A Distinction-level comprehensive set of study notes covering the Civil Litigation module on the LPC. It is designed to be direct and to the point by covering the technical aspects in a practical sense. Each part of revision notes can be applied directly to exam questions on each topics during an e...
Pre-action steps (SGS 1, 2 and 5)
SGS 1.
Learning Outcome 1 & 2: Undertake Case Analysis to identify and apply relevant substantive law
liability. Identify the evidence by which the relevant facts may be proved.
Contract:
• Is there a contract? (Offer, acceptance, consideration, intention to create legal relations, ce
• What are the terms? Express or implied?
• Breach of term?
• Causation?
•
• Loss? Remoteness?
Tort
• Is there a duty of care?
• Pure economic loss- not a problem because this case is against a professional
• Assumption of responsibility? Special relationship?
o Hedley Byrne & Heller
▪ C relied on D’s skill and judgment or his ability to make careful enquiry;
▪ D knew, or ought to have known, that C was relying on him; and
▪ It was reasonable in the circumstances for C to rely on D.
• Has the duty been breached? What is the standard?
o Bolam Test- “The test is the standard of the ordinary man exercising and professing to
to act in accordance with the standard of a reasonably competent insurance broker? (
Lanarkshire Health Board [2015] UKSC 11 regarding risk)
• Causation? Did the breach cause the loss?
• Can the loss be quantified?
Learning outcome 2: List and explain methods of funding:
Usually loser pays winner’s costs- but court has discretion- if for example winner acted unreasonab
decrease that
If client wins the case:
Clients receives damages. Loser pays winner’s costs- shortfall paid by client.
Why the shortfall? Court may think hourly rate/or time spent is too long.
If client loses the case:
Receives no damages, pay his solicitor’s costs and a proportion of other side’s costs
How court will assess costs:
,• 1.1 and 1.2- the overriding objective to enable to court to deal with cases justly and at a proporti
on equal footing, saving expense, considering proportionality by looking at the amount of money i
the complexity of the issues, the financial positions of each party; allowing it to an appropriate sha
compliance with rules, practice directions and orders)
• 1.3 Parties should help the court to further the overriding objective
•1.4 Court’s duty to actively manage cases: this can be done by encouraging parties to co-operate
proceedings, identifying issues at early stage, deciding the order in which issues are to be resolved
benefits of taking a particular step justify the cost of taking it
SGS 2:
Learning outcome 1: Analyse and evaluate a proof of evidence & Analyse the admissibility of evid
Types of evidence:
• Documentary evidence (Client documents- stuff they can bring in- original contract, minutes
Solicitor documents- witness statements, company search)
• Witnesses of fact: those directly involved e.g. witnesses to an oral agreement (All persons ar
give evidence. They will give evidence after swearing an oath or taking an affirmation.
Exceptions: Patients under the Mental Health Act may not be competent to give evidence. & Ch
is of sufficient intelligence to justify the reception of the evidence and understand the duty of sp
1989). If the child passes this test s/he will give unsworn evidence.
• Generally there is no property in a witness (you can in theory speak to any party with relevan
PEOPLE FROM OPPONENT’S SIDE-but their solicitor will stop this from happening - if they ha
them not the client-it’s the SRA rules) – also SRA Chapter 5 IB (5.10) and (5.11) and Chapter
• Expert witness: Normally one expert-to be disclosed to both parties at the same time. If you
have to disclose it
• Real Evidence- Could be the scene of an incident; looking at a faulty machine. Judge most like
rely on expert evidence
, Procedural Bars To Admissibility- usually involve a failure to disclose the evidence to the opponent
on evidence:
• in a pre-existing document if it has not been produced as part of disclosure (CPR 31.21);
• of a witness of fact unless a witness statement has been disclosed to the opponent in advanc
• of an expert witness unless a written report by that expert has been disclosed to the oppone
HOWEVER
• The court can give permission for such evidence to be used even if it is disclosed late, but suc
guaranteed and will almost inevitably involve some sanction, such as costs, being imposed.
When evidence will be inadmissible:
• It’s not relevant to a fact in issue
• Opinion evidence of a witness of fact- The situation is partly governed by s3(2) of the Civil Ev
admissibility of statements of opinion made as a way of conveying relevant facts personally p
• Expert opinion where is does not stay confined to their area of expertise
• Speculation- if it is not a description of fact, but involves the lay witness in speculating (i.e. co
Weight of evidence:
• Non-hearsay (usually more weight but have a look at): Possible bias, Vagueness, Accuracy of
was he), Witness memory
- Hearsay evidence (less weight): defined by CPR 33.1
- A statement: This may be an oral statement (i.e. words spoken) or a document (such as a let
statement).
- Made otherwise than by a person whilst giving oral testimony in court i.e. uttered or written
Provided it was made somewhere other than in court in the present proceedings, this step w
- That is relied on to prove the truth of its contents: Why is the court being asked to read the do
being repeated?
This is governed by s4 Civil Evidence Act: how the weight of this evidence will be assessed:
Section 4(1) “the court shall have regard to any circumstances from which any inference can reaso
or otherwise of the evidence”.
Section 4(2) Regard may be had in particular to the following:
(a) Would it have been reasonable and practicable for the party by whom the evidence was add
the original statement as a witness. -> this will reduce the weight ‘why didn’t you bring them?’- e.g
(b) Was the original statement made contemporaneously with the occurrence or existence of th
original person who made the statement during the time it happened?
(c) Does the evidence involve multiple hearsay?
(d) Does the person involved have any motive to conceal or misrepresent matters?
(e) Was the original statement an edited account, or was it made in collaboration with another o
(f) Are the circumstances in which the evidence is adduced as hearsay such as to suggest an atte
of its weight?
S 33.2- (1) where a party intends to rely on hearsay evidence and that is to be given (a) by a witnes
contained in a witness statement of a person who is not being called to give oral evidence, that par
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