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#13715 - Revision Questions - BPC Civil Litigation

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Civil Litigation Revision Questions

What is the purpose of a letter before claim and the pre-action procedures?

The letter before claim should enable the defendant (‘D’) to understand the claimant’s (‘C’) claim and investigate is fully without needing to request further information.

The pre-action procedures are designed to give both parties sufficient information that they can consider whether proceedings are necessary and any avenues settlement.
What should a letter before claim include, and how long does D have to respond?

General Cases:

  1. Basis of claim;

  2. Summary of the facts on which the claim is based;

  3. Remedies sought;

  4. ADR methods C is willing to undertake and invites D to attempt; and

  5. Details of C’s funding arrangement (CFA or ATE).

D has 14days to acknowledge or send reply.

PI cases:

  1. Summary of facts;

  2. Nature of injury;

  3. Financial loss incurred; and

  4. Sufficient information for D to investigation.

D has 21days to acknowledge or send reply, and must reply with 3months if acknowledged.
What value should a case be if it is in the High Court? More than 100,000.
What are the factors considered where there is no financial value as to which court?

  1. Financial substance, including that of counterclaim;

  2. Public importance and importance to non-parties;

  3. Complexity, in terms of law, facts, remedies or procedure;

  4. Speed of resolution.
In what circumstances should a Part 8 claim be made?

In cases where there is no substantial dispute of fact. Examples:

  • Parties seeking true meaning of contractual terms;

  • Approval for settlement for a child.
How long is a claim form valid for after issue? 4months when being served in jurisdiction, otherwise 6months.

What can a party do if it wishes to, or has already, served the claim from by another method not included in CPR?

What is the test for allowing such an application?

Make an application for alternative method or at alternative address of the claim form. This is done by:

  1. Making an application under Part 23;

  2. Application may be made without notice; and

  3. Must be supported by written evidence.

It there a ‘good reason’.
If the 4month window for serving the claim form has not expired, what can C do if he needs more time?

Make an application for an extension of time. Also done by a Part 23 application, made without notice and supported by written evidence.

Test is whether there is a ‘good reason’.
What if the 4month window has expired and claim form has not been served?

Claim form is invalid, and C must apply for an extension of time. This is done in the same way as above, except the application will be denied unless:

  1. Court was unable to serve the claim form; or

  2. C has taken all reasonable steps to serve it but has been unable to; AND

  3. C has made this application promptly.
When are the claim form and other documents deemed served?

Claim form: 2 business days after method of service

Other docs: If posted or DX 2nd business day after posted or next business day; if other method then that day if business day before 4:30pm, otherwise the next business day.
Who are ‘persons under a disability’? These are either children (under 18) or protected parties (people lacking capacity under the Mental Capacity Act 2005).
How can they sue and be sued? They can sue through a litigation friend (usually a relative or someone appointed by the court), and be sued by serving claim form to parent or guardian or person with authority over the protected party.

When can a party apply for summary judgment?

How is an application for summary judgment made?

After D has filed D or AoS

  1. With an application notice, supported by evidence.

  2. The applicant must give the respondent 14 clear days notice prior to hearing.

  3. Respondent must file and serve evidence at least 7 clear days before hearing.

  4. Applicant must file and serve evidence in response at least 3 clear days before hearing.
What is the test for summary judgment?

Either:

  1. C has no reasonable prospects of succeeding in the claim; or

  2. D has no reasonable prospects of defending the claim;

AND there is no other compelling reason why the claim should go to trial.

‘Prospects of success’ mean chances must be ‘better than merely arguable’, or cannot be claims with an ‘absence of reality’.
What is a conditional order? Where the court feels the claim or defence is possible but improbable, it may order the party to pay a sum of money into the court or take a specified step or the claim will be struck out/dismissed.
When might summary judgment be granted with a stay of execution?

Where the claim outweighs the counterclaim, the court may give summary judgment for the difference and a stay until the set-off is determined.

Alternatively, the court may order a stay for a counterclaim to be decided.
When does limitation generally begin, and what are the 3 exceptions?

