Civil Claims

Conflicts of interest

• 6.2, a solicitor must not act for multiple clients where it could cause a conflict of interest

• 6.1, a solicitor must not act where there is an “own interest” conflict or a significant risk of that

Sham litigation

• Definition: a fake dispute is manufactured so that the settlement can be used to disguise the movement of money or assets

• Key indicators: unusual client information and identify verification, unusually familiar with internal law firm processes, instructing firms far from their home address, unsolicited contact, insisting on settling the matter quickly, recovering a debt that is significantly out of date, payments to third parties through the law firm, consistently misses appointments

Strategic Lawsuits against Public Participation

• Involves a claimant threatening or bringing a fake claim and harassing their opponent, meant to stop information from getting out

• If they are instructed to engage in behaviour that falls within this definition, they must decline

Safeguards for children and protected parties

They cannot bring or defend proceedings in their own right, must have a litigation friend to act on their behalf, happens until the child is 18

Identifying and locating the defendant

Defendant must be traceable, must be sure who the defendant is meant to be

Establishing the defendant’s status

If they are an individual, they are sued under their own name. If they are a sole trader, partnership, a company or LLP, they will be sued in the name of the firm/enterprise

Considering the defendant’s means

Information on Companies House about company finances, enquiry agent, bankruptcy search of an individual, and research from the Internet

Specified claim

If the claim is for a fixed amount of money

Unspecified claim

If it is down to the court to determine the amount of money payable

Effect of limitation

• PD 7A, para 6.1, a claim is brought when the claimant’s claim form is received at the court office

• Once a claimant has taken all reasonable steps to set the process in motion, the risk of any delay is transferred to the court

• If the limitation period expires without a claim being brought, the case becomes statute-barred

Limitation period for breach of contract, misrepresentation, tort other than PI, product liability and latent damage

6 years from the date of breach/loss

Limitation period for personal injury and product liability

3 years from the date the claimant had knowledge to bring forward a claim

Extending the limitation period

Court cannot extend the limitation period before it has expired, but an agreement can be reached between the parties to extend it for a specified period

Disapplying the limitation period

Is allowed, but only in exceptional circumstances, particularly in cases of personal injuries or if it would prejudice another case

Standstill agreement

Limitation period is suspended from the date of agreement until notice is served by one parties to start the clock again

Pre-action procedure purpose

• Helps the solicitors ensure that they understand the content and are able to apply the provisions effectively

• Meant to help try and resolve this issue

Common principles on pre-action procedure

• Litigation should be a last resort

• Should have enough information to understand each other’s position, decide how to proceed, try to settle the issues without proceedings, consider a form of ADR, support effective management of proceedings and reduce costs

• Claimant should write to defendant about substance of claim and defendant must respond

• If a dispute proceeds to litigation without the pre-action procedure, there will be sanctions for the parties

Practice Direction on Pre-Action Conduct and Protocols

• Used in contract claims, parties must exchange information by way of a letter of claim and a letter of response

• Must use alternative dispute resolution, requirement by the court

• Only reasonable and proportionate steps should be taken to try and resolve the matter

Letter of claim

Has the basis of claim, summary of the facts, remedy sought and disclosure of key documents

Acknowledgement of service

Done by defendant within a reasonable time, must confirm if the claim is accepted and if not, why not, indicate if there is a counterclaim and disclose key documents

Sanctions for non-compliance

Claimant can pay some/all defendant costs, claimant can’t claim some/all interest on damages, defendant may have to pay a higher rate of interest on damages or pay additional costs

Debt claims pre-action protocol

• Claimant must provide letter of claim, full info on the debt owed and how the debt can be paid

• Standard reply form, information sheet and financial statement forms are annexed in the protocol should be included, 30 day deadline to reply

Professional negligence pre-action protocol

• Professional should be given a notice of an intended claim, gives preliminary information about the claimant and the grievance, professional should tell their insurers

• Claimant should give the defendant a letter of claim, 21 day deadline to acknowledge, 3 months to investigate and write a response

• Response will either accept the allegation or deny them (with reasons for doing so), then either concluded or go to ADR

Personal injury pre-action protocol

• More for road traffic, employers’ liability and public liability claims rather than medical negligence

• Claimant should send a letter of notification to the defendant as soon as they know a claim is likely to be made, try and go through all rehabilitation options

• Must acknowledge the letter of claim within 21 days, three months to investigate and provide a letter of response

• Two copies: one for the defendant and the other for the insurers

• Next steps depend on whether or not the defendant admits liability

Practice Direction Relating to the Use of the Welsh Language in Cases in the Civil Courts

If there are proceedings in Wales or have to do with Wales, the English and Welsh languages should be treated equally

Consequences for failure to follow the relevant protocol

Can include an order to pay defendant cost, deduct damages, pay costs to the claimant…