LEVEL 6 - UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS - JANUARY 2016

Transcription

1 Note to Candidates and Tutors: LEVEL 6 - UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS - JANUARY 2016 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1(a) See attached N1 Claim form. Question 1(b) In the CCMCC Claim No: Mr Thomas Digby Claimant and Mrs Vanessa Blooming Defendant Particulars of Claim 1. On 12 July 2015 the Claimant and Defendant were involved in a road traffic collision. 2. The Claimant, Mr Thomas Digby, was the owner and driver of a VW Passatt, vehicle registration number TD The Defendant, Miss Vanessa Blooming, was driving a Ford Fiesta, vehicle registration number YA12 7AD. Page 1 of 9

2 4. The circumstances were that the Claimant was in his vehicle and was travelling along Transly Street, Bedford. The Claimant was correctly proceeding straight through the traffic light controlled junction, which is a crossroad with Baker Street, when the Defendant turned right across the Claimant s path, into Baker Street, resulting in a collision between the vehicles. 5. The collision was caused by the negligence of the Defendant. PARTICULARS OF NEGLIGENCE The Defendant was negligent in that she: (a) drove too fast in the circumstances. (b) failed to keep any or any proper lookout or to observe or to heed the presence of the Claimant or her car. (c) failed by means of the brakes, steering gear or otherwise to manage and control the car so as to avoid the collision. (d) failed to slow down or stop to give way to the Claimant s car before turning right across and into the path of the oncoming Claimant s car. (e) drove into collision with the Claimant s car or alternatively drove directly into the path of the Claimant s car thereby affording the Claimant no opportunity to avoid a collision. By reason of the above the Claimant has suffered pain, injury, loss and damage. Full particulars of which are set out below and in the medical report and schedule of losses annexed. PARTICULARS OF INJURY The Claimant s date of birth is 03/05/63. The Claimant s national insurance number is YY112233Y. The Claimant suffered a whiplash injury to his neck, back and right shoulder. The Claimant s injuries are verified in a medical report prepared by Dr Hanna dated 5 th October PARTICULARS OF SPECIAL DAMAGE The Claimant s losses are set out in the schedule of losses annexed. 6. The Claimant is entitled to and claims interest pursuant to s69 County Courts Act 1984 on damages at the rate of 8% per annum on the amounts found to be due from the Defendant for such periods as the Court shall think fit. AND the Claimant claims: 1. Damages to be assessed 2. Interest pursuant to s69 of the County Courts Act 1984 to be assessed. Page 2 of 9

3 Statement of Truth I believe the facts stated in these particulars of claim are true. Signed: Dated: The Claimant s address for service is Kempstons LLP of The Manor House, Bedford, MK42 7AB. Ref: TD/RTA/7795. Question 2(a) In respect of the potential funding for Mr Bosko s claim, there are a number of options. The claim could be funded by a CFA, a conditional fee agreement also known as a no-win-no-fee agreement. CFA s are governed by the Courts and Legal Services Act 1990 (CLSA), CFA Order 2013 and the Solicitors Regulation Authority Code of Conduct (SRACC) A CFA is a funding agreement entered in to with the client and if the client wins the claim then the lawyers are able to recover their costs. If the claim is unsuccessful then the lawyers do not recover a fee for their work. There is a risk attached to a CFA that no costs may be recovered if the claim is unsuccessful. If the client wins, the legal representatives are entitled to charge an uplift (also known as a success fee) on their base costs as a percentage. This type of funding agreement is appropriate for personal injury claims and would therefore be appropriate to Mr Bosko s case. He would be liable for the success fee if he wins the case as the funding agreement is post April 2013 and the legal representatives are not now able to recover this from the other party. In personal injury cases the success fee is limited to 25% of the client s general damages for pain, suffering and loss of amenity and damages for past monetary losses. If the client was to be funded on a CFA basis, it would be advisable for him to obtain an after the event insurance (ATE) policy. The client would be charged a premium for the policy but it protects the client if he lost the claim and was liable for the opponent s costs. The ATE premium would pay the opponent s costs. The ATE is not a recoverable disbursement from the losing party. The claim could be funded by a Damages Based Agreement (DBA), these apply to personal injury cases. DBA s are governed by the CLSA 1990, DBA Regulations 2013 and SRACC If the client wins the claim, funded under a DBA, the legal representative is entitled to a maximum of 25% of the client s general damages for pain, suffering and loss of amenity and past monetary losses. If the client is funded under a DBA and loses, the client will be liable for the opponent s costs including VAT and disbursements and his own disbursements but not his lawyer s costs. Again, an ATE policy would be advisable. However, the client may choose not to take out ATE insurance because of QOCS (Qualified One Way Costs Shifting). Page 3 of 9

