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UNIT SPECIFICATION HANDBOOK

CILEx Level 4 Legal Services Knowledge Qualifications

CILEx Level 4 Diploma in Commercial Litigation

CILEx Level 4 Diploma in Debt Recovery and Insolvency

CILEx Level 4 Diploma in Personal Injury Litigation

CILEx Level 4 Extended Diploma in Personal Injury Litigation


Introduction

This handbook contains the CILEx unit specifications. These units are the building blocks of the following qualifications: CILEx Level 4 Diploma in Commercial Litigation, CILEx Level 4 Diploma in Debt Recovery and Insolvency, CILEx Level 4 Diploma in Personal Injury Litigation and CILEx Level 4 Extended Diploma in Personal Injury Litigation. This handbook should be read in conjunction with the CILEx Level 4 Legal Services Knowledge Qualifications Handbook which sets out the structure of the different Level 4 qualifications. The unit handbook is divided into two sections as follows: Section 1: Level 3 Law Unit* Section 2: Level 3 Professional Skills Units* Section 3: Level 4 Law Units Section 4: Level 4 Practice Units *The CILEx Level 4 Legal Services Qualifications contain Law and Professional Skills units shared with the CILEx Level 3 Professional Diploma in Law and Practice. This is permitted in the Qualifications and Credit Framework (QCF) and the qualification’s credit value must be made up from 50% or more credits at the required level for the qualification to be recognised formally by the regulator (Ofqual) at that level. For further information see the Level 4 Legal Services Knowledge Qualifications Handbook.


Presentation of qualification units – an explanation of the unit specifications Each unit specification is presented in the same way: Title: each unit has its own title which seeks to succinctly convey the legal subject or skill area to be studied and assessed. Level: each unit has a level which identifies its difficulty. All the units in this handbook are set at either Level 3 or Level 4. Level 3 equates to GCE A Level standard of difficulty, whereas Level 4 equates to first year undergraduate standard of difficulty. Credit Value: as stated in section 3.2 of the Knowledge Qualifications Handbook, each unit has a credit value. Please see section 3.2 for a definition of this value and the purpose of credit. Learning Outcomes: this column expresses the key aims of the unit. It is expressed in terms of a series of outcomes (i.e. “the learner will”) that the student should know or understand by the end of their learning programme. In all the qualification assessments, CILEx will always be attempting to understand whether the student has demonstrably achieved these outcomes. Assessment Criteria: this column expresses the ways in which the student should be able to demonstrate their achievement/understanding of the learning outcome (“the learner can”). In all the qualification assessments, CILEx will use these assessment criteria to try and determine the extent to which the student has demonstrated achievement/understanding in respect of the learning outcomes. The student and tutor will notice that the assessment criteria have been written in a certain style. For any given learning outcome, there are a number of assessment criteria for which the key verbs are: to “Describe”, “Explain”, “Identify” etc. You will note that the final assessment criterion is nearly always “Apply an understanding …” This final assessment criterion marks a convention adopted in the writing of the units. At Level 3/4, the key skill for the student is to understand the Law and associated Legal Practice and then, critically, demonstrate its application to a specific case or scenario. CILEx has chosen to describe this skill of application in each unit specification in this way, as a single operation within each learning outcome. It means, of course, that each of the prior assessment criteria can be thought of as requiring this skill of application. You will note that at Level 4, there is the expectation that this application will be to a more ‘complex’ scenario. Knowledge, Understanding and Skills: this column attempts to describe the knowledge, understanding and skill that are relevant to the application of the assessment criteria.


CILEx anticipates that tutors delivering units towards the new qualifications will utilise this column in order to build their schemes of work towards the delivery of units. It should be noted that the knowledge, understanding and skill identified in this column is indicative and not intended to be exhaustive. CILEx has attempted to be as full as is possible in its knowledge, understanding and skills columns. However, the need for brevity will always mean that the content is indicative and needs careful “unpacking” by tutors and students. CILEx often uses examples to try and aid understanding in this situation. Where you see an example (usually indicated as “e.g.”) this normally means that you should not only be aware of the example identified, but also look to identify some others. Alternatively, where CILEx often uses the abbreviation “i.e.”, this normally means that CILEx is content that this specific list is an exhaustive one and no more need to be identified. Students and tutors will note that each knowledge, understanding and skill section ends with the phrase: “Application to a complex scenario”. This identifies the nature of the application required in the associated assessment criterion, i.e. the student has to be able to apply this understanding to a realistic, work-based scenario. Where there are additional requirements for this assessment criterion, such as the need for students to be able in the assessment to complete certain documents, then these will also be stated at this point in the unit specification. Students and tutors will also note that there are requirements for students to have an understanding of case law throughout each of the units. Case law is always italicised in the units to make it more readily identifiable. CILEx has adopted the following view on the place of case law within its Level 3/4 assessments: • Where case law is explicitly quoted in the unit specification, then students can be tested on this case law in an examination question; • Students cannot be tested on case law which does not explicitly appear in the unit specification; • Where the unit specification calls for “any relevant case law”, then the student will be expected to have identified and understood relevant

