WS1 - Pre-Module Reading Flashcards
Overview of a Civil Claim - a) The civil action: What are the key stages of civil claim?
Overview of a Civil Claim - b) Step 1: Pre-Action What is the purpose of this stage?
- Pre-action rules and protocols set out what is expected of parties, in which each must set out position, exchange evidence and try resolve the matter by negotiation.
Overview of a Civil Claim - b) Step 2: Statements of Case: What is the purpose of statements of case?
Claimant must at begining of proceedings state what remedy or relief they want so what order/judgement they want court to make such as for D to pay C a sum of money and therfore must establish there is a legal basis for claim.
Overview of a Civil Claim - b) Step 2: Statements of Case: How does claimant set out the claim?
Claimant must set out facts underpining the claim and they do this within:
* Claim Form
* Particulars of Claim
Overview of a Civil Claim - b) Step 2: Statements of Case: How does Defendant respond to the above documents?
- If Defendant does not respond or admits the claim, it will likely proceed quickly to judgement.
- If Defendant wants to avoid this, must set out which facts they agree with and which they do not, using a document called the Defence.
Overview of a Civil Claim - b) Step 3: Case management: What does court require from parites?
- Court will set out atimetable for preparation and exchange of evidence before trial, by making a directions order.
- Such timetable will be tailoured t the particular case, depending on complexity of issues, amount of money at stake and needs of justice.
Overview of a Civil Claim - b) Step 3: Case management: What will court allocate to after parties served statements of case?
Court will allocate claim to one of three case manageemnt tracks and will set out directions appropiate to which track:
* Small claims track
* Fast track
* Intermediae track or
* Multitrack
Overview of a Civil Claim - b) Step 4: Evidence: What is exchanged by the parties?
Evidence exchaned between the parties which can include statement of their witnesses and in some case expert witness evidence.
Overview of a Civil Claim - b) Step 5: Trial: What are the judges role within trial?
- Decide any issues of fact that claimant and defendant do not agree on such as anything disputed within their statements of case.
- Judge will then take those facts as they ahve found them, together with any facts admitted by the defendant so those both parties agree on and decide if the facts and findings entitles the claimant to relief claimed.
Overview of a Civil Claim - b) Step 6: Post-Trial: What happens after court reaches decision at trial?
- May grant claimant remedy and may order one party to pay costs to the other and if a party does not comply, they may seek to try enforce the order.
- Parties may also wish to appeal the judges decision and have it reconsidered by a more senior judge.
Overview of a Civil Claim - b) Interim Applications: What happens if parties needs something from court before trial?
This could include time extension to comply with directions, or order other party provides some form of evidence then party can make inteirm application for such relief and court will provide decision to that application within shorter period before trial.
The Civil Court system - Introduction: What are the main Civil courts of England and Wales?
- The main civil courts are the county court, high court, court of appeal and supreme court.
- Tribunals and appeal tribunals are very important in certain areas and generally concerned with interaction between state and individuals.
- Magistrates has very limited civil jurisdiction and is out of scope of this element.
The Civil Court system - Introduction: What are the county court and high courts?
- These are courts of first instance and therfore claims can be started in these courts.
- They can also hear appeals unlike supreme court and court of appeal which only hear appeals, claims do not start there.
The Civil Court system - Introduction: How do you decide where a claim should start between county and high court?
The attached flow chart will breakdown the relevant court which you should issue in.
The Civil Court system - a) The County Court: When will the county court be used?
- Generally used for less complex, lower value claims where specialist judge not required.
- This court does not have seperate divisions with one national county court and 173 “hearing centres” spread across E&W.
The Civil Court system - b) The High Court: How is the High court divided?
Three divisions which each dealing with particular types of claim:
* Chancery Divison
* Kings Bench Division and
* Family Division - Deals with family issues and not dealt with in DR.
The Civil Court system - b) The High Court - i) KBD: What does each section of KBD cover?
- General KBD list - Broad areas which include mainly claims of damages in PI, professional negligence, breach of contract, non-payment of debt and other matters not within specialist court.
- Administrative law - Lawfulness of acts and ommissions of state (judicial review)
- Planning Court - Appeals / Applications relating to planning permission, highhways, rights of way, CPO’s
- Commercial Court - Complex cases arising from business disputes, arbitration, aviation, banking and financial markets, fraud, insurance, shipping and other international disputes.
- Ciruit commercial courts - Commercial work such as contracts, sale of goods, insurance, banking and professional negligence
- Technology and Construction court - Construction, engineering, computers, software, enviromental, public procurment.
