Summary LPC EXAM STUDY GUIDE: CIVIL LITIGATION NOTES 2024 (DISTINCTION)

LPC EXAM STUDY GUIDE: CIVIL LITIGATION NOTES 2024 (DISTINCTION) On 5 October 2017, the Claimant (through its Operations Director, Francis Vollbehr) sent a letter of instruction to Mr John Weller (‘Mr Weller’), a solicitor who was a partner in the Defendant, to act on the potential purchase of the Land and, in this connection, to advise whether the Plans would be in breach of the Restrictive Covenant. Mr Weller duly accepted the Claimant’s instructions on behalf of the Defendant by a letter dated 6 October 2017 (the ‘Retainer’). A copy of the Retainer is attached to these Particulars of Claim. 5. The Defendant was instructed on the basis that, at all material times, Mr Weller held himself out to be an experienced, skilled and competent solicitor specializing in commercial property. 6. It was an express term of the Retainer at clause 5 that Mr Weller (on behalf of the Defendant) would provide advice to the Claimant relating to the purchase and development of the Land and the Restrictive Covenant, and would advise it of any circumstances and risks of which the Defendant was aware or considered to be reasonably foreseeable that could affect the outcome of the matter. 7. It was an implied term of the Retainer that Mr Weller (on behalf of the Defendant) would, at all material times, exercise the reasonable care and skill to be expected of a reasonably competent solicitor specialising in commercial property. 8. Further or alternatively, Mr Weller (on behalf of the Defendant) owed the Claimant a like duty of care in tort. 9. By way of a letter dated 16 October 2017, Mr Weller (on behalf of the Defendant) advised the Claimant that it would not be in breach of the Restrictive Covenant if it kept the building of the hypermarket below the height of the chimneys on the neighbouring property. 10. In reliance on Mr Weller’s advice referred to in paragraph 9 above, the Claimant duly completed the purchase of the Land on 30 November 2017 for £20,000,000. Further, the Claimant borrowed funds from its parent company in order to enable it to purchase the Land. The funds were advanced on the day of completion. On or about 14 December 2017, the Claimant commenced development work in accordance with the Plans. 11. On or about 4 January 2018, the beneficiary of the Restrictive Covenant (the 'Beneficiary') threatened the Claimant with legal proceedings on the grounds that development work in accordance with the Plans would be in breach of the Restrictive Covenant; the height of the proposed hypermarket was above the ridge-line of the buildings which existed on the neighbouring property. The Claimant accordingly sought further advice from Mr Weller who confirmed his original advice as given on 16 October 2017. 12. On 11 January 2018, the Claimant met with the Beneficiary. The Beneficiary referred the Claimant to a Court of Appeal decision of 5 January 2016 which, the Beneficiary told the Commented [N3]: If necessary, attached a copy of any contract, agreement or retainer mentioned in the question. Commented [N4]: This paragraph has been inserted to allege that the standard of care owed was a higher duty than that of a normal solicitor because Bono Weller & Co LLP held John Weller out as a specialist in commercial property. Commented [N5]: breach of contractual duty: - which express term - which implied term Commented [N6]: If the contract is for the sale of goods, the correct implied terms will be that the goods should be of satisfactory quality and possibly fit for the purpose made known to the other side. If the contract is for the provision of services, the correct implied term will be that the provision of goods and service should have been conducted with reasonable skill and care. Commented [N7]: This paragraph states the duty in tort owed by the Defendant. It would also be correct to refer to ‘a like duty at common law’. Note that it starts with the words: ‘Further or alternatively’ indicating that there is a separate, independent duty in tort Commented [N8]: The terminology ‘On or about’ used here and in the next paragraph is used where the exact date is not clear to a Claimant. The aim of the Claimant is to prevent the Defendant from denying the paragraph by the Defendant stating in its Defence that the date referred to was incorrect by a day or two. Claimant, had decided, in similar circumstances, that ‘height’ meant ‘ridge-line’ and that the Claimant would therefore be in breach of the Restrictive Covenant if it continued its development of the hypermarket in accordance with the Plans. The development had already begun and the Claimant therefore agreed with the Beneficiary to alter the Plans so as to build to one storey rather than two, thereby keeping the hypermarket below the ridge-line of the buildings on the neighbouring property. 13. In breach of the express term of the Retainer referred to in paragraph 6 above, and in breach of the implied term of the Retainer referred to in paragraph 7 above, and in breach of the duty of care in tort referred to in paragraph 8 above:- PARTICULARS OF BREACH (a) Mr Weller failed to keep up-to-date on the law; (b) Mr Weller advised the Claimant it would not be in breach of the Restrictive Covenant if the hypermarket was developed in accordance with the Plans and below the height of the chimneys on the neighbouring property; (c) Mr Weller failed to advise the Claimant that the meaning of the word ’height’ was ambiguous and could mean ridge-line or chimney height; and/or (d) Mr Weller failed to advise the Claimant that there was real scope for dispute as to the construction of the Restrictive Covenant and instead provided definitive advice. 