Summary Cheat Sheet / SGS Summaries - Civil Litigation (Accelerated LPC)

CIVIL LITIGATION EXAM NOTES – SGS 1



PCR

PCR: Outcome 1.13: Solicitor must give client information on costs and methods of fund-
ing at the outset of the claim and as appropriate as the matter progresses
· IB 1.13: discussing whether the potential outcomes of the client’s matter are likely
to justify the expense or risk involved, including any risk of having to pay someone
else's legal fees
· IB 1.15: warning about any other payments for which the client may be responsible
· IB 1.16: discussing how the client will pay, including whether public funding may be
available, whether the client has insurance that might cover the fees, and whether
the fees may be paid by someone else such as a trade union




Availability of legal aid

Types of legal aid:
· Legal help – providing initial advice and assistance (preparing case but not issuing/
conducting proceedings)
· Help at court – allow S to speak on client’s behalf at certain court hearings without
acting formally on their behalf and without going on the record in the case
· Legal representation – representation and proceedings (can be limited to investiga-
tive representation or can be full representation)

Chances of getting legal aid:
· Merits test: 80% (very good chance); 60 – 80% (good chance); 50 – 60% (moderate
chance)  must assess whether case is likely to win more than is spent on the case
· Means test: Whether client is financially suitable (disposable capital must not be
over 8k)
· Excluded:
o personal injury/ death (unless clinical negligence in cases of severely dis-
abled infants or significant public interest);
o conveyancing,
o wills,
o trust,
o defamation,
o company and partnership and business law;
o employment;
o breach of statutory duty and negligence;
o consumer cases;
o education

, · Statutory charge: Where there is a shortfall in the costs recoverable from the other
side, the statutory charge will attach to the damages the claimant won to cover the
shortfall
o If client is defendant – no statutory charge as LAA will meet charges
Conditional Fee Agreements – client wins




· Success fee payable out of client’s damages – unless CFA entered into before 1 April
2013


Conditional Fee Agreement – client loses




Damages based agreement

S do not recover fees if they lose the case
If they win, fees recovered from damages as a percentage
· 25% in PI cases
· 35% in employment tribunal cases

, · 50% in all other cases




Insurance

· BTE insurance – not generally recoverable from other party
· ATE insurance – not recoverable from other party if policy entered into after 1
April 2013 (except clinical negligence expert reports)




Civil Litigation SGS 2

Pre-Action Protocol/ Conduct

Para 3: PD Pre-Action Conduct:

Main objective of pre-action protocol/ conduct is to help C and D:
(a) Understand each other’s position;
(b) Make decisions on how to proceed;
(c) Try to settle the issues without proceeding;
(d) Consider a form of ADR to assist with settlement;
(e) Support the efficient management of those proceedings; and
(f) Reduce the costs of resolving the dispute

Para 8: PD Pre-Action Conduct: Encourages parties to consider settlement without com-
mencing proceedings and states that litigation should be a last resort

Overriding Objective: CPR 1.1(2)(f)  involves enforcing compliance with rules, PDs and
orders

, Costs consequences of non-compliance

Para 13 PD Pre-Action Conduct: Court will take into account non-compliance when giving
directions for the management of proceedings and when making orders for costs. Will
consider whether parties have complied in substance and is not likely to be concerned
with minor/ technical infringements especially when matter is urgent

Para 16 PD Pre-Action Conduct: Court will consider the effect of any non-compliance
when deciding whether to impose any sanctions which may include –
(a) An order that party at fault pays the cost of the proceedings or part of the costs of
the other party or parties
(b) An order that party at fault pays those costs on an indemnity basis
(c) If party at fault is winning C, award lower i/r
(d) If party at fault is losing D, award higher i/r (not exceeding 10% above base rate)

CPR 3.1(4) – where court gives directions it will take into account whether party has com-
plied with the PD – Pre-Action conduct or any relevant Pre-action protocol

CPR 44.2(5)(a): Court could punish party who unreasonably fails to comply with pre-action
protocols/ conduct in terms of costs




Professional Negligence Pre-Action Protocol

Step 1: C sends D a preliminary notice in writing as soon as there is a reasonable chance it
will bring a claim (PNAP 5.1)

D must acknowledge within 21 days of receipt (PNAP 5.4)
Step 2: C sends D a detailed letter of claim as soon as C decides there are grounds for the
claim (PNAP 6.1)
· Contents of LOC are set out in PNAP 6.2

D must write Letter of Acknowledgement to LOC within 21 days of receiving it. (PNAP 7.1)
Step 3: D has three months from acknowledgement to investigate the claim and write
Letter of Response and/ or Letter of Settlement (PNAP 8.2)
· Contents of Letter of Response set out in PNAP 9.2.1

Parties should negotiate for up to 6 months from date of Letter of Acknowledgement in re-
sponse to LOC (PNAP 9.4.2)
Step 4: If C and D do not reach agreement, C should where possible, give 14 days written
notice to D before proceedings are issued (PNAP 14.3)