1
CIV Consolidation
SGS 1 – Case analysis and Funding
Funding
Legal Aid Funding
Types of work which will not be funded:
allegations of personal injury or death, other than allegations relating to clinical negligence in
cases of severely disabled infants or where there is significant public interest involved;
conveyancing; boundary disputes; the making of wills; matters of trust law; defamation (libel and
slander) or malicious falsehood; matters of company or partnership law; and other matters arising
out of the carrying on of a business (including contract claims);
employment cases; breach of statutory duty; negligence; consumer cases; and, education cases.
If case falls into category where legal aid is available what help is available?
Legal help – initial advice and assistance with a legal problem, doesn’t cover proceedings or
advocacy
Help at court - allows solicitors to speak on the client’s behalf at certain court hearings without
acting formally on their behalf and without going on the record in the case – to qualify, client needs
to satisfy financial conditions
Legal representation – can be investigative or full representation. If client requires representation
at a hearing, this is the most appropriate. But this is being discouraged and instead civil legal advice
can be given by phone or online.
Does the client qualify for help?
Only individuals or partners in a business.
Also, legal aid must be appropriate in the circumstances of the particular claim. Must pass merits
and means test:
o Merits: Needs to have good chance of success (high percentage, 50-60% = moderate), cost
to recovery amount ration, and whether there are alternatives funding, alternatives to
litigation.
o Means: Automatic: individual or business partner receives types of benefits e.g. income
support. Financial test: (1) Disposable capital must not exceed £8,000 (money in bank,
valuable items, equity in property), and I client has partner, there disposable equity will
also be taken unless dispute is against them. (2) client’s gross monthly income should be
£2,657 or less and the client’s disposable income must not exceed £733 per month.
Business partner again will be taken into account.
Cost consequences of legal aid funding –
If court orders opponent to pay clients costs, client must recover the debt from opponent and
repay legal aid agency immediately.
If client made contribution to legal aid, they will get it back
If there is shortfall between costs recovery and amount owed to legal aid agency, LAA will
exercise its right to apply a Statutory Charge over any damages or property recovered or preserved
(e.g. registering a charge on the home to secure the debt owed with interest).
No Win No Fee Agreements
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Rules applies to agreements made after 1 April 2013
A ‘no win no fee’ agreement means that the solicitor will not get paid unless the case is successful.
There are two types of no win no fee agreements: conditional fee agreements (‘CFAs – solicitor is paid
normal solicitors fee + success fee out of damages’) and damages based agreements (‘DBAs’ – percentage
of the damages recovered by the claimant, no fees if they lose).
CFA Effect:
* disbursements = may be made by a lawyer on behalf of a client for expenses such as filing fees, expert
medical reports, private investigator reports, photocopying and courier costs and the like
Insurance
A solicitor should always, as a matter of PSC, consider whether a client’s claim could be funded by any
existing insurance they may hold, for example their household or motor insurance.
Clients may also have a specific legal expenses insurance policy, specifically to bring or defend legal actions.
For example, professional firms such as solicitors must carry professional indemnity insurance.
If no such insurance exists (or if the cover provided by any such insurance is not appropriate), the client
may wish to take out legal expenses insurance to cover both their legal costs and, if the policy so provides,
those of the opposing party. There are two types of legal expense insurance:
Before the event insurance (BTE) – often sold in conjunction with household insurance, has a max
limit on costs it will meet, low premium, normally cant recover from other side
After the event insurance (ATE) – once dispute has arisen, often in conjunction with CFA, availability
depends on merit of case and level o cover required, high premiums, normally not recoverable
from other side
,3
SGS 2 – Commencing proceedings and Statements of Case
Pre-Action Protocols
Para 3 -objectives
Para 8 – consider negotiation or some other form of ADR, litigation should be last resort
[Para 9 – consider possibility to reach settlement at all times, part 36 offers may be made before
proceedings are issued]
13 – must comply with PD or protocol, court will take into account noncompliance when giving directions
for the management of proceedings and when making orders for costs. Will not be concerned with minor
or technical infringement.
[16 – sanctions can be imposed due to non-compliance. List of sanctions are found in (a)-(d)]
18 - Sanctions can be done at case management stage, by saying they haven’t followed the PA, and tell
them to go try alternative
Professional Negligence Pre-Action Protocol Overview
What steps need to be taken by either party under PN PAP, and what are the time limits?
5.1 Claimant sends defendant preliminary notice – as soon as reasonable chance of litigation
5.4 Defendant acknowledges notice with 21 days of receipt
6.1 Claimant sends a detailed letter of claim to defendant as soon as they decide there are grounds for
claim. Content of letter in 6.2
7.1 Defendant acknowledges letter of claim within 21 days
8.2 Defendant has three months to investigate the letter of claim
9.1 Defendant writes letter of response and/or letter of settlement
9.4.2 If Defendant admits or settles, then 6 months of negotiation takes place OR 9.4.1 If defendant denies
claims, then proceedings begins
14.3 if no agreement can be made, 14 days’ notice should be given before start of proceedings.
Which court should proceedings be issued?