examples for that specific topic or issue; • Where the unit specification calls for “any relevant case law”, then the relevant examination will be able to assess whether the candidate

can demonstrate their understanding of this requirement, but only in an open way and not by anticipating specific examples of case law. • Students referring to case law in Level 3/4 examinations should give the name of the case and if there are two cases with the same name,

should give the date but are not required to give the date otherwise. CILEx believes that this system for the delivery and assessment of case law will help clarify the teaching of case law and its assessment. When statutes are used as authorities, students will be expected to know the short title, or where appropriate, the title most commonly used to describe the statute, which will invariably include the date.


Additional information about the unit: this grid of boxes at the end of each unit summarises key background information about the unit, e.g., who owns the unit, its start and expiry date, and the unit’s links to National Occupational Standards.


Section 1- Level 3 Law Unit

Unit Number Unit Title Page numbers Unit 5 Law of Tort 7-17


Unit 5

Title:

Law of Tort

Level:

3

Credit Value:

7

Learning outcomes The learner will:

Assessment criteria The learner can:

Knowledge, understanding and skills

1 Understand the meaning of the term ‘the tort of negligence’

1.1 Define ‘tort’. 1.2 Describe the scope of tort. 1.3 Describe the effects/functions of the law of

tort. 1.4 Define ‘negligence’. 1.5 Explain what must be demonstrated in

order to mount a successful claim in negligence.

1.1 Civil wrong. 1.2 Description of common law and statutory

example of torts such as nuisance, trespass (to land, goods and the person), defamation, breach of statutory duty under the Occupier’s Liability Acts 1957 and 1984, Consumer Protection Act 1987 etc.

1.3 Normative rules, compensation, retribution. 1.4 Definition by reference to relevant case law,

particularly the comments of Alderson B in Blyth v Birmingham Waterworks Co (1856).

1.5 Duty of care, breach of duty of care,

damage resulting from the breach of duty of care. Relevant case law: eg: Glasgow Corporation v Muir (1943), Barnett v


Chelsea & Kensington HMC (1969). 2 Understand the tests for establishing a

duty of care in cases of physical personal injury and physical damage to property

2.1 Describe the general legal tests governing duty of care in negligence.

2.2 Apply the tests for establishing duty of care

in negligence to a given set of facts. 2.3 Use the current law to predict probable

legal outcomes deriving from given facts.

2.1 Neighbour Test – Donoghue v Stevenson (1932) Three-stage Test – Caparo v Dickman (1990): Reasonable foreseeability: eg: Smith & Ors v Littlewoods Organisation Ltd (1987) Proximity. Eg: Topp v London Country Bus (SW) Ltd (1993) Must be just and reasonable: eg: L & Anor v Reading BCl & Ors (2007)

2.2 & 2.3 Application of the Neighbour test and

the 3 stage test to given scenarios.

3 Understand the concept of public policy, particularly in the context of duty of care in negligence

3.1 Explain the meaning of public policy in the context of duty of care in negligence.

3.2 Explain the role of public policy in the

establishment of duty of care in the context of psychological harm.

3.1 Consideration by the court of whether a duty of care should exist: s1 Compensation Act 2006: instruction to court to consider implications of awarding compensation eg: prevent a desirable activity from being undertaken. Consideration of how public policy issues affect the liability of public authorities such as the police, fire brigade and local authorities. Relevant case law: eg: Hill v CC of W Yorkshire (1988). Immunity of public authorities may not be absolute. eg: Osman v UK (1998), Z & Ors v UK (2001). The “floodgates” argument. The “rescuer” situation. Relevant case law: eg: Baker v Hopkins (1959).

3.2 Historical development of case law relating to psychological/psychiatric harm.(also


3.3 Explain the current law relating to duty of

care in cases of psychological harm. 3.4 Identify situations giving rise to actionable

psychological harm (nervous shock). 3.5 Apply the tests for establishing duty of care

cases of psychological harm in negligence in ‘factual’ situations.

3.6 Use the current law to predict probable


known as nervous shock). including Bourhill v Young (1942), McLoughlin v O’Brian (1982), Alcock & Ors v CC of S Yorkshire Police (1992). The “floodgates” argument. The “rescuer” situation. Relevant case law: eg: Chadwick v BRB (1967), White & Ors v CC of S Yorkshire Police & Ors (1999).

