Civil Litigation Revision Notes - High Distinction

CIVIL LITIGATION

FUNDING / APPEALS – REVISE

TABBING

- Select Colour based on type of document (Claim Form / POC / Statements of Case etc.)
- Deadlines / Time (at the bottom)

EXAM – DRAFTING QUESTION

 Guaranteed Drafting Question (20 marks )
o Particulars of Claim
o Defence
o Witness Statement (TAB UP CPR32PD (17.2 , 18.1 + 18.2))
 Review CLIENT PACK + RE-READ
o Key figures (check)
o Key dates (check)
 Things to look out (check for minor details first)
o Header will always be wrong
o Statement of Truth will always be wrong
 Typos
 Should NOT be on own page
o Name of Law Firm at end of Statement of Case
o Interest will always be wrong
o Add in paragraphs that are missing
 Remember to renumber paragraphs at end
 INSERT RIDERS (1 – 3 max)
 Amending Defence – address each para of POC
 Admit
 Deny
 Put to proof
 Consider PCR
o Tab SRA Handbook (Statements of Case)
 O5.1
 O5.2
 IB5.5
 IB5.7
 ALWAYS THINK COSTS

, PRE-ACTION / ISSUING PROCEEDINGS

Key considerations when issuing a claim

 Limitation
o Contract: 6 years (excluding date of breach) s5 Limitation Act 1980
o Tort: 6 years from actionable damage
 Duty
o Contract: Duty of Reasonable Care & Skill (s13 Supply of Goods and Services Act)
o Tort: Hedley Byrne v Heller – Duty of care imposed on advisor with special skill and knowledge
who knows, or ought to know, that the advice is being relied upon
 Damages
o Contract: to put C in position they were in had the contract been properly performed
o Tort: to put C in position they would have been had the tort not occurred
o Henderson v Merritt – Claim for breach of contract / tort can be pursued concurrently
 Funding
o Conditional Fee Arrangement(CFA) – fees and expenses only payable in specified circumstances
(e.g. no-win-no-fee)
o Legal Aid state funding (limited in civil claims)

KEY STEPS FOR CLAIM:

ISSUE ADDITIONAL INFORMATION REQUIRED
1. Letterhead at time advice was given
2. Names of all partners / current business and residential addresses
WHO TO SUE
3. General enquires re financial status of partners
4. In case insurance is not sufficient to cover losses look at “depth of pockets”
1. Any express terms in the retainer
DUTY 2. Copies of letter constituting retainer
3. Solicitors’ Code of Conduct / Conduct of Business Rules
1. Exact experience / specialism of D
2. Evidence of other similarly qualified professionals – would they have acted differently
BREACH
based on the instructions? (NB not expert evidence)
3. Was the error obvious or esoteric – should the advice have been qualified?
4. Is the advice only wrong with benefit of hindsight?
1. Did C rely on the advice of expert?
CAUSATION / 2. What would C have done if the advice had been correct / qualified?
LOSS 3. Were damages incurred?
4. Could anything have been done to mitigate the loss?

, PRE-ACTION PROTOCOL

 CPR requires parties to comply with pre-action protocol before issuing proceedings
o PDPAC 3 – Objectives of Pre-Action Conduct and Protocols (e.g.):
 Encourage settlement without Court intervention
 Promote proper exchange of information between parties to establish dispute
 Ensure proceedings (once issued) are progressed expeditiously
o PDPAC6 – Steps before issuing:
 Comply with any specific pre-action protocol
 To the extent to which they differ – SPECIFIC protocol takes precedent of GENERAL protocol

Sanctions for non-compliance

 PDPAC 14 – 15: Non-compliance failure and sanctions
 PDPAC 16 (a)–(d): Court will look at overall effect of non-compliance

CHOICE OF COURT

 Jurisdiction
o High Court = Libel / Slander / Judicial Review / Human Rights
o County Court = Consumer Credit Act 1974
 Commencement (CPR 7)
o Value less than £100K = County Court ONLY (CPR 7.1)
o Value greater than 100K = High Court OR County Court
 CPR 7(2.4) – complexity / financial value / public importance etc.
 Transfer (CPR 30)
o Case be transferred and party in fault may be liable for costs under CPR 44
 Unsuccessful party may be order to pay costs (CPR 44.2)
 Court will consider conduct of the parties (CPR 44.3)

, ISSUE / SERVICE OF CLAIM FORM + POC

 CPR 7 + PD7A
o Minimum of 3 copies (Ct/C/D) + Issue Fee payable
o CPR 16.3(6): Amount claimed must disregard:
 Interest / Costs / Counter Claim / Contributory Negligence
 Service of the Claim Form
o 4 months from DATE OF ISSUE (CPR 7.5(1)) i.e. Court stamp
o Extension may be possible under CPR 7.6

Deemed Service

Claim Form

 CPR 6.14 – 2nd business day after completion of the relevant step under CPR7.5(1):
o First class post (posting, leaving with, delivering to or collection by provider)
o Delivery of document to, or leaving it at, the relevant place
o Personal service (leaving with individual / specified person)
o Fax (completion of transmission)
o Other electronic method
 Solicitor service (business address)
o D must give (in writing) business address of solicitor; and
o Solicitor must have notified C of authority in writing

Other documents

 Rules STRICTLY applied (Godwin v Swindon Borough Council)
 CPR 6.26 – deemed served where:

METHOD DEEMED SERVICE
Personally served on the Defendant Effective immediately if on business day and before 4:30PM)
Otherwise – next business day after
By delivering or leaving document at Effective immediately if on business day and before 4:30PM)
permitted address Otherwise – next business day after
First class post or DX Effective 2nd day after posting if on business day
Otherwise – next business day after
Fax Effective same business day if transmitted before 4:30PM
Otherwise – business day after day of transmission
Electronic means (e.g. email) Effective same business day if sent before 4:30PM
Otherwise – business day after the day on which sent

POC + Response Pack

 Must serve POC and Response Pack with Claim Form (CPR 7.4(2)) – 3 ways:
1) Sent within CF
2) POC with CF but as separate document
3) POC sent entirely separately

Defendant’s Response

 Can within 14 days:
o CPR 10 – File AOS
 CPR 14 –ADMIT part or all of the claim