2. Civil Case Analysis Flashcards
(113 cards)
1
Q
What is the overriding objective?
A
r1.1 Dealing with a case justly and at proportionate cost
2
Q
R1.2
A
The court must seek to give effect to the overriding objective when it exercises any power given to it by the rules
3
Q
R1.3
A
The parties are required to help the court to further the overriding objective
4
Q
Does the duty to assist the court to further the overriding objective mean that a party owes a duty to another party?
A
NO- woodward v phoenix healthcare distribution
5
Q
What duty is imposed upon the court according to rule 1.4
A
The court has a duty to further the overriding objective by actively managing cases
6
Q
What is a vulnerable witness?
A
When a factor- personal or situational, permanent or temporary may adversely affect their participation in proceedings or the giving of evidence
7
Q
Court’s role in relation to vulnerable witnesses
A
The court should try to identify the vulnerability at the earliest possible stage of proceedings & consider whether a party’s participation or quality of evidence is likely to be diminished by reason of vulnerability
8
Q
Things to consider regarding vulnerable witnesses
A
- Are they vulnerable (should be identified early on)?
- Will their participation or giving of evidence be diminished?
- Is it necessary to make directions to further the overriding objective?
- Should the court order ground rules prior to giving of evidence?
9
Q
Potential ground rules for vulnerable witnesses
A
- Nature and extent of evidence
- Conduct of advocates/parties
- Any necessary support to be actioned for that person
10
Q
How is Cross examination of a witness different from that of a vulnerable witness
A
Reflected in claim forms (7.2.1.6 and Appendix A(1) Directions Questionnaire (9.5.1.9) and Appendix A(7) and an application notice (10.2 and Appendix A12)
11
Q
Client objectives
A
- What does the client want?
- Compensation, Apology, Day in court
- Is the damage recoverable?
- Is it too late to claim a remedy?
- Is a dispute damaging the cl’s business?
- Is maintaining a business relationship with the other side important?
12
Q
Prospective parties
A
- Who will constitute all potential parties?
- Any issues of professional conduct?
- Is the defendant worth pursuing?
13
Q
Evidence
A
- Collect relevant evidence
- Never delay taking a statement (proof of evidence) from cl and potential witnesses
14
Q
Costs
A
What are the legal costs, how are they calculated, how will they be paid for?
15
Q
Limitation/jurisdiction
A
When does the limitation period expire? Note this
For commercial disputes, does the contract provide for litigation to be conducted
16
Q
Dispute Resolution
A
- Which form of DR is most appropriate?
- What are the advantages/disadvantages of the viable options
- Manage cl expectations
- Ensure cl receives a full assessment of the merits of their case
17
Q
Pre Action protocols
A
- What steps should `parties take before commencing a case?
- What issues are in dispute, share info available to each of them & endeavour to resolve the matters
- Do pre-action protocols apply?
18
Q
ADR
A
- Enter discussions or negotiations prior to proceedings
- Give serious consideration to any suitable form of available ADR
- r1.4(2)(e) - active case management requires encouraging ADR procedure
19
Q
Standard letter before claim
A
- Potential Cl should send potential D a letter detailing the claim
- If approved protocol exists, it is to be followed, otherwise see appendix A(19) Practice Direction
- Enough info to be given so D can commence investigations and valuate the claim
- Prospective claimant should set out any proposals they have
20
Q
Response letter
A
D acknowledgement of safe receipt of letter, whether liability is admitted
reasons to be given if denied
- Where primary liability is admitted, but contributory negligence is alleged details should be provided
- Cl should respond to any allegations
- Should ADR be addressed
21
Q
How do proceedings initiate
A
Via claim form served on d
22
Q
What else must be served to d
A
Full details (particulars) must be served
23
Q
How can D contest the claim
A
D must file at court and serve a defence on Cl
24
Q
Intermediate track
A
Trial will not last longer than 3 days. Any oral evidence is likely to be limited to 2 experts per party. CLaim must be brought by 1 cl against one or 2 defendants or 2 cl against one defendant
25
Fast track
Court controls the type and amount of evidence each party can rely on. Expectation that a single joint expert should be used by the parties where expert evidence is necessary and the trial must be conducted within 1 day (~5 hours)
26
Small claims
Expectation that directions can be given without court hearing
27
Intermediate & multi-track
- Parties to meet with judge in case management conference to define issues and determine steps to be taken & when, for trial
- Most commonly for:
- Standard disclosure (parties list docs in their possession they intend to rely on/those adverse to their case/support an opponents case)
- Exchange of evidence before trial the parties intend to rely on (expert reports, witness statements, non expert witnesses)
28
All other tracks
- Formal evidence rules apply
- Judge will decide if any party should pay the others’ costs, and if so, the amount recoverable is fixed by CPR part 45
- On multi, judge decides who should pay the costs (**general rule: loser pays the winner’s)**
- If undetermined, determined post-trial by a different costs judge
29
Post trial
- A party may decide to appeal all/part of the decision
- Party awarded damages will expect to be paid by the date set by the court.
