LA0701 - CIVIL LITIGATION

READING

Main text
Blackie et al: Civil Litigation in Practice, Northumbria Law Press

Supplementary Reading
Kemp and Kemp: The Quantum of Damages, Sweet and Maxwell
O’Hare and Brown: Civil Litigation, Sweet and Maxwell
Plant et al: Blackstone’s Civil Practice, Oxford
Sime: A Practical Approach to Civil Procedure, Oxford
Civil Procedure Rules

ELEARNING PORTAL SITE AND MATERIALS

A range of materials to support the large and small group programme and to facilitate directed learning and clinical and experiential learning will be provided via the eLearning portal site.

1. Introduction
What is civil litigation and dispute resolution? An overview of the available processes for the resolution of disputes; the solicitor’s role; the content and structure of the civil procedure rules; the overriding objective.
2. The cost of litigation and client care

What are costs? The privately paying client; conditional fee agreements; legal advice and assistance; interim costs orders and summary assessment of costs; an introduction to detailed assessment of costs; client care and professional conduct in relation to costs information.
3. Preliminary stages of litigation

The first interview; investigating liability; investigating quantum; case analysis; limitation; pre-action protocols; complying with the overriding objective in pre-action negotiations; letters of claim; agreeing jointly instructed experts; alternative dispute resolution; instructing counsel.
4. Commencement of proceedings

The courts and their jurisdiction; the parties; issue and service of the claim form and particulars of claim; acknowledgement of service; claims for specified and unspecified amounts; default judgment.
5. Civil Evidence
Burden and standard of proof; hearsay Evidence; opinion evidence; non-expert witness evidence; expert evidence; privilege; negotiations with a view to settlement; self incrimination; legal professional privilege; The Civil Evidence Act 1995.
6. Statements of case

Rules of drafting – Part 16; particulars of claim; defence and counterclaim; statements of truth; amendment; summary judgment; striking out; court’s duty to identify issues at an early stage; further information.
7. Allocation and directions

The allocation stage; the allocation questionnaire; the concepts of the tracks; criteria for allocation to the tracks; the purpose of directions and the court’s case management powers and duties; directions on the small claims track/ fast track/ multi track; the impact on a case of allocation to a particular track; case management conferences; timetables and their importance; sanctions for non-compliance.
8. Settlement
Duty of the court and parties to attempt early settlement; alternative dispute resolution; mediation; Part 36 offers and costs consequences; negotiation style and tactics.
9. Disclosure and inspection

Purpose and ethics of disclosure; the impact of the principle of proportionality; refusing inspection of disclosed documents (including privilege); procedure for standard disclosure by list; interim applications for disclosure and inspection.
10. Interim applications

Form of application; applications with and without notice; drafting witness statements in support; hearings and their conduct generally; advocacy; examples of interim applications; summary judgment; interim payments, specific disclosure and inspection; further information.
11. Preparation for trial

Pre-trial questionnaires; directions on listing; oral and documentary evidence; attendance of witnesses.

12. Trial and costs
The role of witness statements and expert reports; trial procedure; judgment. Trial costs; fixed costs; the impact of conduct including Part 36 offers and an unreasonable refusal to attempt ADR on costs.

13. Enforcement and appeals
Interest on judgments; methods of enforcement; reciprocal enforcement of judgments under the Brussels Regulation. The rules relating to appeals.

To facilitate the study of civil litigation and dispute resolution in the context of realistic “case study” scenarios and, where possible simulated clinical and experiential learning, to provide students with exposure to problem based learning and to develop students’ oral communication, advocacy (this is the lead subject for the teaching and assessment of advocacy), fact management and problem solving skills, their ability to locate and make effective use of legal source materials, their awareness of major human rights and professional ethics issues, their understanding of how lawyers apply legal rules in practice and their appreciation of legal professionalism.