3.3 Nature and quality of harm suffered;

Primary and secondary victims; Relevant case law: eg: Page v Smith (1995), Hinz v Berry (1970), Alcock & Ors v CC of S Yorkshire Police (1992), White & Ors v CC of S Yorkshire Police & Ors (1999), Walker v Northumberland CC (1995).

3.4, 3.5 & 3.6 Application to given scenarios of

the law relating to public policy and the duty of care owed to primary and secondary victims in respect of psychiatric harm.

4 Understand the law governing breach of duty of care

4.1 Describe the standard test for breach of duty.

4.2 Explain the requirement of reasonable

foreseeability.

4.1 The standard (basic) “reasonable man” test; test is objective. Relevant case law: eg: Blyth v Birmingham Waterworks Co (1856), Alderson B.

4.2 Reasonable foreseeability of harm at the

time, hindsight not to be used. Relevant case law: e.g: Roe v Minister of Health (1954).


4.3 Explain the law’s approach to questions of

skill, judgment and experience. 4.4 Explain the ‘magnitude of risk’ test. 4.5 Explain the law’s approach to the

importance of the Defendant’s objective when the tort was committed.

4.6 Identify breach of duty. 4.7 Apply the tests for establishing breach of

duty of care in negligence to a given set of facts.

4.8 Use the current law to predict probable


4.3 Standard of care expected of a defendant

exercising a particular skill. Relevant case law eg: Nettleship v Weston (1971) (learner drivers), Whitehouse v Jordan (1981) (doctor), Bolam v Friern Hospital Management Committee (1957) (reasonably competent professional), Bolitho v City and Hackney Health Authority (1997) (accepted body of professional opinion) Chester v Afshar (2004) (duty to explain).

4.4 The greater the risk, the greater the

precautions which should be taken. Relevant case law: Bolton v Stone (1951), Hilder v Portland Cement (1961).

4.5 The factors considered when assessing the

standard of care expected of a Defendant: the Claimant’s age and vulnerability; the special characteristics of the defendant, the Defendant’s objective and the cost of avoiding harm. Relevant case law, eg: Paris v Stepney BC (1951), Mullin v Richards (1998), Watt v Herts CC (1954) and Latimer v AEC (1953).

4.6, 4.7 & 4.8 Application to relevant scenarios

of the standard test for breach of duty, reasonable foreseeability, questions of skill, judgment and experience, the magnitude of risk test and the factors considered when assessing the standard of care.


5 Understand the law governing ‘Causation’ 5.1 Explain the need to demonstrate damage caused by breach of duty of care.

5.2 Explain the need to demonstrate causation

in fact and causation in law. 5.3 Explain the legal tests on causation in fact. 5.4 Explain the tests used in situations where

there are multiple causes of harm.

5.1 The Claimant must demonstrate a causal link between the breach of duty by the Defendant and the damage suffered by the Claimant.

5.2 There must be:

(a) a factual link between the Defendant’s breach of duty of care and the harm suffered by the Claimant and

(b) the harm suffered by the Claimant must not be too remote in law if the claim is to be successful.

5.3 The “but for” test. Relevant case law: eg:

Barnett v Chelsea & Kensington HMC (1969), Holt v Edge (2007), Gouldsmith v Mid Staffordshire Hospitals General NHS Trust (2007) & Palmer v Cornwall CC (2009). The “material increase in risk” test. Relevant case law: eg: McGhee v NCB (1973). Quantification of risk (more probable than not). Relevant case law: eg: Page v Smith (No 2) (1996), Chester v Afshar (2004) & Gregg v Scott (2005).

5.4 Successive causes of harm. Relevant case

law: eg: Baker v Willoughby (1969), Jobling v Associated Dairies (1982) & Rahman v Arearose Ltd (2000). Multiple causes of harm. Relevant case law: eg: Wilsher v Essex AHA (1986). Multiple tortfeasors including mesothelioma cases. Relevant case law: eg: Fairchild v Glenhaven Funeral Services (2001), Barker


5.5 Explain breaks in the Chain of Causation. 5.6 Explain the test for remoteness of harm

(causation in law) in negligence. 5.7 Identify situations in which causation in law

and fact are in issue. 5.8 Apply the relevant law to a given set of

facts. 5.9 Use the law on damage to predict probable

legal outcomes deriving from given facts

v Corus UK (2006), Sienkiewicz v Grief (2011). s3 Compensation Act 2006.

5.5 New intervening acts: the three situations

where there is a break in the chain of causation. Relevant case law: eg: McKew v Holland (1969) & Knightly v Johns (1982). Situations where there is no such break. Relevant case law: eg: Rouse v Squires (1973), Corr v IBC Vehicles Ltd (2009) & Spencer v Wincanton Holdings (2009). The effect of negligent medical treatment on the chain of causation. Relevant case law: eg: Webb v Barclays Bank plc & Portsmouth Hospitals NHS Trust (2001).

