SQE 2 Disputes Advice (Interview/Writing/C&M) Flashcards
Your client seeks to commence proceedings against another company.
They come to you for advice on how to achieve this. They want a summary of the key stages and deadlines.
This is not a personal injury claim.
(a) Pre-Action Conduct
- Serve Letter of Claim
- D responds within reasonable time (14 to 30 days)
(b) Service of Claim Form
- Claim Form served within 4 months of issue
Particulars served within 14 days of claim form - File a certificate of service within 21 days of service.
File a copy of particulars within 7 days of service.
(c) What to expect from D:
- D will file a response within 14 days of service of claim form or particulars (whatever is latest)
- If D acknowledges, extends time for filing defence to 28 days from the DDS of the particulars
- D and C can agree an additional 28 day extension. Max of 56 days from DDS without court permission.
Your client asks you to explain the timeframes they must abide by for service of a claim form and particulars
- Serve claim form within 4 months of issue
- File certificate of service within 21 days of service.
… - Serve particulars within 14 days of claim form
- File a copy of particulars within 7 days of service.
Your client entered into a contract that was breached 5 years ago.
Only now do they want to take legal steps. They seek you advice on whether the limitation period is still current.
Yes it is.
Contractual claims must be issued at court within 6 Years of the date of breach
Your client was injured in an accident 2 years ago.
Only now do they want to take legal steps. They seek you advice on whether the limitation period is still current.
It is still current.
Personal Injury claims must be issued at court within 3 years of the latest of (a) date of injury; or (b) date of knowledge.
For death, it is 3 years from the latest of either the death or dependents knowledge.
Your client owned property that was destroyed due to the negligence of a builder 7 years ago.
Only now do they want to take legal steps. They seek you advice on whether the limitation period is still current.
It is not current.
Tortious claims must be issued at court within 6 Years of when the damage occured.
Your client had a home built 13 years ago. 2 years ago they discovered latent structural defects dating back to the construction.
They ask for your advice on whether they can issue a claim in negligence against the contractors.
Yes they can.
In negligence, if the damage is latent, the limitation period runs from the latest of either
(a) 6 years from date of cause of action; or
(b) 3 years from date of knowledge subject to 15 year long stop from the act.
In this instance, since knowledge arose 2 years ago (within 3 years) and 13 years from the act (within 15 years) the limitation period is still current.
Your client served the claim form on Monday 10th.
They ask you to explain when it is deemed served, and why.
Wednesday 12th
Second business day after relevant step
Your client served a claim form on Wednesday 13th. This included the particulars of clai,
They ask you to explain when ithe particulars were deemed served, and why.
Friday 15th
Second business day after relevant step
Your client served the particulars of claim separately from the claim form.
They emailed the particulars
at 5pm on Tuesday 16th.
They ask you to explain when ithe particulars were deemed served, and why.
Instant Method (Email)
+
After 4:30pm or Non-Business Day
…
therefore, it is deemed served
…
Next Business Day = Wednesday 17th
Your client served the particulars of claim separately from the claim form.
They hand delivered the partoculars
at 3pm on Friday 22nd.
They ask you to explain when ithe particulars were deemed served, and why.
Instant Method (Hand Delivery)
+
Before 4:30pm on Business Day
…
therefore, it is deemed served
…
Same Day = Friday 22nd
Your client served the particulars of claim separately from the claim form.
They posted the particulars on Friday 22nd.
They ask you to explain when ithe particulars were deemed served, and why.
Non-Instant Method (First Class Post)
Monday 25th
Second day after posting if a business day, otherwise next business day (e.g. Monday after weekend)
…..
Friday (Relevant Act)
Saturday (D1)
Sunday (D2) [Not a Business Day]
Monday (Next Business Day)
Your client served the particulars of claim separately from the claim form.
They sent the particulars by DX on Wednesday 11th.
They ask you to explain when ithe particulars were deemed served, and why.
Non-Instant Method (DX)
Friday 13th
Second day after posting if a business day, otherwise next business day (e.g. Monday after weekend)
Your client’s case falls within the multi track.
Explain to your client the case management and cost management deadlines.
