CIVIL LITIGATION
,Chapter 1 – Introduction to Civil Litigation & Pre-Action Considerations SGS 1 – Pre-Action Considerations
Chapter 10 – ADR and Arbitration SGS 11 – ADR and Arbitration
Overriding Objective (1.1)
• The court must give effect to (1.2) and parties must help further (1.3) overriding objectives
• To enable to court to deal with cases ‘justly and at a proportionate cost’, involves –
(a) Ensure parties on equal footing
(b) Save expenses
(c) Deal with cases in ways which are
proportionate to:
(i) Amount of money
(ii) Importance of case
(iii) Complexity of case
(iv) Financial position of parties
(d) Dealt with expeditiously and fairly
(e) Allot appropriate share of court’s
resources
(f) Enforcing compliance with rules,
practice directions and orders
Civil Action Flowchart
1. Pre-Action Protocols
2. Claim Form (7 and 16)
3. Particulars of Claim (16)
4. Acknowledgement of Service (10)
5. Admissions (14)
6. Defence (15 and 16)
o Judgment in Default (12)
o Part 20 Claim (Counterclaim)
o Reply to Defence (15)
o Further Information or Clarification
(18)
7. Interim Applications (23-25)
8. Allocation (26)
9. Directions (26-29)
10. Disclosure and Inspection (31)
11. Witness Statements (32)
12. Expert Evidence (35)
13. Part 36 Offer
14. Trial
15. Enforcement
Court Structure
First instance High Court County Court
Jurisdiction Senior Courts Act 1981 (3.35A) County Courts Act 1984 (s.64?)
Trial High Court Judges Circuit Judges or Recorders
Interim Masters or District Judges District Judges
Commencement Form N1 to High Court Form N1 to County Court Money Claims Centre
Appeal courts Court of Appeal, Privy Council and Supreme Court
High Court
Courts Companies Court
Patent Court and IPEC
Chancery Division (ChD) Issues Land, mortgages, trusts, administration of estates, bankruptcy, partnerships,
probate, intellectual property, company, other contract and tort, equitable
remedies
Queen’s Bench Division (QBD) Courts Admiralty & Commercial Court (ICC)
1
, Technology & Construction Court (TCC)
Issues Contract, tort, commercial, admiralty, judicial review
Family Division (FamD) Family issues
Commencement
Jurisdiction Is the case within the jurisdiction of England and Wales?
Commencement Normal Personal Injury
(7 and 7APD) High Court ≥£100,000 (7APD2.1) ≥£50,000 (7APD2.2)
County Court ˂£100,000 ˂£50,000
Consideration Where more than £100,000, consider the following to decide which court to issue
Factors (7APD2.4) –
• Financial value of the claim
• Complexity of the facts, legal issues, remedies and procedures
• Importance of outcome to the public
Transfer Transfer rules (30) –
• Court consideration criteria for transfer (30.3(2))
• Claims under £100,000 will generally transfer to County Court (29PD2.2)
Pre-Action Considerations
Professional conduct CCS principles
Overriding duty to the court → SRA Code of Conduct for Solicitors (CCS), 1.4 and 2.1-2.7
Confidentiality and disclosure → CCS, 6.3 and 6.4
Conflict of interest → CCS, 6.1 and 6.2
Client care → CCS, 1.2
Money laundering →
Person has authorisation to act for client
Client’s objectives Consider alternative ways of achieving client’s objectives → E.g. see ADR below
Position of defendant What is the financial viability of the defendant?
Hire a reputable enquiry agent to investigate?
Check the following registers –
• Register of Judgments
• Land Charges Register
• Individual Insolvency Register (bankrupt individuals)
• Attachment of Order Index (attachment of earnings orders in force)
Conduct company searches for –
• General solvency
• Assets
• Charges on assets
A legally aided opponent? → Will not recover costs, may not recover damages
Concerns about dissipation of assets? → Freezing injunction
Merits of the case See ‘Breach of Contract’ table below
See ‘Negligence’ table below
Evidence Standard of proof – balance of probabilities (˃50%)
1. What needs to be proved?
o Duty (implied or express term)
o Breach
o Causation
o Loss
o Quantum of damages
2. What evidence is there to prove it?
o Testimony (witness evidence)