- Admiarlity Court - Shipping and maritime
The Civil Court system - b) The High Court - ii) Chancery What does each section of Chancery division cover?
- Insolvency and Companies List: Both personal andcorporate insolvency and companies include unfair prejudice petiion, shareholder disputes, directors disqualification, applications under companies act 2006.
- Revenue list - Claims involving taxation where HMRC is a party.
- Competition List - Competition law
- Business List - Broad range of disputes, often concerning a business structure, directors breach of duty, tort, breach of contract, pensions
- Property, trusts and probate - Land including LL and tenant and adminstration of estates, execution of trusts and charities
The Civil Court system - c) Court of appeal and Supreme Court: What is the position for CoA?
- CoA consits of a Civil division and a criminal division, which between them hear appeals covering wide range of cases from Civil, Family and Criminal justice.
- In some cases, a further appeal lies with permission to Supreme court, but in practice, CoA is usually final court of appeal for a great majority of cases.
The Civil Court system - c) Court of appeal and Supreme Court: What is the position for the supreme court?
- Hears appeals from courts in E&W, Scotland and NI on most significant cases and opermission to appeal to it is required and only granted if issue raised is of “general public importance.”
The Civil Court system - d) Judges - Hierarchy: Where does eat type of judge sit?
The Civil Court system - d) Judges - Judicial Leaders: What are the different type of leadership roles to be aware of?
- Lord Chief Justice - The most senior member of judiciary and the represent the views of judiciary to Parliament and leaads welfare, training and guidance of the judiciary.
- Master of rolles - President of Civil division of CoA, a judge of Court of appeal and second in judicial importance to Lord Chief.
- President of Family Division - Head of Family Justice, member of CoA
- President of KBD - Head of King Bench division, member of CoA
- Chancellor of High Cort - Head of Chancery division, member of CoA
The CPR and the overriding objective - Introduction: What are the pervasive concerns in a civil action?
These are concerns which run throughout the civil litigation process.
The CPR and the overriding objective - Introduction: What is the purpose of the CPR?
The CPR govern the procedure of litigation and they are divided into parts in which each part contains number of rules which are often supp,ented by practice directions and both the rules and PD’s are binding.
The CPR and the overriding objective - a) Overriding objective: What is the overriding objective?
One of the most important rules iin which the overriding objective of CPr is to enable corut to deal with costs justly and at proportionate cost and the rule explains this involves:
* Ensuring parties are on equal footing
* Saving expense
* Dealing with the case in ways which are proportionate to amont of money involved, the importance of the case, complexity of the issues and financial position of each party.
* Ensuring the case is dealt with expeditiously and fairly
* Alloting to each case an appropirate share of courts resources, taking into account the need to allot resources to other cases
* Enforcing compliance with rules, PD’s and orders.
And the overriding objective should be considered at all stages of litigation.
The CPR and the overriding objective - a) Overriding objective: Who must give effect to overriding objective?
- The court who will actively manage the casse to do so and
- The parties are required to help the court further the overriding objective.
The CPR and the overriding objective - a) Overriding objective: What is the position for vunerlable parties or witnesses?
- Overriding ojective require parties and witnessesc an participate fully in proceedings and there are specific provisions for addressing vunerable parties and witnesses (1A PD)
- CPRdefines someone as vulnerable when factor may adversly affect participation in proceedings or giving evidence which can be by inability to understand proceedings, express oneself, respond to court or attend a hearing.
- Vulerability can be caused by many factors such as age, language or commnication issues, mental or physical disability or impairment.
The CPR and the overriding objective - a) Overriding objective: What measures must court take regarding vulnerability?
Must take all proporationate measures to:
* Identify vulnerability of parties/witness
* Give directions or make appropiate provisions to faciliate participation such as given them extra time to comply, putting in place support at a hearing or giving appropiate direction as to how advocates should conduct themselves.
Case Analysis - Introduction: What does case analsysis involve?
- An investigation of legal issues to determine what must be proven or disproven and it should be completed for the client, weather they are the claimant or defendant.
Case Analysis - Introduction: What does an initial case analysis help to do?
- Inform client’s decision to bring claim (if claimant) or how to respond to claim (if defendant)
- Inform the strategy for pursuing client’s case
- Assist to estimate and budget costs
It can then be reviewed throughout case to take into account any changes in case law, emerging facts and evidence in the case.
