Civil (2)

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What section of the CPR deals with the overriding objective?: CPR 1.1(1) - enabling the court to deal with cases justly and at proportionate cost
What should parties comply with before issuing proceedings?: The relevant pre-action protocol/practice direction. This is known as pre-action conduct.
What are the aims of the pre-action protocols?: 1. Ensure full pre-action investigation
2. Avoid the need to commence proceedings
3. Encourage pre-action contact
4. Encourage early and fair resolution of claim
5. Encourage early exchange of information
What does 8.1 PD state in relation to starting proceedings?: 8.1 PD states that starting proceedings should usually be a step of last resort.
What does 6 PD Pre-Action Conduct state?: At the very least, it should be possible to establish what issues remain outstanding so as to narrow the scope of the proceedings and therefore limit potential costs.
What is the first step that a party should take in relation to a grievance that it has, and when should it take that step? Give ref.: Send a preliminary notice as soon as a potential claimant decides there is a reasonable chance it will bring a claim (B1.1 - Prof. Neg. Pre-Action Protocol).
What must a potential defendant do in response and by when?: 1. Write to acknowledge the preliminary notice;
2. within 21 days of receipt (B1.4)
What should the claimant do as soon as it decides that there are grounds for the claim?: Write a detailed letter of claim (B2.1)
What should the defendant do in response to the claimant's detailed letter of claim?: Write a Letter of Acknowledgement within 21 days of receiving the letter of claim (B3)
How long does a defendant have to investigate the claim made against it and from when does time start to run?: 3 months from the date of the letter of acknowledgement (B4.1)
Once the Defendant has investigated the matter, what should it do and by when?: As soon as the investigation is complete, the Defendant must write either a Letter of Response or a Letter of Settlement to the Claimant (B5.1)
Can a letter of response be used as evidence in subsequent court proceedings?: Yes - this is an open letter and can be used as evidence
Can a letter of settlement be used as evidence in subsequent court proceedings?: No this is a 'without prejudice' letter and cannot be used as evidence.
What sections of the Pre-Action protocol gives guidance on the level of detail that parties should go into, also why does it do so?: Claimant - B2.2
Defendant - B5.5

Why? Overriding objective - helps to facilitate early settlement
How long should the professional and the claimant allow for concluding negotiations before issuing proceedings?: 6 months from the date of the Letter of Acknowledgement (B5.6)
Why would parties consider entering into alternative dispute resolution (ADR)?: Because part 6 encourages settlement so as to avoid, time, stress and costs of litigation.
What will the court want to see and what might the court take into account in relation to ADR?: Court wants to see evidence that the parties are not unreasonably rejecting offers (in line with the overriding objective). Also, the court will consider whether parties considered ADR when determining costs (B6.1)
Why are parties encouraged to appoint a joint expert?: This saves time and costs
What section of the Prof. Neg. Pre-Action Protocol encourages the appointment of Joint Experts?: B7.2
If Pre-Action negotiations fail, does the claimant need to do anything else before commencing litigation against the defendants?: The claimant should, where possible, give 14 days written notice before proceedings are issued (B8.2)
Can parties ignore pre-action protocols entirely?: No - the court can punish a party through:

