CIVIL LITIGATION TASKS

These Civil Litigation tasks have been completed using the Civil Litigation Handbook.

CIVIL LITIGATION TASKS

TASK ONE

Attendance Note [1]

OUR REF: 01/CVGLtd/Donga

CLIENT: Clear View Glazing Limited

DATE: 1st November 2022

SOLICITOR: Law Student

Instructions Received/Work Done

Initially I spent 5 minutes welcoming the client and explaining who I was and that I would be handling the case under the supervision of my principle (the senior partner at the firm).

I then spent 5 minutes explaining to the client the issue of our firm’s fees and how and when this would payable along with explaining the different ways how the client can fund his claim. I also discussed the issue of costs in the case if his claim were to fail.

I then spent 5 minutes identifying the full nature of the problem Clear View Glazing Limited (“CVGLtd”) is having with Sparkle Class Co Limited (“Sparkle”). I then gave some preliminary advice and advised in certain circumstances, the claimant may, treat the contract as having been repudiated by the breach. In such cases, the plaintiff is discharged from further liability under the contract and may sue for damages.

I spent 10 minutes further advising the client about limitation periods, pre-action protocol, negotiation and settlement possibilities i.e. Part 36 Offers.

FURTHER STEPS CHECKLIST

· Client care letter to be sent out to client

· Letter before action to Sparkle

· Requested Kate West’s, Sparkle’s Quality Controller report

· Investigation of the case, examining contacts, correspondence/documents

· Conduct a conflict of interest search if not done already

START TIME: 9.00 am

FINISH TIME: 9.25AM DURATION: 25 mins

TASK TWO

1. The N1 Claim Form[2]

2. Particulars of Claim [3]

IN THE HIGH COURT Claim No.

B E T W E E N:

Clear View Glazing Limited

Claimant

and

Sparkle Glass Co Limited

Defendants

­­­­____________________________

PARTICULARS OF CLAIM

__________________________

1. At all material times:

a. The Claimant is and was a private company carrying on the business of manufacturing and installing of commercial specialist windows and doors.

b. The Defendant (“Sparkle”) is and was a glass manufacturing company that produce the special self-cleaning glass to the Claimants.

2. By an oral agreement in April 2021 made partly during meetings between Mr Joe Blogs for the Claimant and Frank Smith acting for or as agent for the Defendant, , and in a contract dated 5th April 2021, the Defendant agreed to provide glass in instalments for the total price of £210,000, to the Claimant for a contract they have with the New Heights Project.

Schedule of Instalments and breakdown of price

1. 3rd June 2021, Instalment 1 – 200 panels 1.56m x 4.20m - £50,000

2. 3rd July 2021, Instalment 2 – 200 panels 1.56m x 4.20m - £50,000

3. 3rd August 2021, Instalment 3 – 200 panels 1.56m x 4.20m - £50,000

4. 3rd September 2021, Instalment 4 – 210 panels 1.56m x 3.20m - £30,000

5. 3rd October 2021, Instalment 5 – 210 panels 1.56m x 3.20m - £30,000

3. It was an express term of the Contract that:

a. The Defendant would provide in the first three instalments 200 panels of 22mm toughened tinted (tint colour code: TC10956) self-cleaning glass measuring 1.56m x 4.20m. In the final two instalments 210 panels to be delivered of 22mm toughened tinted self-cleaning glass measuring 1.56m x 3.20m.

b. The instalments were to be delivered on 3rd of the month beginning with the 3rd June 2021.

4. Further or in the alternative, the following conditions were implied into the Contract pursuant to the Sale of Goods Act 1979:

a. he Defendant would provide glass which corresponds to its description;

b. the Defendant would provide glass which was of satisfactory quality; and

c. that the glass provided would be reasonably fit for that purpose.

5. The first two instalments went according to plan. All panels were to the correct specification. The Claimant has paid for these two shipments.

6. The August delivery was subject to a 6 day delay arriving on the 9th August. On this shipment 90 panels were chipped and 7 were of the wrong dimensions. Kate West, Sparkle’s Quality Controller inspected the August delivery on the 11th August 2021, who confirmed the shipment was damaged.

7. The September delivery contained only half of the contracted panels (105 panels instead of 210). The Defendant has informed the Claimant that delivery with be delayed by 12 weeks and the final October delivery will not take place until the end of December or January.

