Pre-action considerations

Question 1

What are the 9 things that you need to consider at first interview?

Answer 1

1. The client’s objectives
2. The merits of the case, available remedies and limitation periods
3. The evidence available and advising the client to preserve any relevant documents and avoid creating any potentially damaging documents
4. The position of the other side and its ability to meet any judgement that may be obtained against it
5. Professional conduct issues
6. Alternative ways of achieving the client’s objectives
7. Costs
8. How the client intends to fund the claim
9. What needs to happen next

Question 2

What are the 4 main questions you should be thinking about the evidence you have, or will need to obtain to prove the facts that are in issues in your client’s case?

Answer 2

1. Who will you have with you as witnesses?
2. What other evidence will you have to support your client’s case?
3. How valuable is the evidence that you currently have?
4. Can it be further strengthened?

Question 3

Which two aspects of the claim will evidence gathering cover?

Answer 3

1. Liability - proving the defendant is/isn’t to blame

2. Quantum of damages - how much the defendant will pay the claimant if liability is proved

Question 4

Why is it important to identify facts, client’s objectives and ascertain the exact nature of the problem?

Answer 4

1. The solicitor needs to be told the facts before he or she can understand the nature of the problem and what the client wants to achieve;
2. The solicitor needs all the facts - not just those that the client thinks are important; and
3. As memories fade, it is important to have a clear record of the facts as early as possible.

Question 5

The pre-action protocols place an obligation on the parties to do a considerable amount of work because:

Answer 5

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.

Question 6

What are the three questions to form a case theory?

Answer 6

1. What needs to be proved?
2. What evidence is there to prove it?
3. Is that evidence admissible?

Question 7

What does CPR 44.2(2) say?

Answer 7

The general rule is that the unsuccessful party pays the successful party’s costs of the litigation proceedings.

Question 8

When does the limitation period start running in contract and tort cliams?

Answer 8

Contract is 6 years from breach and tort is 6 years from actionable damage

Question 9

What is the purpose of contractual damages?

Answer 9

To compensate the injured party.

The general rule is that damages are meant to place the claimant in the same position as if the contract had been performed.