(a) Case Managament
These apply to all multi-track cases:
- File Disclosure Report - 14 days before CMC
- File Draft Disclosure Directions - 7 days before CMC
- Attend Case Management Conference (CMC)
(b) Cost Management Regime
These apply to most multi-track cases (in addition to above):
- File Cost Budget (Precedent H) - 21 days before CMC
- File Budget Discussion Report - 7 days before CMC
The defendant has written to your client (claimant) requesting inspection of a category of disclosed documents.
What shoukd you tell your client?
Your client must make the requested documents available for inspection within 7 days of receipt of inspection notice
Your client wishes to rely on hearsay evidence at trial. They ask you to explain what steps will be needed to do this.
Explain that it depends on how the hearsay evidence will be adduced and relied upon:
- Contained in witness statement. Oral evidence to be given > No further action requred, notice deemed served
- Contained in witness statement. No oral evidence to be given: Your client must give actual notice.
Explain to your client that if no oral evidence is to be given, the other side can call for cross examination of the witeness or attack credibility by serving notice within 14 days of the hearsay notice
An expert witness asks you to clarify the rules he must follow when submitting requests for directions to the court.
The expert witness must:
* Serve Copy on Instructing Party: 7 Days Before Filing
* Serve Copy on Other Parties: 4 Days Before Filing
Your client is relying on an exoert witness at trial. They are unhappy with some elements of the report.
What advice should you provide?
Before seeking permisison to rely on another expert witness they must submit questions to the expert
They must submit questions within 28 days of service of the report
You are preparing for trial.
The partner asks you to summarise the pre-trial actions that need to be completed.
(a) Pre-Trial Checklist
* Send to Parties: 14 days before due date for filing
* File at Court: 8 weeks before Trial
(b) Trial Bundle
* C file between 3 - 7 clear days before trial
(c) Authorities (High Court Only)
* File by 5pm day before hearing
Your client has had judgment handed down in their favour.
They ask you
(a) When is the order effective from; and
(B) When is the debt due
(a) Judgment/Order effective from date given
(b) Judgment debt due within 14 Days from date of order
You are advising a client who has appointed a High Court enforcement officer, having recieved a Taking Control of Goods Order.
Lay out the three main procedural rules relating to TGC.
- Enforcement Officer Notice: 7 Clear Days
- Period to Take Control: 12 Months from Order
- Time to Take Control: Between 6am and 9pm
Your client has just lost their case.
They ask you to explain the ways to appeal the decision.
(a) Immediate Permission Request: Seek permission immediately before hearing Judge
(b) Written Permission Request (Form N161):
* Within 21 Days of the Lower Court’s Decision
* If the written request is refused, appellant may request reconsideration by oral hearing.
You are making an application for an interim injunction.
What procedure is followed?
DEFAULT On Notice Application
- File N244 with evidence, draft order and fee
- Serve documents 3 Clear Days Before Hearing
- Respondent Serve Additional Evidence: ASAP
- Applicant Serve Additional Evidence: ASAP:
- Serve Statement of Costs: 24 Hours Before Hearing
You are making an application for a security of costs on behalf of your client, the defendant.
What procedure is followed?
DEFAULT On Notice Application
- File N244 with evidence, draft order and fee
- Serve documents 3 Clear Days Before Hearing
- Respondent Serve Additional Evidence: ASAP
- Applicant Serve Additional Evidence: ASAP:
- Serve Statement of Costs: 24 Hours Before Hearing
You are making a general interim application on behalf of your client.
What procedure is followed?
DEFAULT On Notice Application
- File N244 with evidence, draft order and fee
- Serve documents 3 Clear Days Before Hearing
- Respondent Serve Additional Evidence: ASAP
- Applicant Serve Additional Evidence: ASAP
- Serve Statement of Costs: 24 Hours Before Hearing
You are making an application for summary judgments on behalf of your client.
What procedure is followed?
EXTENDED On Notice Application
- File N244 with evidence, draft order and fee
- Serve documents 14 Clear Days Before Hearing
- Respondent Serve Evidence: 7 Days Before Hearing
- Applicant Serve Evidence: 3 Days Before Hearing
- Serve Statement of Costs: 24 Hours Before Hearing
You are making an application for interim payment on behalf of the claimant.
What procedure is followed?
