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LARGE GROUP 3 1.   

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OVERVIEW OF A CIVIL CLAIM Pre-action steps Issuing and serving proceedings Allocation to a track  Small Claims Track  Fast Track  Multi-track Case management directions / timetable  Small Claims Track  Fast Track  Multi-track Costs management on multi-track Trial

2. CASE ANALYSIS INDUSTRIAL MANUFACTURING LIMITED v HEATECHS LIMITED PARTICULARS OF CLAIM 1. At all material times the Claimant was a manufacturer of small industrial machinery parts and the Defendant a manufacturer and supplier of central heating boilers and systems. 2. By a written contract made on 23 April 2021 between the Claimant and Defendant, the Defendant agreed to sell to the Claimant a central heating gas boiler and integrated water pump described in clause 1 as a Heatechs Powerheat Unit Model 312K (‘the Unit’) for the sum of £70,000 (“the Contract”). A copy of the Contract is attached. 3. The Claimant bought the Unit from the Defendant who sold it in the course of its business. It was an implied term of the contract that the Unit should be of satisfactory quality. 4. In purported performance of the Contract the Defendant delivered the Unit on 25 June 2021 when the Claimant paid the Defendant the agreed sum of £70,000. The Unit was installed by the Claimant into its factory heating system on or about 6 July 2021. 5. In breach of the implied term the Unit delivered by the Defendant was not of satisfactory quality. PARTICULARS OF BREACH The impeller retaining nut on the integrated water pump was insufficiently secure because the thread was 0.4cm wide but the maximum that it should have been was 0.2cm wide. 6. As a consequence of the breach of implied term the integrated water pump failed to operate and the boiler in the Unit became or had become drained of water on 6 August 2021 and overheated as a result. When the pump effectively re-engaged cold water flowed into the boiler causing it to explode and rupture on 6 August 2021 and the pipe connections to distort. As a result, the boiler house had to be pumped out and repaired and a new boiler installed. During this time the Claimant lost 9 days of production. 7. By reason of the above the Claimant has suffered loss and damage. PARTICULARS OF LOSS AND DAMAGE 7.1 Cost of new boiler £72,500 7.2 Cost of installation of new boiler £4,700 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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7.3 Cost of pumping out boiler house and repairing damaged premises £17,625 7.4 Consequential losses as the result of production losses (estimated) £25,000 DEFENCE 1. Unless otherwise stated, references to paragraph numbers in this Defence are references to the corresponding paragraphs of the Particulars of Claim. For the purposes of this Defence the Defendant adopts the definitions used in the Particulars of Claim. 2.

The Defendant admits paragraphs 1 to 3.

3.

The delivery of the Unit referred to in paragraph 4 was wholly in accordance with the terms of the Contract and constituted full and complete performance thereof by the Defendant. Payment of the agreed sum of £70,000 by the Claimant is admitted. No admission is made as to the installation of the Unit by the Claimant as the Defendant has no knowledge of that matter.

4.

The Defendant denies it was in breach of the Contract as alleged in paragraph 5, or at all. The Defendant asserts that the Unit supplied was of satisfactory quality. In particular, the impeller retaining nut on the water pump was sufficiently secured by means of a 0.4cm thread.

5.

The Defendant makes no admission as to the matters stated in paragraph 6 as the Defendant has no knowledge of these matters.

6.

As to paragraph 7, it is not admitted that the Claimant has suffered the alleged or any loss and damage as the Defendant has no knowledge of these matters.

7.

If, which is not admitted, the Claimant suffered the loss and damage alleged in paragraph 7, it is denied that this occurred as a result of the alleged or any breach of term by the Defendant. Any such loss or damage was caused by the installation and/or subsequent use of the Unit.

8.

If, which is not admitted, the Claimant suffered the loss and damage alleged in paragraph 7, the Claimant failed to mitigate that loss and damage. In particular, it was unreasonable to stop production for 9 days.

