JY
Civil Lit Notes
1. General Matters
How to start proceedings – The Claim Form
Where to start proceedings
Can’t be started in HC unless value is more than £100,000
o PI cases can’t start in HC unless £50,000 or more
Some legislations will dictate starting court
Claim in HC if by reason of:
o Financial value of claim / amount in dispute and/or
o Complexity of facts / legal issues / remedies / procedures involved and/or
o Importance of outcome of claim to public in general
C believes claim should be dealt with HC judge.
CC Part 7 claim can be made at any CC centre (subject to any enactment, rule, PD)
If claim required to be made at particular CC is made at wrong hearing centre, officer will
send claim to correct centre before issuing
o C should consider delays if claim not made at correct CC
1
, JY
2. Limitation
Cause of Action
Contract – 6 years
Tort (other than personal injury/fatal accident) – 6 years
o Personal injury – 3 years from
Date of accident/injury; or Date of knowledge
o Fatal Accidents Act 1976 claims (by dependents) – 3 years from
Date of death; or Date of knowledge
Contribution claims – 2 years from date of judgement / award (when right accrued)
“Date of Knowledge”
Extends period if date of knowledge of relevant person is later than date of accrual
Overcomes rule where cause of action accrues when damages occurs
Refers to date when he first had knowledge of following facts
o Injury in question of significant; and
o Was attributable in whole / part to act /omission alleged to constitute negligence,
nuisance, or breach of duty; and
o Identity of D (eg employer of the guy who fucked up); and
o If alleged that act/omission was that of person other than D, the identity of that
person and additional facts supporting bringing an action against D
knowledge that act/omissions did/did not, as a matter of law, involve
negligence, nuisance, or breach of duty is irrelevant
Must have all four, but it’s exhaustive
Knowledge of claimant in negligence actions
Latent damage – only applies to actions for negligence (only in tort)
On what date time starts
Generally, day following the date of accrual of cause of action (parts of days disregarded)
In contract, time starts from date of relevant breach
o Eg breach is 20 Aug, time starts that night at midnight, from 21st
In Tort where actionable without proof of damage (‘actionable per se’, eg libel)
o Date of wrongful act
Tort requiring proof of damage (except personal injury / fatal accidents and conversion)
o Cause of action accrues date on which damage occurred, exceptions possible
when involving latent damage
Under 18 starts on 18th birthday
Date limitation period expires
Anniversary of breach, but cease to run on date C issues proceedings
Limitation Period be disapplied
LA 1980 s33 can disapply limitation period in personal injury cases
Any other exception or qualification applicable to limitation period
Although may be out of time, some provisions exclude or qualify period
Latent damage (ss14A and 14B)
2
, JY
Applies to negligence actions other than personal injuries (generally for problems relating
to defective buildings), but can apply to all types of non-personal injuries negligence cases
o Offers two alternative periods
6 years from accrual or 3 years from starting date (if later than 6)
o Long stop of 15 years
Disability (ss28, 38)
Time doesn’t run against disabled person on date of cause of action accrued
Two categories of disabled – minors and unsound mind
Fraud, concealment, mistake (s32)
Limitation postponed in these cases until C discovered fraud/concealment/mistake (or
when he could with reasonable diligence have discovered it). Includes agents.
