LEVEL 3 -UNIT 9 CIVIL LITIGATION SUGGESTED ANSWERS - JUNE 2010

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1 Note to Candidates and Tutors: LEVEL 3 -UNIT 9 CIVIL LITIGATION SUGGESTED ANSWERS - JUNE 2010 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 2010 examinations. 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. ILEX is currently working with the Level 3 Chief Examiners to standardise the format and content of suggested answers and welcomes feedback from students and tutors with regard to the helpfulness of these 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) It was important to note that this was a personal injury case as the purpose of compensation in such situations is to put the individual in the position they would have been in if the negligent act had not occurred. (b) A Conditional Fee Arrangement is often referred to as a "No Win - No Fee" Agreement. Such agreements have the following characteristics: - representative only recovers costs if the case is successful - client will pay disbursements and insurance as case progresses - a success fee/uplift can be claimed from the other party - notice must be given to the other party to be able to recover (c) As this is a personal injury claim proceedings should not be issued until the personal injury protocol has been followed. (d) There are a number of different types of information/documentation that can be gathered to support the claim, these include: - accident report book - health & safety certificate - copies of insurance documentation - witness statements - record of any HSE involvement (e) There are in fact two possible answers to this question. It will be 14 days after service or 28 days if the Defendant lodges an Acknowledgement of Service. Page 1 of 5

2 (f) (i) (g) (i) If the Defendant fails to lodge defence then the Claimant can apply for Default Judgment under Part 12 CPR. The Claimant will file a request at court and judgment will be made for the amount of the claim with costs to be assessed at a later hearing. In fast track cases it is usual for standard directions to be used. The main directions which could be considered in this case: - Disclosure - Inspection - Witness Statements - Experts (h) In fast track cases the issue of costs will be dealt with through Summary Assessment. Not less than 24 hours before the trial a statements of costs are provided to each party to the other. The judge will consider the statements after brief representations by the parties. Question 2 (a) (i) There are obviously more than just two types of Alternative Dispute Resolution (ADR), however those which are relevant to a business setting are arbitration, mediation and conciliation. Advantages to using ADR include: - Cheaper - Quicker - Preservation of business relationship - Private (b) To ensure ADR is used in the future the most effective way is to insert an appropriate clause in commercial agreements. (c) As this is a multi-track case the likely hearing at which Directions would be considered is at a Case Management Conference. (d) (i) (iii) Where there is a weak defence, in other words a defence which is unlikely to be successful, the Claimant may make an application for Summary Judgment. An application for Summary Judgment is made on notice and the test used is that Defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial. There are a number of possible outcomes: - Strike out - There is a valid defence and the matter will proceed to trial - The court may provide directions for continuance - A Conditional Order (e) A trial window is a fixed period during which a trial may take place. Page 2 of 5

3 (f) In civil litigation matters the standard of proof is the balance of probabilities. (g) In multi-track claims the matter of costs is dealt with by Detailed Assessment if not agreed. Question 3 (a) In the circumstances, the options available to Robert Sykes are private funding and legal expenses insurance. (b) There are many ways of checking whether it is worth suing, these include checking with Companies House, using a credit checking service, searching County Court Judgments and obtaining information from the client. (c) The case is most likely to be allocated to the Small Claims Track. (d) As it is a Small Claims Track case, the hearing will be informal and strict rules of evidence will not apply. The judge need not take evidence on oath and he or she can limit the time made available for cross examination, as well as restricting the issue or subject during cross examination. (e) What can be recovered is restricted in the Small Claims Track. The following can be recovered: - Amount specified in the judgment - Court fees - Up to 50 per witness - Limited expert fees Question 4 (a) See the N1 Claim Form (b) There is a great deal of information contained on Allocation Questionnaires, the following are included: - Information on Settlement - Location of Trial - Pre-action Protocols - Case Management Information - Trial or Final Hearing - Proposed Directions - Costs - Fee - Other Information (c) (i) Here the most appropriate way to enforce the judgment is to use a Third Party Debt Order. This involves making an application for an interim order which at a hearing can be made final. In this situation a Charging Order would be most appropriate. An application is made for an Interim Charging Order, where a hearing will be required. This upon another hearing can be made final and ultimately lead to an Order for Sale. Page 3 of 5

4 Coat of Arms Claim Form In the Any County Court Claim No. Issue date for court use only Claimant Ms Mary Ogden trading as Easy Rider Cars Knowlington MD2 3NX Seal Defendant(s) Ms Elaine Johnson 3 Coverdale Road Widdington MD2 4QR Brief details of claim Payment of money Value 7,043 Defendant s name and address Elaine Johnson 3 Coverdale Road Widdington MD2 4QR Amount claimed 7,043 Court fee Solicitor s costs Total amount The court office at is open between 10 am and 4 pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. This is a representation of a N1 Claim form (CPR Part 7) (01.02) Page 4 of 5

5 Claim No. Does, or will, your claim include any issues under the Human Rights Act 1998? Yes No Particulars of Claim (attached)(to follow) Statement of Truth *(I believe)(the Claimant believes) that the facts stated in these particulars of claim are true. * I am duly authorised by the claimant to sign this statement Full name Mary Ogden Name of claimant s solicitor s firm Kempstons signed position or office held *(Claimant)(Litigation friend)(claimant s solicitor) (if signing on behalf of firm or company) * delete as appropriate Kempstons Manor House Bedford MK42 7AB Claimant s or claimant s solicitor s address to which documents or payments should be sent if different from overleaf including (if appropriate) details of DX, fax or . Page 5 of 5