o Documents
o Real evidence
3. Is that evidence admissible?
Available remedies Damages
• Contract – put in the position it would have been in had contract been
performed
o Loss must flow naturally from breach
2
, o Loss must’ve been in reasonable contemplation when contract was
made
o Damages for mental distress generally not recoverable
o Duty to mitigate loss
• Tort – put back in the position it was in before the tort was committed
o Compensatory in nature
o Direct and consequential loss, provided not too remote
o Duty to mitigate loss
• Debt – claim for a sum owed in contract (no duty to mitigate loss)
Equitable remedies → injunctions and specific performance
Limitation periods Limitation Act (LA) 1980
Type of Claim Statutory Limitation Period
Contract 6 years (LA 1980, s.5)
(excluding personal injury) From as soon as the breach of contract
Tort 6 years (LA 1980, s.2)
(excluding personal injury) From when the tort was committed
Part 36 offer Part 36 offers may be made before proceedings have begun
Pre-action disclosure See 31.16(3) for conditions required for pre-action disclosure
Costs Solicitor-client costs
• Governed by a retainer, this comprises of –
o Profit costs (hourly rate x hours) plus VAT; and
o Disbursements
• Ensure client receives best possible information as to price at all times (CCS,
8.7)
Party-party costs
• General rule – unsuccessful party pays costs of successful party (44.2(2)(a))
• Court has discretion as to costs (44.2(1))
• Discretion exercised in consideration of factors in 44.2(4) and (5)
Funding See ‘Funding’ table below
Methods of Dispute Resolution
• ADR, litigation and Part 36 offers can happen in parallel
• Must consider negotiation or ADR before litigation (PD Pre-Action Conduct, 8)
• Unreasonable refusal to participate in ADR could lead to additional costs (PD Pre-Action Conduct, 11)
o Halsey v Milton Keynes NHS Trust: onus on losing party to show refusal was (un)reasonable (e.g. strong case)
• Court must actively manage case by encouraging the parties to use ADR procedure. CPR 1.4(e) ‘encourages parties to
use ADR procedure if the court considers it appropriate and facilitating the use of such procedure’ which takes the
following form:
o Various ‘check points’, including:
§ Pre-action protocol stage
§ Allocation
§ Case management conference
o Stays imposed by the court (26.4(2A)) or at the request of the parties (26.4)
o Possible costs sanctions
Types of Dispute Resolution (DR)
Litigation Use of courts and legal process to resolve a dispute.
Arbitration An impartial, independent third party (arbitrator) Must be in writing or evidenced in writing makes
a binding decision on the dispute. This is distinct from the other forms of ADR because it is quasi-
judicial.
Negotiation A communication process between parties to reach a compromise or agreement without the use
of any form of intermediary or courts.
The starting point when attempting to resolve a dispute.
Mediation A confidential and without prejudice process which facilitates resolution through use of impartial
third party (mediator), who has no authority to make binding decisions. No binding decision by
third party.
The most popular and most frequently used ADR.
Med-arb Parties agree to attempt mediation first, failing which arbitration, where a binding decision is
made.
3
,Chapter 1 – Introduction to Civil Litigation & Pre-Action Considerations SGS 1 – Pre-Action Considerations
Chapter 10 – ADR and Arbitration SGS 11 – ADR and Arbitration
Overriding Objective (1.1)
• The court must give effect to (1.2) and parties must help further (1.3) overriding objectives
• To enable to court to deal with cases ‘justly and at a proportionate cost’, involves –
(a) Ensure parties on equal footing
(b) Save expenses
(c) Deal with cases in ways which are
proportionate to:
(i) Amount of money
(ii) Importance of case
(iii) Complexity of case
(iv) Financial position of parties
(d) Dealt with expeditiously and fairly
(e) Allot appropriate share of court’s
resources
(f) Enforcing compliance with rules,
practice directions and orders
Civil Action Flowchart
1. Pre-Action Protocols
2. Claim Form (7 and 16)
3. Particulars of Claim (16)
4. Acknowledgement of Service (10)
5. Admissions (14)
6. Defence (15 and 16)
o Judgment in Default (12)
o Part 20 Claim (Counterclaim)
o Reply to Defence (15)
o Further Information or Clarification
(18)
7. Interim Applications (23-25)
8. Allocation (26)
9. Directions (26-29)
10. Disclosure and Inspection (31)
11. Witness Statements (32)
12. Expert Evidence (35)
13. Part 36 Offer
14. Trial
15. Enforcement
Court Structure
First instance High Court County Court
Jurisdiction Senior Courts Act 1981 (3.35A) County Courts Act 1984 (s.64?)
Trial High Court Judges Circuit Judges or Recorders
Interim Masters or District Judges District Judges
Commencement Form N1 to High Court Form N1 to County Court Money Claims Centre
Appeal courts Court of Appeal, Privy Council and Supreme Court
High Court
Courts Companies Court
Patent Court and IPEC
Chancery Division (ChD) Issues Land, mortgages, trusts, administration of estates, bankruptcy, partnerships,
probate, intellectual property, company, other contract and tort, equitable
remedies
Queen’s Bench Division (QBD) Courts Admiralty & Commercial Court (ICC)
1
, Technology & Construction Court (TCC)
Issues Contract, tort, commercial, admiralty, judicial review
Family Division (FamD) Family issues
Commencement
Jurisdiction Is the case within the jurisdiction of England and Wales?
