Monday, 21 December 2020
LPC Civil Litigation Revision Notes
Subject
Pre-action consideration:
- CPR 1 - Overriding objectives
- ‘to enable the court to deal with cases justly and at proportionate cost’ and the
rule explains that this involves:
• 1. ensuring that the parties are on an equal footing;
• 2. saving expense;
• 3. dealing with the case in ways which are proportionate to the amount of
money involved, the importance of the case, the complexity of the issues and
the financial position of each party;
• 4. ensuring the case is dealt with expeditiously and fairly;
• 5. allotting to each case an appropriate share of the court’s resources, taking
into account the need to allot resources to other cases; and
• 6. enforcing compliance with rules, practice directions and orders.
- HRA - incorporating rights and fundamental freedoms enshrined in the the
convention into domestic law:
• Right to fair trial (Article 6)
• Right to private and family life (Article 8); and
• Protection of property (Protocol 1, Article 1)
- courts, as public authorities, must act in compliance with Convention rights.
Name of parties
- Legal and factual elements to establish the cause of action? DUTY
• Contractual - Solicitor and client - retainer containing the express and implied
terms. SGSA 1982 - ‘reasonable care and skill’ in performing his duties.
• Tort - ‘reasonable care and skill’- Caparo v Dickman. Negligent statement
negligent statement could cause owe DOC to person who suffered economic
loss on reliance on the statement if there is a special relationship. S&C Long
established relationship.
• Breach - Standard of care owed?
1
, Monday, 21 December 2020
• Causation - ‘But for’ breach claimant would not have suffered loss.
• Loss - Damages to compensate for loss suffered.
- CD’s - put the C in the position it would have been in had the D/tort not
breached the contract.
- If given correct advice - caveated advice and explained an unclear situation
so C proceed with caution.
• C purchased this site anyway
• C purchased another site
• Purchased for lower amount
• C needs to prove it would not have purchased the site.
- Actual loss (do not include lost profits as need to put into position it would
have been in before the loss)
• Contributory Negligence? Can C be held responsible for their losses in any
way?
- Mitigation? Could C have done more to mitigate their loss?
• Limitation: Limitation Act 1980
• Contractual Claim : 6 years from date cause of action accrues breech
occurs (letter of advice) under s.5 LA.
• Tort: 6 years from date cause of action accrues, acts to detriment in advice
- date of completion of purchase.
• C suffers actionable damage - under s.2 LA (courts have power to override
the time limit in circumstances where the defendant cannot show that they
will be prejudice day such extension Ellis v Heart of England NHS
Foundation)
• Any L clause or Waiver?
1. Evidence:
• Duty: Express terms in retainer/ copies of letter constituting retainer b/w C
and D
• Breach: Exact experience/specialism, evidence of other similar qualified
property lawyers obvious error or esoteric point.
• C/L: Evidence: did C rely on advice? What would C have done if the advice
had been qualified? Costs? Value of land? Mitigate/Aggrevate loss?
2
, Monday, 21 December 2020
- Witnesses, expert opinion, documents held?
FUNDING:
• Professional Conduct:
- SRA Standards and Regulations CCS 8.7 - 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.
- Rule 1 of the SRA Transparency Rules requires firms to publish cost
information on their websites for certain types of services, including debt
recovery up to £100,000 in relation to businesses (Rule 1.4(b)).
• Under Rule 1.5, this will include:
- the basis for charges (including hourly rates or fixed fees)
- the experience and qualifications of anyone carrying out the work, and of
their supervisors, and a description of any likely disbursements.
- A solicitor must advise the client of the client’s potential liability for any other
party’s costs, where a solicitor is acting for a legally aided client, and the
solicitor must also explain to the client that even if the client is successful,
the other party may not be ordered to pay costs, or may not be in a position
to do so.
• LEGAL AID:
• Help at court
• Legal Representation:
- Investigative help: limited to investigating the strength of the claim.
- Full representation: All work to trial and beyond may be covered and the
funding certificate will limit the terms of work and amount of costs that the
solicitor can incur.
• Only individuals, companies excluded.
• To be successful the claim must have sufficient merit to be accepted by the
LAA as one which should be funded.
- The prospects of success of the case.
