Civil Litigation Revision Notes PDF

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Civil Litigation Revision NotesLecture One NotesCivil Procedure Rules [CPR] The procedural basis of all civil claims Divided into: Rules [CPR] providing fundamental instructions on what to do Practice Directions [PD] providing more practical instructions on what to do See ‘Civil Procedure Rules’ Uni...

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Civil Litigation Revision Notes

Lecture One Notes Civil Procedure Rules [CPR] • •

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The procedural basis of all civil claims Divided into: – Rules [CPR] providing fundamental instructions on what to do – Practice Directions [PD] providing more practical instructions on what to do See ‘Civil Procedure Rules’ Unit on Canvas which will be regularly updated as we encounter them with the rules you will need to know

Civil Procedure: the overriding objective CPR 1.1 • • •

Summarises the general principles of civil litigation: (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; – (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.

Case analysis 1: the cause of action • •

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Elements of the cause of action i.e., the law Contract – Is there a contract? – What are the terms of the contract? – Has there been a breach of the contract? – Is breach the cause of any loss? Tort – Is there a duty of care? – Has there been a breach of the duty of care? – Is breach the cause of any loss?

Case analysis 2: good facts/bad facts • •

Good facts – facts that help make out the elements of the claim Bad facts – facts that damage the elements of the claim

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Do we need further evidence? If so, what and from whom?

Case analysis 3: bringing it together • •

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Contract Is there a contract? – Which facts support the existence of a contract and which don’t? Could further evidence help? What are the terms of the contract? – Which facts support the terms your client says were agreed and which don’t? Could further evidence help? Has there been a breach of the contract? – Which facts support the allegation of breach and which don’t? Could further evidence help? Is the breach the cause of any loss? – Which facts support the loss caused and which don’t? Could further evidence help?

Initial considerations 1. Has the limitation period expired?* 2. Do the English Courts have jurisdiction over the claim? 3. What options are there for funding the claim, and how much will it cost to bring it?* 4. How much is the claim worth? 5. Will it be possible to recover losses from the defendant? 6. Will the outcome justify the expense or risk, including the risk of having to bear the opponent's costs? 7. Are there any alternatives to litigation? * 8. Can I act having regard to my professional conduct obligations? * Initial considerations – limitation period •

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Key ones under Limitation Act 1980 are: – Contract - 6 years – Tort - 6 years – Personal injury - 3 years (but 2 years if injured at sea or in air) – Defamation - 1 year – Application for judicial review - 3 months If you miss a limitation period: – Para 6.1 of Code of Conduct of Solicitors (likewise of the Code of Conduct of Firms): “You do not act if there is an own interest conflict or a significant risk of such a conflict.”

Initial considerations – funding the claim and cost 1 •

Funding – Private i.e., the traditional method

– Before the event insurance e.g., attached to car or property or credit card insurance – After the event insurance e.g., purchased after dispute has arisen to cover paying the winner’s costs – Trade union funding – is client a union member? Usually, union appoints one of its panel solicitors to act for client. Initial considerations – funding the claim and cost 2 •

Funding continued. – Public funding (aka legal aid). Today excludes most civil and commercial litigation and is stringently means-tested. A firm will have to have a contract with the Legal Aid Agency to act. – Conditional Fee Agreements (CFAs) or ‘no win, no fee’. Where solicitor charges only if the case is won and can then recover costs from losing party – plus an extra ‘success fee’ on costs which client usually pays. – Damages Based Agreements (DBAs) or a type of CFA but based on taking a share of the client’s damages (to limit of 25% in personal injury and 50% in other cases). Only really for higher value claims. – Third party or Litigation funding i.e. unrelated specialist funder finances client’s fees in exchange for share of damages. If case is won, funder recovers investment plus success fee share of damages. If not, loses investment. Generally, for commercial cases of large value.

Initial considerations – funding the claim and cost 3 • • •

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SRA Codes of Conduct Costs Para 8.7 of Solicitors’ Code (7.1(c) of Firms’ Code): “You 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 cost of the matter and any costs incurred.” Generally Para 8.6 of Solicitors’ Code (7.1(c) of Firms’ Code): “You give clients information in a way they can understand. You ensure they are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them.”