Generally when all the elements of the cause of actions have occurred. Exceptions are:

  1. Children - time doesn't run till they turn 18;

  2. Disabled people at time of accrual - time doesn't run until they are cured;

  3. Cases of fraud, concealment or mistake - time doesn't run until they are uncovered or could have been with reasonable effects.
What is the alternative start date for limitation in PI cases?

Date of knowledge, i.e.:

  1. C had knowledge that injury was significant (serious enough to bring proceedings)

  2. C knew injury was attributable to the act of another that could have been negligence, breach of statutory duty or nuisance; and

  3. C knew identity of D (if vicarious then also the identity of wrongdoer).
What is the limitation period for tort claims?

6yrs, or 3yrs from ‘starting date’.

The ‘starting date’ is the same at the ‘date of knowledge’ for PI claims.

There is a longstop limitation period of 15yrs from accrual.
What can C do if limitation has expired for his PI claim?

C can bring an application under s33 Limitation Act 1980 for the limitation period to be disapplied. The court has the discretion to do this, and must consider 6 factors:

  1. Length and reasons for delay;

  2. Extent that the evidence will be less cogent than if it had been brought within time;

  3. The conduct of D;

  4. The duration of any disability affecting C after accrual;

  5. Whether C acted promptly and reasonably after finding out about the possibility of a claim;

  6. Steps taken by C to obtain expert legal, medical or other advice and the nature of such advice he received.

C must show it would be equitable to disapply the limitation period.
When can C apply for default judgment?

  1. Where D has failed to serve an acknowledgment or defence;

  2. The relevant period for serving them has expired;

  3. C is claiming:

  1. A specified sum of money;

  2. A sum of money to be determined by the court;

  3. Delivery of goods, but C would be happy with the value; or

  4. Any combination of these remedies.
How does C apply for default judgment?
In what circumstances will default judgment not be awarded?

  1. Where C has:

  1. Applied for summary judgment;

  2. Applied for the claim to be struck out;

  1. Satisfied the entire claim incl. interest; or

  2. Admitted liability and request further time to pay.
What can D do if default judgment has been awarded against him?

Apply for the judgment to be set aside. This may be done on the grounds that:

  1. D has a real prospect of successfully defending the claim; or

  2. There is a good reason for judgment to be varied/set aside or to allow D to defend the claim.

This is a discretionary power, and the court will consider the promptness of the application.
When does D need permission to bring an addition claim?
What may the court consider when deciding whether to give permission for an additional claim?

  1. Degree of connection between the additional claim and the main claim;

  2. Whether D is claiming substantially the same remedy as being claimed by C; and

  3. Whether the additional claim raises any questions related to both the original claim and the additional claim, or related to the original party but in a different capacity.
When does C need permission to amend a statement of case?
When will an amendment to the parties involved be allowed after the limitation period has expired?
When will an amendment be permitted that adds a cause of action after the limitation period has expired?

  1. Where the limitation period has been disapplied;

  2. The cause of action is an original set-off or counterclaim; or

  3. The new cause of action arises out of the same or substantially the same facts.
When will an amendment be permitted if it transfers responsibility of the claim onto another party who cannot be sued due to the limitation period having expired? This is in the case of a D, who tried to amend a defence transferring liability onto another party. This will only be allowed if the timing of the amendment, i.e. after limitation had expired, was not the fault of the party.
Which party will usually bear the costs of the amendment? Usually the party that wishes to amend their case.
When does standard disclosure apply, and what docs are included in it?

It only applies to fast and multi-track cases, and involves the disclosure of:

  1. Anything you wishes to rely on;

  2. Anything that adversely affects your case;

  3. Anything that helps another party’s case;

  4. Anything that adversely affects another party’s case.

NB This includes docs that could be found in a reasonable search.
What are the grounds for refusing disclosure of docs?

  1. Public interest immunity

  2. Privilege against self-incrimination

  3. Without prejudice communications

  4. Legal professional privilege:

  1. Legal advice privilege - covers confidential...
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