4 The case could be funded privately, where the client pays for the works done on his case on an hourly basis at the rate of the fee earner dealing with the case, but this is unlikely in a personal injury case. The client may have legal expenses insurance on an insurance policy (eg home or car insurance or a trade union policy) and if so this funding could be used in his case. Question 2(b) Upon issue and service of the claim, the Defendant has a specific time in which to respond to proceedings. A response is due by the Defendant within 14 days after service of the claim form. If the claim is admitted, the Defendant should file an admission to the claim under CPR Pt 14. Judgment on admission should then be sought by the Claimant. Judgment on admission will then by ordered by the court in favour of the Claimant, with the amount to be paid confirmed to be due within 14/28 days or by instalments. Within 14 days of the service of proceedings a response by way of either an acknowledgement of service or defence is due. If an acknowledgment of service is filed in time, the Defendant then has 28 days from the date of service to file a defence. The requirement to file an acknowledgment of service is governed by CPR Pt 10 and a defence by CPR Pt 15. In the absence of acknowledgment of service or a defence being filed and the time for doing so has passed, the Claimant can request judgment in default of an acknowledgment or service or a defence being filed under CPR Part 12. This is judgment in default of not following the correct procedure. Question 2(c) Disclosure is governed by CPR Pt 31. A party discloses a document by stating that the document exists or has existed. There is an ongoing duty to disclose. Each party has a duty to disclose documents in their control/possession and either supports their claim, supports the other parties claim or adversely affects their claim. Possession means physical possession, the right to possession to a document and a document that the party had possession of but is no longer in possession of. Mr Bosko s claim is likely to be allocated to the Fast Track and therefore standard directions would apply. Standard direction in fast track cases is disclosure 4 weeks after allocation. There is a duty to advise the client to search for documents related to the matter, to disclose documents and the consequences of failing to disclose. The procedure for disclosure is disclosure by list, form N265/list of documents setting out the documents that are in the party s control that the party intends to rely upon, privileged documents and documents that are no longer in the parties control. The list of documents contains a disclosure statement, to be signed by the party (authorised party) confirming full disclosure has been made. Privileged documents are not required to be disclosed. In respect of Mr Bosko s claim he would be required to disclose documents to prove liability and quantum. Documents in support of liability and quantum will Page 4 of 9