8. The matters complained of were caused by the breach of contract of the Defendant, in that:

PARTICULARS OF BREACH OF CONTRACT

a. the August delivery was late, with 90 Panels damages and 7 of the wrong size;

b. only half the September shipment was delivered and subject to a 12 week delay; and

c. the October shipment has been delayed for a month or even two.

9. The above breaches amounted to breaches of contract by the Defendant.

10. As a result of the matters set out above, the Claimant stands to suffer loss and damage. The breaches of the Defendant have caused huge delays in the completion of the New Heights project. The Claimant has only been able to install about half of the panels to the New Heights Building. New Heights Project is threatening to bring in a new commercial glazer to complete the job. The cancelation of the New Heights supply contract would cause a consequential loss of profit of approximately £300,000 along with damage to business reputation.

11. Further, the Claimants claim interest pursuant to section 69 of the County Courts Act 1984 on the sum of [£ ] at the rate of 8% per year from 30 June 2009, amounting to [£ ] at 1st November 2009 and then continuing until judgment or sooner payment at the rate of [£ ] per day.

12. Alternatively, the Claimants claim interest on such sums and for such a period as the Court thinks fit.

AND the Claimant claims:

(1) Damages.

(2) Interest pursuant to section 69 of the County Courts Act 1984 to be assessed.

Law Student

1st November 2022

STATEMENT OF TRUTH

TASK THREE

Critically discuss the use of default and summary judgment in civil litigation

Default Judgement

Where the defendant does not intend to contest the proceedings, CPR, Part 12, allows a claimant to obtain early judgment against a defendant if he fails to defend the claim. Usually, this does not even involve a hearing.[5] In such cases, obtaining judgment is a purely administrative act, which is why one refers to ‘entering’ judgment in favour of the claimant. The purpose behind the default judgment is to facilitate speedy litigation and to avoid protracted proceedings.

A defendant who has been served with the particulars of claim has 14 days in which to either, admit, deny or put the claimant to proof. A defendant cannot be in default until those 14 days has elapsed. Note that a defendant cannot be in default if a claim form is served without particulars of claim. The CPR, r 12.3, allows a claimant to enter a default judgment in the following circumstances:(a) If the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim) and 14 days has expired since service of the particulars of claim; or (b) If the defendant has filed an acknowledgment of service but has not filed a defence, and 28 days has expired since service of the particulars of claim.

The main criticism that can be advance against default judgments is that by entering default judgment against a defendant (which is an administrative process), there is no investigation of the merits of the claim. Thus a defendant that has a good case has lost for not complying with administrative documents of the court. The court retains wide powers to set aside or vary any such judgment (see CPR, Part 13). But this however is discretionary.

As Lord Atkin put it in Evans v Bartlam [1937] AC 480, HL:

“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

Summary Judgment

Entering summary judgment is a related procedure to the default judgment, and is used where the court feels the purported defence as filed by a defendant shows no realistic prospects of success. [6] Summary judgment is not limited to use by claimants against defendants. It can also be used by defendants to attack weak claims brought by claimants through a submission of no case to answer. The Civil Procedure Rules 1998 further allow the summary judgment to be used by the court of its own initiative to perform the important function of stopping weak cases from proceeding. The procedure can also be used to attack the weaker parts of cases, thereby reducing complexity and facilitate speedy litigation.

The main criticism that can be advanced against summary judgment is similar to the one advanced against default judgment. Summary judgement is awarded where the claim or defence is based on a point of law which is clearly misconceived, or which can be shown to be unsustainable after relatively short argument. The shortcoming of this approach is that a claim or defence is squashed before full argument can be raised before the court. Where a case raises difficult questions of law which call for detailed argument and mature consideration, there is a real prospect of success, and summary judgment is inappropriate. Thus complex claims are unlikely to be suitable for summary judgment as in the case Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1, as are cases raising issues in developing fields of law (Equitable Life Assurance Society v Ernst and Young (2003) LTL 25/7/2003).

TASK FOUR

Dear Mr Joe Bloggs,

Further your letter, I have outlined the issues on which you have asked for clarification.

