Note to Candidates and Tutors: LEVEL 6 - UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS - JUNE 2013 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 2013 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) The advice I would need to give to my client company would include; Advice on the good sense of following the guidelines set out in Annex B of the Practice Direction Pre-Action Conduct (PDPAC). This would include the potential cost risks (or sanctions that the court may apply) if the client instructed us to issue proceedings without following these guidelines particularly with regard to sending out a Letter before Claim in respect of the debt before issuing proceedings. There are no limitation issues arising here on the facts and I cannot see any of the other grounds that may justify issuing proceedings without sending out such a letter. The fact that the client has itself been trying to recover the debt before contacting us would not amount to following suggested pre-action conduct (though it might justify giving Carding Construction Ltd (CCL) a relatively short time to pay the debt in the Letter before Claim). I would also need to advise BBL that it needs to ensure that CCL will have the means to pay any judgment and recommend that some credit checks of CCL were made. I would also need to follow my professional conduct obligations and unless BBL were regular clients of the firm, send out all the appropriate Client care letters these would include the firms policy on complaint handling and the firms fees for work undertaken and an estimate of the likely costs of the action (these qualified estimates of the costs can be staged as it is difficult to give an overall estimate of costs when it is not yet known whether the action will proceed to litigation or not). My advice would include advice on funding options available and I would probably also require a payment on account from BBL. Page 1 of 8
A risk assessment of the potential action (and its time scale) would be given so far as was possible on the information available at this stage. I may also wish to ensure that the instructions I receive from BBL were from an authorised employee. (b) (c) (d) For the claimant to be able to arrange service itself it would have had to tell the court that they intended to arrange service themselves at the same time as issuing the claim. They will do this by clearly marking the front page of the Form N1 for solicitor service. It would also be good practice to mention this intention in the covering letter to the court. The court will then return the issued documents to the claimant s legal representative to arrange service. When service is being undertaken by the claimant s legal representative they will need to file a certificate of service at court within 21 days of the effective date of service. Deemed service will be on the second day after posting. The default position for service in this action would be that the court would effect service itself once the claim was issued and it will do this on issue unless asked not to do so by the claimant. The court would also have served the documents by 1 st class post. Other methods of service that might have been available could include personal service. This would have a cost implication for the client these being the costs of engaging a process service to undertake personal service. If the e-mail address or fax number was on the defendant company s notepaper then service by either of these methods would also have been available and effective. The deemed date of service by these methods would be by the same date as service by 1 st class post (the 2 nd business day after dispatch). I have no information that would indicate that service could be effected on the legal representatives of CCL. Without express authority having been given that service by this method was available it is not an available method of service. If such authorisation had been given then service on the legal representatives is the only way that proper service can be effected. My immediate response to the request would be to tell Smith & Co that you would need to seek your client s instructions. However, in order to be able to advise my client fully on the request I would ask that they give me details of the good defence that they state their client has. My advice to my client after this call would include an explanation (in layman s terms) what the application to set aside seeks to achieve that, though late, the defendant wants to be able to file his defence and enable the action to progress. I would tell my client what the affect of consenting to the request would have on the case (the action will continue) and I would also explain what the effect of refusing the request might be (when the court might not award the company its costs of opposing the application if the court felt that the application should have been consented to). In giving this advice I would need to explain to the client the grounds and criteria the defendant company would need to satisfy in order to make a successful application that they had applied promptly, that there was little prejudice to either party, and that their intended defence had merit. If BBL accepted that the intended defence that CCL proposed to raise had some merit then it may still wish to take a hardline and refuse the request and wait to see if CCL made the application and was successful. Obviously Page 2 of 8