Which court?
General rule: CPR 7APD 2.1 - 1 if value of the claim exceeds £100,000, it may be commenced in either HC
or CC
If there is a choice? 7APD 2.4 - Claim should be brought to HC if by reason of (1) the financial value of the
claim and the amount in dispute and/or (2) complexity of the facts, legal issues, remedies involved, (3) the
importance of the outcome of the claim to the general public
Which division of HC?
Chancery Division – land, mortgage trusts, company matters, IP.
Queen’s Bench Division – contract and tort claims, commercial matters. Has special commercial court for
complex matters
, 4
Which track? See CPR 26 – 29
How do you calculate the financial value of the claim?
CPR 16.3 (6) Financial value disregards interest, cost, any counterclaim, contributory negligence, any
deduction of social security benefits.
CPR 26.8 – amount not in dispute
Commencement of Proceedings
What do you need to take to court to start the claim? How many copies of each such document do you
need to take with you?
You take the fee plus a number of copies of the claim form (one to file at court, one for you and one to
serve on each defendant). (fee for claim >200k is 10k)
CPR 7.2 (1) - Proceedings are started when the court issues a claim form at the request of the claimant
(subject to 7APD 5.1 & 5.2).
Upon issue, the court will stamp the claim form with the court seal and give the action a claim number.
What happens once the court issues the claim form? Why is it important to know exactly when
proceedings are issued?
The claim form (and particulars of claim if they are being served in or attached to the claim form) is served
on the defendant(s) either by the claimant or by the court.
Issue of claim form stops time running for limitation period
CPR 7.5(1) - Claim form must be served to defendant within four months from the date of issue. CPR 7.6(2)
- Any extension of this 4-month period must be made within the 4-month period.
Defendant’s Response
The defendant must then respond in one of three ways within 14 days of deemed service of the particulars
of claim:
1. admit part or all of the claim;
2. file a defence; or
3. file an acknowledgment of service (this will give the defendant longer to prepare its defence). (CPR 9.2)
Time
1. What is the document which has been served?
The rules for claim forms (with or without particulars of claim attached) are subject to CPRs 6.14 (deemed
service is second business day after post, etc) and 7.5(1).
The rules for all other documents are subject to CPR 6.26 (i.e. particulars of claim served separately,
acknowledgments of service)
2. How has it been served?
3. Work out deemed date of service.
For a claim form (with or without particulars of claim attached) this will be the second business day after
completion of the relevant step under rule 7.5(1). Clear days apply.
For all other documents you need to consult the table in CPR 6.26.
CIV Consolidation
SGS 1 – Case analysis and Funding
Funding
Legal Aid Funding
Types of work which will not be funded:
allegations of personal injury or death, other than allegations relating to clinical negligence in
cases of severely disabled infants or where there is significant public interest involved;
conveyancing; boundary disputes; the making of wills; matters of trust law; defamation (libel and
slander) or malicious falsehood; matters of company or partnership law; and other matters arising
out of the carrying on of a business (including contract claims);
employment cases; breach of statutory duty; negligence; consumer cases; and, education cases.
If case falls into category where legal aid is available what help is available?
Legal help – initial advice and assistance with a legal problem, doesn’t cover proceedings or
advocacy
Help at court - allows solicitors to speak on the client’s behalf at certain court hearings without
acting formally on their behalf and without going on the record in the case – to qualify, client needs
to satisfy financial conditions
Legal representation – can be investigative or full representation. If client requires representation
at a hearing, this is the most appropriate. But this is being discouraged and instead civil legal advice
can be given by phone or online.
Does the client qualify for help?
Only individuals or partners in a business.
Also, legal aid must be appropriate in the circumstances of the particular claim. Must pass merits
and means test:
o Merits: Needs to have good chance of success (high percentage, 50-60% = moderate), cost
to recovery amount ration, and whether there are alternatives funding, alternatives to
litigation.
o Means: Automatic: individual or business partner receives types of benefits e.g. income
support. Financial test: (1) Disposable capital must not exceed £8,000 (money in bank,
valuable items, equity in property), and I client has partner, there disposable equity will
also be taken unless dispute is against them. (2) client’s gross monthly income should be
£2,657 or less and the client’s disposable income must not exceed £733 per month.
Business partner again will be taken into account.
Cost consequences of legal aid funding –
If court orders opponent to pay clients costs, client must recover the debt from opponent and
repay legal aid agency immediately.
If client made contribution to legal aid, they will get it back
If there is shortfall between costs recovery and amount owed to legal aid agency, LAA will
exercise its right to apply a Statutory Charge over any damages or property recovered or preserved
(e.g. registering a charge on the home to secure the debt owed with interest).
No Win No Fee Agreements
,2
Rules applies to agreements made after 1 April 2013
A ‘no win no fee’ agreement means that the solicitor will not get paid unless the case is successful.
There are two types of no win no fee agreements: conditional fee agreements (‘CFAs – solicitor is paid
normal solicitors fee + success fee out of damages’) and damages based agreements (‘DBAs’ – percentage
of the damages recovered by the claimant, no fees if they lose).