Case Management

Under the Civil Procedure Rules 1998 (“CPR”) the judge actively plays the role of a case manager at the ‘centre-stage’ of the proceedings.[7] In carrying out this new case management function, the court must apply what is characterised in the CPR as the ‘overriding objective’. [8]

Rule 1.4(2) CPR 1998 puts the court under an obligation to ‘actively’ manage cases. This includes: encouraging parties to co-operate with each other;[9] identifying issues in the dispute at an early stage;[10] disposing of summary issues which do not need full investigation;[11] helping the parties to settle the whole or part of the case;[12] fixing timetables for the case hearing and controlling the progress of the case;[13] and considering whether the benefits of a particular way of hearing the dispute justify its costs.[14]

Rule 3.1(2) CPR 1998 gives the court general powers of management, which the court can call upon when seeking to reach their case management aims. Some of these include: extending or shortening the time for compliance of any rule or order;[15] adjourning or bring forward a hearing;[16] consolidating proceedings;[17] or excluding an issue from consideration.[18]

Allocation Process and Track allocation

The CPR system allocates cases to one of three ‘management tracks’[19] (known respectively as the small claims, fast and multitrack), depending upon the complexity and value of the dispute. The small claims track deals with the undemanding cases,[20] the fast track deals with more substantial disputes,[21] and the multitrack system allows a court to use a variety of procedures.[22] Your case will fall within the multitrack because the value of the claim is above £15,000.

Litigation is to proceed on a timetable fixed and controlled by the courts. Under the old civil system parties would agree extensions with each other and the courts would permit them to battle continuously over what documents and information should be disclosed and at what stage. The ‘adversarial culture’ inherent in the old system (envisaged by Lord Woolf) has been somewhat restrained by the CPR 1998.

Disclosure Obligation

Disclosure is the process where a party is obliged to disclose to the other party the existence of all documents which are in their possession and they believe those documents to be relevant to proceedings. First disclosure is done by an exchange of lists after allocation to the fast or multi-track. The other party is then entitled to inspect and take copies of the documents disclosed, except any document which is privileged (exempt for disclosure).

Generally, the court directs at the allocation stage or at a case management conference the times and types of disclosure and inspection of documents required. Allocation takes place within a few weeks of the filing of defences, and disclosure is normally ordered for a few weeks thereafter. The result is that disclosure is often required about two months after the defence is filed.

I hope these have answered you questions and if you have any other queries please do not hesitate to contact our offices.

Yours sincerely

Law Student

TASK FIVE

Allocation Questionnaire[23]

TASK SIX

Presentation[24]

The diagram below outlines the way in which disputes are resolved through litigation in the civil courts.

Letter Before Action

Issue of Proceedings Service of Statement of Case Track Allocation Directions Service of Documents Exchange of Witness’ Statements and Experts’ Reports Listing for Trial Trial Judgment Assessment of Costs Appeal

Letter Before Action

Normally this will involve the claimant writing a detailed letter of claim enclosing copies of the essential documents and asking for an acknowledgment within 21 days and a full response within the next month (PD Protocols, paras 4.2, 4.3). A failure to write before issuing proceedings may be penalised in costs as in Phoenix Finance Ltd v Fédération International de l’Automobile The Times, 27 June 2002.

Issue of Proceedings

This is done by submitting the claim form (Form N1) with the court. A completed claim form will:

(a) set out the names and addresses of the respective parties;

(b) give a concise statement of the nature of the claim;

(c) state the remedy sought; and

(d) contain a statement of value where the claim is for money.

The Particulars of Claim

The rules governing particulars of claim are in CPR r. 16 and its practice direction. ON the reverse of the N1 form a space is provided to provide the particulars of claim but this can also be submitted after submission of the N1. The claimant has to tell the story from his point of view outlying his case against the defendant.

1. This is who you are...

2. This is who you are...

3. This is what happened...

4. It’s your fault/breach....

5. This is the result of what happened....

6. This is what I want from you...

Track Allocation

The courts will seek to further the overriding objective of dealing with cases justly by active case management. In exercising their powers to manage cases, the courts will be seeking to ensure they are dealt with expeditiously and fairly. They will also try to allot to each case an appropriate share of the court’s resources, and will endeavour to ensure they are dealt with proportionately bearing in mind factors such as the importance and complexities of the issues and the monetary value of the claim.

