Flashcards in CH1. Part D: - Pre-Action Considerations Deck (57)
What issues must a solicitor need to consider at first instruction?
- the client’s objectives;
- the merits of the case, available remedies and limitation periods;
- the evidence available;
- the position of the other side and its ability to meet any judgment that may be obtained against it;
- professional conduct issues;
- alternative ways of achieving the client’s objectives;
- how the client intends to fund the claim; and
Evidence gathering will cover which two aspects of the claim?
1. liability i.e. proving the defendant is/isn’t to blame; and
2. quantum of damages, i.e. how much the defendant will pay the claimant if liability is proved.
Give reasons why a solicitor must work hard prior to the issue of proceedings?
1. to give the client the most accurate advice possible;
2. to comply with the pre-action steps required by the court;
3. to ensure that the solicitors are fully prepared to respond to the claim/defence;
4. to make it easier to comply with court timetables;
5. to make it easier to evaluate the case as it proceeds; and
6. to make settlement more likely.
It also means that the client incurs considerable ‘start-up’ costs.
What needs to be considered regarding the position of the other side?
The financial status - If the other side cannot pay there is little point in pursuing him or her as a defendant.
Another consideration is what will need to be done if the party can pay but won’t, or if its assets are located abroad.
List the principal ways to investigate the other party's means.
Enquiry agents, registers, and company searches.
What will a company search reveal?
1. the company’s general solvency;
2. the company’s assets; and
3. whether those assets are charged.
What are the benefits or risks of using enquiry agents?
Private investigators can procure quite extensive information, but... they are expensive and run the risk of misconduct which will be imputed to the solicitor.
List the four main registers.
1. The Register of Judgments, Orders and Fines Regulation 2005 (for England and Wales) (the ‘Register Regulation’)
2. Land Charges Registry
3. Individual Insolvency Register
4. Attachment of Earnings Order Index
What other considerations regarding the financial position of the other party must be considered?
1. Is the other side in receipt of legal aid? - (unlikely to recover costs or damages)
2. Have the assets have been dissipated (disposed of or moved) in anticipation of the judgment in your client’s favour.
3. Is the party insured and entitled to be indemnified for the risk?
What will the client letter include?
-A summary of the main points covered in the first interview
- Details of the retainer (the contract between the solicitor and the client).
- client care (often in a separate client care letter) in order to comply with the Outcomes in Chapter 1 of the SRA Code of Conduct 2011
What are the 4 elements required for a cause of action/ claim?
Duty; breach; causation; and
Duty - What must be established in contract?
You must establish that the defendant owed a duty to the claimant.
In contract you will generally need to show:
1. there was a contract between the claimant and the defendant (i.e. that there was ‘privity of contract’); and
2. that a duty/duties (derived from an express term (oral or written) and/or an implied term) was/were owed under that contract.
Duty - What must be established in tort?
In tort you will need to show there was a duty/duties owed, for example, under the common law of negligence and/or a statutory duty.
Breach - What must be established?
contract - factual evidence to prove breach of a statutory implied term or an express term.
Tort - breach established according to the standard of a reasonable man
Causation - What must be established?
The breach of the duty has caused the client's loss.
Damage - What must be established?
The amount of the loss, and that the loss was reasonably foreseeable.
Damages awarded for contractual claims require 2 elements, with the general aim to?
place the claimant in the position it would have been in if the contract had been properly performed. The test is that the loss must flow naturally from the breach or be in the reasonable contemplation of the parties when the contract was made.
Damages awarded for tortious claims aim to?
Provide compensation and place the claimant in the position it would have been in if the tort had not been committed.
Can a successful claimant of a tortious claim seek compensation for direct loss and consequential loss?
Yes provided the loss is a reasonably foreseeable consequence of the tort.
What is the difference between a damages claim and a debt claim?
The difference between a damages claim and a debt claim is that, the claimant has a duty to mitigate its losses re. damages. In the latter, it does not.
The main types of remedies available are?
Damages, injunctions and specific performance.
What happens if proceedings are not commenced within the relevant limitation period?
The claimant will be barred from recovering damages and on this basis, the defendant will have a full defence.
What is the limitation period for an action in tort or contract?
The limitation period expires six years after the date on which the cause of the action accrued.
A case theory provides answers to what 3 questions?
1. What needs to be proved?
2. What evidence is there to prove it?
3. Is that evidence admissible?
In civil litigation claims who does the burden of proof lie with?
Any party seeking to assert an issue of fact or law to further their case.
Negligence - the claimant must prove:
Duty, breach, causation, and loss.
Contract - the claimant must prove:
Duty (existence and terms of contract), breach,
causation and loss.
Negligence - the defendant must prove:
contributory negligence (if any); and
b) why the defendant’s version of the facts is correct (i.e. that
the claimant’s version must be wrong).
What is the required standard of proof in civil proceedings?
Proof on a balance of probabilities. A fact will be established if it is more likely than not to have happened.