EXTENDED On Notice Application
- File N244 with evidence, draft order and fee
- Serve documents 14 Clear Days Before Hearing
- Respondent Serve Evidence: 7 Days Before Hearing
- Applicant Serve Evidence: 3 Days Before Hearing
- Serve Statement of Costs: 24 Hours Before Hearing
Your client seeks advice on where to issue the claim (Form N1)
Their case is a non-personal injury claim worth £90,000.
County Court
because it is a non-PI claim
worth £100,000 or Less
Your client seeks advice on where to issue the claim (Form N1)
Their case is a non-personal injury claim worth £100,000.
County Court
because it is a non-PI claim
worth £100,000 or Less
Note, to be eligible for the High Court, it has to be more than £100,000
Your client seeks advice on where to issue the claim (Form N1)
Their case is a non-personal injury claim worth £150,000.
The claim can be issued in either the
County Court or High Court
This depends on….
* Financial Value
* Complexity
* Public Importance
This is because, it is a non-PI claim worth more than £100,000
Your client seeks advice on where to issue the claim (Form N1)
Their case is a personal injury claim worth £30,000.
County Court
because it is a PI claim
worth less than £50,000
Your client seeks advice on where to issue the claim (Form N1)
Their case is a personal injury claim worth £50,000.
The claim can be issued in either the
County Court or High Court
This depends on….
* Financial Value
* Complexity
* Public Importance
This is because, it is a PI claim worth £50,000 or more.
Your client seeks advice on where to issue the claim (Form N1)
Their case is a personal injury claim worth £100,000.
The claim can be issued in either the
County Court or High Court
This depends on….
* Financial Value
* Complexity
* Public Importance
This is because, it is a PI claim worth £50,000 or more.
Your client is issuing a money-only (debt) claim in the county court.
To what location/address should the claim be issued?
Civil National Business Centre
or
Money Claims Online: up to £100k value with max 2 Ds
Your client is issuing a money-only (debt) claim in the High Court
To what location/address should the claim be issued?
Send or Take to High Court.
Central Office in the Royal Courts or District Registers.
Your client is issuing a mixed claim in the High Court
To what location/address should the claim be issued?
Send or Take to High Court.
Central Office in the Royal Courts or District Registers.
Your client is issuing a mixed claim in the County Court
To what location/address should the claim be issued?
Local County Court Centre
Your client asks you to explain the grounds for a default judgment application.
- Time has Expired; and
- No acknowledgment or defence served; and
- Claim has not be admitted; and
- No application for summary judgment or strike out
You represent the defendant against whomm default judgment has been entered.
What can you do? When must/may the court agree?
Make an application pursuant to CPR 13 that the court set aside default judgment.
(a) The court must set aside judgment if it was wrongly entered:
- Time limit was not expired;
- Acknowledgment or Defence was served;
- Claim was admitted
- Summary judgment or strike out had been applied for.
(b) The court may set aside judgment and exercise discretion if it was correctly entered but
- D has a real prospect of successfully defending the claim; or
- Some other good reason.
When considering whether it ‘should’ exercise discretion, consider the Denton Test for relief from sanction.
Your client wants to make a settlement offer that will have consequences should the other party fail to accept.
Explain what method of offer should be used, and the procedural requirments to make such an offer.
Part 36 Offer
- Made in Writing (Optional Form N242A)
- State it has Part 36 Consequences
- Specifies Relevant Period (No Less than 21 Days)
Your client has made a part 36 offer. They have since changed their mind and want to withdraw.
They ask you to explain whether they can withdraw.
There is still time remaining of the relevant period.
It depends on whether their offer has been accepted:
(a) Offer Not Accepted: Serve notice. Withdrawal or change takes effect at the end of the relevant period
(b) Offer Accepted: Court permission required. Application within 7 days of the notice of acceptance. Offeror must show that there has been a change of circumstances.
Your client has made a part 36 offer. They have since changed their mind and want to withdraw.
They ask you to explain whether they can withdraw.
There is no time remaining of the relevant period. It has expired and the other party has not accepted.
Offer can be withdrawn or changed without court permission.
Simply serve notice.
If not withdrawn, the offer will remain open.
Your client, the defendant, has recieved a part 36 offer.
They want to serve written notice of the acceptance within the relevant period. They ask you, who will bear the costs.
C entitled to costs up until notice of acceptance.