The courts will seek to further the overriding objective of dealing with cases justly by active case management. In exercising their powers to manage cases, the courts will be seeking to ensure they are dealt with expeditiously and fairly. They will also try to allot to each case an appropriate share of the court’s resources, and will endeavour to ensure they are dealt with proportionately bearing in mind factors such as the importance and complexities of the issues and the monetary value of the claim.

Directions

The court will usually give directions at the track allocation stage. The court may give directions of its own initiative and without holding a hearing. However, particularly in multi-track cases, the court may organise a case management conference for the purpose of giving directions. The idea behind giving directions is to provide a timetable pursuant to which the evidence needed to prove the claim or defence must be obtained and exchanged with the other side.

Exchange of Witness’ Statements and Experts’ Reports

Disclosure is the process where a party is obliged to disclose to the other party the existence of all documents which are in their possession and they believe those documents to be relevant to proceedings. First disclosure is done by an exchange of lists after allocation to the fast or multi-track. The other party is then entitled to inspect and take copies of the documents disclosed, except any document which is privileged (exempt for disclosure).

Listing for Trial

Trial

The vast majority of claims commenced in the civil courts of this country never reach trial.

Proceedings may fail to reach the trial stage for many reasons. Judgment may be entered in default or on an application for summary judgment. The proceedings may be struck out as an abuse of process, or as a result of a sanction, or discontinued. Most frequently, however, the parties avoid trial by negotiating a settlement of their dispute. One of the factors constraining the parties to settle their differences is the great cost of trial. The cost of any individual trial depends on a number of matters, including its length, complexity, the seniority of counsel instructed, and the fees of any experts who are required to attend.

Judgment

Assessment of Costs

The two main principles when it comes to deciding which party should pay the costs of an application or of the whole proceedings are:

(a) the costs payable by one party to another are in the discretion of the court (SCA

1981, s 51 and CPR, r 44.3(1)); and

(b) the general rule as stated in CPR, r 44.3(2), is that the unsuccessful party will be ordered to pay the costs of the successful party (‘costs follow the event’ in the pre-1999 terminology).

Appeal

Some appeals can be brought as of right. Most other decisions can be appealed with permission. However, it is comparatively rare for decisions, particularly after trial, to be appealed. In recent times a total of about 1,600 appeals are completed each year in the Court of Appeal, of which just over 25% are successful. Each year there are about 50 civil appeals to the House of Lords, of which about a third achieve some success.

Footnotes

[1] To do this part of the task, firstly I went online to find an attendance note template at http://www.slab.org.uk/profession/practitioner_info_guides/Criminal_%20starter_%20pack/Specimen%20Docs%20-%20SMA.pdf Secondly; I used the Civil Litigation Handbook to understand what initial considerations should be contained in the attendance note (pages 73-92). [2] This Form was accessed and completed online and then printed out. [3] I used the Civil Litigation Manual to help draft a statement of case (pages 188-212) and 2004/2005 Inns of Court School of Law, Drafting Manual, Published by OUP. [4] I used the Private Law Tutor's Civil Litigation Handbook to research the above court procedures. [5] Halsbury's Laws of England Accessed from Lexis Nexus. [6] Rule 1.4 (2)(c) CPR 1998 [7] Gladwell, David, ‘Are you ready for Woolf?’, [1999] 149 NLJ 90 [8] This means to deal with cases justly. Rule 1.1(1) CPR 1998 [9] Rule 1.4 (2)(a) CPR 1998 [10] Rule 1.4 (2)(b) CPR 1998 [11] Rule 1.4 (2)(c) CPR 1998 [12] Rule 1.4 (2)(f) CPR 1998 [13] Rule 1.4 (2)(g) CPR 1998 [14] Rule 1.4 (2)(h) CPR 1998 [15] Rule 3.1(2)(a) CPR 1998 [16] Rule 3.1(2)(b) CPR 1998 [17] Rule 3.1(2)(g) CPR 1998 [18] Rule 3.1(2)(k) CPR 1998 [19] Part 26 CPR 1998 [20] Small Claims: value not more than £5,000 and personal injury not more than £1,000. [21] Fast Track: for cases valued between £5,000 and £15,000. [22] Multi Track: anything above £15,000. [23] I downloaded the form online and completed the form online and printed it out. [24] I used the Civil Litigation Handbook 2022 to complete the presentation.