Case Analysis - a) Main considerations of case anayslsis: What element of a cause of action must be considered?
- Duty
- Breach
- Causation
- Loss
Case Analysis - a) Other considerations of case anayslsis: What else should be considered?
The other considerations include information regarding the parties and any issues with limitation.
Burden and Standard of Proof - Introduction: What is the position for burden of proof?
- Every fact in a dispute must be proven.
- The burden of provising any issues of fact or law generally falls on the party who asserts it.
Burden and Standard of Proof - Introduction: What is the position for standard of proof?
- Standard of proof within civil is on a balance of probabilities, so if it can be established to show it is more than likely it happened.
- The facts which need to be proven are those which are in issue.
Burden and Standard of Proof - Introduction: When may court treat matter as established without evidence being broguht into court?
- Formal admissions - in statements of case or response to a natice to admit
- Presumptuons - res ispa loquitur (facts speak for themselves”)
- Inferences of fact - Common sense conslusions drawn from primary facts
Introduction to Costs: What are the two important considerations?
Costs a party will incur in pursuing litigations are generally sizeable so this often impacts how a party may approach and the two important considerations are:
- Costs a party might incur in pursuing litigation
- Why a party is at risk of being ordered to pay an opponents costs
Introduction to Costs - a) Costs party might incur in pursuing litigation: What will these costs include?
- Solicitor Fees
- Court fees 0 Need to be paid to pursue a claim such as issuing, making an appplication, hearing fee
- Counsel fees - Client will often need help of counsel to provide specalist advice or to present application of case in court.
- Expert fee’s - Experts may be needed to provide advice and/or evidence such as medical expert in PI claim.
- Other costs - There are many other potential costs such as travel costs for legal representive and expert witnesses, land registry, photocopying documents, etc.
Introduction to Costs - b) Party at risk of being order to pay opponents costs: What power does the court have and what is general rule for costs?
Introduction to Costs - b) Party at risk of being order to pay opponents costs: What are the practical implication of the cost position?
Party to litigation must consider:
* How it will fund its own costs
* How it will pay opponent costs if required to do so
* That, even if successful, in vast majority of cases, it will only recover a proportion of its costs from the opponent and not all of them.
See P19 for worked example.
Limitation Period - Intrdouction: What does the Limitation Act 1980 set out?
If proceedings not commenced within the relevant limitation period, the claimant will be statute barred from recovering damages and on this basis, the defendant will have a full defence.
Limitation Period - a) Personal Injury and Fatal Accidents: What is the position for limitation and PI claims?
If PI, claimant must bring the claim within 3 years of the latest of:
* (a) The date when cause of acction accured; or
* (b) The date of knowledge of the person injured
Date of knowledge defined in S14 below.
Limitation Period - a) Personal Injury and Fatal Accidents: What is the position for limitation and fatal accidents?
If person dies at work for example, due to negligence of employer, fatal accident act 1976 provides people depedent on person can claim compensation.
The time limits on a claim under the fatal accidents act are:
* (a) The claim cannot be brought if the person is injured could no longer bring the claim and to determine you apply the PI rules above from injured person perspective.
* (b) The claimant cannot be brought after 3 years from the later of the date of death or the date of knowledge of the depedent.
Limitation Period - a) Personal Injury and Fatal Accidents: How is date of knowledge defined?
Date of knowledge means knowing:
* (a) That the injury was significant
* (b) That it was attributable (at least in part) to the alleged wrong doing
* (c) The identity of the defendant; and
* (d) If it is alleged the wrong doing was by someone other than the defendant, the identity of that person and additional facts supporting bringing claim against defendant.
Limitation Period - a) Personal Injury and Fatal Accidents - i) Extensions of time: When can court extend the time for brining PI or Fatal accident act claim?
They can extend if it would be equitable, balancing prejudice to the claimant caused by limitation period with any prejudce to defendant which allowing claim would cause and court will look at:
- Conduct of he parties
- Reasons for delay and
- Effect of such a late claim on the evidence
Limitation Period - b) Contribution: What is a contribution claim?
There are some circumstances in which a person liable for damage, can claim contribution from another person.
Limitation Period - b) Contribution What is the limitation period for contribution claims?
The limitation date is two tears from the date on which the right to recover the contribution arose which is calaculated as:
* The date when judgement was given imposing liability on the first party
* In cases where first party agreed to make the payment, (rather than having judgement imposed on them), it is the date on which the amount to be paid was first agreed.
