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BPTC Law Notes BPTC Civil Ligitation Notes

Revision Questions

Updated Revision Questions Notes

BPTC Civil Ligitation Notes

BPTC Civil Ligitation

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Civil Litigation Revision Questions

What is the purpose of a letter before claim and the pre-action procedures?

The letter before claim should enable the defendant (‘D’) to understand the claimant’s (‘C’) claim and investigate is fully without needing to request further information.

The pre-action procedures are designed to give both parties sufficient information that they can consider whether proceedings are necessary and any avenues settlement.
What should a letter before claim include, and how long does D have to respond?

General Cases:

  1. Basis of claim;

  2. Summary of the facts on which the claim is based;

  3. Remedies sought;

  4. ADR methods C is willing to undertake and invites D to attempt; and

  5. Details of C’s funding arrangement.

D has 14days to acknowledge or send reply.

PI cases:

  1. Summary of facts;

  2. Nature of injury;

  3. Financial loss incurred; and

  4. Sufficient information for D to investigation.

D has 21days to acknowledge or send reply, and must reply with 3months if acknowledged.
What value should a case be if it is in the High Court?

General: Anything between 25k and 50k are flexible between CC and HC, but anything over 50k should be in HC.

Personal injury: 50,000 and anything below should be in county court.
What are the factors considered where there is no financial value as to which court?

  1. Financial substance, including that of counterclaim;

  2. Public importance and importance to non-parties;

  3. Complexity, in terms of law, facts, remedies or procedure;

  4. Speed of resolution.
In what circumstances should a Part 8 claim be made?

In cases where there is no substantial dispute of fact. Examples:

  • Parties seeking true meaning of contractual terms;

  • Approval for settlement for a child.
How long is a claim form valid for after issue? 4months when being served in this jurisdiction, otherwise 6months.

What can a party do if it wishes to, or has already, served the claim from by another method not included in CPR?

What is the test for allowing such an application?

Make an application for alternative method or at alternative address of the claim form. This is done by:

  1. Making an application under Part 23;

  2. Application may be made without notice; and

  3. Must be supported by written evidence.

It there a ‘good reason’.
If the 4month window for serving the claim form has not expired, what can C do if he needs more time?

Make an application for an extension of time. Also done by a Part 23 application, made without notice and supported by written evidence.

Test is whether there is a ‘good reason’.
What if the 4month window has expired and claim form has not been served?

Claim form is invalid, and C must apply for an extension of time. This is done in the same way as above, except the application will be denied unless:

  1. Court was unable to serve the claim form; or

  2. C has taken all reasonable steps to serve it but has been unable to; AND

  3. C has made this application promptly.
When are the claim form and other documents deemed served?

Claim form: 2 business days after method of service

Other docs: If posted or DX 2nd business day after posted or next business day; if other method then that day if business day before 4:30pm, otherwise the next business day.
Who are ‘persons under a disability’? These are either children (under 18) or protected parties (people lacking capacity under the Mental Capacity Act 2005).
How can they sue and be sued? They can sue through a litigation friend (usually a relative or someone appointed by the court), and be sued by serving claim form to parent or guardian or person with authority over the protected party.

When can a party apply for summary judgment?

How is an application for summary judgment made?

After D has acknowledged service, or before even acknowledgement if it is a claim for specific performance.

  1. With an application notice, supported by evidence.

  2. The applicant must give the respondent 14 clear days notice prior to hearing.

  3. Respondent must file and serve evidence at least 7 clear days before hearing.

  4. Applicant must file and serve evidence in response at least 3 clear days before hearing.
What is the test for summary judgment?

Either:

  1. C has no reasonable prospects of succeeding in the claim; or

  2. D has no reasonable prospects of defending the claim;

AND there is no other compelling reason why the claim should go to trial.

‘Prospects of success’ mean chances must be ‘better than merely arguable’, or cannot be claims with an ‘absence of reality’.
What is a conditional order? Where the court feels the claim or defence is weak, it may order the party to pay a sum of money into the court or take a specified step or the claim will be struck out/dismissed.
When might summary judgment be granted with a stay of execution?

Where the claim outweighs the counterclaim, the court may give summary judgment for the difference and a stay until the set-off is determined.

Alternatively, the court may order a stay for a counterclaim to be decided.
When does limitation generally begin, and what are the 3 exceptions?

Generally when all the elements of the cause of actions have occurred. Exceptions are:

  1. Children - time doesn't run till they turn 18;

  2. Disabled people at time of accrual - time doesn't run until they are cured;

  3. Cases of fraud, concealment or mistake - time doesn't run until they are uncovered or could have been with reasonable effects.
What is the alternative start date for limitation in PI cases?

Date of knowledge, i.e.:

  1. C had knowledge that injury was significant (serious enough to bring proceedings)

  2. C knew injury was attributable to the act of another that could have been negligence, breach of statutory duty or nuisance; and

  3. C knew identity of D (if vicarious then also the identity of wrongdoer).
What is the limitation period for tort claims?

6yrs, or 3yrs from ‘starting date’.

The ‘starting date’ is the same at the ‘date of knowledge’ for PI claims.

There is a longstop limitation period of 15yrs...

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