DR – WS2 Advising the Client TIFF LIAO
Chapter 3 – Early Action Page 42
INTRODUCTION
- Proof of evidence = initial statement from client (or any other witnesses)
• Should be in the clients own words
Let the client tell their story and try to ensure that it develops logically and chronologically (make notes of
any gaps and fill in these by questioning)
• Clarify any ambiguity
• Need to make a careful note of the main points
• Ask questions to obtain further info to develop case analysis
• Probe NOT prompt
then, advise on strengths + weaknesses and consider what further evidence needs to be obtained
- After the first interview with a potential C/D, there are a number of practical preliminary steps the solicitor can take to advance the
C’s claim/Defence for D.
Baring in mind at all times Pre-action protocols
Main requirements: under CPR 1998
Confirm the clients instructions
Advise in writing No specified approved protocol applies to the claim
= must comply with the ‘spirit’ of the protocols and
Obtain relevant evidence
the Practice Direction on pre-action Conduct and
Protocols
SUMMARY:
PRE-ACTION STEPS
(1) Check any professional conduct points: (7) Collect and preserve evidence
Conflict of interest Where are relevant docs located?
Confidentiality What witnesses can proofs of evidence be taken from?
Identity of client for money laundering regulation purposes Is an experts report needed?
Are photographs or site visits needed?
(1) Identify the clients objectives:
What does the client want (8) Carry out necessary legal research
What might realistically be achieved?
(9) Case analysis.
(2) If necessary: Identify and locate all potential parties Have you identified all potential cause of action?
For each element, have you identified all the factual issues?
(3) Check the financial viability of the D What is the likelihood of success?
Will the D be able to pay any judgement + costs? What further evidence is needed?
What assets are available?
(10) Write letter of advice to client
(4) Check jurisdiction Summarising analysis and advising on options
Any relevant contractual clause?
Are one or more parties outside the jurisdiction? (11) Explore possible methods of ADR
(5) Ascertain the limitation period: (12) Comply with any approved pre-action protocol
Any relevant contractual clause? requirements or the Practice Direction
(6) Discuss and agree funding with the client (13) Keep client informed
(14) Should the client make a PART 36 offer?
1
TIFF LIAO
, DR – WS2 Advising the Client TIFF LIAO
Chapter 3 – Early Action Page 42
SUMMARY:
PRACTICE DIRECTION ON
PRE-ACTION CONDUCT & PROTOCOLS
Litigation should be a LAST RESORT
The parties should consider whether NEGOTIATION or some other form of ADR might enable them to settle their dispute
WITHOUT commencing proceedings
The parties should exchange sufficient info to:
(a) Understand each others position
(b) Make decisions about how to proceed
(c) Consider a form of ADR to assist with settlement
(d) Support the efficient management of those proceedings; AND
(e) Reduce the costs of resolving the dispute
These steps take under Practice Direction should usually include:
(a) The C writing to the D with concise details of the claim
(b) The D responding within reasonable time; AND
(c) The parties disclosing key documents relevant to the issue in dispute
Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual and/or
expert issues.
Where a dispute has NOT been resolved after the parties have followed the Practice Direction, they should review their respective
positions to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues
proceedings
If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party may be
sanctioned for failing to do so.
3.1 WRITING TO THE CLIENT
- Should set out advise to client as soon as possible AFTER the interview
- By now, should have identified:
Cause of action
Undertaken any necessary legal research
Assessed the available evidence – if proof of evidence has been taken from the client, should be sent to the
client for approval + signature
Any gaps in the case – factual issues in respect of which there is no/weak evidence = MUST explain this to the client and outline
options
Initial Letter of advise to the client should include:
(a) Clearly identify the clients objectives in relation to the work to be done for the client
(b) Give the client a clear explanation of the issues involved + options available to the client; AND
(c) List next steps
(d) OFTEN (OR separate letter): Details of funding and likely overall cost of matter:
(a) Advising the client of the basis + terms of the firms charges
(b) Advising the client of likely payments to 3rd parties (court fees, barristers fees, expert fees etc)
(c) Setting out how the client has agreed to pay; AND
(d) Advising the client of their potential liability for another party’s cost
ALSO whether the potential outcomes of an legal case would justify the expense or risk involved – incl risk of paying opponents costs =
best practice to record this advise in writing
2
TIFF LIAO
Chapter 3 – Early Action Page 42
INTRODUCTION
- Proof of evidence = initial statement from client (or any other witnesses)
• Should be in the clients own words
Let the client tell their story and try to ensure that it develops logically and chronologically (make notes of
any gaps and fill in these by questioning)
• Clarify any ambiguity
• Need to make a careful note of the main points
• Ask questions to obtain further info to develop case analysis
• Probe NOT prompt
then, advise on strengths + weaknesses and consider what further evidence needs to be obtained
- After the first interview with a potential C/D, there are a number of practical preliminary steps the solicitor can take to advance the
C’s claim/Defence for D.