5 include the environmental health report and food safety management report from the restaurant, loss of earnings information (ie wage slips and letter from employer), witness evidence, expert evidence eg Dr Vorris, GP/hospital records. The consequences for non-compliance may include the court not allowing the party to rely on documents at trial resulting in potentially no evidence being presented at trial, strike out and making an application from relief from sanction. Question 2(d) An expert is an expert by qualification and experience and has a duty to provide guidance to the court upon the expertise, to assist the court. The rules relating to expert evidence are governed by CPR (Civil Procedure Rules) Part 35. The role and duty of the expert is to the court to report on opinions within their expertise and these are usually presented to the court by way of a written report. Experts are independent. Permission to rely on expert evidence is required by the court and this should be sought in the directions questionnaire. Specific permission needs to be sought from the court to rely on a specific expert within a specific field of expertise. Permission should therefore be sought to rely on Dr Vorris medical report at trial. Permission will only be given to rely upon his written report unless further specific permission for oral expert evidence is also sought and obtained. Question 3(a) Before proceeding to act for Mrs Newberry three initial checks should be undertaken. A money laundering check should be undertaken in order to comply with the Money Laundering Regulations This requires the client to provide identification and proof of address, usually in the form of a passport and utility bill. Mrs Newberry s documents will be required as she is a sole trader rather than a limited company. Limitation needs to be checked to ensure the case is able to be pursued within the relevant time period under the Limitation Act The limitation period is 6 years for a breach of contract, calculated from the date of the breach. The contract is dated 7 January 2015 and there are no limitation issues. A conflict of interest check must be undertaken as required under chapter 3 SRA SCC 2010, to avoid a conflict of interest. Both parties names are required for this check to be completed. Question 3(b) Mrs Newberry should be advised that proceedings should not be issued at this stage. It should be explained that there is a requirement of the parties to comply with the pre-action protocol before proceedings are issued. The pre-action protocol in this case involves a letter before claim being issued, followed by a chaser letter. Page 5 of 9

6 The parties should attempt to negotiate before issuing proceedings in accordance with CPR Pt 1 and the overriding objective. The parties should attempt alternate dispute resolution before issuing court proceedings by the methods of negotiation, mediation, conciliation or arbitration. If the parties do not following the pre-action protocol or attempt to settle before issuing court proceedings, the court may impose sanctions. Sanctions may include costs sanctions. Question 3(c) Mrs Newberry can enforce the unsatisfied judgment. The Claimant may make an application to obtain information under CPR Pt 71, to identify the assets of the Defendant. As the Defendant has a trading property checks should be carried out with the Land Registry to confirm whether it owns the premises. If so, the Claimant could apply for a charging order against the property. An application would be made to the court. If the judgment remains unsatisfied and the property is in the name of the Defendant, the court will grant an interim charging order. The interim charging order must be registered against the property at the land registry. A final charging order hearing will be listed and if the judgment remains unsatisfied and the property is still in the name of the Defendant, the court will grant a final charging order. The final charging order should be registered against the property at the land registry. Charging orders are governed by CPR Part 73. The Claimant could apply for an order for sale. It seems likely that the Defendant has assets. The Claimant could enforce the judgment by taking control of goods governed by the Taking Control of Goods Regulations 2013 and Part 3 of the Tribunals, Courts and Enforcement Act As the unsatisfied judgment is over 5k it is enforced via the High Court by a High Court Enforcement Officer and the issue of a Writ of Control. There are 4 stages to this enforcement method. The compliance stage requires that the High Court Enforcement Officer must serve a Notice of Enforcement, giving the debtor seven clear days to pay in full. The High Court Enforcement Officer could obtain a controlled goods agreement with a view to taking control/possession of goods. If goods are taken by the High Court Enforcement Officer, the debtor must be given seven days notice of a sale. Certain items are exempt from being taken by the High Court Enforcement Officer. The Defendant could argue that a vehicle or goods are required for business purposes and are therefore excluded. Tools of the trade are only exempt to a maximum value of 1,350. If the Defendant owns a vehicle it must be immobilised for two hours before it can be removed. The Defendant may start proceedings to make the Defendant insolvent. This can be an effective option but can be risky and costly. This would be instigated by the issuing of a statutory demand, for debts over 750. This allows the Defendant 21 days to make payment. It may prompt the Defendant to pay. If this is not effective, a winding up petition may be issued against the limited company. The winding up petition is made to indicate the Defendant is no longer solvent as the Defendant is unable to pay its debts. Page 6 of 9

