Civil and Criminal Practice - Essay Example

CIVIL PRACTICE PORTFOLIO PROOF OF EVIDENCE PROOF OF EVIDENCE OF MARK JAMESON My is Mark Jameson and I live at 3, Grange Street, Sunderland, SR4 911. I am 23 years old and my date of birth is 6 March 1985. I am currently employed as a part time barman at the Gold Restaurant & Club. My duties involved serving customers, checking stock and clearing up the bar at close of business. My duties require me to stand for the majority of my shift and my salary is approximately £300 per month after tax. 2. My place of work is approximately fifteen minutes walking distance from my home and on 27 June 2008, I decided to stay at work to have some drinks with my colleagues. 3. I left work at approximately 11.55pm and on my way home I had to cross the road at the bottom of Row Street as part of my journey. As I was crossing the road, I was knocked over by a car that was driving too fast and in my opinion, in excess of the statutory speed limit. 4. A nearby resident called an ambulance and I was kept in for observation at the Hospital for two days, receiving treatment for a broken ankle, two fractured ribs and nervous shock. 5. I was told that the driver of the car was a Mr Brian Planet (the Defendant), whose address is 11 Green Street, Sunderland, SR4 822. 1.6. After the accident, I was told that the Defendant was charged by the police and arrested upon test results showing that he was two units over the permitted alcohol limit. 1.7. Since the accident, the Defendant has been convicted of a road traffic offence under section 4 of the Road Traffic Accidents Act 1988 for driving or being in charge when under the influence of drink1. I have been provided with the incident number, which is 0191565B. 1.7. Since the accident, I have been out of work for four months as a direct result of injuries suffered and wish to make a claim for compensation against the Defendant in respect of my injury and loss of income arising from the accident. 2. MEMORANDUM REGARDING APPROPRIATE SUCCESS FEE FOR CONDITIONAL FEE AGREEMENT MEMORANDUM TO: Partner FROM: DATE: 2 February 2009 SUBJECT: Mark Jameson Conditional Fee Agreement This memorandum sets out my advice regarding the determination of a reasonable success fee in the proposed conditional fee agreement for the legal representation of Mark Jameson’s claim against the defendant Brian Platt for personal injury and loss of earnings. The success fee can be as high as 100% of the time2 charge of normal costs of legal representation and the manner in which the recommended success fee percentage has been calculated in Mr Jameson’s case is based on my risks analysis assessment of the case, which includes the following: 1) Merits and value of the claim; 2) Likelihood of settlement; 3) Estimate of costs involved; 4) Likelihood of recovery of normal costs; and 5) Success fee from the other party3. I shall consider each in turn. 1) Merits and value of the claim There doesn’t appear to be any issue regarding fault liability in the case and this is further bolstered by the defendant’s conviction under section 4 of the Road Traffic Accidents Act 1988 for driving under the influence of alcohol. Furthermore, as a direct result of the accident, Mr Jameson was hospitalised for two days and suffered a broken ankle, two fractured ribs and nervous shock and we have a detailed hospital report and independent medical report to verify that Mr Jameson’s injuries were directly caused by the accident4. As such, the merits of the claim are not in contention and there is a strong likelihood of success at trial. With regard to the value of the claim, Mr Jameson has been unable to work for four months as a direct result of injuries caused by the accident. Therefore in the first instance, there is a strong likelihood of success in a claim for special damages for loss of earnings to the date of trial. Moreover, under established legal principles, Mr Jameson will be able to claim for net earnings up until the trial5. Based on his average monthly net salary being £300, this will total £1200 for Mr Jameson. With regard to General Damages, the most likely heads of recovery applicable to Mr Jameson’s situation will be recovery for pain, suffering and loss of amenity, and potentially loss of earnings post-trial if Mr Jameson’s inability to go back to work continues6. Whilst there is no specific mathematical calculation when calculating general damages; with regard to pain and suffering, the award of damages is designed to compensate a claimant for the pain and suffering attributable to the injury both immediately after the accident and in the future if the injury is serious7. It covers both physical injury and psychological injury and the award is made on a subjective basis in asking “what was the pain and suffering of this particular claimant?8” There must be evidence for such an award to be made, which in the current case is supported by the hospital reports. However, whilst