Preliminary Considerations & Funding

Question 1

Before commencing action, certain questions must be answered.

what questions might be asked?

Answer 1

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

Question 2

A claim might not be able to proceed if it is statue barred. What does this mean?

Answer 2

Limitation Act 1980 sets down a strict time limit on when cases can be bought. This is known as the limitation period.

Question 3

What is the purpose of the limitation act?

Answer 3

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

Question 4

What is the general rule of limitation act 1980?

Answer 4

Limitation Act 1980 provides the defendant with a technical defence.

Question 5

What is the limitation period for Personal Injury Claims

Answer 5

3 years

Question 6

What is the limitation period for Tort Claims?

Answer 6

6 years

Question 7

What is the limitation period for contract claims?

Answer 7

6 years

Question 8

When does the limitation period start?

Answer 8

Time starts to run when the cause of action occurs, that is the date when the claim could have been bought

Question 9

When does the limitation period start in negligence claims?

Answer 9

from when claimant suffers damage as a result of the negligent act, for example Road Traffic Accident

Question 10

When a child suffers an injury, when does the limitation period start?

Answer 10

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.

Question 11

When does the limitation period start for breach of contract?

Answer 11

From breach of contract,

e.g: a claim for late delivery starts from when the goods should have arrived.

Question 12

For most types of claims the limitation period is final however the court may extend the limitation period If..

Answer 12

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.

Question 13

Viability

What may you consider when suing the defendant?

Answer 13

• 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

Question 14

General Costs in litigation

what does CPR R 44.2 mean?

Answer 14

It simply means that the losing party pays the winning party’s cost in addition to their own. i.e “loser pays twice”

Question 15

What is a cause of action?

Answer 15

Cause of action - an acceptable reason in law for taking legal action against someone. This forms the basis of a claim.

Question 16

How does a cause of action occur?

Answer 16

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

Question 17

What are the three types of evidence?

Answer 17

There are three types of admissible evidence:

1. Documents (disclosure)
2. 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.
3. Real evidence

Question 18

What are The Civil Procedure Rules 1998

Answer 18

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

Question 19

What is private funding?

Answer 19

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’.

Question 20

What is unbundling legal services?

Answer 20

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.

Question 21

What is legal expense insurance (BTE)

Answer 21

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

Question 22

What is a sponsoring organisations?

Answer 22

Train Unions may sponsor.

Employment related disputes, or accidents at work.

Often, the sponsoring organisation will insist on a solicitor from an approved panel.

Question 23

What is a Conditional fee agreement? (“no win, no fee”)

Answer 23

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.

Question 24

What is a damage based agreement? (DBA)

Answer 24

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

Question 25

What is qualified one-way costs shifting?

Answer 25

Qualified one-way costss shifting is a regulation under which clients who have suffered a personal injury cannot be ordered to pay the costs of the defendant, even if they lose their personal injury claim.

This allows personal injury clients the freedom to make a personal injury claim at no financial risk, and safe in the knowledge that they will not have to pay the costs of the defendant.

QOCS does not apply if:
1. when a claimant or the claim is found to be fundamentally dishonest
2. when a claimant has not given any reasonable grounds for bringing the claim
3. where a claimant has failed to beat the defendant’s Part 36 offer to settle. 4. where the conduct of the claimant causes an obstruction to justice

Question 26

What is legal aid?

Answer 26

Legal aid is the use of public funds to help to pay for legal advice, family mediation and court or tribunal representation.

Legal Aid is only available in debt or contract cases IF:
1) Individuals home is at immediate risk
2) Individual faces eviction from their home (maybe bankruptcy)

The application for legal aid is determined with a means test and a merits test:

1) Can the case be dealt with by mediation?
2) Can it be funded in any other way? Insurance?? or CFA?
3) Does the case justify spending public money. Question includes consideration of whether a reasonable person of private means would fund the case?

Question 27

What methods of funding are there?

Answer 27

1) Private funding
2) Unbundling Legal Services
3) Legal Expense Insurance - BTE insurance
4) Sponsoring Organisations
5) Conditional Fee Agreement
6) Damage Based Agreements
7) Qualified one-way costs shifting
8) Legal Aid
9) Litigation Funding Agreement

Question 28

What is a litigation funding agreement?

Answer 28

Litigation funding, also known as third party funding or litigation finance, is where a third party (with no prior connection to the litigation) agrees to finance all or part of the legal costs of the litigation, in return for a fee payable from the proceeds recovered by the funded litigant.

1) Funder must maintain adequate financial resources at all times;
2) Require that funders behave reasonably and do not withdraw from funding
3) Prevent Funders from controlling the litigation and jeopardising case, although they can be kept informed

Question 29

FACT - Personal Injury

Answer 29

Public Funding does not cover personal injury claims.

Public funding may cover clinical negligence but rarely does so.

Question 29

FACT - Personal Injury

Answer 29

Public Funding does not cover personal injury claims.

Public funding may cover clinical negligence but rarely does so.

Question 30

FACT - Personal Injury

Answer 30

Public Funding does not cover personal injury claims.

Public funding may cover clinical negligence but rarely does so.