DR WS 1 & 2
DR – Pre-action steps
Overriding objective
The overriding objective must be borne in mind by the courts (r 1.2) and the parties and their legal advisors have a
positive duty to assist the court in furthering OO (r 1.3)
Each party is required to help the court to further OO, but has NO duty or obligation to their opponent
- E.g. no need to draw attention to mistake made on other party’s part (Woodward v Phoenix Healthcare)
The OO of the CPR 1998 is to enable the court to deal with cases justly and at proportionate cost (r 1.1) This means:
Ensuring parties are on equal footing
Saving expense
Deal with cases in ways which are proportionate
To the amount of money involved
To the importance of the case
To the complexity of the issues
The financial position of parties
Ensuring cases are dealt with expeditiously and fairly
Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
Outline of a civil claim
1
,DR WS 1 & 2
Outcome 1: Be able to carry out initial steps in a dispute resolution matter, including case analysis.
Pre-Commencement of Proceedings (Pre-Action Steps)
STEP
1) Check any professional conduct The solicitor acting in civil proceedings must have regard to the follow
points rules of professional conduct:
Duty of confidentiality:
6.3 of the SRA Code of Conduct 2019 – unless the client’s prior authority is
obtained/S permitted by law
Duty extends past end of retainer
Conflict of interest:
6.2 of the SRA Code of Conduct 2019.
S should not act where there is a conflict of interest
2 or more clients where there would be a conflicting duty to act in
best interest
Money laundering:
Subject to related legislation so must ensure that adequate procedures in
place to check new client’s identity.
Who the client is and authorisation to act:
If receives instructions from someone other than client, or by only one client
on behalf of others, should not proceed without checking all clients agree
with instructions given.
Solicitor’s duty as an officer of the court:
- 1.4 SRA 2019 Overriding duty not to mislead the court.
- Must disclose ALL relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective.
Solicitor’s core duties:
The SRA Code of Conduct 2011 is based on certain mandatory principles.
2) Identify the client’s objectives - What does the client want?
o Ie damages see below or compensation, ‘his day in court’?
Remedy/injunction
- What realistically can be achieved?
Merits of claim must be balanced with overall cost of pursuing it + prospects
of successful outcome
- Client to be advised on:
o Law
o Possible defences to anticipate
o OO and requirements to help court further OO
- Commercial clients to take into account potential damage to market
standing/product image if pursuing claim
3) Identify and locate, if necessary, all stablish whether each party/defendant is worth pursuing
potential parties/defendants - All persons to be sued should be sued at the SAME time and in the
SAME action (Morris v Wentworth-Stanley)
2
, DR WS 1 & 2
4) Costs - Check the financial viability - Is the defendant solvent?
of the defendant - Will the defendant be able to pay any judgment and costs?
- What assets are available?
- What are the assets worth?
5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
Which country’s court can proceedings be commenced → determined by
whether claimant requires court’s permission to service proceedings outside
of England/Wales
- English courts can hear any proceedings if claim form was served on D
whilst D was IN England/Wales
o But D could object on ground that English courts not most
appropriate
6) Assess limitation periods Basic rules: LA 1980
Proceedings MUST be issued BEFORE limitation period expires could face
negligence claim if not
Proceedings start when court office receives claim force BEFORE the date
issued by the court (St Helens Met BC v Barnes)
Claim form DEEMED ISSUED when court fee paid on CE-file
Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract occurs;
OR
when services supplied are
completed
Tort 6 years (s2)
(excluding personal injury and latent when the tort is committed
damage) when some damage occurs tort of
(negligence)
Latent damage (ONLY NEGLIGENCE) 6 years from date when breach
In non-personal injury claim based on occurred
negligence where the damage is OR
latent (C NOT AWARE OF IT) at the 3 years from date of knowledge of
date when the cause of action material facts about damage (s14A)
accrues
15 year long-stop limitation period
(final period) from date of alleged
breach of duty (s14B) REGARDLESS
of claimant's awareness or the
actual accrual of the cause of action
Children/protected party Begins when claimant NO LONGER a
(someone incapable of child/protected party
managing/administering property
and affairs)
NB: Any relevant contractual clauses?
7) Discuss and agree funding with the - What can the client afford to pay?
client - Does the client have any suitable BEI?
- Is the case suitable for a CFA or DBA and/or AEI cover?
- Does the client qualify for public funding or require third-party funding?
- How much time and resources will the client have to commit to
investigate and deal with the case?
- Does a cost–benefit analysis suggest the desirability of a quicker and
cheaper solution than litigation can offer?