5.6 Foreseeability of type of injury. Relevant

case law: eg: The Wagon Mound (No 1) (1961). The “thin-skull” rule. Relevant case law: eg: Smith v Leech Brain & Co Ltd (1962), Robinson v Post Office (1974) & Lagden v O’Connor (2004).

5.7, 5.8 & 5.9 Application of the law relating to causation to given scenarios.

6 Understand the law governing vicarious liability in the context of negligence

6.1 Describe the doctrine of vicarious liability.

6.1 Definition of the doctrine: Liability for acts of third parties. (Employer’s liability for wrongful acts of employee).


6.2 Explain the requirements for establishing

vicarious liability.

The effect of vicarious liability. 6.2 The three requirements for establishing

vicarious liability: (i) Is it a tort? (ii) Is it committed by an employee? The three tests for identifying employment status: (a) Control test. Relevant case law: eg:

Yewens v Noakes (1880). (b) Organisation test. Relevant case law:

eg: Cassidy v MoH (1951), Stevenson, Jordan & Harrison v McDonald & Evans (1952) & Whittaker v MoP (1967).

(c) Multiple test. Relevant case law: eg: Ready Mixed Concrete (SE) v MPNI (1968) & Hall v Lorimer (1992).

Position of casual, temporary, agency workers & priests etc; mutuality of obligation; personal service. Relevant case law: eg: Carmichael v National Power (1999), Motorola Ltd v Davidson & Anor (2001), MacFarlane & Anor v Glasgow CC (2001) & James v London Borough of Greenwich (2008), E v English Province of Our Lady Charity (2011), The Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others (2012) (iii) Is it committed in the course of employment? Relevant case law: eg: Hilton v Thomas Burton (Rhodes) Ltd (1961), Kay v ITW Ltd (1967), Gravil v Carroll & Anor (2008), Lister v Hesley Hall Ltd (2001) & Maga v


6.3 Identify situation in which vicarious liability

may be in issue. 6.4 Apply the relevant law to given facts. 6.5 Use the law governing vicarious liability to

predict probable legal outcomes deriving from given facts.

Roman Catholic Archdiocese of Birmingham (2010). Establishment of employer. Relevant case law: eg: Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd (1946), Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors (2008) & Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd & Ors (2005).

6.3 6.4 & 6.5 Application of the law relating to vicarious liability to given scenarios.

7 Understand defences to claims in negligence

7.1 Explain function and nature of defences. 7.2 Identify appropriate defences. 7.3 Explain the defence of ex turpi causa.

7.1 Full defences defeat entire action; partial defences reduce damages.

7.2 Identify appropriate common law and

statutory defences from a given scenario. 7.3 Definition & explanation. Relevant case law:

eg: Clunis v Camden & Islington HA (1998), Gray v Thames Trains Ltd & Anor (2009) & Stone & Rolls Ltd v Moore Stephens & Anor (2009).


7.4 Explain the defence of consent (Volenti non fit injuria).

7.5 Explain the defence of contributory

negligence.

7.4 Definition & explanation. Relevant case law: eg: Stermer v Lawson (1977) – knowledge of risk; Smith v Baker (1891) – exercise of free choice; ICI v Shatwell (1965) – voluntary acceptance of risk; Baker v Hopkins (1959) – rescuers; Murray v Harringay Arena (1951) – spectators at sports events & Poppleton v Trustees of the Portsmouth Youth Activities Committee (2008) – participants in hazardous activities. Effect of s149 Road Traffic Act 1988.

7.5 Definition & explanation.

Law reform (Contributory Negligence) Act 1945. Relevant case law: eg: Sayers v Harlow UDC (1958) – proportionate reduction in damages; Davies v Swan Motor Co (1949) – Claimant places himself in dangerous position; Froom v Butcher (1976) – Claimant increases amount of harm; Owens v Brimmell (1977) – Claimant places himself in a position where likely to suffer harm & Fitzgerald v Lane (1988) – apportionment/partly to blame for accident. Situations where the court is reluctant to find contributory negligence: children, employees, rescuers, dilemma principle. Relevant case law: eg: Gannon v Rotherham MBC (1991), Harrison v BRB (1981); Dorning v Personal Representative of Rigby (Decd) (2007) & George v Home Office (2008).


7.6 Explain the use of limitations in time as a defence.

7.7 Explain the use of exclusion and limitation

clauses to actions in negligence. 7.8 Apply the relevant law to given facts. 7.9 Use the law governing defences to predict

legal outcomes.

7.6 Nature and purpose of limitation periods. Limitation Act 1980. General limitation period in tort; Limitation period in personal injury cases; “date of knowledge” & situation on death of Claimant. Relevant case law: eg: Halford v Brookes & Anor (1991), Haward & Ors v Fawcetts & Anor (2006), Mackie v Secretary of State for Trade & Industry (2007), A v Hoare (2008) & Maga v Roman Catholic Archdiocese of Birmingham (2010). Latent Damage Act 1986.

