DR WS 1 & 2 Alice Hick
DR – Pre-action steps
Overriding objective
The overriding objective must be borne in mind by the courts (r 1.2) and the parties and their legal advisors (r 1.3)
Each party is required to help the court to further OO, but has no duty or obligation to their opponent.
The OO of the CPR 1998 is to enable the court to deal with cases justly and at proportionate cost. This means:
Ensuring parties are on equal footing
Saving expense
Deal with cases in ways which are proportionate
To the amount of money involved
To the importance of the case
To the complexity of the issues
The financial position of parties
Ensuring cases are dealt with expeditiously and fairly
Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
Outline of a civil claim
1
, DR WS 1 & 2 Alice Hick
Pre-action Steps
STEP
1) Check any professional conduct The solicitor acting in civil proceedings must have regard to the follow
points rules of professional conduct:
Duty of confidentiality:
O4.1 of the SRA Code of Conduct 2011 – unless the client’s prior authority is
obtained.
Conflict of interest:
O3.5 of the SRA Code of Conduct 2011.
Money laundering:
Subject to related legislation so must ensure that adequate procedures in
place to check new client’s identity.
Who the client is and authorisation to act:
If receives instructions from someone other than client, or by only one client
on behalf of others, should not proceed without checking all clients agree
with instructions given.
Solicitor’s duty as an officer of the court:
- Overriding duty not to mislead the court.
- Must disclose all relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective.
Solicitor’s core duties:
The SRA Code of Conduct 2011 is based on certain mandatory principles.
2) Identify the client’s objectives - What does the client want?
- What realistically can be achieved?
3) Identify and locate, if necessary, all
potential parties
4) Check the financial viability of the - Will the defendant be able to pay any judgment and costs?
defendant - What assets are available?
5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
6) Assess limitation periods Basic rules: LA 1980
Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract occurs
Tort 6 years (s2)
(excluding personal injury and latent when the tort is committed
damage) when some damage occurs tort of
(negligence)
Latent damage (ONLY NEGLIGENCE) 6 years or 3 years from date of
In non-personal injury claim based on knowledge (s14A)
negligence where the damage is
latent (NOT AWARE OF IT) at the date
when the cause of action accrues
NB: Any relevant contractual clauses?
7) Discuss and agree funding with the Explore all options - See funding below.
client
8) Collect and preserve evidence - Where are relevant documents located?
- Is pre-action disclosure required?
2
DR – Pre-action steps
Overriding objective
The overriding objective must be borne in mind by the courts (r 1.2) and the parties and their legal advisors (r 1.3)
Each party is required to help the court to further OO, but has no duty or obligation to their opponent.
The OO of the CPR 1998 is to enable the court to deal with cases justly and at proportionate cost. This means:
Ensuring parties are on equal footing
Saving expense
Deal with cases in ways which are proportionate
To the amount of money involved
To the importance of the case
To the complexity of the issues
The financial position of parties
Ensuring cases are dealt with expeditiously and fairly
Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
Outline of a civil claim
1
, DR WS 1 & 2 Alice Hick
Pre-action Steps
STEP
1) Check any professional conduct The solicitor acting in civil proceedings must have regard to the follow
points rules of professional conduct:
Duty of confidentiality:
O4.1 of the SRA Code of Conduct 2011 – unless the client’s prior authority is
obtained.
Conflict of interest:
O3.5 of the SRA Code of Conduct 2011.
Money laundering:
Subject to related legislation so must ensure that adequate procedures in
place to check new client’s identity.
Who the client is and authorisation to act:
If receives instructions from someone other than client, or by only one client
on behalf of others, should not proceed without checking all clients agree
with instructions given.
Solicitor’s duty as an officer of the court:
- Overriding duty not to mislead the court.
- Must disclose all relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective.
Solicitor’s core duties:
The SRA Code of Conduct 2011 is based on certain mandatory principles.
2) Identify the client’s objectives - What does the client want?
- What realistically can be achieved?
3) Identify and locate, if necessary, all
potential parties
4) Check the financial viability of the - Will the defendant be able to pay any judgment and costs?
defendant - What assets are available?
5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
6) Assess limitation periods Basic rules: LA 1980
Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract occurs
Tort 6 years (s2)
(excluding personal injury and latent when the tort is committed
damage) when some damage occurs tort of
(negligence)
Latent damage (ONLY NEGLIGENCE) 6 years or 3 years from date of
In non-personal injury claim based on knowledge (s14A)
negligence where the damage is
latent (NOT AWARE OF IT) at the date
when the cause of action accrues
NB: Any relevant contractual clauses?
7) Discuss and agree funding with the Explore all options - See funding below.
client
8) Collect and preserve evidence - Where are relevant documents located?
- Is pre-action disclosure required?
2