Your client, the defendant, has recieved a part 36 offer.
They want to serve written notice of the acceptance. However, the relevant period has now expired.
They ask you, who will bear the costs.
C entitled to costs up until notice of acceptance.
This includes costs incurred after the relevant period up until acceptance.
Your client, the claimant, recieved a Part 36 offer from the defendant for £50,000
They rejected the offer.
At trial, your client obtains £60,000.
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtained better judgment than the offer
(£60,000 rather than £50,000)
Ds Part 36 offer has no effect. Usual cost order.
Your client, the claimant, recieved a Part 36 offer from the defendant for £50,000
They rejected the offer.
At trial, your client obtains £40,000.
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtained worse judgment than the offer
(£40,000 rather than £50,000)
…
The consequences are split into two periods:
(a) Until End of Relevant Period: Normal Cost Order. Since C wins, D pays Cs costs.
(b) After Relevant Period: C pays Ds costs and interest and bears their own costs
Your client, the claimant, recieved a Part 36 offer from the defendant for £50,000
They rejected the offer.
At trial, your client obtains £50,000.
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtained the same judgment than the offer
(£50,000 rather than £50,000)
…
The consequences are split into two periods:
(a) Until End of Relevant Period: Normal Cost Order. Since C wins, D pays Cs costs.
(b) After Relevant Period: C pays Ds costs and interest and bears their own costs
This is because C “obtains worse or same judgment than offer”
Your client, the claimant, recieved a Part 36 offer from the defendant for £50,000
They rejected the offer.
At trial, your client loses.
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtained the same judgment than the offer
(£50,000 rather than £50,000)
…
The consequences are split into two periods:
(a) Until End of Relevant Period: Normal Cost Order. Since D wins, C pays Ds costs.
(b) After Relevant Period: C pays Ds costs and interest and bears their own costs
This is because C “worse or same judgment than offer”
Your client, the defendant, recieved a Part 36 offer from the claimant for £200,000
They rejected the offer.
At trial, C obtains judgment of £100,000
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtains worse judgment than their offer
(£100,000 not £200,00))
…
Cs Part 36 offer has no effect. Usual costs rules apply.
Your client, the defendant, recieved a Part 36 offer from the claimant for £200,000
They rejected the offer.
At trial, C obtains judgment of £200,000
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtains judgment equally as advantageous than the offer (£200,000)
…
The consequences are split into three stages:
(a) Until End of Relevant Period:
* D will pay Cs costs on standard basis
* D will bear their own costs.
(b) After Relevant Period:
* D will pay Cs costs on indemnity basis
* This will have a higher interest rate (not exceeding 10%)
* D will also bears their own costs.
(c) Damages Awarded:
* D pays damages at a higher interest rate (up to 10%)
* An additional award is also payable:
(i) 10% up to £500,000.
(ii) 5% on amounts above £500,000.
(iii) Total capped at £75,000 on top of the award.
Your client, the defendant, recieved a Part 36 offer from the claimant for £200,000
They rejected the offer.
At trial, C obtains judgment of £400,000
They ask you to explain the cost consequences of rejecting the Part 36 offer.
C obtains judgment more advantageous than the offer (£400,000 rather than £200,000)
…
The consequences are split into three stages:
(a) Until End of Relevant Period:
* D will pay Cs costs on standard basis
* D will bear their own costs.
(b) After Relevant Period:
* D will pay Cs costs on indemnity basis
* This will have a higher interest rate (not exceeding 10%)
* D will also bears their own costs.
(c) Damages Awarded:
* D pays damages at a higher interest rate (up to 10%)
* An additional award is also payable:
(i) 10% up to £500,000.
(ii) 5% on amounts above £500,000.
(iii) Total capped at £75,000 on top of the award.
A defendant is considering whether to reject the claimant part 36 oiffer.
They ask you to explain the cost consequences should they go to trial and C obtain judgment better or equally as advantageous than the offer.
(a) Until End of Relevant Period:
* D will pay Cs costs on standard basis
* D will bear their own costs.
(b) After Relevant Period:
* D will pay Cs costs on indemnity basis
* This will have a higher interest rate (not exceeding 10%)
* D will also bears their own costs.
