In cases where there is no Protocol in place then parties are expected to abide by the guidelines set down in Section III of the PDPAC and Annex A.

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1 LEVEL 6 UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS JUNE 2011 Note to Candidates and Tutors: 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 June 2011 examinations. 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. ILEX is currently working with the Level 3 Chief Examiners to standardise the format and content of suggested answers and welcomes feedback from students and tutors with regard to the helpfulness of these 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. SECTION A Scenario 1 The Draycott Furnishings file. Question 1 (a) This a debt matter relating to goods sold and supplied with a value of 10,000. A case of this kind will be covered by the Practice Direction Pre-Action Conduct (PDPAC). It is good practice to follow the PDPAC (and Section II, Annex B, to the PDPAC gives some specific guidance relevant to debt collection work). The main difference in debt action work is that there is a short-form Letter of Claim written to identify clearly to the defendant what the claim against him is. In debt action work this modified version of the Letter of Claim is called a Letter Before Claim. In cases where there is no Protocol in place then parties are expected to abide by the guidelines set down in Section III of the PDPAC and Annex A. The Letter Before Claim is a concise letter requesting payment and usually includes only the following details: the identity of the claimant and defendant; a copy of the invoice or contract; details of the amount sought; a statement confirming that an amount is owing; an indication of when the amount should have been paid; Page 1 of 8

2 a request for payment by a certain date (usually seven days); particulars of how the payment is to be made; a warning of costs and interest penalties if payment is not received; the basis upon which you are claiming interest (usually contractual or by statute); and your contact details. The time limit for replying here is very short, up to 14 days, but typical of debt collection work. If no payment is made, it is, however, good practice to attempt to contact the debtor by telephone but if this fails, then you are entitled to commence proceedings immediately without any sanction from the court. Annex B, which sets out specific recommendations for pre-action conduct in debt claims in which the claimant is a business and the defendant an individual. This is helpful, because the Debt Pre-Action Protocol that was drafted in May 1999 has never been adopted as a formal Pre-Action Protocol.] This amount of detail (in square brackets) is not expected in the student s answers and is given for tutor background only. Students should attain good marks if they correct identify the PDPAC. Higher marks still for reference to the right part of the PDPAC, and the consequences that may arise for failing to abide by Protocol. (b) This question simply asks student to list the documents they would need to issue proceedings. We therefore expect to students to list as follows: Form N1 (plus sufficient copies for each defendant here only one additional copy), As this is a simple debt action the Form N1 is likely to be an endorsed N1 although an unendorsed N1 plus Particulars of Claim could also be correct there should be some justification of this and the realisation that the Particulars of Claim are not a requirement to issue proceedings. Copy Invoice. The court fee. There is no reference here to any CFA funding agreement, so do not expect students to list Form N251 (Notice of Funding). As this claim is for 10,000, which is well below the multi-track value band, and well above the 5,000 upper limit of the small claims track it will be issued in the county court, probably in the local court and allocated to the fast-trak 3 marks can be achieved for listing all the correct items. 2 marks for those students, who, applying the knowledge they have on this file, suggest that MoneyClaim Online could be used. CPR 7.12 PD 7E. (c) See attached backpage Form N1. Full marks should be awarded where the Particulars of Claim are correctly drafted and a copy invoice is referred to as being attached and all other parts are correctly completed. No reference should be made to the Letter of Claim that had been sent earlier as this is not relevant to pleading the cause of action. A proper claim for interest should be pleaded which should include a daily rate as this is a specified sum claim. (d) Students should identify the letter as a seemingly Part 36 compliant offer. Students should also appreciate that this is a pre-action P36 Offer and therefore there is no entitlement to costs as there would be under Part 36 with offers made in litigation. Part 36, although it is an option in the pre-action stage, does not always give the best outcome for the offeror if the offer is accepted. A Page 2 of 8

