Pre-Reading Flashcards
List the hierarchy of the Civil Court system
o County Court
o High Court
o Court of Appeal
o Supreme Court
How do you decide whether to issue proceedings in County Court or the High Court?
- A specific enactment might tell you to do so
- Personal injury claim worth less than £50,000 - County Court
- Non - PI claim worth £100,000 or less - County Court
- Always must consider whether issuing in the High Court is justified on the grounds of the financial value of the claim / amount in dispute, complexity of facts / legal issues / remedies / procedures / importance to the public?
Draw the diagram for whether a claim should be issued in County Court or High Court
Check
What is the overriding objective of the Civil Procedure Rules?
1.1: A case should be dealt with justly and at proportionate cost
What is the general rule on inter-partes costs?
The unsuccessful party will be ordered to pay the costs of the successful party
What are specified damages?
Quantifiable - e.g. a particular debt action claim
What are unspecified damages?
Unquantifiable yet and are likely to be the subject of debate
What is professional funding for legal costs?
Funding by a trade union or professional organisation
What is Before The Event insurance?
- Insurance policy which would pay out to cover costs of legal work
- Often sold in conjunction with other insurance policies
- Often have a financial limit on the cover provided
- Most common for litigation
- Premiums are not generally recoverable from the other side should the policyholder be successful
What is community legal service funding?
Public funding for legal fees for those who could not otherwise afford it
there will be eligibility constraints
What is a conditional fee agreement? How does it work?
‘No win no fee’ arrangement - if successful, the solicitor will be paid a normal fee, plus a success fee
You cannot recover a success fee from an opponent - only the basic fee and any disbursements.
Means solicitor essentially gets costs twice - £20,000 plus the uplift you’d like e.g. 90% - would be £20,000 + 90% of £20,000
What cap is there on success fees in personal injury cases?
25% of general damages
What is a damages based agreement? How does it work?
If a case is successful, a solicitor will be paid a proportion of the damages awarded to their client by way of a remedy
The percentage would be purely of damages - not covering disbursements or opponent’s costs
What cap exists on damages based agreements?
Capped at 25% of damages for personal injury cases
35% of damages for employment tribunal cases
50% of damages in all other cases
What is after the event insurance?
Insurance taken out to help the client cover the costs of litigation once a dispute has already arisen.
Covers the client’s own disbursements and their opponent’s costs and disbursements in event of losing the case
Often used in conjunction with a CFA or DBA
More expensive then BTE – premiums can hit 25% + of insurance cover sought
Premiums will not be recoverable, apart from clinical negligence expert reports
What is third party funding? When will it happen?
When institutions fund commercial high value cases e.g. banks, hedge funds, PE firms, etc.
When can a costs order be made against a 3rd party funder?
If they have substantial control of litigation
When might a party be considered vulnerable in proceedings?
when a factor may adversely affect their participation in proceedings or giving evidence
o Inability to understand proceedings
o Express oneself
o Respond to court
o To attend hearing
o Instruct a representative
How must the court be prepared to conduct proceedings in the Welsh language?
- English and Welsh need to be treated equally in administration of justice in Wales
- Court must be informed if proceedings are to be conducted in Welsh
- Management and listing of case in the directions questionnaire
- Pre-trial checklist
- Interim hearing when court is considering whether to give case management directions
- If Welsh used – judge should be Welsh speaking
- Witnesses can be sworn in in English or Welsh + documents in either language
- Costs order may be made against a party who has failed to comply with this.
Where is the burden of proof in civil cases? What is it?
On the party that asserted a given fact, on the balance of probabilities
For personal injury claims, what is the “Date of knowledge”?
The date on which the knowledge was present of the following:
- Injury was significant
- Attributable, at least in part, to the alleged wrongdoing
- Identity of the defendant
Who has the relevant ‘knowledge’ when considering the date of knowledge under the Fatal Accidents Act?
The knowledge is the dependent of the deceased who is making the claim
The injury, of course, would be that of the deceased.
What is the limitation period for personal injury claims?
Three years of the latest of a) date the cause of action accrued b) the date of knowledge of the person injured
What is the limitation period for fatal accidents claims?
Allow a dependant to claim from an employer
Claim cannot be brought from 3 years after the later of a) Date of death or b) Date of knowledge of the dependent