7.7 Relevant statutory provisions: ss2(1), 2(2) &

11 & Schedule 2 Unfair Contract Terms Act 1977.

7.8 & 7.9 Application of the law relating to full

and partial defences and exclusion and limitation clauses to given scenarios.

8 Understand the principles governing the calculation of damages

8.1 Explain the principles governing the award of damages.

8.2 Categorise harm suffered under

appropriate Heads of Damages.

8.1 The purpose of damages in tort: to put the claimant in the position he would have been in had the tort not occurred.

8.2 Special Damages: quantifiable financial loss to date of trial. General Damages: future financial loss (loss of earnings); past & future non-financial loss (pain & suffering, loss of amenity, mental distress). Damages payable on death: Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1976 & Administration of Justice Act 1982.


Additional information about the unit Unit aim(s) The learner will understand key concepts, terms and

processes in the area of Tort Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 44 Personal Injury Legal Advice and Casework

Details of the relationship between the unit and other standards or curricula (if appropriate)

Courses of study leading towards the achievement of the unit may offer the learner the opportunity to satisfy requirements across a number of Level 3 Key Skill areas; most specifically, Communication, Improving own learning and performance, Problem solving and Working with others

Assessment requirements specified by a sector or regulatory body (if appropriate)

N/A

Endorsement of the unit by a sector or other appropriate body (if required)

N/A

Location of the unit within the subject/sector classification

15.5 Law and Legal Services

Name of the organisation submitting the unit CILEx (The Chartered Institute of Legal Executives) Availability for use Only available to owning awarding body Availability for delivery 1 September 2008


Section 2- Level 3 Professional Skills Units Unit Number Unit Title Page numbers Unit 16 Client Care Skills 19-25 Unit 17 Legal Research Skills 26-31


Unit 16




1 Understand the professional requirements of a client care interview

1.1 Identify appropriate modes of professional conduct

1.2 Identify the key elements of the interview

1.1 Using appropriate greetings, eg, not using the client’s first name unless specifically directed by the client; the importance of being approachable, whilst avoiding over familiarity, of being prepared for the interview and ensuring that the interview has a structure that enables the collection of all relevant facts; the importance of being attentive and courteous during the interview, of empathising with the client, ie letting the client speak, of being tactful and diplomatic, of being clear and straightforward at all times throughout the interview.

1.2 Understanding the interview’s purpose – to find

out more from the client about their issue; the need for clear, succinct information; the purpose of questioning to elicit more relevant information; the importance of responding clearly and appropriately to client questions; the importance of establishing next steps; the need to record all relevant details accurately; the matter creation form and the importance of understanding the requirements of a matter

Title:

Client Care Skills

Level:

3

Credit Value:

7


1.3 Describe the ways in which these

elements are realised in the course of an interview

1.4 Produce an attendance note for an

interview with a client

creation form in advance of the client interview, and of ensuring that the interview is used to obtain all relevant information germane to its production.

1.3 Understanding that clients can be emotional,

angry etc; clarifying the client’s objectives with the client; letting the client speak fully but not excessively; using questioning techniques to focus on what is essential to the issue; understanding the limits of one’s role in the interview; knowing when to escalate a question/issue; the importance of paraphrasing and summarising key information; ensuring a clear understanding at each turn of the interview.

1.4 Taking notes in interviews – the function of

note-taking, features of note-taking: not trying to write down everything, only recording key points, writing clearly, use of headings and sub-headings.

Understanding the purpose and typical features of an attendance note; the way in which information is structured, ie, the attendance note should record all information clearly, accurately and in an easy to read layout; the use of paragraphs to sub-divide information; the importance of recording relevant dates, times, addresses, time spent etc and of understanding that this document is the foundation of a file for the client.

2 Understand the relevant professional requirements of client care communications

2.1 Write a letter to the client using appropriate client care conventions

2.1 Understanding the purpose and main elements of an initial client care letter, and the way it is


2.2 Respond to client queries using

telephone and/or email

produced normally within practice (eg template document); the importance of ensuring that all subsequent correspondence complies with the client’s objectives and the facts of the matter identified in the initial client care letter.

Understanding the use of appropriate letter writing conventions: letter openings/salutations, the use of the client reference, letter titles, organising the body of the letter appropriately, use of paragraphs and sub-headings where appropriate, the importance of clear English (avoiding the use of technical jargon); ensuring the letter performs its function: confirms the client’s objectives, explains all relevant issues and options, confirms next steps, keeps the client fully in the picture.