- If that does not happen, application for court to enforce judgment → bailiff’s selling belongings at a public auction. Proceeds are then paid for to the party
30
What is a cause of action
Legal basis of a claim
31
What must a solicitor do relating to cases
analyse all known facts and prospects of success
32
Purpose of first interview
- Identification of Cl objectives
- Explanation of issues & options to cl
- Agree upon next steps
- Keep Cl informed of progress
33
Retainer
The scope of the work to be done for the cl
34
Duty of confidentiality (6.3 SRA)
- Cl affairs are confidential (unless consent has been obtained on disclosure of particular info)
- Duty continues past retainer
35
Conflict of interest (6.2 SRA)
If the solicitor owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and these duties conflict or there is a significant risk that those duties may conflict
36
Money Laundering
- Solicitors are subject to money laundering legislation
- Adequate checks must be done to check cl’s identity
37
What are a Solicitors duty as an officer of the court
- Overriding duty not to mislead the court
- Disclosure of all relevant legal authorities (statute, case law) even where they are not favourable to their case
- Duty to help the court achieve the overriding objective
38
Important facts in relation to funding
Important to discuss costs with Cl
- As much info at start- give regular updates
- Explanation of potential steps
- Discuss potential costs/ceiling figure/review dates
- Cl to be informed HOW the costs are calculated
- Who is going to do the work?
- Hourly charging rate of person doing work
39
When can solicitors be charged a fixed fee
For a specific step in litigation (drafting court docs, attending a hearing)
40
How must solicitors base their costs on?
At a reasonable but remunerative level
41
What if a solicitor sets a fixed fee that is too low?
- Must still complete the work to the ordinary standard of care even if has become unrenumerative
- **Inventors Friend Ltd v Leathers Prior**
42
What if a solicitor does not update Cl regularly regarding costs?
- Bound by original estimate of costs
- **Reynolds v Stone Rowe Brewer**
43
Rule 44.2(2)(a) CPR
Unsuccessful party in litigation will be ordered to pay the costs of the successful party
44
What if defendant is bankrupt or disappears?
Cl to be informed in advance that even if they win, they may not be able to recover costs
45
Can the court reduce costs?
- Court, if they deem successful party to have been unreasonable, can do so
- Benyatov v Credit Suisse Securities
46
What is a conditional fee arrangement 58(2)(a) Courts and Legal Services Act 1990
- Defined in s58(2)(a) Courts and Legal Services Act 1990
- An agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances
- Circumstances are whether the cl succeeds/defends with/a a claim
47
Why would a solicitor want a conditional fee
- Receives normal or higher than normal payment if successful
- Fee payable on success - percentage increase in usual hourly charging rates
48
When is a conditional fee arrangement enforceable
- only if it meets the requirements of ss58 and 58A
- May be entered into in relation to any civil litigation matter, except family proceedings
- Must be in writing and;
- Must state the percentage by which the amount of the fee would be payable if it were not a CFA is to be increased (success fee)
49
What must a solicitor check prior to conditional fee arrangement
Duty to act in the best interests of the client = solicitor should check to see if the cl has the benefit of a suitable before-the-event legal expenses insurance cover Sarwar v Alam
50
Why must CFA be drafted carefully
- E.g the definition ‘win’
- Does cl win if they succeed on all aspects/upon receipt of some damages?