1) costs - who pays what court to decide
2) active case management powers
What does issuing mean?: This means starting proceedings
What does serving mean?: This means getting the document to the other side
What does filing mean?: This means giving a document to the Court
Why is it important to know the date on which the claim was issued?: - Whether the claim was brought within an applicable limitation period
- To work out how long the claimant has to serve the claim form on the D
What should you consider in determining in which court to issue a claim?: 1. value of the claim?
2. if High Court, what division?
3. which court has jurisdiction over the claim?
If the High Court and the County Court have jurisdiction, what must you think about next?: The value of the claim
If a claim is for a large amount and the legal issues complex, what court would be best placed to hear the claim?: The High Court
What area of law does the chancery division of the High Court deal with?: Land, Trusts (including patents)
What area of law does the Queen's Bench division of the High Court deal with?: Contract/Tort
What happens if a claim is issued in the wrong court?: - Possible costs sanctions
- Consider the criteria to which the court must have regard (CPR 30.3(2))
What type of form is completed to issue proceedings?: Claim Form (Form N1)
What is the claim form?: It is a statement of case
What should you write in the top corner of the claim form N1: In the "High Court of Justice
Queen's Bench Division"
What two points should be set out in the 'Brief details of claim' section of the N1 form?: 1. One sentence summary of the claim for the matter 'including interest on such damages'; and
2. As per para. 9.7, confirmation that the claimant has complied with the Pre-Action Protocol.
Save for the court fee, is it ok to write 'To be assessed' in the following fields 'Amount claimed', 'Solicitor's costs' and 'Total amount'?: Yes, fine.
In terms of the value of the claim, what should be written?: The claimant wishes to issue the claim in the High Court. The claimant expects to recover more than £100,000.
What must you remember to do in relation to the end of the N1 form?: Black out the terms that are not applicable.
What is the purpose of a particulars of claim?: The purpose is to set out the claimant's case explaining the duty owed, how that duty was breached and how that breach caused the damages claimed.
What is the Particular of Claim part of?: The Particulars of Claim is one of the Claimant's Statements of Case.
What three-step approach is advised in relation to analysing a Particulars of Claim?: 1. Format (CPR 16 and 16PD)
2. Typographical and factual errors
3. Anything incorrect or missing
What should the content of all statements of case be?: Factual
What must you make sure happens in relation to Duty?: That all express and/or implied terms are contained in the particular of claim
What must you do in relation to breach?: Explain how each duty owed has been breached.
In relation to causation, what must you explain?: Explain what occurred as a result of the alleged breach of duty?
What must you do in relation to loss and damage?: Set out the losses and damages that have been suffered as a result of the alleged breach of duty
What must the particulars of claim also include?: Sufficient background facts for the judge to understand the story
What should the first paragraph of your Particulars of Claim set out?: At all material times ... who each person/company is and what they do.
Where documents are referred to in the Particulars of Claim, what should you do provided the document is of course within your possession.: Add a that reads 'A copy of the X is attached to these Particulars of Claim.'
What must you be careful about when drafting your Particular of Claim in relation to precision?: Remember to be clear in relation to covenants and terms

Restrictive, Positive, Express, Implied
What must you also remember to do to not loose easy marks?: Remember to re-number your paragraphs!
What must you also do in to mop up marks?: Add cross references into the document. Particular at the end when you reference the breach having been committed. For example, referred to in X, Y and Z above.
Before you reference that the claimant has suffered loss and damage, what should you do?: Say 'As a result of the breaches referred to in paragraph(s) X above ...'
What must you do in relation to your particulars of loss?: 1. Set out the amounts incurred
2. Less what you must give credit for
3. Reach a total
What must you make sure is set out at the end of your Particulars of Claim?: AND THE CLAIMANT CLAIMS:

(i) damages under X para; and
(ii) interest under X para.
What must be added above the statement of truth?: The name of the firm of solicitors on the right hand side.
What must you be mindful of when writing Particulars of Claim on the part of a corporate?: An individual cannot sign unless duly authorised by the Claimant to sign the Statement. A sentence should read 'I am duly authorised by the Claimant to sign this Statement'.
If you are claiming interest and there are no contractual provisions for it, how do you claim on a statute basis?: CC - S. 69 Country Courts Act
HC - S. 35A Senior Courts Act
How must you remember to claim interest if there are no contractual provisions?: As the court thinks fit.
Is it ok to write 'The Claimant [a company] believes'?: Yes, fine.
For the purpose of a claim form, what must be stated?: 1) Interest if claimed
2) The value of the claim
What must a statement of claim contain?: A statement of truth
In terms of the numbers of claim forms that a claimant's solicitor must take or send to the court, what is the rule?: One copy for:

(1) the court;
(2) each defendant; and
(3) the claimant to keep on file.

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Created By shughes