Pre-Action Steps
Pre-Action Protocols
• Once a decision has been taken to commence proceedings, a party must consider the pre-action protocols before beginning
proceedings.
• The aim of the protocols is to encourage dialogue between the parties (i.e. communication, exchange of information and
investigation) so as to avoid litigation entirely. The court is seen as a last-resort step.
• The primary obligation in these protocols is to follow reasonable procedures suitable to their particular circumstances. The
‘spirit’ of the protocols should be observed at all times.
• CPR 1.1: overriding objective to enable the court to deal with cases justly and at proportionate cost- parties on equal footing/save
expense/proportionate to money involved/cases dealt with expeditiously and fairly/appropriate share of court’s
resources/enforce compliance with rules, PDs & orders.
Which protocol?
• There are a number of specific pre-action protocols
• If no specific protocol applies, then there is a general provision in s.III of the PD for Pre-Action Conduct. This protocol
outlines the general steps the parties’ should take in proceeding with a claim.
• The consequences of non-compliance will generally be cost-related (i.e. CPR 44(3) and 44(5)).
Choice of Court
This is held in CPR 7 (jurisdiction) and CPR 30 (transfer).
If decision is taken to litigate, the claimant must decide between the High Court and the County Court. This choice considers:
1. JURISDICTION – certain courts can only deal with certain claims (e.g. HC deals with libel whereas CC with consumer
claims).
2. FINANCIAL WORTH (RULES GOVERNING COMMENCEMENT) – if the value of a money claim is less than £100k then it will be
commenced in CC. If it is more than £100k there is a choice (7APD2.1).
a. If there is a choice, it will go to the HC by reason of financial value, complexity of issues, and importance of the
outcome of the case to the public legally (PD 7 para 2.4).
b. To determine financial worth you must disregard interest/costs/any counterclaim/any contributory negligence/any
deduction of social security benefits (see CPR 16.3(6))
3. RULES GOVERNING TRANSFER BETWEEN COURTS (CPR 30) – once claim issued the court may consider whether it should
remain in the court of issue
a. CPR 30 provides for transfer of cases between HC and CC. Criteria court will use to decide where cases should
be tried are set out in CPR 30.3(2)
b. Transfer provisions in 29PD2.2 state that a claim under £100k issued in the HC in London will generally be
transferred down to the CC unless certain conditions apply
c. 29PD 2.6- some special types of case must be commenced in the HC even if the value is less than £100k.
d. CPR 26.2 provides for automatic transfer in some cases e.g. where Defence filed for money claim then claim sent
automatically to the “home court” of the D.
Cases brought in the wrong court
1. Court may transfer the case under CPR 30 and order C to pay the costs of the transfer
2. s.51 SCA 1981 provides a separate sanction for wrongly bringing a matter in the HC when it should have been issued in
the CC – any costs awarded can be deducted by up to 25% (but this is at the court’s discretion)
PRE-ACTION CONSIDERATIONS
First interview/letter
• Understand the nature of the problem and the goals of the client in client’s own words ASAP.
• Advise on the merits of the case – whether there is sufficient evidence available – who are witnesses? What other evidence
to support the case? How valuable is the evidence? How can it be strengthened? Evidence gathering on: (i) liability (proving
D is/isn’t to blame); and (ii) quantum of damages (how much D owes C)
• Advise on pre-action protocols – front-loading of litigation means client may incur considerable “start-up” costs as parties
must do considerable work before proceedings issued because (i) ensures clients given most accurate advice; (ii) comply
with court’s pre-action steps; (iii) ensure fully prepared to respond to claim/defence; (iv) makes it easier to comply with
court timetable; (v) makes settlement more likely.
• Consider position of the other side - Do they have the money? Is the case worth pursuing? Assets located abroad?
o Enquiry agents – private investigators
o Registers – (i) Register of Judgments, Orders and Fines Regulation 2005 (“the Register Regulation”) – all CC
judgments from April 1990 registered for 6 years; (ii) Land Charges Registry; (iii) Individual Insolvency Register;
(iv) Attachment of Earnings Order Index.
o Company searches – find out about general solvency/company’s assets/ whether those assets are charged
o Is D legally aided? If so then won’t recover costs and may not recover damages.
o Risk of D dissipating assets? Therefore consider injunction.
, o Is D insured?