3 better option could be a Calderbank offer (as this could include terms as to costs). If such an offer (a Calderbank offer) was not accepted then the offer could be repeated (but not include the offer on costs as this would make the offer not Part 36 compliant) once proceedings had been issued. Advice to the client would therefore include the benefits of making an early offer to settle. Students who simply identify the letter as a Part 36 offer and proceed to state the consequences for the party if the case proceeds without the offer being accepted can achieve only up to half the available marks. Higher marks for those students who identify this as a pre-action Part 36 Offer (and the costs recovery difficulties). Scenario 2 The Coler and Folex file. Question 2 (a) Students should prepare their answer in the form of a memo (1 mark) is allocated to the preparation of the memo as to form. Matters that the students need to raise in their memo include: this is an action in contract. The claim is for a failure of the contract as to sample, Students can discuss briefly that the contract must clearly have been a sale by sample (it appears that this was) S. 15 SGA 1979 and/or a sale by description, s. 13 SGA The fabric must also be fit for purpose and of satisfactory quality s. 14 SGA It may also be an express term of the contract that the whole must correspond with the sample. Terms may also be implied by common trade practice. Students may discuss whether there is a right to reject the contract. (as the terms implied under the SGA are conditions not warranties. Damages arising from the breach of contract will be those losses that flow directly from the breach and are reasonably foreseeable. To this extent, the need to source alternative fabrics at short notice is a reasonably foreseeable consequence of the breach (and thus the difference in price thereof) provided C and F have taken all reasonable steps to mitigate their loss. The evidence that might be required to support the claim will relate to, establishing the contract, the sale by sample/description/purpose (witness statements with copies s/telephone attendance notes/invoices/delivery notes) evidence supporting the need for seeking alternative supplies quickly copy orders that the supply was intending to serve. Problems that might arise in view of the time scales - quick delivery of sample and subsequent order (over a period of 3 working days) - 5 days to determine that the fabric was unsuitable might not be sufficient to determine that the goods had been accepted and thus cannot be rejected. If that was established, the right to damages would also be lost. (Clegg & Olle Anderson 2003). The financial viability of IJG Textiles is an issue that must be taken into account.(1.5 marks) Page 3 of 8

4 (b) Advice could include agreeing a fixed fee, private billling, level of fee earner (to keep costs down), keeping the client fully informed. A CFA could be offered though this may not either be the most cost effective method in this case nor be an arrangement the firm will be prepared to enter into for the case. Students can refer to the courts powers to award costs recovery but that such orders would not secure a complete costs recovery order. Some students may discuss the distinction between indemnity costs (not generally recoverable from a losing opponent) and standard costs (which is the normal basis of costs recovery assessment). Any sensible discussions that seek to answer the clients concerns here should attain at least half of the marks available for the question, higher marks being awarded to the students who have been able to make sensible and reasonable suggestions that address the clients concerns with a number of options. (c) Students must note that legal representatives can influence the form of the report to be CPR 35 compliant but cannot (and should not) seek to influence the content or opinions stated in the report. As to form students can discuss the need for the report to include; The experts full name and qualifications, defined her specialist area, confirm her understanding of her instructions (remit), included a summary, dealt with all the issues asked of her, included any necessary references, reports, analyses. The expert refers to analysis undertaken. Details of what this entails should be included. Included a (proper form) Statement of Truth and declare that she understands her duties to the court and has carried out those duties to the best of her ability. Other matters that can be included in the answer: The report needs to be in intelligible language with technical terms explained, it needs to give opinions that are within the experts area of expertise, facts. opinion and assumptions need to be clearly defined. The expert reaches certain conclusions in the report but makes no comment on the effect or consequences of her finding as to the suitability of the fabric for the work. The experts report needs to address issues of causation or loss and this report does not do so. The report should indicate whether another expert could draw different conclusions and if so give reasons for the difference of possible opinions. Students must deal with form/content/ experience/or CV and statement of truth and duties to the court at the basic level in order to attain pass level marks for the question. (d) To comment on whether this expert appears to be an appropriate expert : It is wrong if a student concludes that experience is not sufficient (this expert has worked in the area for over 20 years). Students can be given credit for noting that the experts experience is in natural, (so presumably not man-made or synthetic) fabrics. However the fabrics supplied are either cotton or cotton and silk which are natural fibre fabrics so it appears that the expert is an appropriately qualified expert. Page 4 of 8