this would carry the risk that the court might not award BBL its costs of opposing the application and potentially could be liable for the defendant s costs of the application. I would need to advise BBL of the costs I would incur in opposing the application on its behalf. If CCL made a successful application and then lodged its Defence I would advise BBL that then might be a sensible time to re-consider ADR options. Question 2 (a) I would make the following amendments and include the following additional points to the draft Particulars of Claim: I would determine which court the claim was to be issued out of. It could be Northampton County Court but in view of the high value is more likely to be issued in the High Court or the nearest District Registry of the High Court. I need to provide a place for the court to endorse the Claim Number and on the front page at the top right hand side include the words Claim Number Paragraph 1 does not include enough detail and needs to include all relevant details as to place, position and vehicle involved. Possibly also attach a map showing where the accident happened. The aim here is to make quite clear what the involvement of the parties was and precisely where and how the accident happened. These opening paragraphs only state the simple facts of the place and parties and do not include any allegations. An allegation of negligence must be included this should be placed above Particulars of Negligence without this there is no cause of action. The Particulars of Negligence have not been fully stated. Without this detail the defendant cannot know what case he is facing. The particulars should include allegations of the defendant speeding, losing control, not driving in a manner to take account of the weather and road conditions, failing to keep a proper lookout, failing to stop, failing to slow down or otherwise avoid the accident. It is the detail set down here that the defendant will respond to, and, these are the allegations that the Claimant is restricted to proving at trial. The conviction of careless driving needs to be included in the Particulars of Claim under s. 11 CEA and CPR 16 this can be relied on as it is relevant to the issues of the case. Careless driving goes directly to the cause of action negligence. It cannot be relied on unless it is expressly stated. The claimant s date of birth needs to be included CPR PD16 4.1 The particulars of injuries are not full enough and a medical report should be attached as well as a Schedule of Loss and damage CPR 16 PD 4.1, 4.2, 4.3 The claim for interest should be properly set out this will before the prayer and must be claimed under the correct Statute (depending on whether the claim is being issued in the High Court or Northampton County Court Claims Centre). Even though the court has power to award interest in PI cases with a value exceeding 200 it is usual to include a claim for interest The document must include a Statement of Truth as required by CPR 22 the document will remain effective without it (unless struck out for the failure) but the document may not be used as evidence without the statement of truth. Page 3 of 8
(b) The letter I would write to my client would need to give all the information and advice that she needed to be able to understand the implications, for her, of the offer that has been made and enable her to make up her own mind whether to accept or reject the offer. The letter would be in layman s terms and it would explain the following ; I would explain, in layman s terms, what the offer is and explain how it does put pressure on her and that is exactly what the defendant intended by making the offer. This would include a clear explanation of the cost consequences of rejecting and failing to gain a more advantageous sum at trial. I would tell her about the relevant period and that she needs to consider the offer quickly. I would tell her that the offer can be withdrawn. I would explain that in accepting the offer her case will be ended, she will receive the money offered (within 14 days) and most of her costs. But, I would also tell her that if she accepts the offer she cannot seek more damages at a later date even if she does not recover or progress as well as she hoped. The letter would need to give her an overview of her case. This will be a risk assessment of the likely future prospects of her case and the likelihood of obtaining a judgment for a greater sum. Where there are still unresolved issues I would need to explain how these could be addressed. I would need to explain any impact of the offer on any insurance she has in place to assist funding and upon any CFA in place The advice I would give would include; Question 3 (a) That she must make up her own mind and therefore she needs to carefully consider the detail provided in the risk assessment. If she has any questions that she should call me with her queries. I would advise her that she could obtain counsels opinion on the offer if she needs further guidance and still feels unable to make up her mind whether to accept or reject the offer (but she needs to act quickly). I would explain that counsel s reasonable costs would be included in the costs part of the offer. I would advise her that she could make a counter offer. Here I would need to explain what effect