• Advise on the remedies available and the limitation periods
• Advise on any alternatives to litigation
• Advise on costs and funding
• Any conduct considerations
• Send letter afterwards- summarise main points of 1st interview/ document the retainer/further info on costs & client care
Merits/remedies/limitation
• Elements of cause of action:
1. D owed a duty to the C:
- contract: (i) there was a contract (privity of contract); and (ii) duty derived from an express term (oral/written)
or implied term (s.14 SGA 1979 [satisfactory quality & fitness for purpose] and/or s.13 SGSA 1982 [reasonable
skill & care])
- tort: duty owed under common law of negligence and/or statutory duty.
-Henderson v Merrett- a C. can run concurrent duties in contract and tort.
2. D breached duty owed:
- contract: factual evidence that term breached (issue of fact not law) e.g. evidence that goods not satisfactory
- tort: factual evidence that fell below standard of reasonable D.
3. causation – breach of duty factually caused C a loss.
4. damage-
-prove loss was foreseeable (i.e. not too remote)
-amount of loss:
(i) contract – place C in position would’ve been in if contract properly performed. Loss must flow naturally
from breach/be in reasonable contemplation of parties when contract made
(ii) tort – place C in position would’ve been in if tort hadn’t been committed. Purpose is to compensate and
can seek compo for direct loss & consequential loss providing loss not too remote (reasonable foreseeable
consequence of the tort)
(iii) debts – not technically a claim for damages but is a claim for sums D promised to pay under the contract.
Unlike a damages claim, the C in a debt claim doesn’t have a duty to mitigate its losses.
-remoteness/ contributory negligence/mitigation can affect loss quantification.
• Remedies: main ones are damages/ injunctions/ specific performance.
• Limitation: if proceedings not commenced in relevant time period then C barred from recovering damages and D has a
full defence/ limitation is pleaded as a defence:
o CONTRACT (S.5 LIMITATION ACT 1980): 6 years after the date on which the cause of action accrued (breach) –
cause of action accrues when the breach occurs (e.g. 6 years from when negligent advice given in a letter)
o TORT (S.2 LIMITATION ACT 1980): 6 years after the date on which the cause of action accrued- cause of action
accrues when C suffers actionable damage (e.g. 6 years from when C acted in reliance on negligent advice i.e.
date of completion when it bought the land)
o (exactly when cause of action accrues can differ according to whether claim is in contract or tort)
Evidence
• Solicitor should formulate a case theory: 1. What needs to be proved? 2. What evidence is there to prove it? 3. Is that
evidence admissible?
• Burden of proof – every fact in dispute must be proved / burden falls on the party who asserts it / e.g. C proves duty, breach,
causation, loss and D proves contributory negligence, why C’s version of facts is wrong.
• Standard of proof is proof on a balance of probabilities i.e. it is more likely than not to have happened.
• Must prove the facts in issue set out in the statements of case (court treats some matters as established w/o evidence eg
formal admissions/presumptions/inferences of fact)
• Prove facts using admissible evidence:
o Witness testimony – witness of fact (direct evidence of what was perceived with own senses and evidence of
opinion generally inadmissible)/ expert witness (evidence on matters of opinion within their expertise)
o Documents – private (contract/invoice chasing payment/letter) / public (register entries)
o Real evidence (items/site visit).
Other pre-action considerations
• PRE-ACTION DISCLOSURE UNDER CPR 31.16:
o disclosure is process by which each party tells the other what docs/info they hold which are relevant to the case
regardless of whether or not it is helpful/detrimental to their case
o CPR 31.16 – disclosure usually takes place well after proceedings have commenced. Often a party may want to
see key documents early. The courts are reluctant to order earlier disclosure so need a good reason.
o must satisfy 4 conditions for pre-action disclosure under CPR 31.16:
i. respondent likely to be a party to subsequent proceedings;
ii. applicant likely to be a party to subsequent proceedings;
iii. had proceedings started the docs would’ve been disclosed under standard disclosure; and
iv. pre-action disclosure desirable to: a. dispose fairly of anticipated proceedings; b. assist the dispute to be
resolved w/o proceedings; or c. save costs.
, • PRE-ACTION PART 36 OFFERS:
o CPR 36 – not confined to once proceedings have begun and may be made by either party at a pre-action stage.
o If the offer is rejected but level of damages awarded at trial shows the rejecting party would’ve got a better deal
agreeing to settle, then the judge can impose serious costs consequences on the party that unreasonable rejected
the P.36 offer.
