The Basics

Question 1

What are the Six Stages of a Civil Dispute?

Answer 1

1. Pre-Action.
2. Statement of Case.
3. Case Management.
4. Evidence.
5. Trial.
6. Post-Trial.

Question 2

What occurs during the Pre-Action Stage?

Answer 2

The Claimant discusses their case with counsel, attempts to resolve it outside of court, and if unsuccessful, and prepares a court strategy.

The Practice Direction on Pre-Action Conduct and Protocols

• Parties should exchange sufficient information to understand each other’s positions.
• The Claimant should send a detailed Letter of Claim outlining the basis of the dispute and desired remedies.
• The Defendant should respond within a reasonable time frame.
• Both parties should consider and engage in alternative dispute resolution methods to attempt settlement without litigation.
• Both parties should disclose relevant documents and evidence, act reasonably and proportionately to avoid unnecessary costs, and comply with any provisions in applicable Protocols.

Question 3

What occurs during the Statement of Case Stage?

Answer 3

• The Claimant submits their Claim Form and Particulars of Claim; and
• The Defendant submits their Defence and Counterclaim (if applicable).

Question 4

What occurs during the Case Management Stage?

Answer 4

The Court places the case on a particular track, determining its timeline.

Question 5

What occurs during the Evidence Stage?

Answer 5

The Parties organise and exchange their supporting evidence.

Question 6

What occurs during the Trial Stage?

Answer 6

The Parties prepare for and undertake the trial.

Question 7

What occurs during the Post-Trial Stage?

Answer 7

The case is decided and either the Claimant pursues enforcement or the Defendant pursues appeal.

Question 8

What is the Overriding Objective of the Civil Procedure Rules?

Answer 8

To enable the Court to handle cases justly and at proportionate cost.

It is on the Court and the Parties to carry out this objective, but the prerogative chiefly lies with the former.

Question 9

Does the Loser pay the Winner’s costs?

Answer 9

Yes, although usually only a portion of them, and even that is ultimately at the Court’s discretion.

CPR 44.2.

Things like proportionality, reasonableness, the Parties’ conduct, and the extent of success will influence how much the Court will order.

Question 10

How should any Case Analysis be conducted?

Answer 10

By examining the facts against the elements of the cause of action.

Usually, the elements will be Duty, Breach, Causation, and Loss, or some variation thereof.

Question 11

What is the Principle of Stare Decisis?

Answer 11

• The notion that judgements bind future cases with the same material facts, and that
• Higher courts can bind both themselves and lower courts.

Question 12

How is the Supreme Court uniquely subject to Stare Decisis?

Answer 12

It is the only Court that can depart from its previous decisions when it appears right to do so.

Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

Question 13

How are the High Court and Court of Appeal uniquely subject to Stare Decisis?

Answer 13

• When faced with two conflicting decisions, it must choose one to follow in the present case.
• It must refuse to follow any decision that conflicts with Supreme Court precedent, even if not expressely overruled
• It may refuse to follow any decision deemed as given per incuram.
• The Court of Appeal (Criminal Division) may refuse to follow any decision deemed as contrary to the interests of justice.
• High Court decisions made by a single judge are non-binding.

Young v Bristol Aeroplane [1944] KB 718.

Recall Page 10 of the DR-PC WK Slides.

Question 14

What determines whether a claim goes to the High Court or the County Court?

Answer 14

• Value.
• Complexity.
• Public interest.

7A PD, 2.4.

Question 15

How does Value influence Claim Allocation?

Answer 15

• Below £10K: Small Claims, County Court.
• Below £25K: Fast Track, County Court.
• Below £100K: Intermediate Track, County Court.
• Over £100K: Multi Track, High Court.

For Personal Injury claims, the High Court cut-off is £50K.

Question 16

What is Pre-Action Protocols (“PAPs”)?

Answer 16

Conduct guidelines Parties should follow prior to litigation, designed to encourage an exchange of information that facilitates out-of-court resolution.

Noncompliance may merit adverse consequences, most often concerning costs, money awarded or money payable, but also stays of proceedings.

Question 17

When claiming against a Partnership, why would it be wise to also name the Partners’ personally in the Claim Form?

Answer 17

It allows you to seek enforcement against the Partners’ personal assets.

CPR 7.2A and 7A PD 5A.

By way of example: Flagstones (a firm) & (1) Fred Flagtone and (2) Nisha Rouble.

This does not apply to LLPs.

If the Partnership dissolves before proceedings are issued, the claim is made against the former Partners in the name of the dissolved firm.

Question 18

When can a Company be represented by an Employee in a Trial?

Answer 18

• The employee has been authorised to do so by the Company; and
• The Court gives permission.

Question 19

How should one Title a claim against a Trust or Deceased Person?

Answer 19

Directly, whether against the trustees, executors, administrators, or the deceased. You need not add any beneficiaries or the estate as parties to the claim.

CPR 19.12(3).

Question 20

What happens if a Person with an Interest in a Claim dies and they have no Personal Representative?

Answer 20

The Court may order:
* The claim to proceed nonetheless; or
* A person to be appointed to represent the estate of the deceased.

CPR 19.12(1).

Question 21

What happens if a Defendant against whom a Claim could have been brought dies?

Answer 21

• If a grant of probate or administration has been made, the claim must be brought against their personal representative.
• If such a grant has not been made:
  * The claim must be brought against the Deceased’s estate; and
  * The claimant must apply for an order to appoint a person to represent the estate.

CPR 19.12(2).

Question 22

How is Incapacity evaluated by a Legal Advisor?

Answer 22

By asking whether the person can:
* Recognise the problem they encounter;
* Explain with sufficient clarity the problem to those from whom they seek appropriateadvice;
* Understand and evaluate the advice received from an appropriate source; and
* Understand the effects of making one choice over another and give effect to their chosen course through instruction.

Martin Masterman-Lister [2002] EWCA Civ 1889.

This is critical because those lacking capacity cannot bring a claim on their own behalf and require a Litigation Friend under CPR 21.2.

Question 23

Who may be a Litigation Friend?

Answer 23

Someone who:
* Can fairly and competently conduct proceedings on behalf of the incapable party;
* Has no adverse interest to that of the incapable party; and
* Undertakes to pay any costs which the incapable party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the incapable party.

CPR 21.4(3).

Usually, appointments are made by serving of a certificate of suitability showing that the litigation friend satisfies these criteria.

Question 24

When arriving at a Settlement with an Incapable Party, what further criterion is necessary for Validity?

Answer 24

Court approval. Even if it is reached before proceedings start, the Parties should file under CPR 8 and request court approval.

CPR 21.10(1)-(4).

Information necessary includes:
* Details of the claim.
* Terms of the settlement with attached draft consent order (using form N292).
* Details of whether and to what extent the defendant admits liability.
* Age and occupation (if any) of the child or protected party.
* Litigation friend’s approval of the proposed settlement.
* Copy of any financial advice on the proposed settlement.
* Legal opinion from legal representatives, with documentary evidence.