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#3203 - Initial Considerations And Pre Action Protocol - Civil Litigation

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Civil Litigation

ONE: Case analysis, Initial considerations, Client Care

[Deciding whether you can act for your client – BEFORE you take instructions]

Case Analysis

Definition: a method for analyzing facts, evaluating strengths and weaknesses of case, working out how facts can be proved and determining what additional evidence is required.

  1. What are the possible cause / causes of action?

  • Contract? Tort?

  • Performance of contract?

  • Negligence

  1. Evaluate merits of case

  • GOOD facts for elements of case

  • BAD facts for elements of case

Contract Tort

  1. Binding contract?

  2. Terms

  3. Breach

  4. Causation

  5. Damage

  1. DOC

  2. Breach

  3. Causation

  4. Damage / loss

  1. Formulate a case theory that accounts for all evidence, satisfies legal elements of the claim and is plausible.

(I.e. Is your story better than their story?)
Initial Considerations

1. Limitation Period

Definition: Period in which a person can ISSUE a claim (not service).

Limitation Act 1980

  • Contract – 6 years from date of breach

  • Tort – 6 years from date of damage

  • Personal Injury – 3 years from date of damage

Calculating the Limitation Period

  • Time runs on day AFTER the day of breach / tortious act.

  • Last day for issue of proceedings is ON the limitation anniversary of breach / tortious act.

Missing the Limitation Period

  • Limitation is pleaded as a defence

  • Solicitor must cease to act (potential negligence claim against solicitor – conflict of interest will arise). Inform client and tell him to seek independent legal advice. Must inform insurers. [Professional Conduct]

  1. Civil Procedure Rule 1.1 ‘Overriding Objective’

A civil procedure to enable the courts to deal with the case justly

Ensure parties are on equal footing

Saving expense

Dealing with the case in ways that are proportionate [money; importance; complexity]

  • Checklist

  1. Limitation period – has it expired?

  2. Do English courts have jurisdiction over this claim? (Is there a foreign element – consider Reg.44/2001 Article 2 and Article 5)

Article 2 General rule: person domicile in a member state shall be sued in a court of that member state
Article 5

Exception: in matters relating to a contract – a person domicile in a MS may be sued in another MS if that MS is the place of performance of the obligations in question.

e.g. Sale of goods – place where goods are delivered / should be delivered.

e.g. services – where goods were provided / should have been provided.

  1. Opinions for funding of the claim - how much will it cost to bring?(traditional funding / Conditional Fee Agreement)

  2. Chances of success / merit of case?

  3. How much is claim worth?

  4. Chances of recovery? Is defendant solvent and can he be traced?

  5. Will the outcome justify the expense or risk? Including the risk of having to bear the opponent’s costs. (Look at merits of case here)

  6. Professional Conduct issues? (Conflict / confidentiality – is there material information or not?)

  7. Are their alternatives to litigation? Has ADR been considered?
Client Care

  • Taking care of the client! – Send a ‘Client Care letter’.

  • Letter should include:

  1. Who is dealing with the case?

  2. Complaints procedure

  3. Cost / fees / give estimates

TWO: Pre-Action Protocol

Practice Direction - Pre-Action Protocol (Civil Procedure Rules (CPR))

  • The basic aim = CRP para.1.1 (1) – attempt to stop claim going to court in the first place if it is not necessary

  1. Advise against issuing court proceedings immediately

  2. Because of the need to follow re-action conduct procedure

  3. In an attempt to settle before issue of claim

  4. Which may bring about a quicker resolution of the case for the claimant than issue proceedings

  5. Court may impose cost penalties against claimant

What is the procedure?

  • Paragraph 7 = Letter before claim sent to defendant [Annex A; Paragraph 2]

  • Defendant must be given a REASONABLE time to respond – D responds with acknowledgement and / or a full response.

What is there is not enough time?

  • Ask court to stay the claim – so limitation period is extended. Having no time to carry out the protocol is not an excuse for...
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