under the
Companies Acts and other financial and insolvency matters
IPEC – IP and patents matters
Queen’s Bench- most contract and tort matters
Commercial Court – deals with complex matters that require specialist
commercial knowledge
Technology and Construction Court – deals with matters requiring
specialist technical or scientific knowledge
Admiralty Court- shipping matters
County Court (County Courts Act 1984)
Where to bring a claim?
1. Jurisdiction
a. See above
b. CPR PD 7A 1 – If both courts have jurisdiction, then the claim may be started in either
2. Rules governing commencement
a. CPR PD 7A 2.1 – Proceedings can’t be brought in the High Court unless the value is more
than £100,000 (or £50,000 if personal injury CPR 7A 2.2)
b. CPR PD 7A 2.4 – A claim should be brought in the High Court if by reason of (1) financial
value, (2) complexity, (3) importance of the outcome to the public
c. CPR 16.3(5) – If a claim is to be brought in the High Court, it must state that the claimant
expects to recover more than £100,000
3. Rules governing transfer (CPR 30)
a. CPR 30.3(3)(a)-(h) – These are the matters the court must have regard to when
considering whether to make an order for transfer
b. CPR 29 PD 2.2 – A claim under £100,000 issued in the High Court in London will generally
be transferred down to the County Court unless certain conditions apply
c. CPR 26.2 – Provides for automatic transfer when a defence is filed for a claim for a
specified sum of money. If the claim wasn’t commenced in D’s home court, then it will
automatically be sent there
What if the claim is brought in the wrong court?
If a case is brought in the wrong court, and the court has to transfer, the claimant may be ordered
to pay the costs of transfer
S51 SCA 1981 provides an additional sanction for wrongly beginning a matter in the High Court –
any costs awarded may be deducted by up to 25% at the court’s discretion
Costs in pursuing litigation (Funding Appendix)
PCR considerations
CCS 8.7- solicitors must ensure that clients receive the best possible information about how their
matter will be priced both at the time of engagement and as the matter progresses
Costs
Party/party costs – if a litigant wins the case, it may obtain an order to recover all or part of these
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costs from the unsuccessful party (CPR 44.2(2)(a))
In legal aid – if a litigant wins, and keeps/gains money, then they may have to repay some or all of
the legal aid costs via statutory charge (S2 LASPO 2012)
o To qualify for legal aid funding in most cases, a person’s disposable capital mustn’t exceed
£8000
Funding litigation
Legal aid/ public funding (only available subject to means and merits test)
o Legal help – aimed at providing initial advice and assistance
o Help at court – allows solicitors to speak on the client’s behalf at certain court hearings
without acting formally on their behalf
o Legal representation – designed to allow clients to be represented in court
Conditional fee agreements (CFA)
o If I win, I’ll charge double my basic fee. If I lose, I’ll charge no basic fee
o Will only be lawful and enforceable if compliant with S58 CLSA 1990
Damages based agreements (CBA)
o Lawyers do not recover any fees if they lose a case, but if they win they may recover their
fees out of the damages awarded to their client
Private funding
Professional funding
Third party funding
Insurance
BTE insurance – taken out before the client becomes involved in litigation and provides the client
with an indemnity for the cost of any legal fees incurred. The premium is not generally recoverable.
ATE insurance – taken out in order to help the client cover the costs of litigation once a dispute has
already arisen. The premium is not recoverable.
Advantages and disadvantages of pursuing litigation
Advantages Disadvantages
Legally correct solution Expensive and relatively slow
Precedent value Lack of privacy
Wide power of the court Inflexible process
A solution is guaranteed A solution is imposed
Parties can’t back out No choice of judge
Note – the above advantages/disadvantages will depend on the party; if you are seeking to sue a
law firm, the lack of privacy would actually be an advantage because it may encourage the firm to
settle. However, if you’re the firm you’d not be concerned about the monetary cost as firms usually
have insurance.
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Commencing Proceedings
Commencing proceedings (CPR 7)
CPR 7.2(1)- Proceedings are started when the court issues a claim form at the request of the
claimant (subject to the rules in CPR 7A PD 5.1 and CPR 7A PD 5.2)
Upon issue, the court will stap the claim form with the court seal and give the action a claim
number
The claim form is the first statement of case, on form N1 (CPR 7A PD 3.1)
Issuing the claim form
C’s solicitors must take/send copies (D +2) of the claim form to be issued and sealed and the court
fee
The effect of issuance is that it stops time running for limitation purposes (CPR 7A PD 5.1)
Service of the claim form
Once the claim form has been issued it must be served on the defendants within:
o 4 months if D is in jurisdiction (CPR 7.5(1))
o 6 months if D is outside jurisdiction (CPR 7.5(2))
CPR 7.6- an extension may be claimed but is unlikely to be granted
Rules on counting time and the deemed service of documents ( CPR 6 and CPR 6A PD)
The claimant needs to know deemed date because the time limit for serving particulars runs from
service of the claim form
The defendant needs to know deemed date because the deadline for serving a response runs from
service of the claim form
Counting time is in terms of clear days (CPR 2.8)-
o CPR 2.8(3)(a)- Don’t count the day the period begins – Day 0
o CPR 2.8(3)(b)- Don’t count the end day if there is an ‘event’
o CPR 2.8(4)- If the period is less than 5 days, don’t count weekends or bank holidays
Methods of service
CPR 6.3- methods which are permitted for service
CPR 6.7(1)- where a solicitor is authorised to accept service, the document must be served to the
solicitor
CPR 6.11- where a contract specifies mode of service, service will be valid if effected in accordance
with that contract
CPR 6.15- the court may permit service by an alternative method if there is good reason to do so
CPR 3.10- the court has the power to cure procedural irregularities in service
CPR 6.16- the court may dispense with service where the other side is aware of the document
Deemed date of service of the claim form
CPR 6.14- the claim form is deemed served on the second business day after completion of the
relevant step in CPR 7.5(1) as below
Method of service Step required
First class post, document exchange or other Posting, leaving with, delivering to or collection by
service which provides for delivery on the next the relevant service provider
business day
Delivery of the document to or leaving it at the Delivering to or leaving the document at the relevant
relevant place place
