Advice on legal and factual basis of possible claim/defence based on contract, negligence, nuisance or breach of statutory duty and process for advancing/responding to claim.
Consider limitation periods:
Tort – general rule is 6 years from the date damage occurs
Tort – latent damage – 6 years from the date the damage occurs, or 3 years from the date on which the claimant first had knowledge required to bring the action, but in any case within 15 years of the date of the negligence.
Simple contract (where no limitation clause is included) – 6 years
Who are the parties?
Possible causes of action are limited to contract (including misrepresentation) and tort (negligence, breach of statutory duty, nuisance)
Advising on pre-action matters/conduct
Litigation should be the last resort.
- Requirement to consider ADR – court will look at nature of the case, merits of the case, extent to which other settlement has been attempted, costs of ADR if high, delay of ADR causing prejudice to one or other party, reasonable prospects of success of ADR
- Costs sanctions for failure to engage with ADR
- Advise on advantages and disadvantages of different types of ADR – think about costs, privacy/confidentiality, preserving relationships, commercial realities, flexibility, ability to set own rules
- Is there an arbitration clause in contract?
Up to £10,000 – small claims track
£10,000-25,000 – fast track
Over £25,000 – multi track
Letter before claim
Letter of response?
Advising on case management preparations/directions/orders
Small claims track – standard directions for disclosure, straight to final hearing, usually no costs, appeal/enforcement
Fast track – standard disclosure of documents, exchange of witness statements and experts’ reports, trial within 30 weeks of directions, fixed trial costs, summary assessment of other costs, appeal/enforcement. Normally Single Joint Expert, hearing lasts no more than one day and summary assessment of costs at end of hearing.
Multi-track – directions or case management conference (CMC) for directions, trial, appeal or detailed assessment of costs / enforcement. Complex and weighty matters, generally millions of pounds and multi-party claims. Directions will include requiring costs budget – difficult to amend costs budget without other party’s agreement. If there is a failure to file costs budget in time, the normal rule is that the court deems party to only have filed budget for court fees.
Party can apply for relief from sanctions per Denton v TH White and CPR 3.9 where the court identifies the seriousness or significance of the relevant breach – if not serious, usually granted. Then consider why the breach occurred. Then evaluate all circumstances of case so that the court can deal justly with the application – particularly considering whether the trial date that has been set can still be met.
Small claims – at least 14 days before hearing, parties must file and serve on the other party copies of all documents on which they rely.
Multi-track – disclosure report to be filed no less than 14 days before case management conference then, not less than 7 days before the first CMC, parties must discuss and seek to agree on a proposal for disclosure to meet the overriding objective. Agreed proposal must be filed with the court. Court can then order standard disclosure or other disclosure as required, including for specific disclosure.
Fast track – standard disclosure
Per CPR 31.6 – must disclose documents upon which party relies, plus documents which adversely affect their own case, adversely affect any other party’s case or support another party’s case.
Duty to disclose limited to documents within a party’s control, ie. are or were in party’s physical control, party has right to possess document, party has right to inspect document.
All parties subject to duty to make reasonable and proportionate search for documents on same basis as CPR 31.6.
Reasonable depends on number of documents involved, nature and complexity of proceedings, ease and expense of retrieval and the significance of a given document.
There are limitations – party may decide not to search for documents that came into being before a specific date, can specify where they search or limit the category of documents they search – these are justifiable.
For electronic documents, CPR requires parties to minimise cost incurred in disclosure and to use technology to ensure efficient search and the parties should agree specific parameters.
Once party has list of disclosure, they complete Form N265, including disclosure statement (cannot be signed by legal representative). Must set out extent of search, why any class or category of document has been excluded from search.
List then needs to be broken down into –
Part 1 – documents within the party’s control and which they do not object to the other party inspecting,
Part 2 – documents within the party’s control but that they object to inspection, for example because they are privileged,
Part 3 – documents that are not privileged but no longer in the party’s control.
Part 1 documents must be described precisely. Part 2 documents must still be disclosed but mean the other party cannot inspect and they can be described generally,
Documents subject to legal professional privilege must still be disclosed, but cannot be inspected.
There are two types –
Legal advice privilege – where the dominant purpose is the lawyer advising the client. General commercial advice is not privileged. Attendance notes are disclosable but not made available for inspection.
