Dispute Resolution 86% Distinction LPC Notes (2022) - University of Law
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The court must seek to give effect to the OO when exercising power given to it by Rules (r 1.2)
Solicitors and their clients have a positive duty to help the court to further the OO (r 1.3).
The OO does not mean that a party to litigation owes a duty to another party.
The OO of CPR 1998 is to enable the court to deal with cases justly and at proportionate cost. This means (r 1.1):
✓ Ensuring parties are on equal footing (e.g. giving smaller firms more time to
prepare disclosure lists/trial bundles)
✓ Saving expense
✓ Deal with cases in ways which are proportionate
▪ To the amount of money involved
▪ To the importance of the case
▪ To the complexity of the issues
▪ The financial position of parties
✓ Ensuring cases are dealt with expeditiously and fairly
✓ Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
✓ Enforcing compliance with rules, practice directions and orders
When setting a timetable for tasks prior to trial, court may allow a defendant w/o legal representation and low
income more time to complete tasks than claimant with legal representation.
Outline of a Civil Claim
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Pre-action Steps
STEP
1) Check any professional The solicitor acting in civil proceedings must have regard to the follow rules of
conduct points professional conduct:
Duty of confidentiality:
6.3 SRA Code of Conduct 2019 – keep affairs of current and former clients
confidential unless disclosure permitted by law or client consents
Conflict of interest:
6.2 SRA Code of Conduct 2019 – do not act if there is a risk of a conflict of
interest or if there is a conflict
Money laundering:
Proceeds of Crime Act 2002. Must ensure adequate procedures are in place to
check new client’s identity.
Who the client is and authorisation to act:
If receives instructions from someone other than client, or by only one client on
behalf of others, should not proceed without checking all clients agree with
instructions given.
Solicitor’s duty as an officer of the court:
- Duty not to mislead the court or your clients (1.4 of the Code)
- Must disclose all relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective (r.1.3).
Solicitor’s core duties:
The SRA Code of Conduct 2019 is based on certain mandatory principles.
1. Act in a way that upholds the constitutional principle of RoL and proper
administration of justice
2. Act in a way that upholds public trust and confidence in the solicitors’
profession and in legal services provided by authorised persons
3. Independence
4. Honesty
5. Integrity
6. Equality, diversity & inclusion
7. Clients’ best interests
2) Identify the client’s - What does the client want?
objectives - What realistically can be achieved?
3) Identify and locate, if
necessary, all potential
parties
4) Check the financial - Viability - If there is a legal basis for the claim, we need to consider
viability of the whether there are an practical issues affecting the viability of a claim:
defendant / quantum 1. Solvency?
2. Traceable?
3. Worth?
- Quantum – How much is the client likely to obtain? What evidence to they
have? Consider remoteness, mitigation and contributory negligence issues.
Does evidence need to be preserved?
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5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
6) Assess liability Identify the cause of action (below) and explain its constituent elements.
Explain the burden of proof – Claimant must show on the balance of
probabilities that what he is claiming is true!
Limitation Issues
Basic rules: Limitation Act 1980
Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract
occurs
Tort 6 years (s2)
(excluding personal injury and when the tort is committed
latent damage) when some damage occurs (for
negligence)
Latent damage (ONLY 6 years or 3 years from date of
NEGLIGENCE) knowledge (s14A)
In non-personal injury claim Long-stop limitation period of
based on negligence where the 15 years from date of alleged
damage is latent (NOT AWARE breach of duty (s14B)
OF IT) at the date when the
cause of action accrues
7) Discuss and agree Explore all options - See funding notes.
funding with the client
8) Collect and preserve - Where are relevant documents located?
evidence - Is pre-action disclosure required?
▪ Prospective C might need to see docs held by the potential D who is
unwilling to show them voluntarily
▪ Application for disclosure of docs prior to the start of proceedings is
permitted under s33 of the Senior Courts Act 1981 or s52 of the
County Courts Act 1984
- Is a preservation of evidence order required?
- What witnesses can proofs of evidence be taken from?
- Is an expert’s report needed?
- Are business’s accounts needed?
- Are photographs or a site visit needed?
Disclosure statement
An individual must sign: A party is under an obligation to disclose documents
that might adversely affect his own or support another party’s case.
• Essential that parties comply fully and honestly with requirements of
disclosure (r 31.10(5)).
• Has to sign statement:
o Setting out the extent of the search that has been made to locate the
documents;
o Certifying he understands the duty to disclose documents;
o Certifying to the best of his knowledge, he has carried out that duty.
• Contempt of court
o Proceedings may be brought under this against a person who makes
or causes to be made a false disclosure statement without honest
belief in its truth.
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