5 Credit can also be given for students who determine that though the expert does appear to have adequate experience to be deemed an expert in the field, her palpable lack of experience as an expert in litigation may make her an unsuitable expert in this matter. Students may also be given credit for stating that she should be independent of either party. Scenario 3 The Rachel Burns file Question 3 (a) The advice that Mark Jones will have given Mr Burns and Rachel would have been advice concerning the viability and appropriateness of seeking an interim payment (CPR ) The procedure for making such an application should include:- firstly an informal request to the defendant in the action to agree an interim payment to enable Rachel to go on the school trip (supported with reasons) (there could be adverse costs consequences for a failure to give the defendants the opportunity to do this). Any application should be in time the earliest date for filing an application is after the acknowledgment of service has been filed. The application would normally be by application in Form N244 supported with written evidence (a witness statement for example) that is endorsed with a statement of truth (CPR 25.6 and PD25B). The written evidence supporting the application must comply with PD 25B.2.1 and include: details of the sum of money sought, items/estimates, reasons for the expenditure, an estimate of the likely sum of any final judgment (with reports where appropriate) and details of the special damages and past and future loss, the reasons why the application meets the requirements of CPR 25.7, any other relevant matters. Students might comment on the degree of persuasive evidence that might be needed depending on the ground being relied on. If the application is made, for example under ground CPR (C) the application will need to be more persuasive (as there is a risk that the claimant could fail in her claim), in an application under ground CPR (a) for example the court will only be concerned to ensure that it did not award more than the claimant will receive in damages at the conclusion and assessment of damages hearing. The information Mr Burn s was probably seeking confirmation of concerning the CFA would be: Does the CFA cover making such an application for an interim payment? If it did not Mr Burn s would be seeking to hear if an amendment to the CFA can be agreed and made. (b) Mr Burns appears to hold the role of litigation friend in this action as Rachel, who is still at school and was still not yet in year? at the time of the accident is almost certainly under 18 years of age. However the facts indicate that Rachel is now nearing the end of her school years and she will soon be nearing her 18 th birthday. Once that event happens Mr Burns role as litigation friend terminates and Rachel will need to take steps to adopt the action herself (client care information, new CFA, notice to the court) If Rachel was 18 when the accident happened she should commence litigation within 3 years otherwise the defendant will be able to raise the defence of limitation. (Limitation Act 1980 s.11(4)). Page 5 of 8

6 If she was 15 when the accident happens the limitation period does not start to run until she attains the age of 18 years. (c) Heads of damage will include Special Damages quantifiable losses from the date of accident until trial. These could include damage to clothing, travel costs for her family to visit her in hospital or take her to post-hospital care appointments. Unless an earnings loss has been justified (i.e. by saying if Rachel had a Saturday job ) there should not be a claim for lost earnings. Nor, as she is under 18 and not paying prescription charges would we expect to see a claim for prescription charges. Rachel may have attended post-hospital care privately and the cost of this could be included. and General Damages these could be included under the heads PS&LA, depression, any psychological damage, perhaps a Smith and Manchester award or claim for loss of opportunity if her intended career prospects have been harmed. The best marks will be for the student who has sought to apply the facts of the case and appreciate that Rachel is still at school. Standard answers that merely show a knowledge of the heads of general and special damages can (if clearly set out) achieve bare ½ marks for the question. (d) Students need to state that unless the damages that Rachel claims are likely to exceed 50,000 this case should be commenced in the County Court CPR PD and the case most probably allocated to the fast track as the level of injury would appear to indicate damages above 1,000 but below 25,000. However students who seek to justify that damages may exceed 25,000 may be given credit for saying the case would be allocated to the multi-track either on the grounds of value (above 25,000) or because the claimant is a minor. Scenario 4 The Samira Sanche file Question 4 (a) s. 11 Civil Evidence Act 1968 is an exception to the general rule that a previous conviction can be used to support a claim. This exception permits a relevant conviction of an offence to be used to support a civil claim. Here if the speeding offence related to the accident in which Paul was injured then the conviction would be a relevant conviction and can be pleaded as evidence against Samira that she was negligent. If that is the case s. 11 provides that a certificate of conviction needs to be produced and details of the conviction (date, court, offence and penalty) included in the P of C. Here we are told that the case is getting close to trial preparations so clearly the recent conviction is not on the claimants P of C. Accordingly, the claimant will have to make an urgent application to the court for permission to amend his P of C. If that application is not made, or permission not granted, then the conviction will be of no evidential value. Page 6 of 8

