LEVEL 6 – UNIT 15 – CIVIL LITIGATION SUGGESTED …

1 LEVEL 6 UNIT 15 CIVIL LITIGATION SUGGESTED answers june 2011 Note to Candidates and Tutors: The purpose of the SUGGESTED answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the june 2011 examinations. The SUGGESTED answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the SUGGESTED answers . ILEX is currently working with the LEVEL 3 Chief Examiners to standardise the format and content of SUGGESTED answers and welcomes feedback from students and tutors with regard to the helpfulness of these SUGGESTED answers . Students and tutors should review the SUGGESTED answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination.

2 SECTION A Scenario 1 The Draycott Furnishings file. Question 1 (a) This a debt matter relating to goods sold and supplied with a value of 10,000. A case of this kind will be covered by the Practice Direction Pre-Action Conduct (PDPAC). It is good practice to follow the PDPAC (and Section II, Annex B, to the PDPAC gives some specific guidance relevant to debt collection work). The main difference in debt action work is that there is a short-form Letter of Claim written to identify clearly to the defendant what the claim against him is. In debt action work this modified version of the Letter of Claim is called a Letter Before Claim. In cases where there is no Protocol in place then parties are expected to abide by the guidelines set down in Section III of the PDPAC and Annex A. The Letter Before Claim is a concise letter requesting payment and usually includes only the following details: the identity of the claimant and defendant; a copy of the invoice or contract; details of the amount sought; a statement confirming that an amount is owing; an indication of when the amount should have been paid; Page 1 of 8 a request for payment by a certain date (usually seven days); particulars of how the payment is to be made; a warning of costs and interest penalties if payment is not received; the basis upon which you are claiming interest (usually contractual or by statute); and your contact details.

3 The time limit for replying here is very short, up to 14 days, but typical of debt collection work. If no payment is made, it is, however, good practice to attempt to contact the debtor by telephone but if this fails, then you are entitled to commence proceedings immediately without any sanction from the court. Annex B, which sets out specific recommendations for pre-action conduct in debt claims in which the claimant is a business and the defendant an individual. This is helpful, because the Debt Pre-Action Protocol that was drafted in May 1999 has never been adopted as a formal Pre-Action Protocol.] This amount of detail (in square brackets) is not expected in the student s answers and is given for tutor background only. Students should attain good marks if they correct identify the PDPAC. Higher marks still for reference to the right part of the PDPAC, and the consequences that may arise for failing to abide by Protocol.

4 (b) This question simply asks student to list the documents they would need to issue proceedings. We therefore expect to students to list as follows: Form N1 (plus sufficient copies for each defendant here only one additional copy), As this is a simple debt action the Form N1 is likely to be an endorsed N1 although an unendorsed N1 plus Particulars of Claim could also be correct there should be some justification of this and the realisation that the Particulars of Claim are not a requirement to issue proceedings. Copy Invoice. The court fee. There is no reference here to any CFA funding agreement, so do not expect students to list Form N251 (Notice of Funding). As this claim is for 10,000, which is well below the multi-track value band, and well above the 5,000 upper limit of the small claims track it will be issued in the county court, probably in the local court and allocated to the fast-trak 3 marks can be achieved for listing all the correct items.

5 2 marks for those students, who, applying the knowledge they have on this file, suggest that MoneyClaim Online could be used. CPR PD 7E. (c) See attached backpage Form N1. Full marks should be awarded where the Particulars of Claim are correctly drafted and a copy invoice is referred to as being attached and all other parts are correctly completed. No reference should be made to the Letter of Claim that had been sent earlier as this is not relevant to pleading the cause of action. A proper claim for interest should be pleaded which should include a daily rate as this is a specified sum claim. (d) Students should identify the letter as a seemingly Part 36 compliant offer. Students should also appreciate that this is a pre-action P36 Offer and therefore there is no entitlement to costs as there would be under Part 36 with offers made in LITIGATION . Part 36, although it is an option in the pre-action stage, does not always give the best outcome for the offeror if the offer is accepted.