51
What if cl wins, must opponent pay success fee
If Cl wins case and opponent must pay their costs, this does not include the success fee
- CFA itself should be clear on this
- If you win your claim, you pay our basic charges, our disbursements and the success fee. The amount of these is not based on or limited by the damages you recover. You can claim from your opponent part or all of your basic charges and disbursements. You cannot claim the success fee from your opponent. You are responsible for paying the success fee.
52
Solicitor must perform a risk assessment, in consideration of the following factors:
- Chances of the cl succeeding on liability
- Likely amount of damages
- Length of time it will take for the case to reach trial
- Number of hours the solicitor is likely to have to spend on the case
53
Principle 2 SRA
states that a solicitor must act in a way that upholds public trust and confidence in the solicitor’s profession and in legal services provided by authorised persons
54
Principle 4,5,6
a solicitor must act with honesty, integrity, and in the best interests of each client
55
SRA conduct rule - Para 1.2 in relation to abuse of position
Solicitor must not abuse their position by taking unfair advantage of the cl
56
Para 8.7
Solicitor must ensure cl’s receive the best information relating to prices
57
after-the-event insurance
Provides cover for the other side’s costs and cl’s own disbursements in the event of losing the case
Premium payable depends on the strength of the cl’s case and level of cover required
58
Damages based agreement
- Defined by s58AA(3)(a) CLSA 1990
- An agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that
- The recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and
- The amount of that payment is to be determined by reference to the amount of the financial benefit obtained
59
How is damages fee calculated
If the cl recovers damages, solicitor’s fees is an agreed percentage of those damages
60
When is DBA enforceable
DBA only enforceable if s58AA(4) CLSA 1990 requirements are met, requiring the agreement to:
- Be in writing
- Provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner
- Must comply with such other requirements as to its terms and conditions as are prescribed, and
- Must be made only after the person providing services under the agreement has provided prescribed information
61
DBA cap
DBA must not provide for a payment above an amount which inc VAT is equal to 50% of the sums ultimately recovered by the seller
62
Terms and conditions of DBA must specify
- Claim or proceedings to which the agreement relates
- Circumstances in which representatives payments, expenses and costs, or part of them are payable
- Reason for setting the amount of payment at the level agreed. Reason given in the DBA must be the true reason for setting the amount of the payment at the level agreed- court may investigate this point if it is disputed
63
When is public funding available
- Public funding only open to cl’s whose income and capital fall within eligibility requirements & merits test is satisfied
- Cl’s prospects of success is measured & application of cost-benefits criteria (strong claim, inexpensive which would result in substantial damages)
64
David Truex
- Solicitor must, from the outset, consider whether cl is eligible for legal aid
- Wrong to incur substantial expenses if public funding is available
65
Liability
- What is the cause of action?
- Is there more than one?
- Analyse each issue independently and identify relevant law
- Identify available evidence - does it support/is it adverse to the case? How strong is it?
66
Claims found on tort/contract limitation period
Claimant has 6 years from the date when the cause of action accrued to commence proceedings
67
Contract law limitation period
cause of action accrues as soon as the breach occurs
68
Limitation for services
- Where services are supplied, cause of action accrues when services are completed
- Consulting Concepts International v Consumer Protection Association
- In the absence of a special term to the contrary, service provider’s right to payment arises as soon as the work is done
69
When does cause of action arise for negligence tort
when damage occurs
70
Negligent misstatement claim
cause of action accrues on the date claimant sustains damage as a result of reliance on the advice (Forster v Outred)
71
Latent damage
- Where the damage is latent at the date when the cause of action accrued, s14A LA provides limitation period expires
- 6 years from the date on which the cause of action accrued;
- 3 years from the date of knowledge of certain material facts about the damage, if this period expires after the period mentioned
To avoid this, there is a long-stop limitation period of 15 years from the date of the alleged breach of duty s14B, LA 1980
72
limitation period for Persons under a disability
Limitation period does not begin to run until claimant ceases to be under that disability
73
Contractual limitation
- Check whether contractual limitation period is specified in the contract
- Any provision is usually shorter than statutory limitation periods
- Granville Oil & Chemicals v Davis Turner & Co
- Proceedings had to commence within 9 months from the date of the event or occurrence alleged to give rise to the cause of action against the co
74
Remedies in contract law
- Damages claim arises when one party has failed to perform an obligation
- Damages is to place the injured party in the position they would have been in if the contract had been performed properly
- Damages cannot be too far from the breach
75
Remedies in tort law
- Where injury, loss or damage is caused to the claimant/claimant’s property
- Damages is to place claimant in the position they would have been if had the damage not occurred
- Compensatory in nature
- Loss must be a reasonably foreseeable consequence
76
When might damages be reduced? Frost v Knight
- Potential claim for damages may be reduced if it can be shown the claimant failed to mitigate their loss
- Frost v Knight
- Duty means looking at what the claimant ‘has done, or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been , or would have been, diminished’
77
remedies for Debt action
Claimant claims a sum which the defendant promised to pay
78
Quantum
- The amount client is claiming
- Think about evidence you have to prove the loss
- Are any figures/estimates available?