2.2 Use of appropriate telephone conventions: the

importance of a prompt response, of being prepared, of being clear and succinct, understanding the difference between face-to-face styles of communication and communication over the telephone – absence of non-verbal behaviours, the greater need for patience and tact in telephone conversations, for clearer more frequent summaries of information, being aware of general telephone etiquette.

Use of appropriate email conventions: understanding that whilst emails have less rigid written conventions that there are still rules about acceptable language, grammar and punctuation, ie, emails should still be


2.3 Write other correspondence on behalf of

the client

structured, have an opening and a salutation, still contain all relevant and detailed information, should be fully punctuated and all words spelt appropriately (ie, no text language, abbreviations or lack of punctuation); ensuring that the email performs its function: explains all relevant issues and options, keeps the client fully in the picture.

2.3 This may include: emails, additional file notes,

letters to other parties involved in the case, witnesses.

All standard email conventions identified in 2.2 above apply; all standard attendance note conventions identified in 1.4 above apply; all standard letter writing conventions identified in 2.1 above apply.

3 Understand the relevant issues and rules governing the relationship with the client

3.1 Explain the requirement to always act impartially

3.2 Describe what information needs to be

given to a client before they are represented

3.1 Acting in the best interests of the client without influence from outside factors; acting only with the client’s approval; remaining professional at all times – not allowing one’s views or emotions to affect an issue or judgment; being open and honest with the client whilst at the same time operating with an appropriate amount of tact and diplomacy; helping the client to understand the reality of their case, being aware of the meaning of unfair advantage.

3.2 Explaining the process they are entering into –

who will be working with them, the allocation of tasks between the fee earner and non-fee earner, the calculation of the fee, the complaints procedure.


3.3 Explain the importance of client confidentiality and disclosure

3.4 Describe the different ways in which a

case may be funded 3.5 Explain the importance of accurate

recording of administrative information (ie time recording and client billing)

3.6 Explain the current money laundering

provisions affecting fee earners

3.3 The duty is to ensure that any information received from or in connection with a client or their case or a former client or their former case will not be disclosed to anyone outside of the firm except where the client (or former client) has expressly consented to such disclosure; the duty is to disclose any information which is material to their case regardless of the source unless prohibited by law or by the duty of confidentiality to another client.

3.4 Private paying client, fee based on hourly rate;

fixed fees and when these are used; conditional fee agreements and how these work.

3.5 Understanding time recording – its purpose,

recording the amount of time spent in units, giving the name of the fee earner, providing sufficient information in file notes to demonstrate the time spent; costing client time – knowing that bills are charged on an hourly rate of units, that different tasks attract different rates, that all time spent should be auditable through file notes and attributable to fee earners and other tasks and activities provided by non-fee earners.

3.6 Client identity – two forms of identification required (one of which must be a passport, driving licence or birth certificate and the other must confirm the address of the client – utility bill, credit card or bank statement from the last 3 months); the legal obligation to disclose information relating to money laundering that has an effect on client, lawyer confidentiality; reporting concerns – understanding situations where senior colleagues need to be involved.


3.7 Identify conflicts of interest and describe

your duties in the event of a conflict of interest

3.8 Identify the appropriate way in which to

handle a client’s money 3.9 Describe why giving advice on regulated

financial services is prohibited

3.7 The Solicitors’ Code of Conduct identifies the

types of conflict and one’s professional responsibilities both to the client from the outset and also in the event of a conflict developing.

3.8 Knowing that client money is held, whilst work

is pending, in a separate account by the practice on behalf of the client; that any accruing interest is payable to the client during this period; that only after a bill for services and/or disbursements has been drawn up is it permissible for money to be transferred between client and office accounts.

3.9 That the fairness and impartiality of the legal

advice given is potentially compromised if financial services are not regulated; knowing that financial services are regulated by the Solicitors Financial Services Rules; that all requests have to be given to independent financial advisors (either within the business or outside).


Additional information about the unit Unit aim(s) The learner will develop key professional

skills, values and understanding in identifying and addressing the needs of clients

Unit expiry date 31 March 2017 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 1 Establish Communication with Clients, Unit 2 Support Clients to make use of the Service, Unit 3 Develop and Manage Interviews with Clients, Unit 4 Provide Information and Advice Using the Telephone, Unit 5 Provide Information to Clients, Unit 6 Support Clients to Plan, Implement And Review Action, and Unit 7 Provide Continuing Support to Clients




N/A


N/A



Name of the organisation submitting the unit CILEx (Chartered Institute of Legal Executives)

Availability for use Only available to owning awarding body Availability for delivery 1 June 2012


Unit 17




1 Know how to find and read statutes 1.1 Find a statute using online resources 1.2 Describe the relevance of the name and

date of a statute 1.3 Describe the relevance of the chapter

number 1.4 Describe what the statute contains

1.1 Understanding of available websites, eg, OPSI, Lexis Nexis, Westlaw; knowing how to use a relevant website to identify statutes by name, subject, and chapter number.