3
DR – Pre-action steps
Overriding objective
The overriding objective must be borne in mind by the courts (r 1.2) and the parties and their legal advisors have a
positive duty to assist the court in furthering OO (r 1.3)
Each party is required to help the court to further OO, but has NO duty or obligation to their opponent
- E.g. no need to draw attention to mistake made on other party’s part (Woodward v Phoenix Healthcare)
The OO of the CPR 1998 is to enable the court to deal with cases justly and at proportionate cost (r 1.1) This means:
Ensuring parties are on equal footing
Saving expense
Deal with cases in ways which are proportionate
To the amount of money involved
To the importance of the case
To the complexity of the issues
The financial position of parties
Ensuring cases are dealt with expeditiously and fairly
Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
Outline of a civil claim
1
,DR WS 1 & 2
Outcome 1: Be able to carry out initial steps in a dispute resolution matter, including case analysis.
Pre-Commencement of Proceedings (Pre-Action Steps)
STEP
1) Check any professional conduct The solicitor acting in civil proceedings must have regard to the follow
points rules of professional conduct:
Duty of confidentiality:
6.3 of the SRA Code of Conduct 2019 – unless the client’s prior authority is
obtained/S permitted by law
Duty extends past end of retainer
Conflict of interest:
6.2 of the SRA Code of Conduct 2019.
S should not act where there is a conflict of interest
2 or more clients where there would be a conflicting duty to act in
best interest
Money laundering:
Subject to related legislation so must ensure that adequate procedures in
place to check new client’s identity.
Who the client is and authorisation to act:
If receives instructions from someone other than client, or by only one client
on behalf of others, should not proceed without checking all clients agree
with instructions given.
Solicitor’s duty as an officer of the court:
- 1.4 SRA 2019 Overriding duty not to mislead the court.
- Must disclose ALL relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective.
Solicitor’s core duties:
The SRA Code of Conduct 2011 is based on certain mandatory principles.
2) Identify the client’s objectives - What does the client want?
o Ie damages see below or compensation, ‘his day in court’?
Remedy/injunction
- What realistically can be achieved?
Merits of claim must be balanced with overall cost of pursuing it + prospects
of successful outcome
- Client to be advised on:
o Law
o Possible defences to anticipate
o OO and requirements to help court further OO
- Commercial clients to take into account potential damage to market
standing/product image if pursuing claim
3) Identify and locate, if necessary, all stablish whether each party/defendant is worth pursuing
potential parties/defendants - All persons to be sued should be sued at the SAME time and in the
SAME action (Morris v Wentworth-Stanley)
2
, DR WS 1 & 2
4) Costs - Check the financial viability - Is the defendant solvent?
of the defendant - Will the defendant be able to pay any judgment and costs?
- What assets are available?
- What are the assets worth?
5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
Which country’s court can proceedings be commenced → determined by
whether claimant requires court’s permission to service proceedings outside
of England/Wales
- English courts can hear any proceedings if claim form was served on D
whilst D was IN England/Wales
o But D could object on ground that English courts not most
appropriate
6) Assess limitation periods Basic rules: LA 1980
Proceedings MUST be issued BEFORE limitation period expires could face
negligence claim if not
Proceedings start when court office receives claim force BEFORE the date
issued by the court (St Helens Met BC v Barnes)
Claim form DEEMED ISSUED when court fee paid on CE-file
Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract occurs;
OR
when services supplied are
completed
Tort 6 years (s2)
(excluding personal injury and latent when the tort is committed
damage) when some damage occurs tort of
(negligence)
Latent damage (ONLY NEGLIGENCE) 6 years from date when breach
In non-personal injury claim based on occurred
negligence where the damage is OR
latent (C NOT AWARE OF IT) at the 3 years from date of knowledge of
date when the cause of action material facts about damage (s14A)
accrues
15 year long-stop limitation period
(final period) from date of alleged
breach of duty (s14B) REGARDLESS
of claimant's awareness or the
actual accrual of the cause of action
Children/protected party Begins when claimant NO LONGER a
(someone incapable of child/protected party
managing/administering property
and affairs)
NB: Any relevant contractual clauses?
7) Discuss and agree funding with the - What can the client afford to pay?
client - Does the client have any suitable BEI?
- Is the case suitable for a CFA or DBA and/or AEI cover?
- Does the client qualify for public funding or require third-party funding?
- How much time and resources will the client have to commit to
investigate and deal with the case?
- Does a cost–benefit analysis suggest the desirability of a quicker and
cheaper solution than litigation can offer?
3