Baring in mind at all times Pre-action protocols
Main requirements: under CPR 1998
Confirm the clients instructions
Advise in writing No specified approved protocol applies to the claim
= must comply with the ‘spirit’ of the protocols and
Obtain relevant evidence
the Practice Direction on pre-action Conduct and
Protocols
SUMMARY:
PRE-ACTION STEPS
(1) Check any professional conduct points: (7) Collect and preserve evidence
Conflict of interest Where are relevant docs located?
Confidentiality What witnesses can proofs of evidence be taken from?
Identity of client for money laundering regulation purposes Is an experts report needed?
Are photographs or site visits needed?
(1) Identify the clients objectives:
What does the client want (8) Carry out necessary legal research
What might realistically be achieved?
(9) Case analysis.
(2) If necessary: Identify and locate all potential parties Have you identified all potential cause of action?
For each element, have you identified all the factual issues?
(3) Check the financial viability of the D What is the likelihood of success?
Will the D be able to pay any judgement + costs? What further evidence is needed?
What assets are available?
(10) Write letter of advice to client
(4) Check jurisdiction Summarising analysis and advising on options
Any relevant contractual clause?
Are one or more parties outside the jurisdiction? (11) Explore possible methods of ADR
(5) Ascertain the limitation period: (12) Comply with any approved pre-action protocol
Any relevant contractual clause? requirements or the Practice Direction
(6) Discuss and agree funding with the client (13) Keep client informed
(14) Should the client make a PART 36 offer?
1
TIFF LIAO
, DR – WS2 Advising the Client TIFF LIAO
Chapter 3 – Early Action Page 42
SUMMARY:
PRACTICE DIRECTION ON
PRE-ACTION CONDUCT & PROTOCOLS
Litigation should be a LAST RESORT
The parties should consider whether NEGOTIATION or some other form of ADR might enable them to settle their dispute
WITHOUT commencing proceedings
The parties should exchange sufficient info to:
(a) Understand each others position
(b) Make decisions about how to proceed
(c) Consider a form of ADR to assist with settlement
(d) Support the efficient management of those proceedings; AND
(e) Reduce the costs of resolving the dispute
These steps take under Practice Direction should usually include:
(a) The C writing to the D with concise details of the claim
(b) The D responding within reasonable time; AND
(c) The parties disclosing key documents relevant to the issue in dispute
Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual and/or
expert issues.
Where a dispute has NOT been resolved after the parties have followed the Practice Direction, they should review their respective
positions to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues
proceedings
If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party may be
sanctioned for failing to do so.
3.1 WRITING TO THE CLIENT
- Should set out advise to client as soon as possible AFTER the interview
- By now, should have identified:
Cause of action
Undertaken any necessary legal research
Assessed the available evidence – if proof of evidence has been taken from the client, should be sent to the
client for approval + signature
Any gaps in the case – factual issues in respect of which there is no/weak evidence = MUST explain this to the client and outline
options
Initial Letter of advise to the client should include:
(a) Clearly identify the clients objectives in relation to the work to be done for the client
(b) Give the client a clear explanation of the issues involved + options available to the client; AND
(c) List next steps
(d) OFTEN (OR separate letter): Details of funding and likely overall cost of matter:
(a) Advising the client of the basis + terms of the firms charges
(b) Advising the client of likely payments to 3rd parties (court fees, barristers fees, expert fees etc)
(c) Setting out how the client has agreed to pay; AND
(d) Advising the client of their potential liability for another party’s cost
ALSO whether the potential outcomes of an legal case would justify the expense or risk involved – incl risk of paying opponents costs =
best practice to record this advise in writing
2
TIFF LIAO
