Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Y/501/5543

Transcription

1 August 2008 Version 1.1 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Y/501/5543 Assignment version: Sample This guide contains assessor and candidate instructions. Sample//08

2 This publication has been developed by CILEx. It is part of the method of assessment for the City & Guilds/CILEx qualifications and whereas CILEx has taken all reasonable care in the preparation of this publication, neither it nor the City and Guilds of London Institute accept any liability howsoever in respect of any breach of the rights of any third party howsoever occasioned or damage caused to any third party as a result of the use of this publication. Copyright CILEx 2012 /Sample Page 2 18/08/2008

3 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Assessor s instructions Assignment number Version Sample /Sample Page 3 18/08/2008

4 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Notes for guidance This assignment comprises the assessment for the underpinning knowledge requirements for Unit 206 Personal injury procedures. The importance of safe working practices, the demands of the appropriate national and local Health and Safety legislation, associated regulations and Codes of Practice associated with the particular industry, must always be stressed. Candidates have responsibilities for maintaining the safety of others as well as their own. Anyone behaving in an unsafe fashion must be stopped and suitable warnings given. A candidate should never be allowed to continue working on an assignment if they have contravened these requirements. This may seem rather strict but, apart from the potentially unpleasant consequences, each candidate must acquire the habits required for the workplace. The following notes for guidance are provided to assist assessors/tutors in planning the delivery of this assignment to candidates. 1 Location of assignment 1.1 Any suitable location in the workplace or learning environment. 2 Equipment/resources required for this assignment 2.1 No specific equipment or resources are required for this assignment although access to word processing and printer facilities would allow candidates to produce work more efficiently. 2.2 Candidates will need access to the 7462 Level 2 Legal Studies Assignment guide to complete this assignment. 3 Evidence and recording 3.1 All work produced by the candidate should be kept together. The candidate is required to put their name, their City & Guilds registration number, task number and the date on all pieces of work, either handwritten or typed, however they will not be penalised for not doing so. 3.2 Candidates will need to be able to organise their information clearly and coherently. Spelling, punctuation and grammar should be used with considerable accuracy and legal terminology applied where relevant. 4 Time considerations 4.1 This assignment should take no longer than three hours to complete, excluding research activities. You should make the candidate aware of your programme s time frame and deadlines for completion of this assignment. 4.2 A recommended period of seven days must have elapsed before an unsuccessful candidate can retake a task within this assignment. Further training/feedback should be given to candidates before a task is retaken. Should a candidate be unsuccessful in more than one task, or a referred assignment, then a new assignment should be taken. 5 Additional information 5.1 Answers given in the marking and grading criteria are indicative of the type of answers candidates should give. They are not definitive. /Sample Page 4 18/08/2008

5 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures utcomes Task Evidence utcome reference Underpinning Knowledge (UK) 1 A briefing sheet explaining the purpose and structure of the Civil Procedure Rules , 1.2, A set of notes identifying the main provisions of the Pre-Action Protocol on personal injury claims and how they are achieved. 3 A letter explaining how the costs of a personal injury claim can be met including details of conditional fee arrangements. 4 A flow chart showing the stages through which a claim will progress. 5 A letter that explains the possible methods of enforcing Judgment. A note describing the most effective method of enforcing judgment , , 5.2 /Sample Page 5 18/08/2008

6 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures This page is intentionally blank /Sample Page 6 18/08/2008

7 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Candidate s instructions Assignment number Version Sample /Sample Page 7 18/08/2008

8 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Assignment You are advised to read all instructions carefully before starting work. Check with your Assessor/Tutor, if necessary, to ensure that you have fully understood the process. This assignment should take you no longer than three hours to complete, excluding research activities. You are required to work to the time frame and deadlines as set out by your Assessor/Tutor. Introduction This assignment is broken down into five tasks: Task 1 requires you to produce a briefing sheet explaining the purpose and structure of the Civil Procedure Rules. Task 2 requires you to produce a set of notes identifying the main provisions of the Pre- Action Protocol on personal injury claims and how they are achieved. Task 3 requires you to produce a letter explaining how the costs of a personal injury claim can be met including details of conditional fee arrangements. Task 4 requires you to produce a flow chart showing the stages through which the claim will progress. Task 5 requires you to produce a letter and a note which explain the possible and most effective methods of enforcing Judgment. Note You will need access to the 7462 Level 2 Legal Studies Assignment guide to enable you to complete this assignment. You should read through the instructions for each task carefully before you start. Make sure you do everything you are asked to do in the instructions and other notes. When you have completed all the tasks, re-read the instructions again just before you proof-read your work for the last time. Ensure your name, your City & Guilds registration number, task number and the date are on all documentation. At the conclusion of the task/assignment, hand all paperwork to your Assessor/Tutor. /Sample Page 8 18/08/2008