7 Question 4(a) As Mr Ahmed was an employee of Sunny Dairies Limited and his accident happened at work, the Ministry of Justice Employer Portal for the Low Value Personal Injury Protocol applies. Stage 1 includes submitting the Claims Notification Form to the third party insurers (TPI) to establish liability. The TPI have 1 day to acknowledge the claim and 30 working days to confirm whether liability is admitted. If liability is not admitted the claim exits the process. If liability is admitted the claim proceeds to stage 2. At stage 2, the quantum documents are submitted including the special damages documents and medical evidence along with a quantum offer to settle the claim. The TPI have 15 working days to respond to the stage 2 quantum offer and if they do the stage 2 period extends to 35 working days to negotiate quantum. An additional 5 working days will be allowed to negotiate if an offer is made within 5 days or less of the expiry of the 35 days, amounting to 40 working days. If there is no response within the 15 days the claim exits the process. If there is no agreement on quantum reached at the end of stage 2 the matter proceeds to stage 3. Stage 3 involves submitting the court proceedings pack for a quantum hearing, to be considered at a paper hearing or an oral hearing. Question 4 (b) Dear Mr Ahmed Re: Your Employers Liability Claim - Accident on 1 st August I write further in this matter to update you on your claim. As you are aware, proceedings have been issued and the Defendant, Sunny Dairies Ltd, has filed a defence. I am now in the process of completing a directions questionnaire to provide the court with sufficient information to allocate your case to the appropriate track and list appropriate directions in preparation for your claim to trial. As your claim is a claim for damages for personal injury over 1, but below 25,000.00, the claim will be allocated to the fast track. Upon allocation to the fast track, the court will list standard directions to prepare your case ready for trial. Standard directions include disclosure of documents to take place 4 weeks after allocation, mutual exchange of witness statements within 10 weeks after allocation and expert evidence to be exchanged within 14 weeks after allocation. If we are to rely on an expert s report we must apply for the court s permission to rely upon a report from a medical expert in support of your claim for personal injury. The court will send out a pre-trial checklist 20 weeks after allocation and provide a direction that pre-trial checklists/listing questionnaires be filed 22 weeks after allocation. This document is to confirm the parties are ready for trial. Page 7 of 9

8 The trial will be listed within a 3 week trial window, within 30 weeks of allocation. The trial will be limited to a 1 day hearing. Please note, you will be required to attend court to give evidence. Please let me know if you have any holidays booked for within the next six months so that I can inform the court. If you have any queries on the above please do not hesitate to contact me, otherwise I will update you again once I have heard from either the court or Defendant. Yours sincerely Trainee Lawyer Question 4(c) The court has discretion as to costs including whether costs are payable by one party to another, the amount of those costs and when they are to be paid. The general principle on costs, under CPR part 44, is that the losing party pays the winning party s costs, however this is at the judge s discretion. If you are successful in your claim, the court will usually award costs in favour of the Claimant, summarily assessed at the end of the hearing. In preparation for the hearing, a statement of costs, signed by a partner, must be filed, on form N260, at least two days prior to the Hearing. In deciding what order to make about costs, the court will take into account the conduct of all the parties, whether a party has succeeded on part of its case, whether a Claimant who has succeeded in the claim, in whole or in part, or if a Claimant has exaggerated its claim, in accordance with part 44.2(4) CPR. Under part 44 CPR, the Court has the discretion as to costs and whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Part 45 sets out fixed costs that can be claimed where a claim falls within the Pre-Action for Low Value Personal Injury Claims (Employers Liability and Public Liability) including where claim exits the portal. The costs will be a fixed amount plus a fixed percentage of the damages. Part 45.29E - if the claim is disposed of at trial, fixed costs are the total of (a) 4,280; (b) 30% of the damages agreed or awarded; and (c) the relevant trial advocacy fee plus reasonable disbursements. The court will also consider whether any part 36 offers have been made and which party has beaten the part 36 offer. The court will award costs penalties when it is just to do so. The court will consider when the offer was made, the information available to the parties at the time the offer was made, the conduct of the parties in relation to the offer (ie reasonableness). If the judge awards Page 8 of 9

9 damages in excess of the Defendant s part 36 offer the nominal order for costs will follow. If the judge awards damages equal to or less than then a split order may be made. Costs are paid on a standard basis. Page 9 of 9