Limitation Period - c) Negligence: What is the limitation period for negligence (other than PI)
The limitation period is extended to the later of:
* (a) Six years from when the cause of action accrued; or
* (b) Three years from when they had the requiste knowledge; and right to bring a claim
Note - This is subject to a long-sop limitation date of 15 years from the date of the latest negligent act / ommission which caused the damage.
Limitation Period - c) Negligence: How is date of knowledge defined?
This is the same as PI cases but rather than needing to know the injury was significant, the claimant needs to know the material facts about the damage in rewspect of which damages are claimed.
**Note - ** It is the knowledge of the facts which permits the limitation period to start running, so irrelevant if claimant knows or does not know they have a claim in negligence.
Limitation Period - c) Negligence: How is claimant protected for latent damage?
- Sometimes, negligence may cause damage claimant might be unaware of for long period of time, such as negligently constructed house, which from outset, part of foundations start to rot,b ut claimant might no be aware of because foundations are hidden until 10 years later.
- 6 year rule would mean that cause of action starts as soon as house built, so would expire before they aware and therfore part b ensures they could still bring claim.
Limitation Period - d) Judgements: What is the limitation period?
Action to enforce judgement cannot be brought after dix years from when judgement became enforcable, nor can interest be recovered after that period.
Limitation Period - e) Tort and Contract (outside the above): What is the position for tort?
The general rule is, limitation period expires six years after date on which cause of action accrued.
Limitation Period - e) Tort and Contract (outside the above): What is the position for contract?
Likewise, for action in contract, limitation period expires six years after date on which cause of action accrued.
Limitation Period - f) Disbility: What is the position if claimant under disabiltiy at time cuase of action accrued?
The limitation starts to run from when the disability ends and is:
(a) 2 years in relation to contribution claims
(b) 3 years in relation to PI or fatal accident claims
6 years in most other cases
Limitation Period - f) Disbility: When is a person under a disability?
If they are a minor (under 18) or lacks mental capacity to conduct the proceedings. within meaning of mental capacity act 2005.
Limitation Period - g) Fraud / Concealment / Mistake: What is the position in thse claims?
If the claim is:
* (a) Based on fraud, or;
* (b) Any fact relevant to the cause of action has been deliberately concealed by the defendant; or
* (c) The action is for relief from consequences of mistake; then
Limitation does not start to run until claimant discovered the fraud, concealment or mistake (or could with reasonable due diligence have discovered it)
Limitation Period - h) Calaculating the date: What is usually best approach?
The earlier date will often be the best option in order to avoid missing limitation in questions where there is various dates.
Parties to proceedings - Introduction: What decision must be made at the start of claim?
- Who to bring the claim against
- Claim form must include full name of each party and therfore proper consideration must be made about who and how they should be referred to in claim.
- Individuals will be referred to using full nabbreviated name and title, but consider further below.
Parties to proceedings - a) Partnerships: When are claims brought against partners?
If there are two or more people who:
* were partners (claiming to be entiled as partners or alleging to be) and
* Carried on the partnership business at a time when the cause of action accrued.
Parties to proceedings - a) Partnerships: What does CPR set out regarding partnerships and parties to proceedings?
- CPR 7.2A and 7A PD 5A provide if claim brought against partnership, claims must be brought against name under which partnership carried on busines at time of cause of action accruing, unless in appropiate to do so.
- It could be inappropiate where there have been multiple changes of name so eaiser to identify partners by individual names.
**Note - ** This rule is to aid convenience as use for firm name is merely shorthand for listing each partner, as partnership not a seperate legaly entitty.
Parties to proceedings - a) Partnerships: What is the position if enforcing judgement against partner personal assets?
If it seems likely, it will be necesarry, useful to name parties personally to avoid any argument at enforcement stage or comprise is to use partnerships name and set out the inidivdual names of partners.
E.G: “Flagstones (A firm) and/or (1) John Flagstone (2) Nisha Katon
Parties to proceedings - a) Partnerships: What is the position if partnership disolved?
As partnership name, must be the name at the time of the cause of action accrued, if the partnership disolves before issued, claim is made against former partners name of disolved firm.
Parties to proceedings - b) Sole Traders: What is the position for sole traders?
The common position is that both individual and trading name when describing a party to a claim e.g:
John Flagstone (trading as John’s cafe)
Parties to proceedings - c) LLP’s: What is the position of LLP’s?
- Seperate legal entity and members have limited liability with LLP liable for all debts to full extent of its assets.
