Civil Litigation: Conditional Fee Agreement - Assignment Example

Civil Litigation Word Count – Question less foot s , bibliography, table of cases , table of statutes 1852 Question No 2 – word count 1105 words Table of Contents S.No Heading Page No 1 Question 1 (a) 3 2 (b) 4 3 ( c ) 5 4 ( d ) 7 5 ( e) 9 6 Answer to Question 9 7 Bibliography 13 8 List of Cases 13 9 List of Statutes 14 Question 1 – (a) “No win, no legal fee” is commonly known as conditional fee agreements entered with a solicitor. The methodology is that if the claimant wins the case, then, the solicitor’s fee will be met by the respondent. On the other hand, if the claimant loses the case, then, the claimant need not pay any fees to the solicitor. However, a claimant may be asked to have an insurance policy to meet the respondent’s side costs if the claimant loses the case. A conditional fee agreement can provide in case if the solicitor wins the case, he can charge normal fee, disbursements made by the solicitor if any, together with a success fee which could be 100% of the normal fee or less than that, but he cannot charge a success fee of more than 100% of his normal fee. Conditional Fee Agreement (hereinafter will be referred as “CFA”) is being employed in personal injury cases widely. Hence, Mrs. Mather can employ CFA against Chelmsford Council as she suffered personal injuries while she was going to church through the park while climbing down stairs leading from the road to park. However, Mrs. Mather should take into account that CFA is not applicable to any counterclaim made by Chelmsford Council against Mrs. Mather and any appeal made by Mather against the final judgment order. Nonetheless, Mrs. Mather is eligible to pursue recovery from Chelmsford Council either all the basic charges, solicitor’s disbursement charges, the success fee paid and insurance premium paid either full or part of it. Chelmsford Council is entitled to make an offer to settle within the ambit of Civil Procedure Code Part 36, which is known as the Part 36 offer which may be made at any time , including before the start of the court proceeding or in appeal proceedings. In Gibbon v Manchester City Council 1 , it was held that a Part 36 offer should be accepted within 21-days, which forms a contract settling the claim in terms of the offer2. (b) In case of personal injury claims, Mather has to submit a medical expert evidence or certificate as regards to the nature of injury and its impact on her health. The pre-action protocol encourages both Mather and Chelmsford Council to select the expert jointly and supports the practice of Mather obtaining a medical report , disseminating it to the Chelmsford Council and then, the Council has two options either it can accept the medical report or raises the question on it. Before Mather selects a medical expert, she is expected to offer the Council a list (3.15) containing one or more medical experts’ names whom she considers fit for giving such a certificate. Then, Chelmsford Council has fourteen days to raise its objection to one or more of the named medical experts.(3.17). In case, where Mather nominates an expert in the letter of claim (protocol rule number 3.1), the fourteen days run from the date of the Chelmsford’s acknowledgement of the letter of claim. Chelmsford should give its acknowledgement for mutually accepted medical expert or if Chelmsford Council has raised its objection to all the listed medical experts, then, Mather and Chelmsford Council may indicate medical experts of their preference. Both Mather and Chelmsford Council are permitted to forward their written questions to a mutually accepted expert no sooner his report has been prepared (3.20). Generally, the party who is giving instruction to the expert will be responsible for paying the expert’s service costs(3.21) and in this case, Mather will be responsible for the cost. However, if any question is raised by Chelmsford Council from the medical expert, then, Council will be responsible to pay the relevant costs to the medical expert pertaining to the answering of such questions 3.