general damages are not easily calculated there are some guidelines provided by the Judicial Studies Board and Kemp and Kemp “The Quantum of Damages”9 (“the Guidelines”), which should be referred to in attempting to value the claim and considering the appropriate success fee. Based on the Guidelines; Mr Jameson’s claim if successful is likely to fall within the bracket of £1,000 to £5,000 and average around £4,000 on grounds of the broken ankle, fractured ribs and nervous shock. . Additionally, Mr Jameson’s claim should include a claim for interest and the case of Wells v Wells10 established that damages for pain and suffering interest is calculated from the date of service of proceedings to the date of trial at 3 per cent per annum. Therefore the total value of the claim is likely to be around £5200, with the cost of work valuing approximately £1500. Therefore, the value of the claim and strong likelihood of success, points in favour of a higher percentage success fee11. 2) Likelihood of Settlement The Civil Procedure Rules promote a settlement culture and are geared towards encouraging out of court dispute resolution. This is in line with Lord Woolf’s report leading up to the implementation of the Civil Procedure Rules, where he proposed that litigation should be seen as a last resort, embracing alternative dispute resolution (ADR) as a substitute to be encouraged by the courts12. Lord Woolf asserted that “the courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process”13. Part 36 of the Civil Procedure Rules implements a procedure intended to encourage early settlement. Moreover, in the Civil Justice Council guidance note on the calculation of reasonable success fees in RTA claims (the Report)14 argues that insurers APIL and MASS insurers claim that an important element of risk in CFA cases has been introduced by Part 36 offers. In Mr Jameson’s case, liability is not contested and the strong likelihood of success at trial puts Mr Jameson in a strong position to negotiate a settlement under the Part 36 procedure, which again points in favour of a high percentage success fee in the conditional fee agreement. 3) Estimation of Costs The Report further argued that it is generally difficult to obtain reliable cost data, however the mean base costs of claims are between £1216 and £3275 respectively compared with mean cost of settlements pre and post issue of £2227 and £3951. On the basis that there is a strong likelihood of success at trial or settlement stage, I feel that we should insert an 80 -90% success fee in the conditional fee agreement. 3. LETTER OF CLAIM To: Defendant: Brian Platt Dear Sirs Re: Claimant: Mark Jameson Claimant’s Address: 3, Grange Street Meadow Field, Sunderland, SR4 911 Claimant’s National Insurance Number: Claimant’s Date of Birth: 6/3/1985 Claimant’s Employer: Golden Club and Restaurant We are instructed by the above named Claimant to claim damages in connection with a road traffic accident on 27 June 2008 at the bottom of Row Street, which is located on the corner of Grange Street, Sunderland, SE4 911. We are writing this letter in accordance with the pre-action protocol for personal injury claims15. Please confirm the identity of your insurers. Please note that the insurers will need to see this letter as soon as possible and it may affect your insurance cover and/or conduct of any subsequent legal proceedings if you do not send this letter to them. The circumstances of the accident are as follows: The Claimant was walking home from his place of work at approximately 11.55pm. He was crossing the road on Row Street, at which point your car hit the Claimant, knocking him over. As a direct result of this accident, a nearby resident called an ambulance and the Claimant was kept in hospital for observation for two days, suffering from a broken ankle, two fractured ribs and nervous shock. The reason why we are alleging fault is that you were driving the car in breach of the statutory speed limit and were found to be over the permitted limit for alcohol levels in a test taken by the Police. We are informed on grounds of incident number 0191565B that you have also been convicted of dangerous driving under section 4 of the Road Traffic Accidents Act 198816. A description of our client’s injuries is as follows: 1) Broken ankle; 2) Two fractured ribs; and 3) Nervous Shock Prior to the accident, our client was employed as a part time barman at the Golden Club & Restaurant and his approximate monthly income was £300 after tax. We attach an employer’s report for your reference. Since the accident, our client has been unable to work. We are obtaining a police report and will let you have a copy of the same upon your undertaking to meet half the fee. At this stage of our enquiries we would expect the documents contained in parts A of the Standard Disclosure Lists to be relevant to this action17. A copy of this letter is attached for you to send to your insurers. Finally we expect