Methods of resolving disputes
• LITIGATION:
o Advantages: legally correct solution/precedent value/wide power of the court/process is tried and tested/solution
guaranteed/process not voluntary i.e. a party can’t back out.
o Disadvantages: expensive and relatively slow/lack of privacy/process is inflexible/solution is imposed by the
court/process may be regarded as unfair/no choice of judge.
• ARBITRATION:
o impartial independent third party decides outcome of the dispute.
o Advantages: dispute heard by expert in field and person of parties choice/easier to enforce abroad/private/parties
have more control over procedure and powers
o Disadvantages: cost- often as expensive as litigation/limited appeal rights/not appropriate in all cases e.g. if client
wants precedent set/can’t join 3rd parties to proceedings w/o their consent
• ADR:
o Method of resolving a dispute other than by use of the courts e.g. mediation.
o Advantages: flexible and simple process/allows active involvement of the parties/quick and cheap/preserves
commercial relationships/private/commercially realistic solutions.
o Disadvantages: lack of powers for mediator/voluntary – parties can withdraw at any time/solution not
binding/legally correct solution less likely/not appropriate in all cases e.g. certain remedies unavailable or if client
wants a precedent.
• NEGOTIATION:
o Parties reach settlement without use of courts and without any form of intermediary.
o Advantages: conducive to continuing relations/quick and cheap/private/flexible
o Disadvantages: no solution guaranteed/voluntary- parties can withdraw at any time/ no precedent value
Costs
The client should be told in the client care letter what the costs are likely to be, how they will be calculated– 8.7 CCS
• SOLICITOR-CLIENT COSTS: the amount the solicitor charges (profit costs (hourly rate x no. of hours spent plus VAT) &
disbursements). The client is responsible for his solicitor’s costs.
• PARTY-PARTY COSTS:
o CPR 44.2(2) - the general rule is the successful party’s legal costs are paid by the unsuccessful party- “costs
follow the event”.
o these are awarded at the discretion of the court (CPR 44.3) and court can depart from the general rule and take
other factors into account (CPR 44.2(4) & (5)) e.g. conduct of parties/whether acted reasonably
o Sylvia Henry v NGN [2013] – good reason that costs budget was exceeded/costs incurred were reasonable and
proportionate/exceeding the costs budget hadn’t put paying party at disadvantage in terms of ability to defend the
claim.
o Realistically, the winning party will only receive around 70% of their costs.
o Extremely rare to recover 100% and normally a shortfall which the client will have to pay.
• SOLICITOR’S PROFESSIONAL DUTY IN RESPECT OF COSTS:
o 8.7 CCS: requires a solicitor to ensure that clients receive the best possible information about how their matter
will be priced and, both at the time of engagement and when appropriate as their matter progresses, about the likely
overall costs of the matter and any costs incurred.
o Rule 1 of the SRA Transparency Rules requires firms to publish cost information on their websites for certain
types of services, including debt recovery up to £100,000 in relation to businesses (Rule 1.4(b))
o Advise client of likely payments to make to others
o Discuss how the client will pay/whether eligible for public funding/whether client’s own costs covered by
insurance
o Advise client of potential liability for other party’s costs
o Best to put this in writing even though SRA Standards and Regulations do not make it a mandatory requirement
o CFAs- explain circs when client becomes liable for costs/advise they have right to assessment of costs
Funding
• CONDITIONAL FEE ARRANGEMENT – “no win no fee”
o This is essentially charged a higher fee on the condition of the client winning (can be maximum of 100% of
existing fee).
o You CANNOT take a slice of the client’s damages
o It is not a no-risk strategy, as if the client loses he still may have to pay the other sides costs.
• STATE FUNDING:
o To qualify legal aid:
▪ Claims must be matters of English law
, ▪ LASPO 2012 sch.1 has excluded some matters e.g. personal injury, conveyancing, employment,
negligence
▪ Only individuals (limited companies are excluded but partners may be included)
▪ Sufficient merits/prospects of success
▪ Financially eligible – less than £8k disposable income and gross income less allowances is less than
£733p/m
o Statutory Charge: should the Legal Aid Agency (LAA) funded litigant WIN:
▪ The Legal Aid Agency takes back some damages if the client wins.