Compare both documents and decide what is agreed or admitted by both parties and see what is denied and not agreed 

Identifying the issues that are agreed from the parties’ statements of case Defence agrees paragraphs 1,2 and 3 of the particulars of claim Defendant is a manufacturer Para 2 – details of contract is agreed by the defendant No dispute that there was a contract between claimant and defendant Para 3 – claimant bought the unit from the defendant and admission of satisfactory quality – statutory implied term and defendant cannot really deny this

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Identifying the issues that are in dispute from the parties’ statements of case Para 3 – defence Defendant argues that the product was in accordance of the contract they decided on 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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Claimant paid the agreed sum but no idea how the claimant installed the unit So, there is a mixed response Para 5 – alleges defendant is in breach of contract Para 4 – the defendant denies that the product was in breach of contract Para 5 onwards – because the defendant does not know what happened after sale went through the defendant will argue they don’t know and that it has nothing to do with them Para 8 – defence Defendant is alleging that the claimant failed to mitigate their loss It’s all about what was agreed what wasn’t and who said and did what 3. LEGAL COSTS  What are legal costs?  All the solicitor’s cost – hourly rate (£70 an hour) from the client instructing the solicitor to legal proceedings  Barristers’ costs  Cost of instructing an expert – giving evidence or producing a report  Court fees  Summary assessment at interim hearings  Trial or end of proceedings  Bases of assessment of costs payable by the loser (“paying party”) to winner (“receiving party”) 

General litigation rule: loser pays winner The party that loses will need to pay for their own legal costs and the winners Rule 44.2(2): If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party Rule 44.2(4): In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; This gives the courts guidance on who pays who – conduct of party, offers to settle and who wants to settle (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.  Summary assessment at interim hearings Interim hears are what takes place before trial hearing At the end of the hearing the court will make an order for cost and assess the amount of costs – they will be payable by the loser to the winner within 14 days This is before going to the final trial Term “Costs” “Costs in any event”

Term

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Effect The party in whose favour the order is made is entitled to that party's costs in respect of the part of the proceedings to which the order relates, whatever other costs orders are made in the proceedings. Effect

“Costs in the case” “Costs in the application”

The party in whose favour the court makes an order for costs at the end of the proceedings is entitled to that party's costs of the part of the proceedings to which the order relates.

“No order as to costs” “Each party to pay own costs”

Each party is to bear that party's own costs of the part of the proceedings to which the order relates whatever costs order the court makes at the end of the proceedings

Trial or end of proceedings If the case is on fast track then will last less than a day – very often the judge will assess the costs there and then Multi track – more than one day trial Detailed assessment of costs which will take place later

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Bases of assessment of costs payable by loser (“paying party”) to winner (“receiving party”) Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; Rule 44.3(5) Costs incurred are proportionate if they bear a reasonable relationship to: (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the proceedings, such as reputation or public importance.

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(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party. Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party. Amount at stake is the main issue Standard basis – if the court is unsure if the costs were reasonable then theu will be exercise that cost to the loser meaning they will have pay Indemnity basis: The losing party will have to pay more by way of costs – winner can work for more money from the losing party 4. ALLOCATION TO A TRACK The parties estimate that the trial is likely to last at least 2 days with each side calling one expert on the issue of the condition of the goods. Scope of each track Rule 26.6 • SMALL CLAIMS TRACK (1) The small claims track is the normal track for– (a) any claim for personal injuries where – (i) the value of the claim is not more than £10,000; and (ii) the value of any claim for damages for personal injuries is not more than— (aa) £5,000 in a claim for personal injuries arising from a road traffic accident…… or (cc) £1,000 in any other claim for personal injuries (Rule 2.3 defines ‘claim for personal injuries’ as proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death) (2) For the purposes of paragraph (1) ‘damages for personal injuries’ means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed. (3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000. • FAST TRACK (4) Subject to paragraph (5), the fast track is the normal track for any claim – (a) for which the small claims track is not the normal track; and (b) which has a value of not more than £25,000; (5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that – (a) the trial is likely to last for no longer than one day; and (b) oral expert evidence at trial will be limited to– (i) one expert per party in relation to any expert field; and (ii) expert evidence in two expert fields. •