6 A Page 2 of 8 better option could be a Calderbank offer (as this could include terms as to costs). If such an offer (a Calderbank offer) was not accepted then the offer could be repeated (but not include the offer on costs as this would make the offer not Part 36 compliant) once proceedings had been issued. Advice to the client would therefore include the benefits of making an early offer to settle. Students who simply identify the letter as a Part 36 offer and proceed to state the consequences for the party if the case proceeds without the offer being accepted can achieve only up to half the available marks. Higher marks for those students who identify this as a pre-action Part 36 Offer (and the costs recovery difficulties). Scenario 2 The Coler and Folex file. Question 2 (a) Students should prepare their answer in the form of a memo (1 mark) is allocated to the preparation of the memo as to form.

7 Matters that the students need to raise in their memo include: this is an action in contract. The claim is for a failure of the contract as to sample, Students can discuss briefly that the contract must clearly have been a sale by sample (it appears that this was) S. 15 SGA 1979 and/or a sale by description, s. 13 SGA 1979. The fabric must also be fit for purpose and of satisfactory quality s. 14 SGA 1979. It may also be an express term of the contract that the whole must correspond with the sample. Terms may also be implied by common trade practice. Students may discuss whether there is a right to reject the contract. (as the terms implied under the SGA are conditions not warranties. Damages arising from the breach of contract will be those losses that flow directly from the breach and are reasonably foreseeable. To this extent, the need to source alternative fabrics at short notice is a reasonably foreseeable consequence of the breach (and thus the difference in price thereof) provided C and F have taken all reasonable steps to mitigate their loss.)

8 The evidence that might be required to support the claim will relate to, establishing the contract, the sale by sample/description/purpose (witness statements with copies e-mails/telephone attendance notes/invoices/delivery notes) evidence supporting the need for seeking alternative supplies quickly copy orders that the supply was intending to serve. Problems that might arise in view of the time scales - quick delivery of sample and subsequent order (over a period of 3 working days) - 5 days to determine that the fabric was unsuitable might not be sufficient to determine that the goods had been accepted and thus cannot be rejected. If that was established, the right to damages would also be lost. (Clegg & Olle Anderson 2003). The financial viability of IJG Textiles is an issue that must be taken into account.( marks) Page 3 of 8 (b) Advice could include agreeing a fixed fee, private billling, LEVEL of fee earner (to keep costs down), keeping the client fully informed.

9 A CFA could be offered though this may not either be the most cost effective method in this case nor be an arrangement the firm will be prepared to enter into for the case. Students can refer to the courts powers to award costs recovery but that such orders would not secure a complete costs recovery order. Some students may discuss the distinction between indemnity costs (not generally recoverable from a losing opponent) and standard costs (which is the normal basis of costs recovery assessment). Any sensible discussions that seek to answer the clients concerns here should attain at least half of the marks available for the question, higher marks being awarded to the students who have been able to make sensible and reasonable suggestions that address the clients concerns with a number of options. (c) Students must note that legal representatives can influence the form of the report to be CPR 35 compliant but cannot (and should not) seek to influence the content or opinions stated in the report.

10 As to form students can discuss the need for the report to include; The experts full name and qualifications, defined her specialist area, confirm her understanding of her instructions (remit), included a summary, dealt with all the issues asked of her, included any necessary references, reports, analyses. The expert refers to analysis undertaken. Details of what this entails should be included. Included a (proper form) Statement of Truth and declare that she understands her duties to the court and has carried out those duties to the best of her ability. Other matters that can be included in the answer: The report needs to be in intelligible language with technical terms explained, it needs to give opinions that are within the experts area of expertise, facts . opinion and assumptions need to be clearly defined. The expert reaches certain conclusions in the report but makes no comment on the effect or consequences of her finding as to the suitability of the fabric for the work.