9 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Scenario You are working as a trainee legal assistant in Ingram Lochee & Exton, a firm of solicitors with various branches in the UK. As part of your training, you are expected to spend time in all the departments of the practice. You are currently working in the Personal Injury Department gaining experience of the law and procedures relating to personal injury claims. The department acts for both claimants and defendants and has contracts with a number of insurance companies to defend claims. Task 1 Following an internal training session you have been asked by Robert Fellows-Bennett, the senior Chartered Legal Executive in the department, to produce a briefing sheet to explain: a) the purposes (including the over-riding objective) of the Civil Procedure Rules; and b) the structure of the Civil Procedure Rules, with five examples of the management powers exercised by the courts, using the appropriate context. Task 2 Robert Fellows-Bennett has now asked you to prepare notes which: a) identify the purpose and main provisions of the Pre-Action Protocol on Personal Injury Claims. b) describe how those provisions are achieved. Your notes must also identify a minimum of three issues which must be considered in a letter of claim. Task 3 James lkiewicz, a potential client, has approached you and asked for advice on how a personal injury claim can be financed. Previously, in 1985, James had been injured in a motor accident and Ingram Lochee & Exton had acted for him in that claim. At that time he did not have to pay any costs because he had been granted legal aid but he thinks that the system may now have changed. You are asked to draft a letter to the client identifying a minimum of three sources of funding, explaining how the costs of a personal injury claim can now be met through a conditional fee arrangement. /Sample Page 9 18/08/2008

10 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task 4 The Pre-Action Protocol has been complied with in a claim for personal injury sustained by Ms Lynn Cooper but it has not been possible to settle the claim. Proceedings are now being commenced against the defendant and Ms Cooper wishes to know the processes that will have to be followed between issuing the Notice of Claim and the end of the trial. Ms Cooper s claim has been estimated at 11,500 by a solicitor in your department. You are asked to produce a flow chart showing the stages through which the claim will pass from the issue of the Notice of Claim to the start of the trial. Include examples as appropriate. Task 5 n trial Ms Lynn Cooper was awarded damages of 12,750 and, although the Judgment has been served on the defendant, payment has still not been made. Your client is now becoming anxious that she may never receive the money awarded and it has been decided to seek an oral examination of the defendant. a) You are asked, by a senior colleague, to draft a letter to the client explaining the purpose of and procedure for an oral examination in court. b) At the oral examination, it is established that the defendant has a house valued at 200,000 but few other assets and only limited income. Prepare a note describing the most effective method of enforcing the judgment and the process by which a charging order can be obtained. /Sample Page 10 18/08/2008

11 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Marking & grading criteria (Not to be shown to candidates until grading is complete) Assignment number Version Sample Candidate name: Enrolment no: I confirm that all work submitted is my own Signature: Date: Pass / Merit / Distinction / Resit Assessor name: Signature: Date: Internal Quality sampled by: Signature: Date: /Sample Page 11 18/08/2008

12 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures This page is intentionally blank /Sample Page 12 18/08/2008