Litigation privilege – communication passing between client or lawyer and third party which came into existence when litigation was contemplated or ongoing and which was produced with a view to litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it or for obtaining evidence to be used in litigation. E.g., an expert report obtained by solicitor in order to advise on contemplated litigation.
- Client can waive privilege.
- Any without prejudice correspondence is subject to the same test for standard disclosure.
- A party can challenge privilege (CPR 31.19).
- Failure to discharge disclosure obligations can lead to sanctions, including strike out of claim.
- Requests to inspect documents must be made in writing and agreed within 7 days.
If a party is not satisfied with disclosure, it can apply for order for specific disclosure (CPR 31.12) using form N244, accompanied by witness statement and then served on the other party – requiring a more extensive search, disclosure of further documents located as a result of the previous search, or disclosure of specific documents which the party expected to see in the list.
Pre-action there is a general requirement to disclose, but no specific requirement to disclose anything adverse to that party’s case. A party can make an application for pre-action disclosure (CPR 31.16) and will be granted if the court is satisfied that both applicant and respondent are likely to be party to subsequent litigation, the documents sought come within the scope of standard disclosure and disclosure is desirable to fairly disclose of the anticipated proceedings, assist the dispute being resolved without proceedings or to save costs.
A party can also make an application for non-party disclosure, usually where documents are no longer in the defendant’s possession, but will only be granted if the documents in question support the applicants case or adversely affect the case of another party and disclosure is necessary to fairly dispose of the case or to save costs.
- County Court for straightforward cases valued at less than £100K (unless PI)
- High Court – QBD for contract and tort, for more complex cases
Issue proceedings – claim form N1
Include Particulars of Claim
Include copy of any contract
If value is unknown, insert ‘not more than… X’ to the value possible within that court / track.
Advising on witness evidence/expert evidence
Advice on preparation for trial
Advice on offers to settle (including offers to settle under CPR36)
Advice on costs (interim and final costs)
Advice on jurisdiction/applicable law in a contract or tort case
Contract – can include a reasonable clause to choose jurisdiction – unless UCTA 1977 applies.
Sales of goods and supply of services – generally country where seller or supplier has their habitual residence.
Land and tenancies – country where the property is situated.
Otherwise – the country where the ‘characteristic performer’ of the contract has their habitual residence.
Tort – unless the parties agree, generally the laws of the country where the tort has occurred will apply.
Cases where one party is within the EU (unclear following Brexit) can generally be issued in the jurisdiction where the contract was to be performed, or for tortious cases either where the defendant is domiciled or where the harm occurs.
Permission must be obtained from the court in order to serve outside the EU.
When serving claim form – effectively the courts of E&W are claiming jurisdiction – if you are rejecting the court’s jurisdiction do not file defence! Must challenge court’s jurisdiction within 14 days of filing the AOS.
Defence to counterclaim must be filed within 14 days of service, but can be extended to a maximum of 28 days by agreement.
Statement of case can be amended before service, but after service only with written consent of all parties or permission of the court.
Court may only amend after limitation expiry to add or substitute a claim arising on substantially the same facts, to correct a genuine mistake as to the names of the parties, or to change the capacity in which a party claims.
- Form N244
- Witness statement if required
- Draft order
Application notice must be served at least three clear days before hearing.
Without notice applications – where there is exceptional urgency or in support of overriding objective, but applicant must make full and frank disclosure on all relevant issues and explain why no notice is being given.
Respondent can apply to set aside judgment within 7 days of service of the order. Costs either against named party, costs in the case, or no order as to costs (each party bears their own costs)
Summary judgment – no real prospect of succeeding in the claim or successfully defending the claim and no other compelling reason why the matter should be disposed of at trial. Outcomes include judgment on the claim (i.e. applicant’s favour), striking out or dismissal of the claim (application dismissed) or a conditional order.
Without notice – if there are good grounds for no notice, court may make interim order and fix further date for all parties to attend, or tell respondent to apply to variation or set aside before trial / further order.
- freezing injunction to prevent removal of assets from jurisdiction
- search order to allow documents or property to be recovered.
- Cannot seek interim payment until after time for filing AOS has expired.
- Notice of application must be served at least 14 days before hearing date.