To enable students to obtain knowledge and understanding of the forums in which disputes may be resolved, including the possibility of alternative dispute resolution, and the steps that are taken prior to commencement.
To develop students’ understanding of dispute handling as a managed process, identifying and monitoring client’s objectives and planning and managing the process appropriately and in accordance with professional ethics.
To enable students to obtain knowledge and understanding of the nature of civil litigation and of the critical steps in the process of civil litigation including the case management role of the court under the Civil Procedure Rules 1998.
To enable the students to prepare appropriate documentation and draft claim forms, particulars of claim, defences, application notices, orders and witness statements in clear and unambiguous language and with correct grammar.
To enable students to issue, serve and respond to claim forms, advise on interim applications and prepare and conduct applications to a master or a district judge.
To enable students to obtain knowledge and understanding of the steps that are involved in making applications or preparing for trials or hearings, of the way in which trials or hearings are conducted and of related funding, costs and tactical issues.
To ensure students are familiar with the essential skills required for advocacy including competent case analysis and preparation and oral presentations consistent with the ethics and conventions of advocacy.

To enable students to obtain knowledge and understanding of the enforcement and appellate mechanisms available in civil proceedings.
To reinforce students’ understanding of elements of both contract and tort law (particularly focussing upon remedies) and an appreciation of their application in real disputes.
To enable students to obtain knowledge and understanding of the major principles of civil evidence as applied to practical scenarios.
It is also designed to enable students to further develop
• their ability to analyse factual scenarios
• tactical thinking and problem solving techniques
• the ability to locate and make effective use of legal source materials
• the ability to apply legal rules in solving problems
• the ability to identify possible courses of action as solutions to the problems raised by factual scenarios
• an awareness of the potential costs, benefits and risks of differing courses of action, being aware of their potential legal and non legal consequences
• an appreciation of the financial and commercial constraints on commercial client’s and how they influence the role of the solicitor
• oral communication and advocacy skills

On completion of the module, students should be able, in relation to transactions and matters which they undertake, to:

• understand the nature of civil litigation

• identify the critical steps in the process of litigation

• use the legal knowledge, skills, procedures and behaviours appropriate to each client and each transaction matter

• identify the client's goals and alternative means of achieving those goals, and deal appropriately with client care

• investigate and identify the relevant facts, research and identify the relevant legal issues, and advise the client on the legal consequences

• identify the overall nature of the transaction or matter, then plan and progress that transaction or matter through a series of steps and decisions including, where appropriate, drafting documentation

• recognise and act within the rules of professional conduct

• identify the client’s reasonable expectations as to quality and timeliness of service.

In particular:
Element 1: Case analysis

Students should be able to analyse factual material, identify the legal context in which factual issues arise, relate the central legal and factual issues to each other and be able to:

1. identify the elements of selected causes of action and criminal charges

2. identify, analyse and, if necessary, research the propositions of fact going to the elements and be able to identify, analyse, secure and preserve evidence to support propositions of fact

3. identify, analyse and advise on the admissibility and relevance of evidence and assess the strengths and weaknesses of each side’s case including, where appropriate, the opponent’s evidence.

Element 2: Courses of action and funding

Students should be able to:

1. identify possible courses of action, demonstrate an awareness of the legal and non-legal consequences of selecting a course of action and advise the client on the attendant costs, benefits and risks

2. advise the client on the different ways of funding litigation, including the availability of public funding.

Element 3: Procedure

Students should be able to identify the steps and strategies that need to be taken in the preparation and conduct of litigation.


Element 4: Civil Litigation and Dispute Resolution

Students should be able to:

1. identify the appropriate forum for the resolution of the dispute, including appropriate methods of alternative dispute resolution

2. identify possible cost consequences of different outcomes, the effect of the different costs rules and the impact of the likely costs orders on the conduct of litigation

3. demonstrate an understanding of the Civil Procedure Rules, the overriding objective, and their application

4. demonstrate an understanding of the court’s role in the litigation process, in particular the court’s case management powers and duties

5. identify steps to be taken prior to commencement and be able to issue, serve and respond to claim forms

6. advise on interim applications, prepare and conduct applications to the master or district judge

7. understand the steps needed to prepare the case for trial and the procedure and evidential issues arising from expert witnesses, witnesses of fact and disclosure, and demonstrate an awareness of the basic elements of trial procedure

8. demonstrate an awareness of the mechanisms which are available to enforce and appeal a judgment

9. prepare the appropriate documentation and draft claim forms, particulars of claim, defences, application notices, orders and witness statements.