13 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Each of the following points should be ticked if satisfactorily met and crossed if not. If a point does not apply it should be crossed through and annotated with reasons why it is not applicable. Answers given in the marking and grading criteria are indicative of the type of answers candidates should give. They are not definitive. Professional judgement should be used. To achieve a Pass, candidates must meet all criteria shown as and 55 of the criteria shown as To achieve a Merit, candidates must pass all the tasks and meet at least 63 of the criteria shown as To achieve a Distinction, candidates must pass all the tasks and meet at least 71 of the criteria shown as Task Marking criteria Marking Task 1 All parts of Task 1 completed. Spelling, punctuation and grammar is used with considerable accuracy and legal terminology applied where relevant. a Briefing sheet produced: Following from reforms of Lord Woolf (Access to Justice 1996) Civil Procedure Rules r1.1 o enabling the court to deal with cases justly Included issues of: ensuring parties on an equal footing saving expense dealing with cases in ways which are proportionate eg: o the amount of money involved o the importance of the case o the complexity of the issues o the financial position of each party Dealing with cases expeditiously and fairly Allotting an appropriate share of the court s resources /Sample Page 13 18/08/2008

14 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Any one of four examples of effects eg: results in more speedy resolution of cases, fairness to litigants, control of the process by the court, and processes being more easily understood by users b CPR structured into Rules or Parts eg: o Rule 1 = Administrative, Rule 16 = Particulars of Claim, Rule 20 = Counterclaims, Rule 3 = Court s management powers, Rule 36 = ffers to settle Supplemented by Practice Directions Five examples of management powers exercised by the courts using the appropriate context: Management Powers contained in Rule 3 of CPR and are non-exhaustive Rule 3.1(2) Includes: o extend or shorten the time for compliance with any rule, practice direction or court order o adjourn or bring forward a hearing o require a party or legal representative to attend the court o hold a hearing and receive evidence by telephone or other method of direct oral o communication o direct part of any proceedings to be dealt with as separate proceedings o stay the whole or part of any proceedings either generally or until a specified date o consolidate proceedings o try two or more claims on the same occasion o direct a separate trial of any issue o exclude an issue from consideration o dismiss or give judgment on a claim after a decision on a preliminary issue o order service of estimate of costs o take any other step or make any other order for the purpose of managing the case and furthering the overriding objective To pass Task 1, candidates must meet all criteria shown as and 10 of the criteria shown as Pass / Refer No of /Sample Page 14 18/08/2008

15 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Candidate s name: Date: Assessor s name: Assessor s signature: /Sample Page 15 18/08/2008

16 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Task 2 All parts of Task 2 completed. Spelling, punctuation and grammar is used with considerable accuracy and legal terminology applied where relevant. Set of notes produced identifying the purpose and main provisions of the Pre-Action Protocol. a Pre-Action Protocols are intended to improve pre-action contact between parties, to ease exchange of information and to allow both sides to more fully investigate a claim at an early stage. Compliance with any Pre-Action Protocol is one which a court will take into account when considering costs and sanctions. b Pre-Action Protocol: o requirements on early notification of claim o format of letter of claim o reasons for early issue o status of letters of claim and responses o disclosure of documents o expert witnesses o requirements relating to negotiations and settlement o claim review processes. Identified three issues to be considered in a Letter of Claim: must be sent in duplicate and include: o clear summary of facts o nature of any injuries o any financial loss incurred o request for details of insurer o sufficient information to enable defendant (or solicitor) to commence investigations /Sample Page 16 18/08/2008

17 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Defendant should reply within 21 calendar days Defendant has maximum of three months to investigate claim and accept (or deny) liability To pass Task 2, candidates must meet all criteria shown as and 8 of the criteria shown as Pass / Refer No of Candidate s name: Date: Assessor s name: Assessor s signature: /Sample Page 17 18/08/2008

18 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Task 3 All parts of Task 3 completed. Spelling, punctuation and grammar is used with considerable accuracy and legal terminology applied where relevant. Draft letter: Three sources of funding identifed: funding from client s own resources pro bono arrangements insurance cover trade unions and professional associations excluding conditional fee arrangements PI cases no longer available from public funds Claimant responsible for own and (in the event of losing claim) the defendant s costs. Conditional fee arrangements: arrangement under which solicitor receives no payment if the case is lost but normal or higher payment if client is successful may be entered into in any civil litigation matter except family proceedings detailed requirements contained in CFA Regulations 2000 o agreement must be signed by solicitor and client o client must be provided with certain advice and information (depending on type of case) before conditional fee arrangement signed eg: circumstances in which client will be liable for solicitor s fees client s entitlement to have reasonableness of fees assessed by the court whether other methods of financing claim are available whether insurance is appropriate /Sample Page 18 18/08/2008