3
LPC Civil Litigation Revision Notes
Subject
Pre-action consideration:
- CPR 1 - Overriding objectives
- ‘to enable the court to deal with cases justly and at proportionate cost’ and the
rule explains that this involves:
• 1. ensuring that the parties are on an equal footing;
• 2. saving expense;
• 3. dealing with the case in ways which are proportionate to the amount of
money involved, the importance of the case, the complexity of the issues and
the financial position of each party;
• 4. ensuring the case is dealt with expeditiously and fairly;
• 5. allotting to each case an appropriate share of the court’s resources, taking
into account the need to allot resources to other cases; and
• 6. enforcing compliance with rules, practice directions and orders.
- HRA - incorporating rights and fundamental freedoms enshrined in the the
convention into domestic law:
• Right to fair trial (Article 6)
• Right to private and family life (Article 8); and
• Protection of property (Protocol 1, Article 1)
- courts, as public authorities, must act in compliance with Convention rights.
Name of parties
- Legal and factual elements to establish the cause of action? DUTY
• Contractual - Solicitor and client - retainer containing the express and implied
terms. SGSA 1982 - ‘reasonable care and skill’ in performing his duties.
• Tort - ‘reasonable care and skill’- Caparo v Dickman. Negligent statement
negligent statement could cause owe DOC to person who suffered economic
loss on reliance on the statement if there is a special relationship. S&C Long
established relationship.
• Breach - Standard of care owed?
1
, Monday, 21 December 2020
• Causation - ‘But for’ breach claimant would not have suffered loss.
• Loss - Damages to compensate for loss suffered.
- CD’s - put the C in the position it would have been in had the D/tort not
breached the contract.
- If given correct advice - caveated advice and explained an unclear situation
so C proceed with caution.
• C purchased this site anyway
• C purchased another site
• Purchased for lower amount
• C needs to prove it would not have purchased the site.
- Actual loss (do not include lost profits as need to put into position it would
have been in before the loss)
• Contributory Negligence? Can C be held responsible for their losses in any
way?
- Mitigation? Could C have done more to mitigate their loss?
• Limitation: Limitation Act 1980
• Contractual Claim : 6 years from date cause of action accrues breech
occurs (letter of advice) under s.5 LA.
• Tort: 6 years from date cause of action accrues, acts to detriment in advice
- date of completion of purchase.
• C suffers actionable damage - under s.2 LA (courts have power to override
the time limit in circumstances where the defendant cannot show that they
will be prejudice day such extension Ellis v Heart of England NHS
Foundation)
• Any L clause or Waiver?
1. Evidence:
• Duty: Express terms in retainer/ copies of letter constituting retainer b/w C
and D
• Breach: Exact experience/specialism, evidence of other similar qualified
property lawyers obvious error or esoteric point.
• C/L: Evidence: did C rely on advice? What would C have done if the advice
had been qualified? Costs? Value of land? Mitigate/Aggrevate loss?
2
, Monday, 21 December 2020
- Witnesses, expert opinion, documents held?
FUNDING:
• Professional Conduct:
- SRA Standards and Regulations CCS 8.7 - 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.
- Rule 1 of the SRA Transparency Rules requires firms to publish cost
information on their websites for certain types of services, including debt
recovery up to £100,000 in relation to businesses (Rule 1.4(b)).
• Under Rule 1.5, this will include:
- the basis for charges (including hourly rates or fixed fees)
- the experience and qualifications of anyone carrying out the work, and of
their supervisors, and a description of any likely disbursements.
- A solicitor must advise the client of the client’s potential liability for any other
party’s costs, where a solicitor is acting for a legally aided client, and the
solicitor must also explain to the client that even if the client is successful,
the other party may not be ordered to pay costs, or may not be in a position
to do so.
• LEGAL AID:
• Help at court
• Legal Representation:
- Investigative help: limited to investigating the strength of the claim.
- Full representation: All work to trial and beyond may be covered and the
funding certificate will limit the terms of work and amount of costs that the
solicitor can incur.
• Only individuals, companies excluded.
• To be successful the claim must have sufficient merit to be accepted by the
LAA as one which should be funded.
- The prospects of success of the case.
3
