Preliminary Considerations & Funding Flashcards
Before commencing action, certain questions must be answered.
what questions might be asked?
At an early stage, a solicitor should formulate a case theory. A case theory comprises answers to the following questions:
- Can the claim be bought at all?
- Who are parties? Are they worth suing?
- How will the case be funded?
- What evidence is there to prove it?
- How credible is that evidence?
- Is that evidence admissible i.e. will the court be allowed to hear it?
- Liability, i.e. proving the defendant is/isn’t to blame;
- Quantum of damages, i.e. how much the defendant will pay the claimant if liability is proved
A claim might not be able to proceed if it is statue barred. What does this mean?
Limitation Act 1980 sets down a strict time limit on when cases can be bought. This is known as the limitation period.
What is the purpose of the limitation act?
It prevents a potential defendant from remaining under constant threat of litigation for events that happened years ago and when each parties memory may have faded.
The reason behind it is ‘public policy’, to prevent individuals or organisations from being perpetually exposed to litigation for wrongful acts or omissions. 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 general rule of limitation act 1980?
Limitation Act 1980 provides the defendant with a technical defence.
What is the limitation period for Personal Injury Claims
3 years
What is the limitation period for Tort Claims?
6 years
What is the limitation period for contract claims?
6 years
When does the limitation period start?
Time starts to run when the cause of action occurs, that is the date when the claim could have been bought
When does the limitation period start in negligence claims?
from when claimant suffers damage as a result of the negligent act, for example Road Traffic Accident
When a child suffers an injury, when does the limitation period start?
From their 18th birthday they have 3 years to bring a claim
OR
a Litigant Friend (parent) can issue proceedings from the date of the negligent act on their behalf.
When does the limitation period start for breach of contract?
From breach of contract,
e.g: a claim for late delivery starts from when the goods should have arrived.
For most types of claims the limitation period is final however the court may extend the limitation period If..
Personal injury - the client has 3 years from the date of knowledge to bring their claim.
Actual knowledge - where arises where the claimant knew the injury was caused by the defendant
Constructive knowledge - medical reports, This is where the claimant first became aware that the injury they have sustained was from the negligent act such as claims relating to asbestosis.
Viability
What may you consider when suing the defendant?
- Who is the defendant? i.e Individual, Company, Partnership
- Where is the defendant? - Contact details?
*Will the defendant be able to pay any judgement?
- search of LR
- search of companies house
- credit rating company
- instructing private investigator
General Costs in litigation
what does CPR R 44.2 mean?
It simply means that the losing party pays the winning party’s cost in addition to their own. i.e “loser pays twice”
What is a cause of action?
Cause of action - an acceptable reason in law for taking legal action against someone. This forms the basis of a claim.
How does a cause of action occur?
cause of action can arise from:
*An act
*A failure to perform a legal obligation
*A breach of duty
*A violation or invasion of right
A cause of action is usually based on the existence of legal relations and obligations between the parties, either through contract, the law of tort or statute.
In most cases, whether based on contract, tort or statute, to establish a valid cause of action the claimant will need to demonstrate the following essential elements:
• A duty of care;
• Breach of that duty;
• Causation;
• The claimant has suffered loss or damage
What are the three types of evidence?
There are three types of admissible evidence:
- Documents (disclosure)
- Witness evidence;
• Witness of fact – direct evidence by a witness of what they have perceived with their own senses.
• Expert witness – evidence of matters of opinion within their expertise. - Real evidence
What are The Civil Procedure Rules 1998
The Civil Procedure Rules (CPR) consist of a number of rules covering all aspects of court procedure. They are supplemented by ‘practice directions’, which relate to the particular rule in question
What is private funding?
Some client’s have no alternative but to fund the case privately, or may choose to do so. Some clients are not covered by insurance.
This is sometimes known as the retainer.
Conducted at an hourly rate. Charge out rates are based on the salaries of the fee earner. The more senior, the higher the charge out rate.
Client will also be liable for disbursements.
The client should be given estimate of the likely costs and kept informed throughout the case to avoid any ‘nasty surprises’.
What is unbundling legal services?
For clients who no longer qualify for legal aid and who cannot afford to pay privately. Rather than instructing a solicitor under the full retainer, the solicitor assists with parts of the transactions which the client requires assistance.
Sometimes called ‘a la carte’ legal services.
includes:
1) providing clients with self-help packs
2) providing advice about specific step or particular issue in the case
3) checking or drafting documents
4) providing advocacy services
SUITABLE for small personal injury claims and consumer claims.
Letter of engagement to client must clearly advise what the solicitor is dealing with to avoid any disputes as they will not have full knowledge on the case.
What is legal expense insurance (BTE)
Known as ‘before the event’ insurance. E.g Vehicle Insurance, or Household Insurance. BTE generally covers both sides costs.
Solicitor should check:
1) Policy to determine whether legal expense cover is included
2) ensure that the level of cover is sufficient
3) advise the client as to any excess - payments made by the client
What is a sponsoring organisations?
Train Unions may sponsor.
Employment related disputes, or accidents at work.
Often, the sponsoring organisation will insist on a solicitor from an approved panel.
What is a Conditional fee agreement? (“no win, no fee”)
Regulated by the Conditional Fee Agreement Order 2013
If the Client loses, they will not have to pay anything to the solicitor except disbursements. “no win, no fee”
HOWEVER
If the Client won, they will have to pay their solicitors costs but at an ENCHANCED rate.
Sometimes, client might take out ATE insurance to cover other side’s costs however this tends to be expensive as there is already a dispute.
A CFA must be:
1) in writing
2) state the percentage of any success fee
THE SUCCESS FEE:
Personal injury claims, success fee can not be more than 25% for pain and suffering.
The percentage of the success fee cannot exceed 100 percent of the usual charging rate.
The success fee will be assessed on the complexity of the case.
What is a damage based agreement? (DBA)
Regulated by the Damages-Based Agreement Regulations 2013.
The Solicitor will be paid if the case is successful.
The solicitor will receive a percentage of the damages. (contingency fee)
The amount which can be recovered is limited to:
1) 25% for personal injury claims
2) 50% for most other cases
Disbursements, such as court fees and experts’ fees, are not included in the percentage sum and are your liability to pay if your claim fails, unless covered by after the event (ATE) insurance.
CASE: BOLT BURDON SOLICITORS V TARIQ