Advocacy

On completion of this area, students should, in relation to the skill of advocacy be able to:


1. understand the importance of preparation and the best way to undertake it

2. understand the basic skills in the presentation of cases before courts and tribunals

3. be able to formulate and present a coherent submission based upon facts, general principles and legal authority in a structured, concise and persuasive manner.

Element 1: Case analysis and preparation

Students should be able to:

1. identify and analyse the relevant facts, the legal context in which the factual issues arise, and how they relate to each other

2. summarise the strengths and weakness of the case from each party’s perspective

3. prepare the legal framework of the case, and a simple narrative outline of the facts

4. prepare the submission as a series of propositions based on the evidence

5. identify, analyse and assess the purpose and tactics of examination, cross-examination and re-examination to adduce, rebut and clarify evidence.

Element 2: Oral presentations

Students should be able to:

1. identify, analyse and assess the specific communication skills and techniques employed by a presenting advocate

2. demonstrate an understanding of the ethics, etiquette and conventions of advocacy.

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The module will be delivered through a combination of large and small group sessions, directed learning and independent learning.

The large group sessions will be delivered to the entire module cohort and will be used in part to introduce students to the major principles of each topic. They will place these principles in context by examining them against relevant factual scenarios. Where available, Turning Point will also be used to develop the students’ factual analysis and problem solving skills. The aims of the large group sessions will be to:

• Give an overview of the module area;
• To prioritise learning points within a topic;
• To explain, emphasise and demonstrate, with examples, substantive or procedural points within a particular transactional context;
• To focus on areas within the module that pose particular difficulties and require further explanation or examples;
• To encourage students to consider the module from a practical perspective as they will do later in their training contracts.

The small group sessions (which will consist of between 16 – 20 students), will, in conjunction with the directed and independent learning, expand on the material covered in the large group sessions with emphasis on the use of practical scenarios as the basis for relevant skills based and interactive sessions to apply that material to the scenario. For example, some sessions will enable students to participate in negotiations on behalf of their clients. Other sessions will require problem solving skills to identify key issues, plan strategies for taking problems forward and drafting the necessary documentation to do so. Some will further develop students’ oral communication and advocacy skills through the performance of tasks such as group presentations and advising clients and more formal advocacy exercises. Where appropriate to the subject area students will be required to analyse and critique relevant legal material.
The aims of the small group sessions will be to:

• Develop area introduced in large group sessions and in the small group session preparation;
• Develop problem-solving and other legal skills;
• Promote intellectual inquiry;
• Implement knowledge in a practical way to solve clients’ legal problems;
• Develop teamwork and both collective and individual presentational skills

Students will be given directed learning which will both expand on the materials provided in the large group sessions and cover specific topics not dealt with in those sessions. This will be supported by formative self test and multiple choice questions. Students will also be expected to carry out independent learning to both expand on the materials covered in the large group sessions and directed learning and to prepare for the tasks in the small group sessions. Examples of independent learning will include locating and reading relevant legal source material.

Experiential learning is prevalent in the simulated practice exercises that take place in most of the small group sessions.

The module has an oral assessment which is not marked anonymously

a Summative assessment and rationale for tasks

Summative assessment for civil litigation and dispute resolutions will be provided by an examination made up of a one half (1/2) hour closed book multiple choice paper plus a one and a half hour open book practical paper based on advance documents. The use of advance documents allows the subject team greater opportunity to test knowledge and application in the examination and allows greater use of realistic legal scenarios.

Summative assessment for advocacy will be by way of a live advocacy exercise. The students will be provided with advance documentation based on a realistic case scenario and will have to prepare and then conduct a live submission in front of a tutor.

b. Additional formative assessment – detail of process and rationale

Formative assessment will be provided by a combination of self test questions and multiple choice questions which students will complete through the module e-learning portal site and in small group sessions. Students will also have the opportunity to sit a mock open book examination paper.

Formative assessment on advocacy will be provided during small group sessions.

c. Indication of how students will get feedback and how this will support their learning

The multiple choice questions are undertaken in a small group session and feedback given during this session. Detailed answers to the self test questions will be available on the e-learning portal and feedback on the mock examination will be given via the e-learning portal and in a large group session.

Feedback on advocacy will be given on an ongoing individual basis and as an integral part of small group sessions.

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