- Any issues of remoteness or mitigation of loss?
79
General rule for pursuing defendants
all persons to be sued should be sued at the same time and claim
80
Burden of proof
Party asserting a fact must prove it unless it is admitted by their opponent
81
Specified claim
(fixed payable sum by virtue of a contract)
82
When can a claimant demand interest
only if entitled to it under any contractual provision (including those implied by Late Payments of Commercial Debts Interest Act 1998)
83
Procedure where C wants to claim interest
Claimant seeking interest must state this in the particulars of claim
84
3 alternative claims to interest in contract law
- Contract itself specifies rate payable on outstanding sum
- May be possible to claim under LPCD
- Court has discretion under s35A SCA 1981 (high court cases) or s69 CCA 1984 (county court cases) - current interest rate is 8%pa in non-commercial, and 1 or 2%pa over base rate in commercial cases
85
Convention for interest payable on debt claim
Debt claim where statute applies, convention is to claim interest from and including the day after the last day payment was due
86
Late Payment of Commercial Debts (Interest) Act 1998
- Statutory right to interest on commercial debts that are paid late if contract itself does not provide for interest on late payment
- Debts arising from the supply of goods and services included
- Does not apply to unspecified claims or specified amount
owed by a consumer
- Rate is 8% pa above BOE reference rate on the date the debt became due for payment
87
Can interst be paid on negligence claim
General discretion of courts to award interest on damages in any negligence claim SCA 1981, s35A
Interest is usually awarded from the point at which the cause of action arose
88
How much interest is likely to be awarded in a negligence claim
- Kuwait Airways Corp v Kuwait Insurance
- In principle interest is to be awarded to compensate the claimant for being kept out of the money from the date when it has been established that it was due to him
- Tate & Lyle and Distribution v Greater london Council
- At the cost to which the claimant of being deprived of the money which he should have had.