- Trial judge will generally not be aware of interim payments unless defendant agrees to disclose.
Application must include amount sought, what it will be used for, likely award at the end of the case and reasons why the application should be granted – on the basis that either the respondent has admitted liability, applicant has obtained judgment and is awaiting assessment of damages or the court should be satisfied that if the case went to trial, applicant would obtain judgment in their favour.
In line with overriding objective:
- Equal footing saving expense
- Proportionate to value of claim
- Importance of case
- Complexity of issues
- Financial position of each party
- Dealing with case fairly and expeditiously
- Appropriate share of court’s resources
- Enforcing compliance with rules, practice directions and orders.
- Personal service, leaving claim form at specified place, fax or other electronic communication – if served before 16:30 on a business day, deemed service is same day, otherwise next business day.
- First class post or document exchange – deemed service is second business day after it was posted.
- Other means as authorised by the court
POC must be served with claim form or within 14 days of service of claim form.
Once POC has been served, defendant MUST act! At minimum file AOS within 14 days of service and defence within 28 days of service of POC. Can be extended by agreement for a further 28 days (56 total), otherwise further with permission of court.
Failure to act = likely to lead to default judgment
Can apply to have default judgement set aside if CPR 13 applies – mandatory ground (where judgment was entered in error) or on a discretionary basis where the applicant has a real prospect of successfully defending the claim or there is another good reason why the defendant should be allowed to defend the claim.
Claimant can discontinue all or part of a claim without permission of the court.
Settlements reached once proceedings have been issued are usually resolved with a consent order signed by both parties.
Tomlin orders – consent order with a confidential schedule or terms in a separate document.
Advice on signing SOT and service of Claim Form/Particulars of Claim/Defence
- SOT can be signed by the party or their legal representative – legal representative must include ‘I am duly authorised by [the party] to sign this statement’
- If a business, partners or anyone with control of management of the business, or person holding a senior position (director, company secretary, CEO, etc)
- SOT must be on all docs, claim form, POC, defence and counterclaim, reply, etc.
Legal burden of proof to produce sufficient evidence to establish their allegation or argument, generally the burden lies with claimant to prove every fact (unless admitted by the defendant). Exception where defendant in civil proceedings has been convicted of a relevant criminal offence – then the burden reverses and it is down to the convicted party to demonstrate why they should NOT have been convicted.
For contributory negligence, the defendant must prove claimant’s failure / contribution.
Civil standard is balance of probabilities, ie. greater than 50%.
Generally witnesses give evidence by witness statement and any party wishing to call a witness must serve a corresponding witness statement before the witness will be permitted to give oral evidence.
Where a witness is unavailable, eg out of jurisdiction, a party can apply without notice to the court to serve a written witness summary, including witness name and address, the evidence the witness can provide and the matters on which the witness would be questioned at trial, ie. relevant matters in issue (not ideal, but better than no evidence at all).
The form of witness statements is set out in CPR 32, mainly –
- needs heading
- needs to be written in first person
- includes documents being exhibited and SOT.
Once allocated to track, court will direct as to exchange of witness statements.
Opinion evidence generally not admissible as witness should be providing relevant facts, not conclusions. Facts personally perceived are admissible, ie. the facts as the witness perceived them to be. In the case of expert evidence, however – experts can express opinion in court.
Hearsay evidence is defined as a statement made outside of court, repeated in court, with the purpose of proving the truth of the matter stated. Hearsay is admissible, but notice must be served for a hearsay witness and the opposing party can ask the court to order the maker of the original statement to attend court for cross examination, or serve notice of their intention to attack the credibility of the hearsay evidence. Judge will then decide the weight to attach to the hearsay in all of the circumstances.
CPR 35 – limited right to adduce expert evidence as court may refuse to allow any experts, limit the number of experts overall or on a specific issue, direct that experts must be agreed between the parties, limit evidence to written reports.
Witnesses cannot be called to give oral evidence without the court’s permission – usually dealt with at CMC.
Expert evidence generally admissible per Civil Evidence Act 1972 – where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
CPR 35 sets out expert’s duty to assist the court by providing objective, unbiased opinions on matters within their own expertise.
Court can direct single joint expert (SJE), particularly where it is proportionate for parties to each pay for an expert, whether an SJE might speed up matters in a more cost effective way and whether there is likely to be a range of differing opinions on the matter in question. If the parties cannot agree on an SJE, the court will select one from a list drawn up by the parties.