(3.21). (c) In the case of personal injury, a claim form is an official document which is employed to begin proceedings against a respondent by the claimant either in the county court or in High Court as the case may be. “Civil Procedure Code 16.2” prescribes claim form is N1 for making a claim from a Defendant. In the case of a personal injury case, if one wish to initiate legal proceedings in the High Court, the minimum value of the claim should be £50,000 or in other cases, it should be more than £25,000. Mrs. Mather should spell out details of her claim in an exhaustive manner. Mrs. Mather should make a concise statement detailing out the nature of claim, detailing the relief demanded. Mrs. Mather should express the value of the claim by indicating the quantum of the amount she wants to recover: If the damage claimed is in excess of £10,000 but not in excess of £25, 000, then, the case will be assigned to the fast track.4 In her claim, Mather may include the loss of salary while she was impacted by the accident, reimbursement of medical expenses, etc. However, the indication of the claim amount by Mrs. Mather does not restrict the court to award a verdict for that sum. In arriving at the damage amount, the court may add interest, damages, etc. To Provide a Summary The court demands only an outline of Mrs. Mather’s case on causation, liability and quantum. Thus, Mrs. Mather should state the cause of action, the meticulous nature of allegations being made, and the financial outcomes. Since Mrs. Mather had a trip and fall on a public walkway and as she is strongly feeling that it was maintained in a perilous state, thus causing her fall, she is having a valid claim against Chelmsford Council, which is responsible for the upkeep and maintenance of public spaces. The Highway Act 1980 stipulates that it is the responsibility of the local official concerned to check their pavements on a regular basis and to make sure that they are safe and free from obstruction and risk. As Mrs. Mather slipped on a dangerous or uneven surface, then so as to make claim compensation, she has to demonstrate that the Chelmsford Council had the time and chances to repair the flaw. For making it a stronger claim, Mrs. Mather should concentrate on the following: To Collect Evidence – Mrs. Mather should prove that no handrail has been provided by the Council. Further, Mrs. Mather should with the help of others to measure the accident place, should take photograph or video of the place of the accident and should have some eye witness to support her case. Complaint – It is better for the Mrs. Mather to cite the complaint made by her about her fall and injury to the Council as this will act as an official record of her accident. She would support her claim with a medical certificate given by a medical expert narrating the injuries. Mrs. Mather can use a freedom of Information request and asks the Chelmsford Council to reply that how often the road is inspected. If Mrs. Mather is able to demonstrate that the Council officials have not examined the pavement or road frequently, or they are aware about the defect but have not taken any action to rectify it, then, Mrs. Mather has gone a long way towards exposing their negligence5. In Louis Bell v.Havering LBC (2010) – This case exposed the importance of accuracy of the claimant’s letter of claim, particulars of claim and more significantly, the claimant’s medical record. In this case, the Claimant alleged that she met with an accident by treading on planters and due to that, her left ankle suffered a fracture .The Judge held the verdict in favour of the claimant with the damages to be assessed but lessened by 33% to take account of the contributory negligence by the claimant. On appeal, the Court of Appeal also upheld the views made by the trial judge6. The claimant has the option to file particulars of claim in the response pack (Form N9). Form N205A will be employed for a quantified sum claim and Form N205B will be used for the non-monetary claim7. (d) It is to be noted, if the monetary value of the claim is between £ 10,000 and £ 25,000, then, such personal injury case will be recognised as a fast track case. If Mrs. Mather case is categorised as a fast track case , then , standard court directions allow 30 weeks for the completion of all the procedures needed for completion of all the steps needed to make the case ready for trial and for fixing the trial period or trial date. Like multi-track trials, fast track trials are termed as proper trials. As Mrs. Mather case has been notified as fast track, the parties are normally needed to employ single joint experts, and court directions will normally allow expert evidence to be given simply by attaching the medical expert’s advice, instead of the expert in personal attendance to give his testimony. Fast trials normally last to one day, and costs are normally dealt with on summary evaluation at the close of the trial8. If Mrs. Mather has served the claim by first class post, then, it will be deemed as served on the claimant Chelmsford Council on the second day after