Commencement Normal Personal Injury
(7 and 7APD) High Court ≥£100,000 (7APD2.1) ≥£50,000 (7APD2.2)
County Court ˂£100,000 ˂£50,000
Consideration Where more than £100,000, consider the following to decide which court to issue
Factors (7APD2.4) –
• Financial value of the claim
• Complexity of the facts, legal issues, remedies and procedures
• Importance of outcome to the public
Transfer Transfer rules (30) –
• Court consideration criteria for transfer (30.3(2))
• Claims under £100,000 will generally transfer to County Court (29PD2.2)
Pre-Action Considerations
Professional conduct CCS principles
Overriding duty to the court → SRA Code of Conduct for Solicitors (CCS), 1.4 and 2.1-2.7
Confidentiality and disclosure → CCS, 6.3 and 6.4
Conflict of interest → CCS, 6.1 and 6.2
Client care → CCS, 1.2
Money laundering →
Person has authorisation to act for client
Client’s objectives Consider alternative ways of achieving client’s objectives → E.g. see ADR below
Position of defendant What is the financial viability of the defendant?
Hire a reputable enquiry agent to investigate?
Check the following registers –
• Register of Judgments
• Land Charges Register
• Individual Insolvency Register (bankrupt individuals)
• Attachment of Order Index (attachment of earnings orders in force)
Conduct company searches for –
• General solvency
• Assets
• Charges on assets
A legally aided opponent? → Will not recover costs, may not recover damages
Concerns about dissipation of assets? → Freezing injunction
Merits of the case See ‘Breach of Contract’ table below
See ‘Negligence’ table below
Evidence Standard of proof – balance of probabilities (˃50%)
1. What needs to be proved?
o Duty (implied or express term)
o Breach
o Causation
o Loss
o Quantum of damages
2. What evidence is there to prove it?
o Testimony (witness evidence)
o Documents
o Real evidence
3. Is that evidence admissible?
Available remedies Damages
• Contract – put in the position it would have been in had contract been
performed
o Loss must flow naturally from breach
2
, o Loss must’ve been in reasonable contemplation when contract was
made
o Damages for mental distress generally not recoverable
o Duty to mitigate loss
• Tort – put back in the position it was in before the tort was committed
o Compensatory in nature
o Direct and consequential loss, provided not too remote
o Duty to mitigate loss
• Debt – claim for a sum owed in contract (no duty to mitigate loss)
Equitable remedies → injunctions and specific performance
Limitation periods Limitation Act (LA) 1980
Type of Claim Statutory Limitation Period
Contract 6 years (LA 1980, s.5)
(excluding personal injury) From as soon as the breach of contract
Tort 6 years (LA 1980, s.2)
(excluding personal injury) From when the tort was committed
Part 36 offer Part 36 offers may be made before proceedings have begun
Pre-action disclosure See 31.16(3) for conditions required for pre-action disclosure
Costs Solicitor-client costs
• Governed by a retainer, this comprises of –
o Profit costs (hourly rate x hours) plus VAT; and
o Disbursements
• Ensure client receives best possible information as to price at all times (CCS,
8.7)
Party-party costs
• General rule – unsuccessful party pays costs of successful party (44.2(2)(a))
• Court has discretion as to costs (44.2(1))
• Discretion exercised in consideration of factors in 44.2(4) and (5)
Funding See ‘Funding’ table below
Methods of Dispute Resolution
• ADR, litigation and Part 36 offers can happen in parallel
• Must consider negotiation or ADR before litigation (PD Pre-Action Conduct, 8)
• Unreasonable refusal to participate in ADR could lead to additional costs (PD Pre-Action Conduct, 11)
o Halsey v Milton Keynes NHS Trust: onus on losing party to show refusal was (un)reasonable (e.g. strong case)
• Court must actively manage case by encouraging the parties to use ADR procedure. CPR 1.4(e) ‘encourages parties to
use ADR procedure if the court considers it appropriate and facilitating the use of such procedure’ which takes the
following form:
o Various ‘check points’, including:
§ Pre-action protocol stage
§ Allocation
§ Case management conference
o Stays imposed by the court (26.4(2A)) or at the request of the parties (26.4)
o Possible costs sanctions
Types of Dispute Resolution (DR)
Litigation Use of courts and legal process to resolve a dispute.
Arbitration An impartial, independent third party (arbitrator) Must be in writing or evidenced in writing makes
a binding decision on the dispute. This is distinct from the other forms of ADR because it is quasi-
judicial.
Negotiation A communication process between parties to reach a compromise or agreement without the use
of any form of intermediary or courts.
The starting point when attempting to resolve a dispute.
Mediation A confidential and without prejudice process which facilitates resolution through use of impartial
third party (mediator), who has no authority to make binding decisions. No binding decision by
third party.
The most popular and most frequently used ADR.
Med-arb Parties agree to attempt mediation first, failing which arbitration, where a binding decision is
made.
3