At the CMC deadlines will be set for exchange of experts’ reports. Each party has 28 days to put written questions to the other party’s expert for clarification of their report – answers are treated as being part of the report. The court can order a without prejudice discussion between experts to narrow the issues and identify points of agreement and the points of disagreement with reasons, how the matters disagreed could be resolved and any further material issues not yet raised. The experts then issue a written joint statement, copies of which provided to the parties. The court will then decide whether oral evidence will be permitted.
There is no right to appeal in a civil case and the trial judge will usually decide whether to grant permission – otherwise the party will need to apply for permission to the appellate court. An appeal must be lodged within 21 days of a decision in the County Court or High Court and within 28 days if it is a decision of the Court of Appeal.
Appeals are usually heard by one court up:
- DJ in the County Court – appeal heard by Circuit Judge
- Master or DJ of the High Court – appeal heard by High Court Judge
- Circuit Judge – appeal heard by High Court Judge
- High Court Judge – appeal heard by Court of Appeal
- Court of Appeal – appeal heard by Supreme Court
Where the matter raises an important point of principle or practice, it is possible to ‘leapfrog’ – so jump to the Court of Appeal, rather than the normal process, but this is rare and must be authorised by the court.
In order to appeal the appellant must show that the lower court was wrong as to the law, its interpretation of the facts or exercise of discretion or that the outcome is unjust because of serious procedural irregularity.
Costs includes solicitors charges, disbursements, court fees, expert’s fees and pre-action costs.
On the multi-track, costs budgets must be submitted for the CMC. Costs awarded on the standard basis are generally awarded to the value of the last approved costs budget. The court needs a good reason to depart from the standard basis, so where costs were definitely not incurred because part of a process did not happen, or where the budget far exceeds actual costs.
On the multi track there will often be a detailed assessment of costs, so not decided on the last day of the trial. Within three months of the judgement in the case, the receiving party must serve Notice of Commencement with their bill of costs and evidence in support, including receipts.
If the paying party wishes to dispute any aspect they have 21 days to serve points of dispute and the replying party then has a further 21 days to file a reply. The receiving party must file a request for an assessment hearing. If the costs amount to less than £75K the court undertakes a provisional assessment without the parties present. If a party disagrees, they can request an oral hearing within 21 days – however if that party fails to achieve a 20% uplift in the costs award, they will be ordered to pay the costs of the hearing.
Per CPR 44 when determining costs, the court can take into consideration the conduct of the parties, the value of the money or property involved, the importance of the matter to the parties, the complexity of the matter, the skills, effort and specialised knowledge involved in brining the case, time spent on the case, the place and circumstances in which the work was done and the receiving party’s last costs budget.
The standard basis will apply in most cases and should be proportionate to the matter in issue, meaning that they must be reasonable in context of the value of the claim and the value of any non-monetary relief. Where there is doubt, the court will always resolve in favour of the paying party.
Costs on an indemnity basis are a penalty, usually to do with the way a party has behaved during proceedings, but costs must still be reasonably incurred and a reasonable total amount. Qualified one way cost shifting applies to PI cases, where the defendant is usually backed by an insurer and hence there is unlikely to be an award of costs against the claimant regardless of the outcome.
Security for costs
The court has a discretionary power to make an order for security for costs where a defendant believes that the claimant, should they lose, will be unable or unwilling to pay costs. The most common grounds for arguing security of costs are a claimant based outside the UK/EU, the claimant is a company whose finances are doubtful, the claimant has taken steps to ensure that enforcement will be difficult – for example by moving assets or relocating to a different jurisdiction. The court will only make an order where it considers that it is just, in all the circumstances, to do so.
Part 36 Offers
A party can make a Part 36 offer at any time after proceedings have been issued, so long as it is in writing, clear that it is a Part 36 offer, specify a period of no less than 21 days (the relevant period) during which the other party can avail themselves of the offer and state whether the offer relates to the whole or part of the claim.
Rules of deemed service apply.
C makes a Part 36 Offer:
If C wins AND beats own offer to D, C awarded damages, plus 10% uplift, plus enhanced interest.
If C wins, but fails to beat their own offer, no extra penalties.