MULTI-TRACK

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(6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track. Matters relevant to allocation to a track Rule 26.8 (1) When deciding the track for a claim, the matters to which the court shall have regard include – (a) the financial value, if any, of the claim; (b) the nature of the remedy sought; (c) the likely complexity of the facts, law or evidence; (d) the number of parties or likely parties; (e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it; (f) the amount of oral evidence which may be required; (g) the importance of the claim to persons who are not parties to the proceedings; (h) the views expressed by the parties; and (i) the circumstances of the parties. (2) It is for the court to assess the financial value of a claim and in doing so it will disregard – (a) any amount not in dispute; (b) any claim for interest; (c) costs; and (d) any contributory negligence. PD 26 para 7.7 Where the case involves more than one money claim (for example where there is a Part 20 claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead it will generally regard the largest of them as determining the financial value of the claims. PD 26 para 9.1 (1) Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track. (2) The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day. (3) (a) When it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard…... (c) The possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track…. (e) Where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track. 5. THE FAST TRACK  How fast is fast? Court will set a timetable generally fast track requires a case to be bought to trial within 30 weeks of being allocation to a track Court requires the assistance of the parties 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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Case management by written questionnaires  Directions Questionnaire Time of allocation – directions questionnaire which is the evidence they each want to use Witnesses they want to call Reports/ expert advice they are going to need  Pre-trial Check List / Listing Questionnaire To check the directions of the court have been dealt with correctly

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Typical timetable of directions PD 28 para. 3.12: The table set out below contains a typical timetable the court may give for the preparation of the case. Disclosure of documents

4 weeks

Exchange of witness statements

10 weeks

Exchange of experts’ reports

14 weeks

Sending of pre-trial check questionnaires) by the court

lists

(listing

20 weeks

Filing of completed pre-trial check lists

22 weeks

Hearing

30 weeks

These periods run from the date of the notice of allocation.

CASE SUMMARY DISCLOSURE REPORT DIRECTIONS QUESTIONNAIRE CMC: DIRECTIONS COSTS BUDGETS BUDGET DISCUSSION REPORTS CMC: COSTS MANAGEMENT ORDER

Case on the multitrack cover’s loads of different cases – so it’s more flexible hence court requires more assistance from the parties CASE SUMMARY  Claimant has to prepare a CS  Purposed is to help the court at the first hearing – case management conference interim hearing  Intensify the issue of dispute and the decide what directions for trial are needed  Chronology of court proceedings – each statement of the case 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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Any steps taken already Anything agreed between the parties Issues to remain in dispute and you can do this is by referring to the particulars of claim and defence Evidence that’s going to be used Disagreements of the wording of the document should be submitted to the court before case management takes place

DISCLOSURE REPORT  Better to evaluate the strengths of the opponent’s case  They have revealed their evidence and documents  Starts before the first case management – both claimant and defendant must produce this  Report must identify where those documents are stored  Estimate of costs should be included  What the parties want for disclosure should be stated  This is very time consuming hence every expensive  Parties should meet up before court to decide the necessary direction for disclosure that will best suit the case and the overriding objective – amount of costs DIRECTIONS QUESTIONNAIRE  Same a fast track CMC: DIRECTIONS  Court will make directions for trial  Parties must agree the directions for trial  Standard directions can be found on the ministry’s website – disclosure of documents… COSTS BUDGETS  Each party must produce this  This will set out the costs that happened before the court proceedings and when drafting the case costs  Looking to the future and cost from there – up to trial  The reasonable budge for those steps  Possible costs of settlement discussions  Contingencies BUDGET DISCUSSION REPORTS  They need to complete a report  Must be filed before first CMC  The report must set out any figures agreed, not agreed and anything else CMC: COSTS MANAGEMENT ORDER  Court will do this  Recording the extent of the future of costs in litigation  Budget costs not agreed will be discussed and included and decide if its correct  Total sum of the estimate sum of proceedings  Court is doing the costs of the case  Losing party pays winning parties’ costs – unless the court decides will be the amount winners budget 86c5e0ebcf93f37ad118d58b4fcd484f.docx

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