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DISTINCTION level notes- I have consolidated each relevant SGS into concise tables which helped me navigate my way through the content in the exam. These notes will help you understand the content given in SGS' and should act as a helpful revision tool. I have included as much detail as I thought w...
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Civil Litigation Notes
, SGS 1- Case Analysis
Learning Objectives 1. analyse a case in order to advise a client on the elements of any causes
of action and the remedies available;
2. analyse a case to identify the evidence available and further evidence
which should be sought; and
3. appreciate and advise your client on the costs, benefits and risks of
pursuing litigation.
Pre action o Instructions – first interview
considerations o Method of resolving disputes
o Funding
o Case analysis and investigation
o Preliminary considerations (ADR/ Protocols/ Court etc)
Action o Claim form/ particulars of claim
o Acknowledgment of service/ admission/ defence/ defence and counterclaim
(counterclaim does not have to be smaller than original claim)
o Allocation of track (small/ fast/ multi)- All case studies in this course are
multitrack (> £25,000)
o Directions
o Disclosure: which documents you have and which documents other side are
allowed to see (eg: privileged documents) will get EXAM QU on this
o Witness statements: fact
o Expert reports: opinion
o Preparations for trial
o Trial
o Enforcement of judgment: will get EXAM QU on this, independent learning
required
Interim applications o injunctions/ summary judgment/ security for costs
o mediation/ settlement negotiations
o Part 36 – EXAM QU on this
What our client will Duty
need to show to - what is the duty? Is more than one duty owed?
establish a cause of
action against the - Is there a duty in contract? Is the duty express/implied (eg: s13 SGA)?
potential Written/oral?
defendant(s) - Is the duty in tort? Hedley Byrne v Heller [1963] AC 465- negligent misstatement
- Are there concurrent duties? – duties in contract and tort, peruse both causes
of action but can’t claim damages twice. In claim form mention contract and
tort.
Breach
- What is the standard of care expected of this individual? Eg: (reasonable care
and skill s13 SGA) evidence of other similarly qualified professionals?
- Is time of the essence? Where time is 'of the essence' it means that the stated
time for completion of an obligation in a contract is a condition of the
contract. Failing to comply can therefore allow the innocent party to terminate
the contract and claim damages.
, - Will he be judged against higher standard due to expertise? Bolam
- How is individual presented? Eg: if solicitor, look at firms website, social media,
legal 500 “expert in commercial property”
- Is giving incorrect advice likely to be a breach? Did the solicitor advice client as
a matter of fact or opinion? Was his advice qualified?
- Look at Chapter 11, section 2(b) of Jackson & Powell on Westlaw (link in SGS)
Causation and loss
- Did client rely on this advice? Any evidence to support this?
- What would the client have done if the advice was qualified? Any evidence to
support this?
- Were there any additional costs that form part of loss?
- What would valuation have been if advice was qualified?
- Did client do anything to mitigate losses?
- Was the client contributory negligent?
- Check if loss is too remote (eg: damages could cover cost of additional land as
in RI scenario in SGS and expenses but would not cover loss of profits)
Limitations Contract: 6 years from breach of contract
Tort: 6 years from damage
Marren v Dawson Bentley and Co Ltd – Limitation period starts day after the
occurrence which founded the claim, day itself is excluded from the calculation
Overriding objective CPR 1.1
(1) These Rules are a new procedural code with the overriding objective of enabling
the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is
practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in
proceedings, and that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
Pre action protocol - Professional negligence: use professional negligence pre action protocol
- If anything else use practice direction pre action protocol
Costs - Bill time hourly + disbursements + VAT
- CPR 44.2(2)(a)- unsuccessful party pays successful party, costs are
discretionary, in long form question mention who unsuccessful party is and
who successful party is
Courts discretion
- CPR 44.2(1)
- CPR 44.2(4)- factors affecting how much is payable
- Parties should be reasonable as this affects costs – remember overriding
objective
, - Unlikely to receive 100% of costs, 76% of costs are recoverable on average
(indemnity principle)
- Client pays shortfall (indemnity principle)- paying firm out of damages
- Some firms knock a bit off as a USP
- No win no fee – client only pays disbursements (firms get very good at-risk
assessment, so even if they win only half their cases they will still make profit)
- Legal aid
- Insurance funding BTE & ATE
- Don’t need to know much more than this for funding
Advantages/ In favour of going to court Against going to court
disadvantages of
going to court Large sums at stake.
(costs/benefits/risks)
Central London lawyers are likely to
have deep pockets. Solicitors are also
required to have professional
indemnity insurance.
Costly - long and complex action – time
consuming and risky.
Difficulty proving negligence – the Difficulty proving negligence - RI is also
Defendant is unsure whether it will be unsure whether the Defendant will be
held negligent. held negligent.
Publicity – the Defendant is an eminent
law firm and will not want to be dragged
through the courts.
Evidential difficulties – there appear to
be none at present.
Uncertainties of litigation.
Risk of paying substantial costs if lose -
as the Defendant (or its insurers) is
likely to instruct top city firms and
counsel.
This risk analysis is based on the scenario in SGS 1, make sure you adapt
analysis for each fact pattern.
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