Discretionary Exclusion of time limit for actions in respect of Personal Injuries or Death
If court finds it equitable to allow action to proceed, can direct that limitation won’t apply
In fatal accidents, can’t use this if injured person could not have started action himself
(limitation or other reasons)
In exercising discretion, court will consider all circumstances
o Length and reason for delay on part of C
o Extent to which evidence is available now / how cogent it is now
o Conduct of D after cause of action arose (incl how he responded to C)
o Duration of any disability of C after date of accrual of cause of action
o Extent to which C acted promptly and reasonably once he knew
o Steps taken by C to obtain medical, legal, or other expert advice, and nature of
such advice received
Time Limit for Actions to Enforce Judgments
Can’t bring action for judgment if 6 years passed from when judgment become
enforceable
No arrears of interest in respect of any judgment debt shall be recoverable after expiration
of 6 years from when interest became due
Limitation in sexual abuse cases
Claim for damages for personal injuries caused by sexual assault has 3 years from date
when victim first considered injury sufficiently serious to justify proceedings (though can
be extended via equity). Test whether reasonable person with C’s knowledge would
have considered injury sufficiently serious
Mock
If LP is fast approaching, issue proceedings right away and ask D to agree to apply to court
to stay proceedings
3
, JY
3. Pre-Action Conduct
Proportionality
Pre-action protocol / this PD should not be used as tactical device for unfair advantage
o Only reasonable + proportionate steps taken by parties to identify / narrow /
resolve issues
Costs incurred in complying with pre-action protocol / PD should be proportionate
o If disproportionate, not recoverable as part of costs of proceedings
Steps before issuing claims at court
Where no relevant protocol, exchange correspondence and info to uphold objectives
Usually includes:
o C writes D details of claim, identifying basis, facts summary, what C wants, and
how sum is calculated
o D responds in reasonable time (14 days normally, up to 3 months in complex)
o Confirm whether claim accepted, and if not, explain why and which facts are
disputed, and whether counterclaim (with details)
o Both disclose key documents relevant to issues
Stocktake and list of issues
If pre-action protocol / PD failed, parties review position
Consider papers / evidence and see if proceedings can be avoided, and at least seek to
narrow issues before proceedings
Compliance with this PD / protocols
Court will consider whether all parties have complied in substance rather than minor
technical infringements (esp when matter is urgent), eg in application for injunction
Court may find failure of compliance when party
o Fails to provide sufficient info to enable objectives of protocol /PD
o Not acted within time period of relevant protocol or reasonable period
o Unreasonably refused ADR / failed to respond at all
If failure, court may order
o Parties relieved of obligation to comply
o Proceedings stayed while steps taken to comply; sanctions applied
Court will consider effect of non-compliance when deciding on sanctions, which include
o Party at fault pays costs of proceedings, part of costs of other party
o Party at fault pays costs those costs on indemnity basis
o If C’s fault, who was awarded sum, an order depriving that sum for a time
period and/or awarding interest at a lower rate
o If D’s fault, and C was awarded money, an order awarding interest on that sum
for a time period at higher rate (not exceeding 10% above base rate)
Limitation
This PD and pre-action protocols don’t affect statutory time limits for starting proceedings
If proceedings issued just to comply with limitation before parties followed procedure in
PD / protocol, should apply to stay proceedings while they comply.
4
Civil Lit Notes
1. General Matters
How to start proceedings – The Claim Form
Where to start proceedings
Can’t be started in HC unless value is more than £100,000
o PI cases can’t start in HC unless £50,000 or more
Some legislations will dictate starting court
Claim in HC if by reason of:
o Financial value of claim / amount in dispute and/or
o Complexity of facts / legal issues / remedies / procedures involved and/or
o Importance of outcome of claim to public in general
C believes claim should be dealt with HC judge.
CC Part 7 claim can be made at any CC centre (subject to any enactment, rule, PD)
If claim required to be made at particular CC is made at wrong hearing centre, officer will
send claim to correct centre before issuing
o C should consider delays if claim not made at correct CC
1
, JY
2. Limitation
Cause of Action
Contract – 6 years
Tort (other than personal injury/fatal accident) – 6 years
o Personal injury – 3 years from
Date of accident/injury; or Date of knowledge
o Fatal Accidents Act 1976 claims (by dependents) – 3 years from
Date of death; or Date of knowledge
Contribution claims – 2 years from date of judgement / award (when right accrued)
“Date of Knowledge”
Extends period if date of knowledge of relevant person is later than date of accrual
Overcomes rule where cause of action accrues when damages occurs
Refers to date when he first had knowledge of following facts
o Injury in question of significant; and
o Was attributable in whole / part to act /omission alleged to constitute negligence,
nuisance, or breach of duty; and
o Identity of D (eg employer of the guy who fucked up); and
o If alleged that act/omission was that of person other than D, the identity of that
person and additional facts supporting bringing an action against D
knowledge that act/omissions did/did not, as a matter of law, involve
negligence, nuisance, or breach of duty is irrelevant
Must have all four, but it’s exhaustive
Knowledge of claimant in negligence actions
Latent damage – only applies to actions for negligence (only in tort)
On what date time starts
Generally, day following the date of accrual of cause of action (parts of days disregarded)
In contract, time starts from date of relevant breach
o Eg breach is 20 Aug, time starts that night at midnight, from 21st
In Tort where actionable without proof of damage (‘actionable per se’, eg libel)
o Date of wrongful act
Tort requiring proof of damage (except personal injury / fatal accidents and conversion)
o Cause of action accrues date on which damage occurred, exceptions possible
when involving latent damage
Under 18 starts on 18th birthday
Date limitation period expires
Anniversary of breach, but cease to run on date C issues proceedings
Limitation Period be disapplied
LA 1980 s33 can disapply limitation period in personal injury cases
Any other exception or qualification applicable to limitation period
Although may be out of time, some provisions exclude or qualify period
Latent damage (ss14A and 14B)
2
, JY
Applies to negligence actions other than personal injuries (generally for problems relating
to defective buildings), but can apply to all types of non-personal injuries negligence cases
o Offers two alternative periods
6 years from accrual or 3 years from starting date (if later than 6)
o Long stop of 15 years
Disability (ss28, 38)
Time doesn’t run against disabled person on date of cause of action accrued
Two categories of disabled – minors and unsound mind
Fraud, concealment, mistake (s32)
Limitation postponed in these cases until C discovered fraud/concealment/mistake (or
when he could with reasonable diligence have discovered it). Includes agents.