posting. Once claim served, the Defendant has 14 days to file either the defence, acknowledgement or admission. In case, if Chelmsford Council is not able to file its defence within the 14 days, it may file an acknowledgement of the service form, in which case, Council will automatically have another 14 days to file its defence. Within the 14 days of following service of claim by Mrs. Mather, if Council fails to do anything, then, Mrs. Mather’s solicitor can make an application for a verdict “with the damages to be evaluated.” If Council files a defence, the Court will issue an Allocation Questionnaire that is required to be completed both by Mrs Mather and Chelmsford Council and to be returned to the court. This document will facilitate the Court in determining which “track” is most fit for settling the claim. The matter will be referred to the District Judge if the Court has the completed Allocation questionnaire. The District Judge will then issue a timetable containing customary instructions as to how the claim is to be carried over up to trial. Thus, within 30 weeks from the date of allocation of trial to the fast track, the claim should be ready9. (e) A trial judge can make a wasted cost order under the Rule 48.7 of the Civil Procedure Code as held in Re P (a Barrister).10 In Persaud v Persaud11, it was observed by the Court of Appeals that once a trial judge decided about the wasted cost order, it was difficult to dismiss that decision as it was not right to interfere with the judge’s authority.12 In 13Ridehalgh v Horsefield14, the Court of Appeal turned down wasted cost orders by remarking that it threatened to become a costly and new guise of satellite litigation. In 15Harrison v Harrison16, the High Court viewed that an applicant should demonstrate that the demeanour of the complained had caused them loss. In this case , the injured can apply to the higher court for vacating the wasted cost order passed by trial judge, and the applicant should show adequate evidence that he has not caused any financial loss due to his negligent activity or misconduct. Answer to Question 2 Since Ms Hilary Roehampton debt is £ 9230.19 which is less than £ 10,000, Rubicon Ltd should use the court’s small claims mediation service and hence, Rubicon Ltd should approach the Cambridge county court under the fast track scheme. Rubicon Ltd should initiate steps to collect the payment, and it has to pay £ 50 as the court fee to order Ms Roehampton to attend the court case. Rubicon Ltd can request the court to order Ms Roehampton to attend the court to offer information of her income. Rubicon Ltd can use any one of the following methods to recover the debt from Ms Roehampton. Claimant may secure a “ warrant of execution “ which authorises a County Court’s bailiff to make a visit to the respondent’s address to take the possession of household items of Ms Roehampton like computer , TV , DVD player and Mercedes Combi van. It appears that Roehampton is employed as she uses Mercedes Combi van for her work. Rubicon Ltd can obtain an “attachment of earnings’ order” against Roehampton. Circuit Court Rules – part 1 rule 1 to 22 deals with the attachment of earnings of a judgment debtor. With this order, Roehampton employer is ordered to pay some portion of her monthly salary to Rubicon Ltd. Thus, details of her employment can be sourced when Ms Roehampton attends the court to divulge her income status. Rubicon Ltd has to file an application in form N337 along with the appropriate fee. The court will on application will take cognisance a fixed amount to the permit the Ms Roehampton to meet her monthly expenses like her sister’s education expense and then will make an order that a percentage of the amount left to be subtracted from her monthly salary and paid to Rubicon Ltd. This method is unsuitable if Roehampton is self-employed. The main advantage of this procedure is that while Roehampton is in employment, the debt amount will be deducted in instalment from Ms Roehampton’s monthly salary prior to disbursement and shall be paid to Rubicon Ltd. The main disadvantage of this is that the instalment may be less, and it may take a long period to recover the debt by Rubicon Ltd. Alternatively, Rubicon Ltd can obtain a “charging order “which will change the unsecured debt into a secured debt status. A Claimant should make an application in Form N379 for obtaining a charging order. Under this direction, a legal charge is placed on Ms Roehampton share of property (since it is a jointly owned property with her sister) mortgaged with Regionwide Building Society to Rubicon Ltd up