89
Commercial interest
- Discretionary rate under s35A SCA 1981 or 8% CCA 1984
- Typically awarded 1 or 2% over base rate
- Jaura v Ahmed
- Permissible for judge to depart from the norms to reflect the higher rate at which the claimant had to borrow
90
Alternatives to Litigation
Arbitration
ADR
Trade schemes
Negotiating settlements
Insurance
91
ADR
Means of resolving disputes via independent third party to help parties reach a solution
3rd party will suggest a solution (not impose - non determinative) or impose a solution (determinative)
92
Arbitration
- 3rd party reaches a decision binding on the parties in dispute
- Business contracts usually contain arbitration clause requiring disputes to be resolved via arbitration rather than litigation
- Absence of such clause, parties in dispute may agree to arbitration once the dispute has arisen and choose arbitrator with relevant expertise
- Advantages: quicker than litigation, less formal, practical solutions, decisions are binding
- Winning party can apply to HC to enforce arbitration award as if it were a court judgment s66 AA 96
93
Preliminary steps
Confirm cl instructions
Obtain relevant evidence
94
What if there is no guarantee a witness will give a statement
If the witness does not give a statement beforehand, there is no guarantee the witness will say anything useful or relevant
Solicitor could also use a witness summary
95
Documents
- Obtain relevant documents
- Probe - witness may not volunteer documents
- Any written contracts? Pre-contract, post-contract correspondence, letters of complaint, in-house reports, memos, faxes, email, docs held on a laptop or desktop, docs in storage
96
What are the disclosure tules
Solicitor must ensure cl understands rules relating to disclosure of documents (e.g. they must disclose docs to the opponents even if it harms their case)
97
Why must cl be informed of disclosure rules
- Cl’s understanding of the rules at a early stage = less surprise
- Explain disclosure obligations from the outset & confirm this in writing
- Duty extends to docs previously possessed even if they have now been misplaced
98
Documents
Any method of recording information : digital camera, mobile telephones, memory sticks, laptops, desktop computers, back-up tapes & files
99
What should expert witness evidence be like
- Report must be convincing & easy to read
- Usual method of instructing is via letter
- Content varies dependent on what is expected
- May be necessary to:
- Provide them with all relevant docs and statements from witnesses
- Arrange inspection of relevant machinery or site
- Inspect material/obtain the best alternative = photographs
100
Payment of expert’s fees
- If cl is not covered by insurance or public funding:
- Solicitor to obtain estimate of likely fees & clear this with the cl
- Solicitor may prefer to obtain money on account to cover the expert’s fees
- Solicitor is responsible to the expert for payment of charges
101
Can the expert give opinon evidence
Yes
102
Purpose of site visits
May help to visit cl’s site of business to gain a better understanding of the business
103
Rules relating to consulting counsel
- Solicitor should be confident in their own knowledge & ability
- Solicitor will be capable of forming an assessment regarding success and level of damages
- Frequent counsel = costs being disallowed
104
Method for instructing counsel
-Prep formal doc (instructions to counsel)
- Bears heading of the claim/proposed claim
- Should contain list of enclosures forwarded to counsel
- Will vary, but typically include
- Copies of cl’s statement
- Proofs of evidence
- Existing statements of case
- Expert’s reports
- Relevant correspondence
105
Where may a conference be necessary
where case details are complicated
106
Locke v Camberwell Health Authority principles regarding how far a solicitor can rely on counsel’s advice
- In general a solicitor is entitled to rely upon the advice of counsel properly instructed
- For a solicitor, without special experience in a particular field, to rely on counsel’s advice is to make normal and proper use of the bar
- However, the solicitor must not do so blindly but must exercise their independent judgment. If they think that counsel’s advice is obviously or glaringly wrong, they are under a duty to reject it.
107
Non compliance with PD consequences
- That the party at fault pay some/all of opponent’s costs
- Depriving a claimant who is at fault of some or all the interest they may subsequently be awarded on any damages they recover
- Requiring a defendant who is at fault to pay interest on some or all of any damages that are subsequently awarded to claimant at a rate of up to 10% pa above base rate
108
Detailed in para 6(b), D’s letter of response is to include:
- Confirmation as to whether claim is accepted (if not, why)
- Explanation as to which facts/parts are disputed
- Whether D is making a counter claim
- Explanation as to whether D agrees to proposals made for ADR or suggestions to alternatives
- List essential documents on which D intends to rely
- Enclose copies of docs requested by c, or explain why they will not be provided
- Identify & ask for copies of any further relevant documents, not in the defendant’s possession and which D wishes to see
109
Application for disclosure of docs permitted s 33 SCA 1981 or s52 CCA 1984
- Court may only make an order for disclosure where
- Respondent is likely to be party to subsequent proceedings
- Applicant is likely to be party to proceedings
- If proceedings had started, respondents duty by way of standard disclosure set out in rule 31.6 would extend to docs or classes of docs which applicant seeks to disclosure
110
Without prejudice
Neither party may rely upon anything said or written in the course of the negotiations for the purpose of proving liability at trial
111
AIm of without prejudice settlement
encourage settlement or give effect to implied agreement not to use info revealed on a without prejudice basis
112
Part 36 offer
formal recognition and legitimises offers made without prejudice save as to costs
113
What if C fails to obtain more advantageous offer than part 36 offer
c may suffer financial penalty (vice versa)
