CIVIL LITIGATION
Pre-Action Steps
1) Check professional conduct points
- Conflict of interest; confidentiality; money laundering
2) ID client’s objectives + realistic achievements
3) ID and locate, where possible, all potential parties
4) Funding
- Check D’s + client’s financial availabilities
5) Check jurisdiction
- contractual clauses?
- Parties outside jurisdiction?
6) Check limitation period
- Contract: 6 years from breach S5 LA 1980
- Tort: 6 years from tort occurring S2 LA 1980
- Latent damages: 6 or 3 years from date of knowledge S14A LA 1980
7) Funding
- disbursements: court fees, barrister fees etc.
- Costs:
If client loses, he will have to pay his own solicitor’s costs and normally his
opponent’s costs – r44.3(2)(a) CPR 1998
If client wins case, he will still have to pay his own solicitors’ costs
Conditional Fee Agreement (CFA) – SS58 + 58A Courts and Legal Services Act 1990
Solicitor receives no payment/less payment if client loses + normal/higher if client wins
IN WRITING
Lose: don’t pay fees Wins: pays fees + success fee (max 100%)
– pay disbursements Risk assessment determining success fee
Success fee + insurance premiums: non-recoverable from opponent
Normal fee: recoverable from opponent
NB opponent’s costs (why you take out After Event Insurance)
Damages Bases Agreement (DBA) – SS58 + 58A Courts and Legal Services Act 1990
IN WRITING
Basic principle: win – receive damages + pay percentage of damages as fee
Fees capped at 50% of damages: Win: recover costs from opponent in
- Including VAT and counsel fees addition to damages will reduce client’s
- Excludes other disbursements – pay in liability for law firm fees to be paid from
addition damages (not total amount paid to firm)
Insurance
Before Event Insurance (BEI) – existing After Event Insurance – purchase after
insurance event (even where not funded by CFA or
- No need to enter into CFA DBA to fund litigation costs)
TP funding
Where client = member of trade union/professional organisation they may cover costs
1
Pre-Action Steps
1) Check professional conduct points
- Conflict of interest; confidentiality; money laundering
2) ID client’s objectives + realistic achievements
3) ID and locate, where possible, all potential parties
4) Funding
- Check D’s + client’s financial availabilities
5) Check jurisdiction
- contractual clauses?
- Parties outside jurisdiction?
6) Check limitation period
- Contract: 6 years from breach S5 LA 1980
- Tort: 6 years from tort occurring S2 LA 1980
- Latent damages: 6 or 3 years from date of knowledge S14A LA 1980
7) Funding
- disbursements: court fees, barrister fees etc.
- Costs:
If client loses, he will have to pay his own solicitor’s costs and normally his
opponent’s costs – r44.3(2)(a) CPR 1998
If client wins case, he will still have to pay his own solicitors’ costs
Conditional Fee Agreement (CFA) – SS58 + 58A Courts and Legal Services Act 1990
Solicitor receives no payment/less payment if client loses + normal/higher if client wins
IN WRITING
Lose: don’t pay fees Wins: pays fees + success fee (max 100%)
– pay disbursements Risk assessment determining success fee
Success fee + insurance premiums: non-recoverable from opponent
Normal fee: recoverable from opponent
NB opponent’s costs (why you take out After Event Insurance)
Damages Bases Agreement (DBA) – SS58 + 58A Courts and Legal Services Act 1990
IN WRITING
Basic principle: win – receive damages + pay percentage of damages as fee
Fees capped at 50% of damages: Win: recover costs from opponent in
- Including VAT and counsel fees addition to damages will reduce client’s
- Excludes other disbursements – pay in liability for law firm fees to be paid from
addition damages (not total amount paid to firm)
Insurance
Before Event Insurance (BEI) – existing After Event Insurance – purchase after
insurance event (even where not funded by CFA or
- No need to enter into CFA DBA to fund litigation costs)
TP funding
Where client = member of trade union/professional organisation they may cover costs
1