Some alternatives to litigation • • • • •

Non-adjudicative dispute resolution Negotiation between parties’ lawyers – By telephone or by meeting Mediation/ADR between parties – Where neutral intermediary seeks to facilitate settlement Adjudicative dispute resolution Arbitration

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– Where expert arbitrator (lawyer or other professional e.g. architect) comes to a binding decision privately with the parties (common requirement of commercial agreements) Adjudication – Where expert adjudicator (lawyer etc as with arbitration) in construction contract cases only reaches binding decision on written submissions

Professional conduct - can you act? •

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Is there a conflict of interest? – With you? Para 6.1 of Solicitors’ Code (6.1 of Firms’ Code): “You do not act if there is an own interest conflict or a significant risk of such a conflict.” – Between clients? Para 6.2 of Solicitors’ Code (6.2 of Firms’ Code): “You do not act in relation to a matter or particular aspect of it if you have a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it” Is there a problem with confidentiality? – Para 6.3 of Solicitors’ Code (6.3 of Firms’ Code): “You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.” – Para 6.5 of Solicitors’ Code (6.5 of Firms’ Code): “You do not act for a client in a matter where that client has an interest adverse to the interest of another current or former client of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter…” • In other words, you should not act for A who has an “interest adverse” to B where B is a client (or former client) for whom you hold confidential information which would be “material” to A

Client care letter and letter of advice • • •

After your initial interview, you will send the client a client care letter dealing with costs, fees, funding, level of service and complaints Not a formal requirement of the SRA Codes of Conduct but generally adopted by solicitors as a practical way of complying and demonstrating compliance with them You will also send the client a letter summarising your advice

Civil Litigation Workshop 1 Tasks 1. What are the possible causes of action in this claim? Causes of action lies within Contract Law. Photographic Laboratories Limited entered a contract with AirKare Limited through means of an oral agreement on the telephone between Daniel Ross and Bruce Thompson. The terms agreed included AirKare selling 800 cans for £8000 plus VAT. The terms were stipulated in the Oral Agreement. Daniel told Bruce that the air duster was to be used for photographic processing equipment and therefore would come into contact with hot components. When the products were not fit for purpose this breached the contract under the Sales of Goods Act s14. This breached caused damage to the company’s equipment and loss of profits. Another cause of action lies within tort. AirKare knowing what the product was intended had a duty of care regarding the products. They breached that duty by failing to inform PLL of a change in the ingredients knowing this made the product flammable. This breach also caused damage and loss of profits. 2. What are the strengths and weaknesses of the Claimant’s case and what further evidence needs to be obtained? Because preliminary investigations were carried out by Photolabs technical team and there may be a bias for the company to collect compensations and independent investigation would strengthen the case. However, the preliminary report, evidence of contact will help to support the claim. 3. Besides the merits of the claim, what initial considerations apply to the Claimant’s decision whether or not to bring a claim? See the initial considerations checklist overleaf. -

Limitation period has not expired English courts have jurisdiction over this claim Alternatives to litigation - on-adjudicative dispute resolution, Negotiation between parties’ lawyers, Mediation/ADR between parties, Adjudicative dispute resolution, Arbitration and Adjudication. How much will the claim cost? Will it be possible to recover losses from the defendant Is there any conflicts of interest?

4. Assume that your checks reveal that five years ago your firm acted for AirKare in the purchase of commercial property. Can you still act for Photographic Laboratories? You can continue to act for Photographic Laboratories. There is not personal conflict of interest and Para 6.3 of Solicitors’ Code (6.3 of Firms’ Code): “You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.” Para 6.5 of Solicitors’ Code (6.5 of Firms’ Code): “You do not act for a client in a matter where that client has an interest adverse to the interest of another current

or former client of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter…” • In other words, you should not act for A who has an “interest adverse” to B where B is a client (or former client) for whom you hold confidential information which would be “material” to A

5. After your initial meeting with the Claimant, what will you do next and why? • • •

After your initial interview, you will send the client a client care letter dealing with costs, fees, funding, level of service and complaints Not a formal requirement of the SRA Codes of Conduct but generally adopted by solicitors as a practical way of complying and demonstrating compliance with them You will also send the client a letter summarising your advice

Civil Litigation Lecture 2 Notes Pre-Action Protocols What are they? • • • • • •

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Specific guidance on how to exchange information before commencing court proceedings To see if a settlement can be reached But if not, to ensure that any court proceedings can be dealt with as efficiently and as quickly as possible Not strictly part of the Civil Procedure Rules [CPR] But when it comes to deciding who should pay legal costs, the court will take into account “the conduct of all the parties, including in particular…conduct before, as well as during, the proceedings” CPR 44.4(3) There are now a significant number of case-specific protocols in areas such as clinical disputes, personal injury, construction and engineering, professional negligence, judicial review, possession claims and debt claims among others. If a case does not fall into any of the case-specific protocols, then you should use the Practice Direction on Pre-Action Conduct and Protocols (PDPACP)

Practice Direction on Pre-Action Conduct & Protocols Steps to be taken set out in Para.6: •

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Letter of Claim – Should include “concise details of the claim the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated” Defendant’s Reply – Within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one – Reply should confirm whether claim is accepted and, if not, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim Disclosure – Parties should disclose key documents relevant to the issues in dispute Experts para.7: Parties should try to resolve disputes without expert advice or evidence. If necessary, particularly in low value claims, parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally. Settlement and ADR paras.8-11: Litigation should be a last resort. Parties should consider whether negotiation or ADR might enable them to settle without commencing proceedings. Stocktake and list of issues para.12: Where a dispute has not been resolved after following a pre-action protocol, parties should review their respective positions, consider the papers and the evidence to see if

