Civil Lit SGS 1 — Case Analysis & Investigation
MUST WATCH THE FUNDING LECTURE AND LISTEN TO ONLINE SGS TO HELP
Advise a Client on Elements of any Causes of Action and Remedies
Available
- Negligence or contract or both?
- Who to sue?
- What does the client need to show to establish a cause of action and can they do
so?
• Duty
- Any express terms in retainer?
- SRA Code of Conduct/SRA Financial Services (Conduct of Business) rules?
NOT implied into contract but feeds into reasonable care and skill
- s13 SGSA
- General duty of reasonable care and skill
- Ross v Caunters — R/ship b/w client and solicitor well established
- Tort — Pure economic loss (Hedley Byrne v Heller)
- Can sue in both (NB: In particulars of claim, say ‘Further or alternatively’)
• Breach
- Exact experience and specialism
- Evidence of other similarly qualified property lawyers — would they have
advised differently? (Although this would NOT be expert evidence to be used
at trial.)
- Is this an obvious error or esoteric point — should advice have been
qualified?
- Tort use Bolam Test — Standard of specialist, not just a reasonable man.
Not negligent for getting the law wrong, has to be something more
- Contract — Depends on contract/s13
1
, • Causation
- Did RI rely on this advice? Any evidence to support this?
- What would RI have done if the advice had been qualified? Any evidence to
support this?
- What were RI's costs for? True value of additional land?
- What would valuation have been if advice had been qualified?
• Loss
- Remoteness
- Contributory Negligence
- Mitigation — did they mitigate or aggravate the loss?
- What remedy is appropriate?
• Most likely to be damages
• Depend on the severity and consequences of the breach
• Loss of bargain, profit and out of pocket expenses may be compensated
• All loss flowing from the contract can’t be recovered as that would be
inequitable — Hadley v Baxendale/The Heron II
• D is liable for damages arising directly from breach and other damage which
can fairly or reasonably be supposed to have been within the contemplation of
both parties at the time the contract was made
- Exact date the limitation period expires? Limitation Act 1980
• Tort — 6 years from date cause of action accrued
• Contract — same
• Personal injury/death — 3 years from later of either date caused or date of
knowledge
NB: The limitation period for both contract and tort starts to run from when the
cause of action accrues. For contract claims, this will be from the date of the breach
of contract whereas for tortious claims, time starts to run from the date of
actionable damage
2
,Identify Evidence Available and Further Evidence that Should be
Sought
Advise on Costs, Benefits and Risks of Pursuing Litigation
In favour Against
Large sums at stake.
Central London lawyers are likely
to have deep pockets. Solicitors
are also required to have
professional indemnity insurance.
Costly - long and complex action
– time consuming and risky.
Difficulty proving negligence - RI
Difficulty proving negligence – the is also unsure whether the
Defendant is unsure whether it Defendant will be held negligent.
will be held negligent.
Publicity – the Defendant is an
eminent law firm and will not want
to be dragged through the courts.
Evidential difficulties – there
appear to be none at present.
Uncertainties of litigation.
Risk of paying substantial costs if
lose - as the Defendant (or its
insurers) is likely to instruct top
city firms and counsel.
- Costs:
• Unsuccessful party pays successful party’s costs — CPR 44.2(2)(a)
• BUT it is also the Court’s discretion — CPR 44.2(1)&(4)
• They won’t recover 100% and will have to pay the shortfall
3
, - Financing: (USE THE HANDOUT TO LEARN)
• Privately
• CFA — can claim from other side. Solicitor still gets basic rate
• Legal Aid
• Damages Based Agreement — solicitors get a percentage from damages otw
nothing
• Insurance
4
MUST WATCH THE FUNDING LECTURE AND LISTEN TO ONLINE SGS TO HELP
Advise a Client on Elements of any Causes of Action and Remedies
Available
- Negligence or contract or both?
- Who to sue?
- What does the client need to show to establish a cause of action and can they do
so?
• Duty
- Any express terms in retainer?
- SRA Code of Conduct/SRA Financial Services (Conduct of Business) rules?
NOT implied into contract but feeds into reasonable care and skill
- s13 SGSA
- General duty of reasonable care and skill
- Ross v Caunters — R/ship b/w client and solicitor well established
- Tort — Pure economic loss (Hedley Byrne v Heller)
- Can sue in both (NB: In particulars of claim, say ‘Further or alternatively’)
• Breach
- Exact experience and specialism
- Evidence of other similarly qualified property lawyers — would they have
advised differently? (Although this would NOT be expert evidence to be used
at trial.)
- Is this an obvious error or esoteric point — should advice have been
qualified?
- Tort use Bolam Test — Standard of specialist, not just a reasonable man.
Not negligent for getting the law wrong, has to be something more
- Contract — Depends on contract/s13
1
, • Causation
- Did RI rely on this advice? Any evidence to support this?
- What would RI have done if the advice had been qualified? Any evidence to
support this?
- What were RI's costs for? True value of additional land?
- What would valuation have been if advice had been qualified?
• Loss
- Remoteness
- Contributory Negligence
- Mitigation — did they mitigate or aggravate the loss?
- What remedy is appropriate?
• Most likely to be damages
• Depend on the severity and consequences of the breach
• Loss of bargain, profit and out of pocket expenses may be compensated
• All loss flowing from the contract can’t be recovered as that would be
inequitable — Hadley v Baxendale/The Heron II
• D is liable for damages arising directly from breach and other damage which
can fairly or reasonably be supposed to have been within the contemplation of
both parties at the time the contract was made
- Exact date the limitation period expires? Limitation Act 1980
• Tort — 6 years from date cause of action accrued
• Contract — same
• Personal injury/death — 3 years from later of either date caused or date of
knowledge
NB: The limitation period for both contract and tort starts to run from when the
cause of action accrues. For contract claims, this will be from the date of the breach
of contract whereas for tortious claims, time starts to run from the date of
actionable damage
2
,Identify Evidence Available and Further Evidence that Should be
Sought
Advise on Costs, Benefits and Risks of Pursuing Litigation
In favour Against
Large sums at stake.
Central London lawyers are likely
to have deep pockets. Solicitors
are also required to have
professional indemnity insurance.
Costly - long and complex action
– time consuming and risky.
Difficulty proving negligence - RI
Difficulty proving negligence – the is also unsure whether the
Defendant is unsure whether it Defendant will be held negligent.
will be held negligent.
Publicity – the Defendant is an
eminent law firm and will not want
to be dragged through the courts.
Evidential difficulties – there
appear to be none at present.
Uncertainties of litigation.
Risk of paying substantial costs if
lose - as the Defendant (or its
insurers) is likely to instruct top
city firms and counsel.
- Costs:
• Unsuccessful party pays successful party’s costs — CPR 44.2(2)(a)
• BUT it is also the Court’s discretion — CPR 44.2(1)&(4)
• They won’t recover 100% and will have to pay the shortfall
3
, - Financing: (USE THE HANDOUT TO LEARN)
• Privately
• CFA — can claim from other side. Solicitor still gets basic rate
• Legal Aid
• Damages Based Agreement — solicitors get a percentage from damages otw
nothing
• Insurance
4
