SGS 1 - Pre Action Considerations Flashcards
1. Analyse a case in order to advise a client on the elements of any causes of action and the remedies available; 2. Analyse a case to identify the evidence available and further evidence which should be sought; and 3. Appreciate and advise your client on the costs, benefits and risks of pursuing litigation.
If there is an option between suing the partnership or the individual, who should be sued?
- Partnership - has better finances
- Professional indemnity insurance cover
- CPR part 7a (5)
What does the claimant have to show?
- Duty, breach, causation loss
- For either contractual duties
- Or for tortious duties or NOTH
- Can be concurrent.
Which damages are recoverable in contract and tort?
- Contract - put client back in position he would have been in if the contract was properly performed - Hadley v Baxendale
- Tort - puts client back in position if NO tort had been committed. Wagon Mound
What needs to be calculated for damages in contract and tort?
Ø Actual loss
Ø Account for mitigation
Ø Contributory negligence
Ø Remoteness
Who pays / is responsible for costs?
- Payment and costs follow the event
- CPR 44.2(2)(a) - court has discretion
- Looks at conduct of the parties, like if they have complied with protocols etc or attempted settlement.
What is the limitation period for contract and tort?
- Contract - 6 years from date of breach
- Tort - 6 years from date of loss: actionable damage, when the C acts in reliance on negligent advice.
- If deadlines are missed, claim is brought against current advising solicitors for missing the deadline.
How can duty be shown in contract ?
- Contract - express / implied terms in contract.
- s14(3) SGA: satisfactory quality,
- s13 SGSA: reasonable care and skill
How can duty be shown in tort?
- Tort - Caparo / Hedley: duty to take reasonable care and skill. Owes duty of care to sufferer of economic loss for reliance
- Must be: 1) special relationship (solicitor/ client) 2) voluntary assumption of risk by the advising party 3) reliance (actual & reasonable) on the advice.
- Copies of letter consistuting the retainer between BWC and RI
- SRA code of conduct rules
How can breach be shown in contract or tort?
- Standard of care is that of a reasonably competent solicitor - held out as having a higher level of expertise
- Court will decide on which standard is the most appropriate
- Limitation period is 6 years
- Exact experience and specialism
- Evidence of other similarly qualified lawyers: would they have advised differently?
- Obvious error, or esoteric point - should advice have been qualified?
How can causation be shown in contract or tort?
- Has the breach –> caused the loss?
- Reliance
- What would they have done if the advice had been qualified - is there any evidence to support this
- What were the costs for and what is the true value of additional land?
- What would valuation have been if the advice had been qualified
- Did RI do anything to mitigate its loss - did it aggravate the loss
How can loss be shown?
- Calculation of damages
Why are civil funding and legal aid important?
- Because it is not just legal fees but could also be those of the opponent, if they win
- Under CPR 44.2
Which 4 parts of the SRA Code give solicitor instructions on how to advise costs and methods of funding?
O(1.13)
IB (1.13)
IB (1.15)
IB (1.16)
- Solicitor should makes sure that client has considered funding of their own costs + opposition costs
- Also how the opposition is funding themselves
- Might end up being crucial in determining whether or not they are able to pay for client costs if they win.
How can we work out if a client qualifies for help?
- Merits test - likelihood of winning, assessing the costs of necessity
- Means test - financial eligibility?
What are the 5 benefits of going into litigation - cost /benefit / risk analysis?
- Large sums are at stake
- Lawyers have deep pockets + professional indemnity insurance
- Difficult to prove negligence - D is unsure whether it will be held negligent
- Publicity: if D is an eminent law firm and will not be dragged through the courts
- Evidential difficulties