▪ the statutory charge applies to any shortfall in costs recovery and so if not all the claimant’s costs are
recovered from the unsuccessful defendant, the shortfall will be deducted from any damages awarded to
the successful legally aided claimant.
▪ The statutory charge only applies to any shortfall in costs recovery, not all of the costs.
▪ The statutory charge does not apply to damages payable.
▪ The statutory charge will apply if the funded party has received damages and there is a shortfall in costs
– ‘just and equitable’ is not an applicable test.
▪ Client wins: the LAA will place a statutory charge over the money it provided to the client to fight the
case less what the client paid in fees.
• For example: the client won £20k at trial. The LAA provided it with £5k to fight the case and
the court ordered costs of £4k. The charge would be over the £1k costs shortfall.
▪ Client loses: no charge as no damages to place charge over.
o Costs Protection: should the LAA funded litigant LOSE
▪ Special costs protection exists for litigant’s with LAA funding and very limited means, should they lose.
▪ The court can make an order that the LAA may pay the defendant’s costs (s.11(4) AJA). This will only
be the case if the person being funded is the claimant (i.e. if someone is suing a LAA-funded defendant,
it is there choice and they should not be given any benefit of recovering their costs.
Professional Conduct Considerations
• THE PRINCIPLES:
o 7 fundamental principles
o (i) acting in a way that upholds the constitutional principle of the rule of law, and the proper administration of
justice; (ii) acting in a way that upholds public trust and confidence in the solicitors’ profession and in legal
services provided by authorised persons; (iii) acting with independence, honesty and integrity in a way that
encourages equality, diversity and inclusion and in the best interests of each client.
• CLIENT CARE:
o CCS 1.2: do not abuse your position by taking unfair advantage of clients or others
• DISPUTE RESOLUTION & COURT PROCEEDINGS:
o CCS 1.4: do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions
or allowing or being complicit in the acts or omissions of others (including your client)
o CCS 2.1 and 2.2: do not misuse or tamper with evidence or attempt to do so. Don’t influence the substance of
evidence, including generating false evidence or persuading witnesses to change their evidence
o CCS 2.3: do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence
or the outcome of the case.
o CCS 2.4: only make assertions or put forward statements, representations or submissions to the court or others
which are properly arguable.
o CCS 2.5: don’t place yourself in contempt of court and should comply with court orders which place obligations
on you.
o CCS 2.6: Do not waste the court’s time.
o CCS 2.7: draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which
you are aware and which are likely to have a material effect on the outcome of the proceedings.
• CONFLICTS OF INTEREST:
o CCS 6.1: you should not act for more than one client on a matter if there is a conflict of interests or a significant
risk of a conflict of interests between clients (e.g. claimant and defendant in litigation).
o Only exception is CCS 6.2 where the clients have a substantially common interest.
• CONFIDENTIALITY & DISCLOSURE:
o CCS 6.3 (duty of confidentiality) & CCS 6.4 (duty of disclosure)
• ACCEPTING INSTRUCTIONS:
o Conflicts of interest
o Best interests of the client (competence, time, expertise etc.)
o Confidentiality vs. Disclosure
o Client care letter
• DURING THE RETAINER:
o Conflict issues subsequently arising
o Misleading the court (Duty to Court)
• AFTER THE RETAINER:
o Only terminate for good reasons
o Duty of confidentiality continues
,Commencing Proceedings and Statements of Case
There are TWO STAGES to consider when starting court proceedings: (1) issuing proceedings and (2) serving proceedings.
Issuing Proceedings
CPR 7.2(1) – proceedings are started where the court issues a claim form at the request of the C. The court will stamp the form
and give it a claim number, at which point proceedings have commenced.
• CPR 7.5(1) – CF only valid for 4 months from the date of issue and must be served on D within this time.
• The claim form is in the standard Form N1 (7APD 3.1) and contains the details of the parties, the details of the case and
the value (whether specified or not) of the claim.
Serving Proceedings
CPR 7.5 – once the CF has been issued, it must be served within 4 MONTHS of the issue (this may be extended under CPR 7.6
but very rarely the case).
• All that is required is that the C took steps to serve (i.e. put it in the letterbox). It doesn't matter if it was received or not.