- Therfore, for LLP registered in E&W, the claim would be brought against the full registered name, including the LLP suffix.
Parties to proceedings - d) Companies: What is the position for companies?
Simialrly to the above, company registered in England and Wales must be noted by full registered name including the suffix of PLC or Limited such as Rockstone Limited.
Parties to proceedings - d) Companies: Who can represent company at trial?
An employee can be represented by an employee if:
* The employee has been authorised to do so by the company and
* The court gives permission
Parties to proceedings - e) Trusts What is the position for trrusts?
A claim can be brought by or against trustees, executors or administrators and not necessaily to add beneficiaries of trust or estate as parties to claim CPR 19.7A.
Any order made in the claim is binding on beneficaries unless court state otherwise.
Parties to proceedings - f) Deceased persons What is the position for deceased person with interest in claim?
If person who had interest in claim has died and that person has no PR, the court may order CPR 19.8(1):
- The claim to proceed in the absence of a person representing the estate of deceased; or
- A person to be appointed to represent estate of deceased
Parties to proceedings - f) Deceased persons What is the position for defendant agaiinst whom claim could be brought has died?
If person who claim could have brought died, then CPR19.8(2):
- If grant of probate or amdinstration made, claim must be broguht against pesons who are PR’s of deceased
- If grant of probate or adminstration has not been made, claim must be brought against “estate of deceased” and claimant must apply to court for an order appointing a person to represent the estate of he deceased in the claim
Parties to proceedings - g) Children and protected parties: What is a child/protected party?
- Child - Any person under the age of 18 - CPR 21.1(2)
- Protected Party - Any person who lacks capacity to conduct the proceedings within the meaning of the mental capacity act 2005 so by any impairment or distrubance of the brain or mind, the party is unable to make the decision in question at the time it needs to be made.
These parties are legally incapable of pursuing claims on their own behalf.
Parties to proceedings - g) Children and protected parties: What is the position for capacity?
Person of adult age is presumed to have capacity until the contrary is proven and the burden of proving the contrary resets with whoever assets incapacity.
Parties to proceedings - g) Children and protected parties: What must legal advisors be satisfied with?
That a party is capable of understanding, with the assistance of proper explanation, the issues on which party’s consent or decision likely to be necessary,
Parties to proceedings - g) Children and protected parties: What must legal advisors consider to determine issues of capaity?
They should ask as per Martin Masterman-Lister v Brutton and Co:
* Can the person recognise the problem they encounter?
* Can the person explain with sufficient clarity the problem to those form whom they seek appropiate advice?
* Can the person understand and evaluate the advice received from an appropiate source?
* Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction
So, in practice must satisfy themselves they have capacity which can often require assessment and report by party GP and if legitiamte concern they may not have capacity, then advice sought from psychologist.
Parties to proceedings - g) Children and protected parties - i) Litigation friends: What is a litigation friend?
Children/protected parties represented in civil proceedings by a litigation freind, whether commencing or defending proceedings.
Parties to proceedings - g) Children and protected parties - i) Litigation friends: When can a person act as one?
A perosn may act (with or without court ordereD) provided they - CPR 21.4(3):
* Can fairly and competently conduct proceedings on behalf of child or protected party
* Have no adverse interest to that of the child or protected party and
* Where the child or protect party is claimant, undertakes to pay any costs which child or protected party may be ordered to pay, subject to any right he may have to be repaid from their assets.
Parties to proceedings - g) Children and protected parties - i) Litigation friends: How do you appoint litigation friend?
- They are often releative or person court appointed to act on partys behalf.
- Often they are made without order by filing and serving certificate of suitability that LF satisfies criteria in CPR 21.4(3) either at time claim made or when child takes first step in proceedings.
- If court order required, specific procedure must be followed (CPR 21.6)
- Alternatively, for protected party, court of protection may appoint someone to conduct proceedigns on their behalf CPR 21.4(2).
- Court can also make order permitting child to conduct proceedings without LF CPR 21.2(3).
Parties to proceedings - g) Children and protected parties - ii) Service on children and protected parties: What is the position for service?
- There are special provisions for service of documents on children and protected parties 0 CPR 6.25.
- Any document due to be served must be served on litigation friend.
- Children and protected parties should be referred to in the title to proceedings on documents 21 PD 1.2 and 1.2.
- A child is referred to in claim form as being represented by his/her litigation friend e.g:
Alice Brown (a child, suing by Kate Brown her mother and litigation friend.)