If C loses, pays D’s costs on standard basis.
D makes a Part 36 Offer:
If C wins and beats D’s offer, D pays damages plus standard interest in POC, plus C’s costs on standard basis.
If C wins, but fails to beat D’s offer, then D pays standard costs until Day 21 of offer. From Day 22, C pays D’s costs on the standard basis plus enhanced interest (usually 1-2% above base rate) on costs.
If C loses, C pays D’s costs plus enhanced interest.
Enforcement of money orders
In order to enforce a money judgment, it may be necessary to obtain information about the debtor’s ability to pay – this can be done through an enquiry agent or on application to the court for an order to obtain information as per CPR 71.
To obtain an order judgment creditor files a notice of application at court, setting out name and address of the debtor, the judgment that enforcement is being sought on and the amount owed, along with a list of any documents relied on.
Order normally personally served on the debtor who can respond within 7 days to request reasonable payment of travel expenses to attend court, with the hearing usually taking place at the County Court local to the debtor’s home or place of business. Examination conducted by an officer of the court or a judge if specifically requested by the creditor. The debtor will be asked a standard list of questions although the creditor can ask for specific additional questions to be put to the debtor. Officer will make a written record of responses which debtor must then read and sign.
If debtor fails to attend, judge may make a committal order which is normally suspended if the debtor complies with the order.
Methods of enforcement
Taking control of goods – debtors possessions are seized by High Court Enforcement Officer or enforcement officer (if in the County Court). For individuals, goods that cannot be seized are ‘necessary items’ such as clothes, bedding, furniture and household equipment that are reasonably required for basic needs of the debtor and their family. Work tools, computers, vehicles and other equipment required for the debtor to work or study are also exempt to a max value of £1350.
Good belonging solely to another person or on hire purchase cannot be seized.
High Court for debt over £5000 unless under Consumer Credit Act 1974 – writ of control enforced by HCEO.
£600 to £5000 – County Court or High Court, but if HC judgement must be transferred to HC. Warrant or writ of control – enforcement officer relevant to the court.
Less than £600 – County Court, warrant of control and enforced by enforcement officer / bailiff.
Seized goods sold at public auction – costs deducted.
Charging order – over land or on stocks and shares, places creditor in position like a mortgagee and can decide not to seek further enforcement immediately.
File application notice with County Court or High Court depending on value requesting interim charging order. Hearing dealt with by court officer or can be referred to a judge where necessary. Debtor has 14 days to request court officer’s decision be reviewed by a judge.
Stage 2 – apply for a final charging order. Anyone wishing to object to the interim order has 28 days from service of the interim order to file and serve written evidence along with grounds for objecting.
On receiving an objection matter can be transferred to debtor’s home court for hearing where court can make a final charging order, discharge the interim order or direct a trial on any of the issues between the parties.
Once a final order is in place, the creditor has a charge on the debtor’s land and this can be enforced by an order for sale of the property be starting fresh proceedings.
Third party debt order – orders third party to pay to creditor any sums due to the debtor, including positive bank balances. Includes money owed to a business. Application to court without notice providing details of bank accounts, third party, etc. Court makes interim order which freezes the funds in question – no money paid out as hearing scheduled for no less than 28 days after interim order issued – court can then hear both parties before making a final order.
Attachment of earnings – order compelling debtor’s employer to make deductions from debtor’s salary. Can only be made in County Court by application through County Court Money Claims Centre. Court informs debtor of application, requiring payment or to file a statement of means (incomings / outgoings). Court officer then calculates amount to be attached based on normal earnings and protected income rates. Order made – employer entitled to make small charge for administrative costs. If either party objects to order they can ask for it to be reviewed by a judge.
Enforcement outside England and Wales
Scotland and Northern Ireland – obtain certificate detailing judgement, sum awarded, details of interest and costs. Apply to court in Scotland or NI with evidence to register judgment within six months, then enforcement can be made using local procedures.
European Union – for judgements pre 31 December 2020 can enforce in member states under Lugano Convention. Post Brexit judgements rely on rules in individual jurisidictions, if there are any mechanisms for enforcement.
Commonwealth – some countries have in place reciprocal agreements with UK.
Beyond – likely need to start fresh proceedings on the original matter (ie. substantive issue not the enforcement).