Overview of Litigation and Pre-action considerations

Question 1

What are the three divisions of the High Court?

Answer 1

The Chancery Division, Queen’s Bench Division and Family Division

Question 2

What types of claim does the Chancery Division of the High Court typically deal with?

Answer 2

Claims relating to land, mortgage, trusts, bankruptcy, intellectual property and company matters

Question 3

What types of claim does the Queen’s Bench Division of the High Court typically deal with?

Answer 3

Most contract and tort claims. It also deals with commercial matters, admiralty and judicial review

Question 4

Proceedings (whether for damages or an unspecified sum) may not be started in the High Court unless the value of the claim is more than £100, 000

Answer 4

7A Practice Direction 2.1

Question 5

If the value of the claim is less than £100, 000 where should it be commenced?

Answer 5

In the County Court

Question 6

What are the factors in accordance with 7A PD 2.4 which should be considered to determine whether the matter is significantly complex to be dealt with in the High Court?

Answer 6

(1) The financial value of the claim and the amount in dispute;
(2) The complexity of the facts, legal issues, remedies;
(3) The importance of the outcome
and the claimant believes that the matter ought to be dealt with by a High Court judge

Question 7

How is a claim valued?

Answer 7

Value of a claim means its financial worth CPR 16.3
Any calculations should disregard: interest, costs, any counter-claim or findings of contributory negligence (CPR 16.3 (6)).

Question 8

What criteria will the court use in deciding where a case should be tried (and whether it should be transferred)?

Answer 8

The court must have regard to the following matters:

(a) The financial value of the claim;
(b) Whether it would be more convenient or fair for hearings to be held in some other court;
(c) The availability of a specialist judge;
(d) Complexity of facts, legal issues, remedies
(e) Public interest and importance
- CPR 30.3 (2)

Question 9

What are the four crucial elements of a cause of action?

Answer 9

Duty, breach, causation and loss

Question 10

What are the four ways in which a duty may arise?

Answer 10

Contractual:

i) Express written terms
ii) Express oral terms
iii) Implied terms – Statutory or Common Law

Tort:
iv) Tortious duty of care – Statutory or Common Law (negligence)

Question 11

What are the statutory provisions relevant to implied contractual terms?

Answer 11

1) s. 13 Sale of Goods Act 1979: Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description
2) s. 14 Sale of Goods Act 1979: Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract re of satisfactory quality
3) s. 13 Supply of Goods and Services Act 1979: where a supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill

Question 12

What is the measure of damages and test applicable to a contract claim?

Answer 12

The aim of contractual damages is to place the claimant in the position he would have been in if the contract had been properly performed

Test: Loss must flow naturally from the breach or be in the reasonable contemplation of the parties when the contract was made

Question 13

What is the measure of damages and test applicable to a tort claim?

Answer 13

The aim of tortious damages is to place the claimant in the position it would be have been in if the tort had not been committed.

Test: Purpose of damages is compensatory. Therefore, the claimant can seek damages for any direct loss and consequential losses (subject to remoteness - “reasonably foreseeable consequence test”)

Question 14

What is the measure of damages for a debt claim?

Answer 14

A debt action is a claim for a sum that the defendant promised to pay under a contract (there is no duty to mitigate losses)

Question 15

What is the limitation period for an action in tort?

Answer 15

Limitation expires six years after the date on which the cause of action accrued

Question 16

What is the limitation period for an action in contract?

Answer 16

Limitation expires six years after the date on which the cause of action accrued

Question 17

What is the standard of proof in civil cases?

Answer 17

On a balance of probabilities. A fact will be established if it is more likely than not to have happened

Question 18

What is the general rule with regards to party/ party costs? What are the exceptions to this rule?

Answer 18

General rule: “Costs follow the event”, i.e. the successful party’s legal costs are paid by the unsuccessful party (CPR 44.2 (2))
However, the court has complete discretion in relation to legal costs and it can depart from the general rule and take a number of other factors into account (CPR 44.2 (4) and (5)

Question 19

What are solicitor’s professional obligations in respect of conflict of interests?

Answer 19

O(3.5) - You do not act if there is a client conflict, or a significant risk of a client conflict, unless the circumstances under O(3.6) apply

Question 20

What is a solicitor’s professional duty with regards to confidentiality?

Answer 20

O(4.1) - You keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents
O(4.3) - Where your duty of confidentiality to one client comes into conflict with your duty of disclosure to another client, your duty of confidentiality takes precedence

Question 21

What is a solicitor’s duties to their client and the court respectively as stated in the Outcomes?

Answer 21

O(5.1) - You do not attempt to deceive or knowingly or recklessly mislead the court
O(5.5) - Were relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client

Question 22

What is a solicitor’s duty in respect of costs?

Answer 22

O(1.13) - Ensure clients receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter
IB (1.13) - Discussing whether the potential outcomes of the client’s matter are likely to justify the expense or risk involved, including any risk of having to pay someone else’s legal fees

Question 23

What is the overriding objective and where can it be found?

Answer 23

CPR 1.1 The overriding objective is to enable the court to deal with cases justly and at proportionate cost.
Dealing with a case justly and at proportionate cost includes: (a) - (f).