Commercial Law > Study Notes > CIVIL LITIGATION REVISION NOTES(JAN) (All)

CIVIL LITIGATION REVISION NOTES(JAN)

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CASE ANALYSIS & INVESTIGATIONSolicitor’s considerations Taking instructions: • Letter of advice – confirmation of instructions, factual details and objectives, initial advice, summary of further information and agreed next steps. • Retainer – Code of Conduct Chapter 1 – fees, complaints etc. Costs in civil cases • Solicitor-client costs: profits + disbursements (+VAT). • Party-party costs: o CPR 44.2(2): General rule – loser pays winner’s costs. o CPR 44.2(1): Court has discretion to award costs.  Client notified: rare for 100% recovery and any shortfall will have to be paid by them • Court only provides part of cost in award; • Court only provides for reasonable costs (usually 70%); • The other side may not have any money to recover. • O(1.13): Should advise client from outset that they will not recover all of their costs and provide costs information and updates throughout. Conditional Fee Arrangement (CFA): Solicitor’s fees and expenses payable only in specified circumstances (no-win-no-fee). • Not allowed in family, mostly criminal • Success fee can be charged • If C wins, can no longer claim success fee or insurance premium from D; however, damages for non-pecuniary losses are increased by 10% in all civil claims. • 2005 Regulation requirements: • Must be in writing • Specify particular part of proceedings which it relates to • Amount of % to increase • Written reasons for level of success fee. Damage-Based Agreement (DBA): Solicitor can recover percentage of damages in event of success (contingency fee) – now lawful. • Max 25% PI, 25% employment, 50% other cases. • Agreement must set out how fee is calculated, what happens if settlement, and how % is arrived at • No hybrid model (DBA + hourly) permitted State Funding/ Legal Aid: Limited in civil claims (possible for debt, housing, discrimination) MERIT AND MEANS TESTED • Only available for individuals (including partners) but not limited companies • Must have sufficient merit and low means to qualify

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