(c) Damages Awarded:
* D pays damages at a higher interest rate (up to 10%)
* An additional award is also payable:
(i) 10% up to £500,000.
(ii) 5% on amounts above £500,000.
(iii) Total capped at £75,000 on top of the award.
Your client believes the other party has a weak case.
They ask you to set out a possible litigation tactic in light of the weakness.
Explain what, if any, applications could be made. Explain grounds, applicants, timings and procedure type.
Apply for Summary Judgment
This disposes of claims or issues without the need for a full trial due to a weak case.
(a) Grounds:
* No real prospect of succeeding or successfully defending the claim or issue; and
* No other compelling reason why the case should proceed to trial.
(b) Applicant: Defendant or Claimant
(c) Timing:
* C can apply after D filed acknowledgement or defence.
* D can apply after proceedings have commenced.
* Court can fix on own initiative.
(d) Procedure: Extended Interim Application Procedure
Your client requires a payment on account of damages or debt (not costs) prior to trial.
They seek your advice on how to achieve this.
Apply for Interim Payment
This disposes of claims or issues without the need for a full trial due to a weak case.
(a) Grounds:
* D admitted liability to pay sum; or
* C obtained judgment and damages to be assessed; or
* If it goes to trial, C would obtain for a substantial sum
(b) Applicant: Claimant Only
(c) Timing:
* C cannot apply until the deadline for D to file an acknowledgement of service
(d) Procedure: Extended Interim Application Procedure
(e) Limit:
* The interim payment must be no more than a reasonable proportion of the likely amount considering contributory negligence, set offs and counterclaims
Your client, the defendant, is concerned that shoudl they win at trial, the Claimant will not pay.
They seek your advice on how to secure their position.
Apply for Security of Costs
This is a payment in favour of D for costs due to a concern that should D win, C would not pay.
(a) Grounds:
* C not resident within qualifying jurisdiction; or
* C is a company with inability to pay amount of likely costs; or
* C moved an asset to make enforcement of costs difficult; or
* C has failed to give an address; or
* C has changed address to evade enforcement.
and
- It is just to make an order considering Respondents ability to comply.
(b) Applicant: Defendant Only
(c) Timing:
* At any point should a concern arise.
(d) Procedure: Default Interim Application Procedure
(e) Limit:
* The court can order security - commonly payment into court so that funds are there to meet costs later.
* The court must balance potential injustice of C being prevented from continuing the claim with injustice of D being at risk on costs if no security is provided.
Your client, the claimant, is concerned that should they wait until a full trial, the Defendant will take measures that will cause irreparable damage.
They seek your advice on how to restrain the defendant in the interim.
Apply for Interim Injunction
Temporary measure to restrain respondent from causing irreparable damage to applicant
(a) Grounds: American Cynamid Guidlines:
* There is a serious question that is not frivolous or vexatious to be tried; and
* Damages are inadequate; and
* Balance of convenience: Granting injunction carries lesser risk of injustice
(b) Applicant: Defendant or Claimant
(c) Timing:
* At any point should a concern arise.
* If the claim hasn’t been issued, only in cases of exceptional urgency
(d) Procedure: Default Interim Application Procedure
(e) Limit:
* Applicant may be required to offer a cross-undertaking to pay damages if later held the injunction shouldn’t have been granted by the court.
* If made ‘without notice’ there will be a second on notice hearing: Return Date
Your client has issued a claim at court and are seeking advice as to when they must serve the claim form within the jurisdiction?
Claim Form to be served within 4 months of issue.
Your client has issued a claim at court and are seeking advice as to when they must serve the claim form outside the jurisdiction?
Claim Form to be served within 6 months of issue.
Your corporate client is updating their legal procedures and would like a summary when a claim form is deemed served.
Second business day after relevant step
Your corporate client is updating their legal procedures and would like a summary of when the particulars of claim are deemed served if served in the claim form.
Second business day after relevant step
Your corporate client is updating their legal procedures and would like a summary of when the particulars of claim are deemed served if served separately from the claim form.
It was served using an instant method.
- Before 4:30pm on Business Day: Same Day
- After 4:30pm or Non-Business Day: Next Business Day
Your corporate client is updating their legal procedures and would like a summary of when the particulars of claim are deemed served if served separately from the claim form.
It was served using an non-instant method.