14. As a result of the breaches, the Claimant was not advised that it could potentially be in breach of the Restrictive Covenant if it built a two-storey hypermarket on the Land in accordance with the Plans. Had Mr Weller so advised, the Claimant would not have purchased the Land. Further the Claimant would not have had to borrow monies from its parent company to fund the purchase. The Claimant has suffered a loss amounting to the costs of funding the said loan from the date of the advance at a rate of 2.5% above the Bank of England Base Rate. The loss suffered at the date of issue of this claim resulting from the costs of financing the said loan amounts to £1,200,000 and continues to accrue at a rate of £1,643 per day. 15. As a result of the agreement reached with the Beneficiary (as referred to in paragraph 12 above), the Claimant was unable to include a car park on the second storey of the hypermarket and was forced to purchase additional land for car parking (the ‘Additional Land’). The Additional Land was purchased at a cost of £5,000,000. The Claimant also incurred necessary legal costs and expenses in purchasing the Additional Land. 16. As a result of the matters set out above, the Claimant is the owner of the Land and the Additional Land. The Claimant gives credit for the value of the Land and the Additional Land, together with the increases in the values as at the date of these Particulars of Claim. 17. As a result of the breaches referred to in paragraph 13 above, the Claimant has suffered loss and damage. Commented [N9]: The wording ‘As a result of the breaches’ sets out the causal link between the breach and the loss which the Claimant has suffered. Note again how this paragraph refers back to the paragraph number in which the breach was referred to. PARTICULARS OF LOSS AND DAMAGE Price paid for the Land £20,000,000 Price paid for the Additional Land £ 5,000,000 Cost of funding to date £ 1,200,000 Building costs £ 300,000 Legal costs and expenses £ 25,000 LESS: Actual value of the Land at the date of purchase (£18,000,000) Actual value of the Additional Land at the date of purchase (£ 1,500,000) Increase in values of the Land and the Additional Land since the date of purchase (£ 2,500,000) ____________ TOTAL £ 4,525,000 18. The Claimant claims interest on such damages as are awarded to it pursuant to section 35A Senior Courts Act 1981, at such rate and for such period as the court thinks fit. AND THE CLAIMANT CLAIMS: (i) damages under paragraph 17 above; and (ii) interest under paragraph 18 above. PRICE PRIOR Statement of Truth The Claimant believes that the facts stated in these Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement. Signed Francis Vollbehr Francis Vollbehr Operations Director of the Claimant Served this 11th day of October 2019 by Price Prior, 68-70 Red Lion Street, London WC1A 4NY, solicitors for the Claimant Ref: PP/200359.1 Part 36 offer – 16 marks Commented [N10]: Check if individual or company- if individual just I believe and no need of second line. HCL’s claim against Haling Coombes continues. Witness statements and expert reports have been exchanged. You were told that you had received a letter from Dell Wood LLP acting on behalf of Haling Coombes. In that letter, Dell Wood LLP made a Part 36 offer, on behalf of Haling Coombes, which offered to pay HCL £250,000 inclusive of interest in full and final settlement of HCL’s claim. Students were told that they should assume for the purposes of the assessment that Haling Coombes’ Part 36 offer is valid and complies with the procedural requirements of CPR 36. Part a) – 2 marks Students were then told to explain to Lucas what the purpose of a Part 36 offer was. Given the number of marks available, students should have realised that only a brief answer was required. This should have stated that a Part 36 offer is an attempt to force a compromise or settlement as it may carry serious costs consequences if the other party rejects it. It is without prejudice save as to costs and will not be referred to the court until the issue of costs is being decided. The offer will remain open for acceptance for at least 21 days which is the minimum period for the relevant period. Part b) – 14 marks Students were then asked to explain to Lucas, with reasons and specific reference to the Civil Procedure Rules, the costs consequences of the offer in each of the following circumstances. i) HCL wins at trial and is awarded £400,000 inclusive of interest; ii) HCL wins at trial and is awarded £100,000 inclusive of interest; and iii) HCL loses at trial. Students were told that they did NOT need to set out the form or content of the offer as part of their answer but SHOULD explain the costs consequences fully, without dealing with procedure as part of their answer to any part of the question. Students who did well in this question looked closely at the wording of the question and answered it as stated. It is always worthwhile stepping back for a moment and working out who has made an offer, for how much and which party they are. In this case, Haling Coombes (the defendant) has made a defendant’s offer of £250,000. Scenario i) – where HCL wins at trial and is awarded £400,000 inclusive of interest. In this scenario, the judgment is more advantageous than the defendant’s offer and so the claimant was right to reject the offer which will have no effect. The claimant will not be penalised. Costs would apply in the normal way under CPR 44.2 where, subject to the court’s discretion, it is likely that the defendant (Haling Coombes) would pay the claimant’s (HCL’s) costs. Witness evidence / hearsay / professional conduct (10 marks) Hearsay is an oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated. S1 CEA 1995- admissible s2- notice 3- Cross examination 4- Weight 5- Attack credibility Notice of intention to rely on hearsay evidence