this would have on reducing the pressure she is feeling by the offer that has been made and the impact a counter offer would have on the defendant and on her. Pillings Antiques & Son would be making an allegation of contributory negligence, claiming that Susan was partially responsible for the injuries she sustained. This does not act as a full defence to Susan s claim but is a partial defence and, if successful, it would have an effect on quantum. The impact that such an allegation may have on Susan s claim may be to reduce the level of damages she received if the court agrees that she was partially responsible for her own injuries. However the injuries she sustained to her leg, face and lungs would not be affected by the allegation of contributory negligence (by her failure to wear her protective jacket). It could only have an impact on the damages awarded for the scarring to her arm. Page 4 of 8
The court will look at all the facts when considering the allegation of contributory negligence and whether it should have an impact on the damages Susan should receive. The fact that Mr Pilling had rushed her back into the workshop in an angry manner (which was unusual behaviour) and the fact that it was he who had left the container in a stupid place might mean that the court will not apply any element of blame on Susan or, if it did, only apply a small reduction to the damages award. This outcome would depend on the cogency, or strength, of the evidence the parties give. (b) (c) I would expect Susan to claim for damages to be awarded under the following heads: Her claim for Special Damages these are all those quantifiable losses that Susan sustained from the date of the accident up to the date of trial. This would include any lost earnings in that time, any travel expenses, the damage to any of her personal possessions etc. Under General Damages She would make a claim for Pain Suffering and Loss of Amenity (PS&LA) this includes a claim by Susan for the pain and suffering sustained at the time of the accident and the pain and suffering incurred for any further treatment needed. The loss of amenity element would include a claim for any activities that she had previously enjoyed and were now either not possible or were less enjoyable. A claim for Future Losses this would include any expenses or loss of earning in the future. A claim for loss of congenial employment this would include the possibility of Susan not being able to work in the field that she loves. She would also probably claim a Smith and Manchester award this would include a claim for Susan s future job prospects being affected by her injuries for example that she may be out of work more frequently, or find it takes longer to get another job etc. Her action may also include a claim for provisional damages this would be included if the prognosis for Susan s recovery was uncertain and there was a real risk of a particular injury arising in the future. The evidence I would adduce to support her claims for damage and loss and the steps I would take to ensure that evidence could be adduced at the trial would include: For her Special Damages these would be set out in the Schedule of Loss and Damage annexed or included in the Particulars of Claim (and updated at least once 7 days before the trial). The evidence to prove these losses (for example receipts) would be disclosed either during Protocol or on disclosure and inspection. If the evidence has been fully disclosed before trial it is likely that the defendants would seek to agree the sums claimed if this happened then evidence would not need to be annexed to any witness statement or adduced at trial. If the sums claimed had not been agreed before trial then the evidence supporting the claims would need to be annexed to Susan s witness statement of her evidence for the trial. For the heads of General Damages she would claim For PS&LA this head of damage would be supported by medical evidence and Susan s own witness statement. A medical report will need to be annexed to the Particulars of Claim but for a case of this kind (and value) it is almost certain that a further expert s report will be required to deal with the extent of her injuries and the prognosis of her recovery. In order to be able to adduce expert evidence at the trial the court will have to give Page 5 of 8
its permission and a direction made granting the party(ies) permission to adduce expert evidence. The court may also specify the field of expertise and the number of experts. Any expert report permitted by the court would also need to have been disclosed and exchanged with the other party before trial in accordance with the directions order. The report will also need to be in proper form for it to be relied on in evidence in accordance with CPR 35. For Future Losses this would be established by evidence supporting the claim for future losses either by the medical evidence covering her future likely expenses for her condition, or, for example, by an occupational consultants report to establish her potential future earnings and also explained in Susan s own witness statement. For her Loss of congenial employment claim I would ensure that Susan dealt with her love of her job in her witness statement and this could be backed up by an occupational health consultant if he was asked to cover this aspect in his report. Her Smith and