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proceedings can be avoided and, if not, at least narrow the issues in dispute before starting proceedings Compliance paras 13-16: court’s power to impose costs sanctions for failure to comply at all or adequately Limitation para.17: If proceedings are started to comply with a limitation period before the pre-action protocol has been followed, parties should apply to the court for a stay of the proceedings so they can comply

How to issue proceedings: • •

We can now issue court proceedings i.e. we can start the case at court in order to take it to trial if necessary To do this, we first need to fill in a form called a Claim Form (Form N1)

Where to issue: High Court v County Court •

PD 7A para 2.1 – You can only issue a claim for money in the High Court if it’s for more than £100,000 (personal injury, claim has to be £50,000 or more) – Though you can still issue in the County Court if your claim is for more than £100,000 – You must also issue in the High Court if a statute requires you to (e.g. applications for judicial review or claims for libel or slander as required by County Courts Act 1984)

High Court in London or local District Registry – Queen’s Bench Division – contract and negligence, debts, personal injury, defamation etc – Chancery Division – commercial disputes, tax, equity and trusts etc – Family Division – self-explanatory County Court – If money claim (specified or unspecified i.e. debt or damages), you issue in the County Court Money Claims Centre, which is in Salford – PD2C para. 3.2(1) – If undefended, claim will then be sent to claimant’s local court, otherwise to defendant’s – “Specified” money claims (i.e. debt) with value up to £100,000 can also be issued electronically using the ‘Money Claims Online’ scheme at the County Court Business Centre in Northampton - PD2C para. 3.2(1) – There is now also a new pilot scheme for litigants in person on the website Online Civil Money Claims if claim doesn’t exceed £10,000 including interest – In non-money cases, you issue in local county court unless rules specify county court hearing centre for your type of case

How? • • •

Sufficient copies of Claim Form (N1) for each defendant Court fee Particulars of Claim (unless included on Claim Form) – to be discussed in Lecture 3

Claim Form N1 – how to fill it in CPR 16.2-16.3 and PD 16 paras. 2.1-2.6 stipulate: • Names and addresses of parties including titles and postcodes • A concise statement of the nature of the claim e.g. “The claimant claims damages for breach of contract arising from the supply of….etc” • Where possible, a statement of the value of the claim in terms of what the claimant expects to recover – Not more than £10,000 (small claims track) – More than £10,000 but not more than £25,000 (fast track) – More than £25,000 (multi-track) – If to be issued in the High Court, that claimant expects to recover more than £100,000 (or a statute permits HC proceedings) – see later – Note: personal injury claims have different rules (not part of this module) • • • • • •

Besides stating the court you are issuing in, you will need to state which county court you’d prefer your claim to be sent to Amount claimed – state if a specified sum (like a debt), if unspecified state ‘to be assessed’ Court fee – go to www.gov.uk/make-court-claim-for-money/court-fees but it’s 5% of money claims between £10,000.01-£200,000 Costs – typically, state ‘to be assessed’ (otherwise fixed costs can be claimed if specified sum – a debt – is being sought) On back page, indicate whether Human Rights Act 1998 issue being raised – usually, no Include Particulars of Claim, known as ‘indorsing’ the Claim Form, if they can fit, otherwise, attach Particulars of Claim as a separate document

Statement of Truth • • •

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Complete the Statement of Truth which applies to Claim Form (but also other documents like Particulars of Claim, Defence and witness statements Who can sign? Ideally, the client Solicitor can (in own name – para 3.10) but only if authorised by claimant, by which solicitor confirms that claimant believes facts to be true and that claimant has been advised of consequences of false statements (see below) – PD 22 For a company, a director, treasurer, secretary, chief executive, or other officer can sign – PD 22 NOTE: Statement of truth in a witness statement must always be signed by the witness (PD 22 para.3.2)

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Wording PD 22 para 2.1 provides wording for statement of truth to be used in a statement of case such a Claim Form, Particulars of Claim, Defence: • ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’ Contempt of court CPR 32.14 provides that contempt of court proceedings may be brought if a “false statement” verified by a statement of truth is made “without an honest belief in its truth”

Civil Litigation - Lecture 3 Notes

Particulars of claim – What is it? • • •

It is a ‘statement of case’ (as is the Claim Form) In other words, it is a document setting out the legal and factual basis of the claimant’s claim Another ‘statement of case’ is the Defence, the document setting out the defendant’s case

Particulars of claim – Drafting Content It has 5 basic parts to it: 1. Who we are and who you are 2. What happened – key facts 3. It’s a breach/your fault -particulars 4. Breach/fault caused loss 5. What the loss is - particulars Particulars of claim – Drafting Formalities • • • • • • • • • •

Court heading i.e. court, case number, the names of the parties and what type of statement of case it is (i...