Discretionary Exclusion of time limit for actions in respect of Personal Injuries or Death
If court finds it equitable to allow action to proceed, can direct that limitation won’t apply
In fatal accidents, can’t use this if injured person could not have started action himself
(limitation or other reasons)
In exercising discretion, court will consider all circumstances
o Length and reason for delay on part of C
o Extent to which evidence is available now / how cogent it is now
o Conduct of D after cause of action arose (incl how he responded to C)
o Duration of any disability of C after date of accrual of cause of action
o Extent to which C acted promptly and reasonably once he knew
o Steps taken by C to obtain medical, legal, or other expert advice, and nature of
such advice received
Time Limit for Actions to Enforce Judgments
Can’t bring action for judgment if 6 years passed from when judgment become
enforceable
No arrears of interest in respect of any judgment debt shall be recoverable after expiration
of 6 years from when interest became due
Limitation in sexual abuse cases
Claim for damages for personal injuries caused by sexual assault has 3 years from date
when victim first considered injury sufficiently serious to justify proceedings (though can
be extended via equity). Test whether reasonable person with C’s knowledge would
have considered injury sufficiently serious
Mock
If LP is fast approaching, issue proceedings right away and ask D to agree to apply to court
to stay proceedings
3
, JY
3. Pre-Action Conduct
Proportionality
Pre-action protocol / this PD should not be used as tactical device for unfair advantage
o Only reasonable + proportionate steps taken by parties to identify / narrow /
resolve issues
Costs incurred in complying with pre-action protocol / PD should be proportionate
o If disproportionate, not recoverable as part of costs of proceedings
Steps before issuing claims at court
Where no relevant protocol, exchange correspondence and info to uphold objectives
Usually includes:
o C writes D details of claim, identifying basis, facts summary, what C wants, and
how sum is calculated
o D responds in reasonable time (14 days normally, up to 3 months in complex)
o Confirm whether claim accepted, and if not, explain why and which facts are
disputed, and whether counterclaim (with details)
o Both disclose key documents relevant to issues
Stocktake and list of issues
If pre-action protocol / PD failed, parties review position
Consider papers / evidence and see if proceedings can be avoided, and at least seek to
narrow issues before proceedings
Compliance with this PD / protocols
Court will consider whether all parties have complied in substance rather than minor
technical infringements (esp when matter is urgent), eg in application for injunction
Court may find failure of compliance when party
o Fails to provide sufficient info to enable objectives of protocol /PD
o Not acted within time period of relevant protocol or reasonable period
o Unreasonably refused ADR / failed to respond at all
If failure, court may order
o Parties relieved of obligation to comply
o Proceedings stayed while steps taken to comply; sanctions applied
Court will consider effect of non-compliance when deciding on sanctions, which include
o Party at fault pays costs of proceedings, part of costs of other party
o Party at fault pays costs those costs on indemnity basis
o If C’s fault, who was awarded sum, an order depriving that sum for a time
period and/or awarding interest at a lower rate
o If D’s fault, and C was awarded money, an order awarding interest on that sum
for a time period at higher rate (not exceeding 10% above base rate)
Limitation
This PD and pre-action protocols don’t affect statutory time limits for starting proceedings
If proceedings issued just to comply with limitation before parties followed procedure in
PD / protocol, should apply to stay proceedings while they comply.
4