1.2 Knowing that statutes are given names

according to subject matter and that they are dated the year they are granted royal assent; understanding that the date of the statute is not always the date it comes into effect.

1.3 Knowing that this is the number of the statute

as it is given royal assent in a particular year. 1.4 Knowing that there are contents pages which

are arranged often according to subject headings, sections and schedules; understanding the relationship between different categorisations of information, eg, the function of sub-headings.

Title:

Legal Research

Level:

3

Credit Value:

7


2 Understand the purpose and status of the statute

2.1 Identify the reasons why the statute was created

2.2 Describe what function the statute is now

designed to perform 2.3 Identify whether a statute has come into

force 2.4 Identify the date when a statute came into

force 2.5 Identify whether the statute came into

force upon royal assent being given 2.6 Identify whether a section is set to come

into force upon the creation of a relevant statutory instrument

2.1 Identifying where in the statute the initial purpose of the statute is located, eg, a purpose section at the beginning of the statute; understanding the background to the creation of the statute; the issues and problems that the statute was designed to address.

2.2 Using any explanatory notes, sub-headings to

understand what the statute covers; any specific issues it is meant to address.

2.3, 2.4, 2.5, 2.6 Using the commencement section

of the statute; finding the date of royal assent; checking whether all sections of the statute have the same commencement date; checking sections will come into force; where no commencement date is given, checking for a relevant section in the statute which gives the Secretary of State the power to set a commencement date.


3 Understand how to use sections of the statute that provide supporting guidance for the user

3.1 Identify those terms and/or phrases whose meaning requires interpretation

3.2 Locate and use the interpretation section

of the statute to check for assistance with specific words and/or phrases

3.3 Describe the importance of other sources

of information for assistance with the interpretation of words and/or phrases

3.4 Identify whether a statute or statutory

instrument has been amended or revoked 3.5 Locate and use the revocation section of

the statute to identify revocations

3.1, 3.2, 3.3 Knowing how to use the interpretation section of the statute to check for the meaning of words/phrases; understanding that words and/or phrases might have their definitions elsewhere, eg in other/related statutes, in statutory instruments, in case law.

3.4, 3.5 Knowing how to use the revocation section

to check which statutes and statutory instruments have been revoked and are intended to be revoked in the future.

4 Understand how to use information from a statute

4.1 Find relevant supporting information on appropriate Government and Government-related websites

4.1 Identifying the relevant Government department from the statute; understanding that sometimes there is a shared responsibility for Government departments, that the function and title of Government departments sometimes changes; understanding the kind of information to be found on the departmental website, eg, Government reports, surveys, reviews, quarterly publications; understanding how best to locate relevant information, eg, giving oneself sufficient time to do research (relevant information is not always directly to hand), how a website is organised, how to browse different categories of information, the importance of “skimming” text for what is important, the importance of selectivity and currency, the importance of only printing that which is of use to one’s purpose, following leads through to related websites.


4.2 Apply information obtained from a statute

to a given situation 4.3 Report in an organised way all relevant

information

4.2 Explanation of terms/concepts/issues and

application of information to a scenario or similar situation

4.3 The purpose of report writing; understanding

the requirements of report writing, ie, the structure of an informal report, eg, introduction, findings, conclusion; the importance of summarising information, remaining consistent to the purpose of each section of the report and organising one’s material logically and clearly; the importance of quotation and reference, the selective use of materials, the idea of an appendices of additional relevant information; understanding that a report must stick to its purpose and fulfil its intentions.

5 Understand the purpose of a statutory instrument (SI)

5.1 Find a statutory instrument (SI) using on-line resources

5.2 Describe how the statutory instrument

relates to the statute 5.3 Explain how delegated legislation works

5.1 Understanding of available websites, eg, OPSI, Lexis Nexis, Westlaw; knowing how to use a relevant website to identify statutory instruments (SI) by name, subject, and chapter number.

5.2 Understanding that each statutory instrument

(SI) has its origins in a statute; that a statute has a section allowing the Secretary of State to create legislative detail by way of a statutory instrument (SI).

5.3 Identifying the minister and the Government

department responsible for the statutory instrument (SI), and the powers conferred by the statutory instrument (SI) to that minister.


6 Understand how to use information from a statutory instrument (SI)

6.1 Apply information obtained from a statutory instrument to a given situation

6.1 Explanation of terms/concepts/issues and application of information to a scenario or similar situation.

7 Understand the way in which case law works and progresses

7.1 Find an example of case law using on-line resources

7.2 Describe the significance of the headnote 7.3 Explain how a case report is structured 7.4 Read and interpret a case report, using

the basic concept of legal precedence where required

7.1 Understanding of available websites, eg, OPSI, Lexis Nexis, Westlaw and BAILII; knowing how to use a website to identify case law, eg, use of key words and phrases to conduct searches, using the statutory reference to find a case.