an acknowledgement of this letter within 21 days by yourselves or your insurers. Yours faithfully 4. PART 36 OFFER [name of Defendant] Solicitors Our Ref Your Ref Direct Fax Date 3 February 2009 BY FAX & DX WITHOUT PREJUDICE PART 36 OFFER DRAFT Dear Sirs mark jameson v brian platt This is a Part 36 Offer made under Part 36 of the Civil Procedure Rules and as such it has certain costs consequences. This Part 36 Offer relates to the whole of our client’s claim against your client, includes any claim for costs and interest. For the reasons set out below, our client is confident that it will succeed in its claim ACCIDENT As set out in the letter of claim, our client was walking home from his place of work at approximately 11.55pm. He was crossing the road on Row Street, at which point your client’s car hit our client, knocking him over. As a direct result of this accident, a nearby resident called an ambulance and our client was kept in hospital for observation for two days, suffering from a broken ankle, two fractured ribs and nervous shock. CHARGE AND CONVICTION Your client was found to be in breach of the speed limit and over the permitted levels for blood alcohol levels by two units. Your client was charged and convicted of offences under section 4 of the Road Traffic Accidents Act 1988. We enclose a copy of incident number 0191565B. SETTLEMENT However, in an effort to reach a settlement and to avoid the substantial costs which will be incurred if this matter proceeds to trial our client has instructed us that it would be prepared to accept £3,200 plus its costs in full and final settlement of all claims made by our client against your client arising out of or connected with the Accident. This offer will remain open for acceptance for 21 days from the date of this letter. After 21 days this offer may only be accepted if the parties agree the liability for costs or the Court gives permission. We look forward to hearing from you. Yours sincerely 5. CLAIM FORM IN THE HIGH COURT OF JUSTICE18 QUEEN’S BENCH DIVISION BETWEEN: MARK JAMESON Claimant AND BRIAN PLATT Defendant STATEMENT OF CLAIM 1. The Claimant is a part time barman and works at the Golden Club and Restaurant in Sunderland, England. 2. On the 27th June 2008 (the Accident Date), the Claimant left work at 11.55pm to walk to his home on 3 Grange Street, Sunderland, SR4 911. 3. On his way home, the Claimant was crossing the road on Row Street when the Defendant drove into him and knocked him over. 5. A nearby resident called the Emergency Services and the Claimant was kept in hospital for two days for observation, suffering from a broken ankle, damaged ribs and nervous shock. 6. The Defendant was found to be in breach of the statutory speed limit and driving under the influence of drink in contravention of section 4 of the Road Traffic Accidents Act 1988. 7. The Defendant has been convicted of the section 4 offence under the Road Traffic Accidents Act 1988. A record of this is attached hereto in the form of incident report number 0191565B. 7. As a result of the accident, the Claimant has been unable to work for a continuous period of four months and is currently unable to work. PARTICULARS 8. The Defendant’s dangerous driving caused the accident 9. As a consequence of the accident, the Claimant suffered from pain and suffering, including a broken ankle, two fractured ribs and nervous shock. 10. By reason of the accident, the Claimant has been unable to work for four months resulting in a loss of income. PARTICULARS OF LOSS AND DAMAGE 11. Special Damages Loss of Income to Trial: Monthly Income £300 Months Incapacitated: 4 Calculation £300(monthly earnings) x 4(months unable to work) Total net loss of income £1200 12. General damages Pain and Suffering: £400019 Total £4000 OVERALL TOTAL £5200 AND THE CLAIMANT CLAIMS: 1) Damages 2) Interest pursuant to section 35A of the Supreme Court Act 1981. Dated: 3 February 2009 STATEMENT OF TRUTH I believe that the facts stated in these Particulars of Claim are true Signed The Claimant’s Solicitors are [name and address] of where they will accept service of proceedings on behalf of the Claimants. BIBLIOGRAPHY Blackstones Civil Practice (2007). Oxford University Press. Brown, K & Catlow, M (2008). Civil Litigation. College of Law Publishing. Kemp and Kemp (Yearly) Quantum of Damages. Sweet & Maxwell Sime, S. (2008). A Practical Approach to Civil Procedure 11th Edition Oxford University Publishing Civil Justice Council Report “Calculating Reasonable Success Fees for RTA Claims” at www.costsdebate.civiljusticecouncil.gov.uk/updocs. Lord Woolf, Access to Justice, Final Report to the Lord Chancellor on the Civil Justice System of England and Wales (London HMSO) 1996. Pre-Action Protocol for Personal Injury claims is available at www.justice.gov.uk/civil/procrules Civil Procedure Rules www.justice.gov.uk The Judicial Studies Board Guidelines available at www.jsboard.co.uk Road Traffic Accidents Act 1988 Read More