7 2 marks can be achieved for identifying and explaining s. 11 CEA. Greater marks for applying the facts and dealing with the need for urgency. (b) The nature of Samira s defence would have been that she lost control of the car because of a faulty steering repair. To do this she would have sought to pass the blame to the garage or the manufacturer (as the car had been the subject of a re-call ). This would have been done under CPR 20 seeking an indemnity and/or contribution from the garage and/or manufacturer. If this was done at the same time as filing her defence (which is likely) then she would have filed the defence and Part 20 Notice at the same time and she does not require the courts permission. If this counterclaim is made after the filing of a defence the permission of the court will be needed. (c) If this document had been in existence for some time it ought to have been disclosed as part of standard disclose. Accordingly Samira cannot rely on the plan unless the court gives permission (CPR 31.21). It might also be necessary to call oral evidence to prove the plan and if so it is likely that the exchange of any witness statement will be out of time. Again in that case the permission of the court will be required before any oral evidence can be called to prove the plan (CPR 32.10). Even where oral evidence is not required it seems that CPR 33.6(4) and (5) have not been complied with. So, immediate application to the court must be made, seeking relevant permission. In view of the closeness of the trial date the application will have to be justified within the provisions of the overriding objective (be proportionate, just and fair). In view of the lateness of the application it may be heard as a preliminary matter on the day of the trial and the applicant may be penalised in costs for applying so late. This is a difficult question for students, credit should be given for a clear level of knowledge and pass marks achievable even where the student clearly understands the need for permission to adduce but not the relevant CPR or that oral evidence might be required to prove the plan. Obviously the highest marks for the student who understand most of the matters discussed above. (d) Costs are at the discretion of the court s.51 of the Senior Courts Act 1981 and CPR 44.3(1). A fast track trial will be assessed within the fixed costs regime, usually by a summary assessment. The general principle is that the loser pays. The general principle is only a starting point and the courts frequently depart from it when considering costs at the end of a hearing, sometimes ordering only a partial costs recovery or no cost recovery at all. The main reason why the court may not order the loser to pay the winner s costs is, again, due to the conduct of one or both parties. CPR 44.3 and 44.5 require the court to take into account the conduct of the parties to the litigation both pre- and post-issue. (The court is required to take into account all of the circumstances of the case, particularly regarding the following (CPR 44.3(5)): the parties conduct before (as well as during) the proceedings, especially concerning compliance with any Pre-Action Protocol; whether it was reasonable for the parties to raise, pursue, or contest any allegation or issue within the litigation; the way in which a party pursued or defended his case, or any specific allegation or issue; Page 7 of 8

8 whether the winner exaggerated his claim; whether a party was only partly successful; and any valid offers to settle). CPR set out a predictable costs regime for road traffic claims that settle in the total sum of 10,000 before the issue of proceedings so not relevant here where proceedings have been commenced. Page 8 of 8