Second day after posting if a business day, otherwise next business day
(e.g. Monday after weekend)
Your client is intructing an expert witness. They want you to explain any key deadlines concerning expert witnesses.
(a) Submit Questions to Expert: Within 28 days of service of the report
(b) Expert can request directions from the court, but must…
- Serve Copy on Instructing Party: 7 Days Before Filing
- Serve Copy on Other Parties: 4 Days Before Filing
Your client, claimant, has accepted a Part 36 offer.
Are they entitled to costs?
C entitled to costs up until notice of acceptance.
Your client, claimant, rejects a Defendant
Part 36 Offer.
C obtains better judgment than the offer.
What cost consequences follow?
Ds Part 36 offer has no effect. Usual cost order.
Your client, claimant, rejects a Defendant
Part 36 Offer.
C obtains C obtains worse or same judgment than offer judgment than the offer.
What cost consequences follow?
Until End of Relevant Period:
Normal Cost Order.
If C wins > D pays Cs costs.
If D wins > C pays Ds costs
After Relevant Period
C pays Ds costs and interest and bears their own costs
Your client, defendant, rejects a claimant
Part 36 Offer.
C obtains C obtains worse judgment than offered
What cost consequences follow?
Cs Part 36 offer has no effect.
Your client, defendant, rejects a claimant
Part 36 Offer.
C obtains judgment better or equally as advantageous than the offer
What cost consequences follow?
Until End of Relevant Period
* D pays Cs costs on standard basis;
* D bears own costs.
After Relevant Period
* D pays Cs costs on indemnity basis, with a higher interest rate (not exceeding 10%).
* D bears own costs.
Damages Awarded
* D pays damages at a higher interest rate (up to 10%)
* An additional award capped at £75,000 on top of the award
Explain to your client the hallmarks of a general small claims case.
Value: Up to £10,000
Explain to your client the hallmarks of a personal injury small claims case.
Value:
* General PI: Up to £1,500
- Road Traffic Accident: Up to £5,000
Explain to your client the hallmarks of a fast track case.
Value: Not falling within the Small Claims Track; and Up to £25,000
Trial Length Limit: One Day
Oral Expert Evidence: 4 Experts Total (2 Expert Fields; 1 Expert per party in a field)
Explain to your client the hallmarks of a intermeidate track case.
Value: More than £25,000
Up to £100,000.
Trial Length Limit: Three Day
Oral Expert Evidence: 2 Experts Per Party
Defendants: Maximum 3 Parties
Explain to your client the hallmarks of a multi track case.
Value above £100,000
Your drafting a letter to a client who asks you to explain Part 36 Offers
How do you explain it in a short sentence?
Part 36 offers are formal offers to settle an action or part of an action
Settlements made subject to part 36 have significant costs consequences if they are rejected and are therefore, a very important tactical tool
Your drafting a letter to a client who asks you to explain Part 36 Offers
What are the requriments for making a valid part 36 offer?
- Made in writing
- State whether considers a counterclaim;
- Specify a relevant period of not less than 21 days
- State whether it relates to the whole of the claim or part of it or to an issue
- Make clear that it is pursuant to Part 36
Your drafting a letter to a client who asks you to explain Part 36 Offers
They ask you to explain whether they can mention the offer to the court.
Part 36 offers are made on a “without prejudice save as to costs” basis
Thus means that they are not disclosable to any third party
i.e., only the offeror and the offeree are entitled to know the content of the offer to the exclusion of any other party to the action and the trial judge
Exception: where there has been a split trial on liability and quantum
Your client wants to make a part 36 offer. However, they are concerned that the offer will look like an admission of liability.
How do you reply?
An offer to settle under Part 36 is not an admission of liability
Your client requires further information in light of a defence filed by the defendant.
What advice would you provide?
Serve a request for further information pursuant to Part 18 of the CPR.
Specify a time period within which the party must provide their response (typically 14 days).
Any reply would be used as part
of their defence going forwards, which is why this approach adds something to simply making a similar request not pursuant to Part 18.
If a negotiation fails, what is the usual BATNA (Best Alternative To a Negotiated Agreement?
Issue a claim and
proceed to trial
You are considering a defendant’s BATNA.
Usuaully the BATNA is proceeding to trial.