to is £ 9230.19 along with the interest. If the above property which is subject to a charge in favour of Rubicon Ltd is sold in the near future , the full amount due to Rubicon Ltd ( principal plus accrued interest) has to be paid to Rubicon Ltd in priority before any of the proceeds of the sales is passed on to Ms Roehampton. In Yorkshire Bank Finance Ltd v Mr & Mrs Mulhall17, and in Ezekiel v Orakpo18 it was held the section 24(1) of the Limitation Act did not apply to charging orders cases. It is to be noted that if a court has passed a final order, then as with bank or building society mortgage, it is feasible for Rubicon Ltd to apply to the court for a forced disposal of the property charged. Thus, implementation of a Charging order is a distinct legal process and is at the discretion of the court concerned19. Rubicon Ltd can peruse any one methodology described above to collect its debt from Ms Roehampton as each method has its own advantages and disadvantages and the right method of debt enforcement for Rubicon Ltd will be relying upon what assets’ Ms Roehampton owns and her income20. In “Ropaigealach v. Allied Irish Bank plc21” , where Court of Appeals earlier permitted a debtor to a judgment debt thereby allowing a judgment debtor to pay by instalments, and it further held that a charging order can only be allowed where the debtor has not fulfilled his promise to pay by instalments and failure to pay one or more instalments22. Third Party Debt orders- This is also known as the garnishee order. There are instances where the debtor may be reluctant to pay even after the issue of a judgment order by a competent court. The principal debtor may still try to delay further in settling the debt or try to avoid payment may be due to tight cash flow issues. If Ms Roehampton employs such dilatory tactics, then, Rubicon Ltd can make an application for a Third Party Debt Order. With the help of this order, Rubicon Ltd can be able compel a third party who owed money to Ms Roehampton to pay directly to them. A Claimant should submit form N349 to the court for obtaining a third party debt order23. In Westacare Investments Inc v Yugoimport SPDR 24case, it was held that the limitation period of six years as per s 24(1) of the Limitation Act, 1980 was not applicable to a third-party order. Thus, judgment gave special significance to third-party debt orders, which can be enforced even after the lapse of six years. Rubicon Ltd can obtain a “ third party debt order’ for the money owed to them by Ms Roehampton and with the help of this order , money owed to Ms Roehampton from her bank account or building society account ( in this case , her portion of joint account of Housing society with her sister) is paid directly to Rubicon Ltd. Bibliography Bright S, Modern Studies in Property Law (Hart Publishing 2011) Conway L, Enforcement of a County Court Judgement debt (House of Commons Library 2013) Cunningham-Hill S & Elder K, Civil Litigation Handbook 2014-15 (OUP 2014) Edwards B, Credit Management Handbook (Gower Publishing Ltd 2004) Sime S, A Practical Approach to Civil Procedure (Oxford University Press 2013) Sime S, Derek F & Kay M, Blackstone’s Civil Practice 2013: The Commentary (OUP 2012) Websites Claims.co.uk. ‘Basis of a Successful Claim’ accessed 24 November 2014 Humphreys & Co. ‘Slips and Trips’ (2 June 2010) < www.humphreys.co.uk/private_solicitors/.../injury_claims_1548.htm> accessed 24 November 2014 In Brief.co.UK. ‘What is the Pre-Action Protocol for Personal Injury Claims? ‘< http://www.inbrief.co.uk/claim-preparations/pre-action-protocol-for-personal-injury-claims.htm > accessed 23 November 2014 www. Not-my-fault.com, ‘What Happens If Court Proceedings are issued?’ < www.ibbotsonbrady.co.uk › Home › General> accessed 25 November 2014 Table of Cases Ezekiel v Orakpo [1997] 1 WLR 340 Gibbon v Manchester City Council [2010] 1 WLR 2081 Harrison v Harrison [2013] VSCA 170  In Yorkshire Bank Finance Ltd v Mr & Mrs Mulhall [2008] EWCA Civ 1156, [2008] All ER (D) 241 (Oct), Lawtel, 24 October 2008 Louis Bell v.Havering LBC (2010) Persaud v Persaud [2003] EWCA Civ 394147 Sol Jo LB 30 Re P (a Barrister) [2001] EWCA Crim 1728 Ridehalgh v Horsefield [1994] Ch205, [1994] 3 All ER 848, CA Ropaigealach v. Allied Irish Bank plc [2001] EWCA civ 1790 Westacare Investments Inc v Yugoimport SPDR [2008] EWCA 801 (Comm), [2008] All ER (D) 281 (Apr), Lawtel, 25 April 2008 Yorkshire Bank Finance Ltd v Mr & Mrs Mulhall [2008] EWCA Civ 1156, [2008] All ER (D) 241 (Oct), Lawtel, 24 October 2008 List of Statutes The Highway Act 1980 The Limitation Act, 1980 Read More