CFA Effect:
* disbursements = may be made by a lawyer on behalf of a client for expenses such as filing fees, expert
medical reports, private investigator reports, photocopying and courier costs and the like
Insurance
A solicitor should always, as a matter of PSC, consider whether a client’s claim could be funded by any
existing insurance they may hold, for example their household or motor insurance.
Clients may also have a specific legal expenses insurance policy, specifically to bring or defend legal actions.
For example, professional firms such as solicitors must carry professional indemnity insurance.
If no such insurance exists (or if the cover provided by any such insurance is not appropriate), the client
may wish to take out legal expenses insurance to cover both their legal costs and, if the policy so provides,
those of the opposing party. There are two types of legal expense insurance:
Before the event insurance (BTE) – often sold in conjunction with household insurance, has a max
limit on costs it will meet, low premium, normally cant recover from other side
After the event insurance (ATE) – once dispute has arisen, often in conjunction with CFA, availability
depends on merit of case and level o cover required, high premiums, normally not recoverable
from other side
,3
SGS 2 – Commencing proceedings and Statements of Case
Pre-Action Protocols
Para 3 -objectives
Para 8 – consider negotiation or some other form of ADR, litigation should be last resort
[Para 9 – consider possibility to reach settlement at all times, part 36 offers may be made before
proceedings are issued]
13 – must comply with PD or protocol, court will take into account noncompliance when giving directions
for the management of proceedings and when making orders for costs. Will not be concerned with minor
or technical infringement.
[16 – sanctions can be imposed due to non-compliance. List of sanctions are found in (a)-(d)]
18 - Sanctions can be done at case management stage, by saying they haven’t followed the PA, and tell
them to go try alternative
Professional Negligence Pre-Action Protocol Overview
What steps need to be taken by either party under PN PAP, and what are the time limits?
5.1 Claimant sends defendant preliminary notice – as soon as reasonable chance of litigation
5.4 Defendant acknowledges notice with 21 days of receipt
6.1 Claimant sends a detailed letter of claim to defendant as soon as they decide there are grounds for
claim. Content of letter in 6.2
7.1 Defendant acknowledges letter of claim within 21 days
8.2 Defendant has three months to investigate the letter of claim
9.1 Defendant writes letter of response and/or letter of settlement
9.4.2 If Defendant admits or settles, then 6 months of negotiation takes place OR 9.4.1 If defendant denies
claims, then proceedings begins
14.3 if no agreement can be made, 14 days’ notice should be given before start of proceedings.
Which court should proceedings be issued?
Which court?
General rule: CPR 7APD 2.1 - 1 if value of the claim exceeds £100,000, it may be commenced in either HC
or CC
If there is a choice? 7APD 2.4 - Claim should be brought to HC if by reason of (1) the financial value of the
claim and the amount in dispute and/or (2) complexity of the facts, legal issues, remedies involved, (3) the
importance of the outcome of the claim to the general public
Which division of HC?
Chancery Division – land, mortgage trusts, company matters, IP.
Queen’s Bench Division – contract and tort claims, commercial matters. Has special commercial court for
complex matters
, 4
Which track? See CPR 26 – 29
How do you calculate the financial value of the claim?
CPR 16.3 (6) Financial value disregards interest, cost, any counterclaim, contributory negligence, any
deduction of social security benefits.
CPR 26.8 – amount not in dispute
Commencement of Proceedings
What do you need to take to court to start the claim? How many copies of each such document do you
need to take with you?
You take the fee plus a number of copies of the claim form (one to file at court, one for you and one to
serve on each defendant). (fee for claim >200k is 10k)
CPR 7.2 (1) - Proceedings are started when the court issues a claim form at the request of the claimant
(subject to 7APD 5.1 & 5.2).
Upon issue, the court will stamp the claim form with the court seal and give the action a claim number.
What happens once the court issues the claim form? Why is it important to know exactly when
proceedings are issued?
The claim form (and particulars of claim if they are being served in or attached to the claim form) is served
on the defendant(s) either by the claimant or by the court.
Issue of claim form stops time running for limitation period
CPR 7.5(1) - Claim form must be served to defendant within four months from the date of issue. CPR 7.6(2)
- Any extension of this 4-month period must be made within the 4-month period.
Defendant’s Response
The defendant must then respond in one of three ways within 14 days of deemed service of the particulars
of claim:
1. admit part or all of the claim;
2. file a defence; or
3. file an acknowledgment of service (this will give the defendant longer to prepare its defence). (CPR 9.2)
Time
1. What is the document which has been served?
The rules for claim forms (with or without particulars of claim attached) are subject to CPRs 6.14 (deemed
service is second business day after post, etc) and 7.5(1).
The rules for all other documents are subject to CPR 6.26 (i.e. particulars of claim served separately,
acknowledgments of service)
2. How has it been served?
3. Work out deemed date of service.
For a claim form (with or without particulars of claim attached) this will be the second business day after
completion of the relevant step under rule 7.5(1). Clear days apply.
For all other documents you need to consult the table in CPR 6.26.