What risks could this entail?
- Adverse Publicity
- Potential for High Award
- Legal Costs and Time
- Judicial Scrutiny
You are considering a defendant’s BATNA.
Usuaully the BATNA is proceeding to trial.
What benefits could this entail?
- Potential for Lower Award
- Delaying Payment: Trial proceedings allow them to delay compensation.
- Testing Claimants Evidence: Trial provides an opportunity to challenge the strength of the claimant’s evidence.
You are considering a claimant’s BATNA.
Usuaully the BATNA is proceeding to trial.
What risks could this entail?
- Delay and Costs: For example, issue fee % and also court delays.
- Evidential Weakness: If Cs evidence is poor, settlement may be better.
- Emotional Burden and uncertainty of litigation can be emotionally taxing.
You are considering a claimant’s BATNA.
Usuaully the BATNA is proceeding to trial.
What benefits could this entail?
- Potential for Higher Award: A successful trial could result in a higher award than any settlement offer.
- Formal Judgment: A court judgment can provide a sense of closure and validation.
- Forced Disclosure: The court process will force the defendant to disclose all relevant information.
You are preparing for negotiation.
In a CMA, if you are asked to explain how negotiations are conducted, what is key during the pre-negotiation stage?
- Review evidence and prepare a detailed schedule of loss.
- Establish a realistic target range for settlement, considering (BATNAs and WATNAs)
- Prepare an opening statement that clearly articulates the claimant’s position
- Ensure the claimant fully understands the negotiation process
You are preparing for negotiation.
In a CMA, if you are asked to explain how negotiations are conducted, what is key during the negotiation stage?
- Begin with a clear and persuasive opening statement
- Present the claimant’s financial losses and future needs
- Actively listen to the defendant’s offers and counterarguments.
- Employ strategic concessions, starting with higher demands and moving towards target range.
- Explore the claimant’s non-monetary objectives
- Keep detailed notes of all discussions and offers.
You are preparing for negotiation.
In a CMA, if you are asked to explain how negotiations are conducted, what is key during the post-negotiation stage?
- Document any agreed settlement terms in a written agreement.
- Ensure the claimant fully understands the terms of the settlement and their implications.
- If no agreement is made, prepare to proceed to trial.
Your client is the claimant.
They reject a part 36 offer for £70,000
What are the consequences if they win at trial and are awarded more than £70,000?
Part 36 does not apply and C will receive damages and likely also costs.
The costs will most likely be awarded under the general rule that the unsuccessful party pays the successful parties costs subject to the court’s discretion.
Your client is the claimant.
They reject a part 36 offer for £70,000
What are the consequences if they win at trial and are awarded equal or less than £70,000?
C will receive damages.
The costs are ‘split’ so that C will get their costs paid by d until the expiry of the relevant period under the general costs rule.
However, C will have to pay Ds costs from the date of expiry of the relevant period and interest on those costs unless the court considers it unjust.
Your client is the claimant.
They reject a part 36 offer for £70,000
What are the consequences if they lose at trial?
If C loses at trial, they will not be entitled to damages.
They will likely have to pay Ds costs pursuant to the general rule on costs until the expiry of the relevant period.
C will also have to pay D’ costs plus interest on those costs from the date the relevant period expired unless the court considers it unjust.
Explain to a client Legal Advice Privilege
Protects confidential communications between a lawyer and their client for the purpose of giving or receiving legal advice.
Only information exchanged with a client is protected. It does not extend to third parties.
Dominant purpose must be to give or receive legal advice. Business advice will not
be privileged.
Explain to a client Litigation Privilege
Protects communications with third parties (e.g., witnesses) in certain circumstances.
Litigation must be pending or reasonably contemplated.
Dominant purpose of the communication must be to prepare for litigation or seek legal
advice.
Explain to a client Without prejudice
Communications aimed at settlement, regardless of whether they are explicitly marked “without prejudice” are privileged
However, marking communications “without prejudice” is helpful but not mandatory
Your client accidentally sent the other party a priviledged document.
Explain the effect of this…
If the other party reasonably believes the disclosure was intentional, privilege may be waived.
If identified promptly, privilege may be retained, if the mistake is obvious. Notify the other party immediately, request return or destruction of the document, and clarify privileged
status.