19 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Conditional fee arrangement must specify certain details: o proceedings to which it relates o circumstances in which solicitor s fees are payable o amounts payable under the conditional fee arrangement and whether they are limited by reference to damages awarded o confirmation that advice and information has been given (as above) To pass Task 3, candidates must meet all criteria shown as and 8 of the criteria shown as Pass / Refer No of Candidate s name: Date: Assessor s name: Assessor s signature: /Sample Page 19 18/08/2008

20 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Task 4 All parts of Task 4 completed. Spelling, punctuation and grammar is used with considerable accuracy and legal terminology applied where relevant. Flow chart produced which shows the stages through which a claim will progress. Check that all Pre-Action Protocol requirements have been observed Prepare Claim Form and Particulars of Claim Serve documents on defendant with response pack (may be done by court) If no action by Defendant within 14 days of service of Particulars of Claim, apply for Judgment in default If Defendant filed Defence or counterclaim, case management hearing held by court: court will direct stages and timetable to bring matter to trial court will give directions Examples (maximum of two): fix trial date or period within which trial will take place disclosure/inspection of documents service of witness statements expert evidence requirements Parties may apply for particular directions, depending on circumstances Notice of Allocation and Directions served by court May include disclosure and inspection of documents, service of witness statements, and exchange of expert s evidence Pre-Trial checklists and costs estimates exchanged Further case management hearing held: further directions /Sample Page 20 18/08/2008

21 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking trial timetable Notice of Trial Date given by court and trial begins To pass Task 4, candidates must meet all criteria shown as and 11 of the criteria shown as Pass / Refer No of Candidate s name: Date: Assessor s name: Assessor s signature: /Sample Page 21 18/08/2008

22 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Task 5 All parts of Task 5 completed. Spelling, punctuation and grammar is used with considerable accuracy and legal terminology applied where relevant. a Letter explained the possible methods of enforcing Judgment in the given scenario: To seek information from a judgment debtor to allow the judgment creditor to make an informed decision as to how best to enforce a Judgment Examination of judgment debtor on oath Part 71 CPR Application by judgment creditor to court to seek an order that judgment debtor provides information as to: o his means or any other matter in connection with the enforcement of a judgment Application to be issued in court which made Judgment or rder Application can be made with or without notice to judgment debtor Information required on notice of application (identify at least three from list below): o name and address of debtor o which judgment or order the creditor is seeking to enforce o the amount presently owed o if the debtor is a company, the name, address and position of the officer to be ordered to attend court o whether the creditor wishes the questioning to be conducted before a judge (giving reasons) o which documents are to be produced (if any) o which matters the creditor wishes the judgment debtor to be questioned about /Sample Page 22 18/08/2008

23 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Task Marking criteria Marking Personal service of notice of application Court requires compulsory attendance by judgment debtor Notice on order that non-compliance could result in imprisonment Hearing before judge or officer of the court with judgment debtor examined on oath Evidence tape recorded Costs of application in favour of judgment creditor b A note describing the most effective method of enforcing judgment and the process by which a charging order can be obtained. Charging order against judgment debtor s interests in property Charging rders Act 1979 Part 73 CPR Application to court High Court or County Court could hear application Can be made without notice to judgment debtor Usually dealt with by a judge without a hearing Interim order made and served on judgment debtor who could seek hearing to challenge order rder registered against the title to the property and money owed is paid only when property is sold Interest is allowed Judgment creditor may seek order of court for sale of property but additional application and hearing necessary To pass Task 5, candidates must meet all criteria shown as and 18 of the criteria shown as Pass / Refer No of /Sample Page 23 18/08/2008

24 Level 2 Award/Certificate/Diploma in Legal Studies Personal injury procedures Candidate s name: Date: Assessor s name: Assessor s signature: To achieve a Pass, candidates must meet all criteria shown as and 55 of the criteria shown as To achieve a Merit, candidates must pass all the tasks and meet at least 63 of the criteria shown as To achieve a Distinction, candidates must pass all the tasks and meet at least 71 of the criteria shown as Total No of Pass / Merit / Distinction /Sample Page 24 18/08/2008