Lecture notes
Civil Litigation Module Notes
- Module
- Litigation
- Institution
- Staffordshire University
Civil litigation module notes. Detailed notes which are easy to follow. Includes case law and statute law.
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CIVILLITIGATION
,What is civil litigation?
Disputes between individuals or businesses
Claimant brings the claim/suffered loss
Defendant is the person being sued/caused the loss
The burden of proof – burden of proof is on the claimant and the standard required
of them is that they prove the case against the defendant on a balance of
probabilities (more likely than not 51%
Remedies
Civil Procedure Rules 1998 (CPR)
All civil claims have to follow CPR
CPR is divided into parts e.g. Part 36 is regarding offers
Practice Directions
Pre Action Protocols
The Overriding Objective – CPR 1.1
Deal with case justly and at proportionate cost
Ensure case is dealt with expeditiously and fairly
Allot appropriate court resources
Enforce compliance with rules, practice directions and orders
Professional Conduct
Solicitors regulation Handbook
7 principles –
1. You act in a way that upholds the constitutional principle of the rule of law, and
the proper administration of justice
2. You act in a way that upholds public trust and confidence in the solicitors’
profession and in legal services provided by authorised persons
3. You act with independence
4. You act with honesty
5. You act with integrity
6. You act in a way that encourages equality, diversity and inclusion
7. You act in the best interests of each client
Professional duties owed by solicitors and their employees to clients and members
of the public
Duties not limited to your own clients
SRA Regulations
1.2 – don’t take advantage of others
1.4 – do not mislead clients, court or others
2 – proceedings before court
3 – service and competence
6 – conflicts of interest, confidentiality and disclosure
7 – cooperation and accountability
8 – client care and costs
The First Appointment
, Find out what does the client want? Might not always be damages (money)
Who are the parties? (Think about any conflicts of interest or money laundering
What evidence will you need?
Costs and client care letter
Complaints procedure
Limitation and jurisdiction
Possibility of ADR (alternative dispute resolution)
Client Care
Often template documents
Need to tailor them to your client (disability)
Protected parties may need litigation friend
Conflict of Interest Checks – Regulation 6 of the SRA Codes of Conduct
Do not act if –
Conflict of interest or significant risk
Own interest conflict
Exceptions –
Substantially common interest
Same objective
Clients consent
Client Confidentiality
Keep affairs of current and former clients confidential
Owe a duty to the court and keep in mind other principles e.g. integrity and honesty
If client puts you in a difficult situation you must cease to act (can’t tell anyone why)
Money Laundering
Money laundering is when criminals ‘clean’ the proceeds (financial gains) of crime. Criminals
transform proceeds into assets, such as houses or companies, or other seemingly legitimate
funds, for example money in a bank account in some cases, laundered money is used to
fund terrorism.
To comply with anti-money laundering regulations, ensure that you –
1. Know your client
2. 2 forms of ID usually passport/driving license (some form of photograph ID) and
proof of address in the form of a utility bill, bank statement, council tax bill etc.
3. Don’t accept cash
Costs
Need to provide client best possible information about costs at the start and during
the case
Own client costs/interpartes costs (indemnity principle)
Loser pays winners costs
Proportionality
Methods of Funding
Little, if any, legal aid for civil claims
, Most clients will be privately paying so firm will expect you to ask for payment on
account – estimate is important
Regular updates regarding costs so client doesn’t receive a large bill at the end which
they had no idea about – be transparent
Conditional Fee Arrangements
‘No win no fee’ or ‘no win lower fee’
Solicitors not paid if loses so need toa assess risks carefully
Expectations – client lying/not cooperating
Success fee usually a % of damages e.g. 25%
Standard form as are regulations – define win
Funding of Disbursements/Other sides costs
Even on no win no fee, if lose client will have to pay other side costs and potentially
firms disbursements e.g. ID checks etc
Sometimes firms offer insurance policies to cover this (After the Event Insurance
‘ATE’)
Costs of policy not recoverable from Defendant
Disbursement funding loans
Damages Based Agreements (DBA)
Basically means that if the client recovers damages, the solicitor’s fee is an agreed
percentage of those damages. So if the client recovers £100,000 and the DBA is set at 10%,
then the client pays the solicitor a fee of £10,000.
Not that common in practice
Costs are % of damages
Sometimes called contingency fee agreements
A DBA is only enforceable if it meets the requirements of S58AA(4) of Courts and Legal
Services Act 1990 (CLSA 1990). These are that the agreement –
a. Must be in writing
b. Must not provide for a payment above a prescribed amount or for a payment above
an amount calculated in a prescribed manner
c. Must comply with such other requirements as to its terms and conditions as are
prescribed
d. Must be made only after the person providing services under the agreement has
provided prescribed information
Before the Event Insurance (BEI)
Existing insurance e.g. car, home, credit cars
Usually called legal expenses insurance
Insurers will usually insist on their panel firm dealing with case until issue
Negligent if enter into a conditional fee agreement if client has before the event
insurance and not explored
Solicitors should always check to see if the client has the benefit of an existing legal
expenses insurance policy (before the event insurance) that might fund the litigation
such insurance is commonly purchased as part of household or motor insurance
policies.
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