• CPR 6.3 lists the various methods of service permissible.
• CPR 6.14 CF deemed served on 2nd business day after completion of relevant step in CPR 7.5 [do not include
weekends or bank holidays]
i) Counting Time (CPR 2.8)
• 5 or less days: don't count weekends/bank holidays
• ‘Days’ means clear days
• Always start counting on the following day as day on which period begins is never included as a clear day
• Don’t include the last day if it ends in an event
ii) When is the document deemed served?
• CLAIM FORMS [CPR 6.14(1) & CPR 7.5]
–CPR 6.14(1) – service is deemed to take place on the second business day after the completion of the relevant step in
CPR 7.5(1) (e.g. posting letter/sending fax)
-eg email CF on Wed and deemed served on Fri (do not include weekends or bank holidays)
-eg email CF on Thurs and deemed served on Mon
– if PoC contained in CF/attached to CF then it is deemed served at same time as CF i.e. second business day
• OTHER DOCUMENTS [CPR 6.26]:
- EG POC/DEFENCE/APPLICATION NOTICES/WS ETC
- if instantaneously sent before 4:30pm then deemed served on that day, otherwise the next day
Method Deemed Service
Personally on the Defendant/left Effective immediately if before 4.30pm on a business day (otherwise next business day)
at permitted address
First Class Post/DX Effective 2nd day after posting/left at DX if on business day (otherwise next business day)
Fax/Email Effective same day if before 4.30pm on a business day (otherwise next business day)
iii) Address of service
• CPR 6.7 Where solicitor authorised: serve at the solicitor’s business address
• CPR 6.9 Where solicitor NOT authorised: serve at the registered business address (or other given address). If none
registered, serve at the last known address.
Defendant’s Response [Acknowledgement of Service: 14 days from deemed service of PoC]
CPR 14 – within 14 days of deemed service of the POC (or 28 days if acknowledging) the D must:
• Admit (CPR 14)
• defend (CPR 15.4)
• acknowledge service (CPR 10).
This can be extended by the parties if the D needs more time (CPR 15.5) and then extended by the court upon application – CPR
3.1(2)(a).
Counting Time
• e.g. use to work out when AoS or Defence is due (14 days after deemed service of PoC)
• e.g. if CF & PoC served together on Mon 1st, deemed served on Wed 3rd (CPR 2.8), then AoS is 14 clear days from there is
Wed 17th
• START COUNTING THE DAY AFTER (i.e. first day is 0) AND YOU STOP ON THE LAST DAY (DON’T GO ONE
DAY LATER UNLESS IT IS AN EVENT)
, • CPR 2.8 - any reference to a number of days means ‘clear days’:
o the day on which a period begins is never included so you would always start counting on the following day;
o if the day on which the period ends is an event such as a court hearing or trial, you would not include that day;
and
o if the time period you are counting is five days or less, you do not include weekends or bank holidays.
If the Defendant doesn't respond
• CPR 15.5: solicitors can agree extension of time for serving the Defence of up to 28 days (effectively 56 days if serve AoS)
• CPR 3.1(2)(a)- if seek an extension of more than 28 days then have to make an interim application to court
• If D fails to respond within the prescribed time limits, the C can apply for J UDGMENT IN DEFAULT (CPR 12). If successful,
C will win the case without it going to trial.
• HOWEVER, the court has wide powers to set aside Judgment under CPR 13. It can do this:
o CPR 13.3 - using its discretion: if D has a real prospect of defending the claim. Burden on D to prove this.
o CPR 13.2 - automatically: if the judgment ‘wrongly entered’ (i.e. the time limits hadn’t expired)
Statements of Case
Particulars of Claim – CPR 16.4
This can either be served:
• Attached to the claim form
• Within the claim form
• After the claim form within 14 days of service [NB PoC must be served within the period of validity of the CF i.e.
within 4mths of issue]
The Defence – CPR 16.5
• 14 days from deemed service of PoC [CPR 15.4]
• if D files an AoS it extends d/l for serving Defence to 28 days after deemed service of PoC
The Counterclaim – CPR 20
• This is a SEPARATE CLAIM by the D against the C. It may not have anything to do with the original case. It must comply
with the same rules as an original claim.
• SET-OFF – this is essentially a right to withhold part/all the money claimed by C on account of other monies which D alleges
to be owed to him.
