Civil Lit Revision
Pre-action considerations:
• Duty- express terms in contract etc./implied terms under SGS or SGSA/ tortious duty to act
with reasonable care and skill, Breach- experience of D, what would other professionals do,
Causation- did breach causes C loss and Loss (remoteness, contributory negligence and
mitigation)
• Costs- unsuccessful party pays successful party’s costs- CPR 44.2 (2) (a) but courts discretion
as to who pays, how much and when-CPR 44.1 (1) and there are factors that affect how much
is payable-CPR 44.2 (4)
• Funding-Chap 1 RA requires solicitor to give information to client about costs and methods of
funding:
-Legal aid funding (only for individuals)- must be a matter of English law excluded matters
contain in LASPO 2012 Sch 1 e.g allegations of personal injury or death,
conveyancing/boundary disputes, employment cases but when given get: legal help, help at
court and legal representation but may need to repay any shortfall in costs at end of case
through statutory charge- s25 LASPO
-Merits test- prospect of success of the case- assess likely costs that will be incurred to
disposes of the claim and likely amount that will be recovered by client
-Means- client must be deemed financially eligible to receive legal aid (Capital- client
disposal capital must not exceed £8k and Income-clients gross monthly income should
be £2657 or less clients disposable income must not exceed £733 per month)
-Insurance-clients claim could be funded by any existing insurance they may hold (BTE) or
after event insurance (ATE- not recoverable from other party if entered into after 1 Apr 2012)
-No win no fee agreements-CFA (agreed legal costs are paid to solicitor and agreed ‘success
fee’)/DBA (solicitor charge percentage of any damages recovered regardless of what their
fees are)- solicitor will not get paid unless case is successful
-Private funding
• Objective- Pre-Action Conduct PD para 3- parties should understand each others position,
make decisions as how to proceed, try to settle dispute without proceedings and consider a
form of ADR to assist with settlement
• Cost consequences of not complying with Pre-Action Conduct PD – para 13 makes it clear that
court will take into account non-compliance with giving directions, para 16 lists examples of
sanctions for non-compliance, CPR 3.1 (4), court could punish non-complying party- CPR 44.2
(5) (a)
▪ Jurisdiction over foreign matters
• Regulation
-Does the regulation apply?
➢ Refer to exact regulation at the start
-Regulation (EU) No 1215/2012
➢ Is there an international element?
-May derive from subject matter of claim or domicile of a party E.g one of parties is
German or crash happened in Spain for example
➢ Establish claim is within material scope-
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, -Connection to EU MS- Ds domicile (Art 4/62 and 63), Exclusive jurisdiction (Art 24)
and Choice of jurisdiction (Art 25)
-Is it a civil and commercial matter that is not excluded under Art 1? Some claims are
excluded- second half of Art 1 (1) and Art 1 (2)
➢ Establish claim is within temporal scope
-Art 66 and 81 provides that claim/legal proceedings needs to have commenced on or
after 10 Jan 2015
➢ CONCLUDE- does it apply?
-Do the courts of E and W have jurisdiction under the regulation to determine the claim?-
start from bottom of hierarchy for LPC (Art 24 is highest priority in the order)
➢ General rule- Art 4- jurisdiction based on domicile of the D
-If already discuss domicile above and referred to Art 63 and statutory seat for
example
-Special jurisdiction rules which gives claimant a choice under Art 7 (contract, e.g
goods delivered- where is delivery taking place?, tort and branch) and 8 (not likely to
apply on facts given)
➢ Has a choice of jurisdiction been made in the contract- Art 25
-NOT CHOICE OF LAW BUT CHOICE OF JURISDICTION in contract (subject to weaker
party provisions)
➢ Submission under Art 26 (modified in weaker party cases)
-Where D responds by getting an agent to act or taking a step in proceedings but
unlikely to be relevant as claimant seeing at pre-issue stage
➢ Exclusive jurisdiction under Art 24- does it apply?
➢ Conclude- Art 4/7 & 8 likely to apply- do E and W courts have jurisdiction? May have a
choice between domicile and court highlighted by Art 7
-If so, can the courts of E and W actually accept jurisdiction?
➢ Are they other proceedings on similar matters in other courts of any other MS?
➢ Art 29- same cause of action taking place elsewhere
-Court SHALL stay its proceedings
➢ Art 30- related actions taking place elsewhere
-Court MAY stay its proceedings
➢ Conclude- may be no evidence on the facts- on facts does not appear to be same cause
of action nor a closely connected related action so Art 29/30 do not apply
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, -Conclude- may have choice between two courts for example or can pursue under E and W
courts
➢ Answer the Q- likely to be the same as conclusion at step 2
-No need for permission from courts to proceed-CPR 6.33, must file Form 510 and file
claim form- CPR 6.34
• Common Law Rules
-Address regulation first-, is there international element? YES, is there connection with EU? NO
(make sure not domiciled, not within exclusive jurisdiction, or choice of jurisdiction) then need to
switch to Common Law Rules
➢ Presence
-Serve proceedings on D whilst they are within the jurisdiction (permanent or
temporary)
➢ Submission
-Appoint an agent- instruct solicitor to accept service
-Enter an appearance- take a step
➢ Permission
-Court may grant permission to service on foreign defendant if:
o Jurisdictional gateway- CPR 6BPD 3.1 (contract, tort, others)
o Reasonable prospect of success (low threshold)
o Is England the proper place?
- Is E and W national forum? Residence/place of D, availability of witness,
cost/delay/inconvenience, governing law and local knowledge
- If no, does substantial justice require the case to be heard in E+W anyway?
-If D is outside the jurisdiction at the time the C seeks to serve proceedings, permission of court is
needed to serve proceedings on D- make an application to serve a claim abroad- CPR 23
Domestic D Regulation D Common Law D
CF- issue to service 4 months- CPR 7.5 (1) 6 months- CPR 7.5 (2) 6 months-CPR 7.5 (2)
AoS or Defence 14 days- CPR 10.3/15.4 21 days- CPR 6.35 Depends on country-
(3)(a)/(b) (i) CPR 6.37 (5)/6B PD 6.2-
6.4
Defence if AoS 28 days-CPR 15.4 35 days- CPR 6.35 (b) (ii) Days in table + 14 days-
6B PD 6.4
P4/5- if have a matter with choice of jurisdiction then must not advise without the help of foreign
lawyer to advise of hearing claim within that country
▪ ADR and ARBITRATION
o Arbitration- procedure by which an impartial, independent 3 rd party decides the
outcome of a dispute between two (or more) other parties which will be final and
binding
-s1 Arbitration Act- objective of Arbitration/ s33 General Duty of Tribunal, s40 General
Duty of Parties, s14 Commencement of proceedings
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