Manchester award claim this would be supported by Susan in her own witness statement and the occupational health consultant could be asked to cover Susan s prospects of employment in the future in his report. Her claim for provisional damages this would be supported by the medical report and the medical expert would be expected to deal with the likelihood of a specified injury arising in the future in his report. As stated above any experts report would need to have the permission of the court to be adduced and have been exchanged with the other party. Susan s witness statement (and any other witnesses of fact) would also need to be disclosed before trial (when the directions order had stipulated). Question 4 (a) (b) The court can take account of a party s pre-action conduct within litigation. (CPR 3 and 44) The PDPAC and all protocols have provisions that contain an expectation that a party will behave in their pre-action stage reasonably and within the aims of Protocol. This encouragement includes provision that the court can expect a party to explain any non-compliance with the aims of Protocol. Where the court finds that a party has not behaved reasonably in the pre-action stage (in a way that meets the aims of Protocol) it can impose penalties or costs sanction on that party. The defendant, Heather Bittern, runs the risk that the court could order her to pay all or some of the claimant s costs of the action particularly where the court feels that her reasons for not responding to the Letter before Claim were not reasonable or, had she responded there was a chance that litigation may have been avoided. My Defence for this action would include the following matters: It is admitted that all the items identified as incomplete as at 12 th December 2012, were completed by 21 st February 2013 save for the rear garden lawn. Page 6 of 8
It is denied that the rear garden lawn was completed by 21 st February 2013 or at all. During the construction of the property and subsequent to completion of the purchase the Claimant failed to complete the rear lawn to the agreed specification or at all. The Defendant avers that the agreed specification was contained in the Claimant s Brochure for the development which expressly stated on the front page that the development would be completed to the highest quality specification. The rear lawn does not conform to this specification in that it: (a) (b) (c) (d) (e) exhibits significant brown patches throughout has excessive moss growth has dips in many places and when it rains heavily, these fill with rainwater and partially flood the rear lawn was laid with an inferior turf has throughout builders rubble, including bricks and plastic extending from different parts of the grass. In the circumstances, it is denied that the rear lawn has been completed to the agreed specification or at all and it is denied that the Claimant is entitled to all or part of the retention which is neither due or owing. My Counterclaim for this action would include: The Defendant seeks damages in the sum of 18,600.00 representing the costs of completing the rear lawn. There is annexed to this Counterclaim a copy of a quotation dated 17th May 2012 obtained by the Defendant from a landscaping expert for the cost of remedial turfing works to the rear lawn. And the Defendant Counterclaims: 1. Damages in the sum of 18,600.00 2. Costs (c) The value of this claim, at 5000 (and the counterclaim 18600) places the action in the fast track. The parties can agree to downtrack a case and thus they could agree to have the less formal, paper based hearing of the small claims track. However, on the facts we have there is nothing to suggest that these parties would agree to this. In the fast track the provisions for hearings under CPR 28 will apply a 30 week period from allocation to trial, tight judicial control, standard directions and a trial day not exceeding 1 day. I do not think that the court would permit a party, or the parties, to use several witnesses and expert evidence in this case. This case is at the bottom end in terms of value in this track and the court would be looking to manage this case efficiently, taking account of the value of the claim. The one day trial day is unlikely to allow for several witnesses to give oral evidence. The court would probably only permit oral evidence from one witness of fact from each party but may permit other evidence to be adduced by witness statement. It is doubtful whether the judge would need expert evidence to help him decide whether the lawn was of the Page 7 of 8
required standard or not he could probably decide this by photographs. Given the value of this case the court would probably not give permission for the use of any expert evidence. If expert evidence was permitted this would be by a single joint expert (the norm in any event in the fast track). (d) Where a settlement is reached during litigation, as here, a consent order will be needed that concludes the action and vacates the trial date. As some of the terms of the settlement agreed are to take place in the future a Tomlin Order would best protect the client as the Tomlin Order contains a liberty to apply provision and if the terms agreed are not carried out she can re-open the litigation without having to commence new proceedings as she would have to do if a simple consent order was used. Page 8 of 8