7.2 Knowing the headnote is a summary of the key

points in the case. 7.3 Knowing that the headnote is followed by the

text of the judge’s reasoning, consisting of the facts, the ratio decidendi and obiter dicta.

7.4 Understanding the idea of law being “overruled”

through successive judgments; the role and hierarchy of the courts in making and applying case law.

8 Understand how to use information from a case report

8.1 Apply information obtained from a case report to a given situation

8.1 Explanation of terms/concepts/issues and application of information to a scenario or similar situation.


Additional information about the unit

Unit aim(s) The learner will develop key research skills and understanding across a range of sources of law

Unit expiry date 31 March 2017

Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards




N/A


N/A



Name of the organisation submitting the unit CILEx (Chartered Institute of Legal Executives)

Availability for use Only available to owning awarding body

Availability for delivery 1 June 2012


Section 3 - The Level 4 Law Units Unit Number Unit Title Page numbers Unit 1 Contract Law 33-42 Unit 2 The Law Relating to Employers’ Liability 43-50 Unit 3 The Law Relating to Road Traffic Accidents 51-56 Unit 4 The Law Relating to Tripping, Slipping and Occupiers’ Liability 57-61


Unit 1

Title Contract Law

Level 4

Credit value 11

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the law on the formation of contract

1.1 Define a contract 1.1 A contract is an agreement giving rise to obligations which are enforced or recognised by law

1.2 Explain the law on the fact of agreement 1.2 The law on formation: the requirement of agreement; the factual indicators of agreement – offer and acceptance; distinguishing unilateral from bilateral agreements; distinguishing offer from invitation to treat; where offer and acceptance have not been adequate to the task of finding agreement, eg, Clarke v Dunraven, The Satanita (1895); relevant case law: eg, Pharmaceutical Society of Great Britain v Boots Chemists (1952), Partridge v Crittenden (1968), Carlill v Carbolic Smoke Ball Co (1893)


1.3 Analyse the law on the intention to create legal relations

1.3 An explanation of: the law on intention: the presumption in social and domestic situations and how that presumption may be rebutted: relevant case law, eg, Balfour v Balfour (1919), Merritt v Merritt (1970), Simpkins v Pays (1955); the presumption in commercial situations and how that presumption may be rebutted; relevant case law, eg, Rose & Frank v Compton (1925)

1.4 Explain the law of consideration in contract 1.4 An explanation of the law of consideration: definition of consideration: see Dunlop v Selfridge (1915) (HL); rules setting out the limits to consideration: consideration must move from the promisee, but not necessarily to the promissor; past consideration is no consideration: relevant case law: eg, Re McArdle (1951); performance of an existing duty is not good consideration: relevant case law: eg, Stilk v Myrick (1809), Hartley v Ponsonby (1857); see also Williams v Roffey & Nicholls (Contractors) (1990) and Re Selectmove (1995); the rule on part payment of a debt: see the rule Pinnel’s Case (1602) and its exceptions: relevant case law: eg, Pinnel’s Case (1602), Hirachand Punamchand v Temple (1911); promissory estoppel: see Central London Properties Trust v High Trees House (1947) and subsequent relevant case law


1.5 Analyse the law on the formation of contract 1.5 Analysis of the law of formation: the phenomenon of agreement and its communication: the effectiveness of the use of offer and acceptance as indicators of subjective states of mind; other approaches to finding agreement: eg, Butler Machine Tools v Ex-Cell-O Corporation (1979); the nature and quality of the rules on communication of offer, acceptance, and revocation

1.6 Explain the rules of communication of offer, acceptance, and revocation

1.6 An explanation of the law on communication; relevant case law: eg, Taylor v Laird (1856), Carlill v Carbolic Smoke Ball Co. (1893), Adams v Lindsell (1818), Brinkibon v Stahag Stahl und Stahlwarenhandelsgesellschaft (1983)

1.7 Analyse who can enforce a contract 1.7 Doctrine of privity: eg, Tweddle v Atkinson (1861) and Dunlop v Selfridge (1915), and the Contracts (Rights of Third Parties) Act 1999 (ie, ss1(1)(a) and (b); s1(2)); the common law rules of incorporation and interpretation of exclusion and limitation clauses; the main provisions of the Unfair Contract Terms Act 1977; their effect upon the validity of exemption clauses; the provisions of the Unfair Terms in Consumer Contract Regulations; relevant case law: eg, L’Estrange v Graucob (1934), Olley v Marlborough Court Hotel (1949), Spurling v Bradshaw (1956), Chapleton v Barry UDC (1940), Andrews v Singer (1934), White v John Warwick (1953), Suisse Atlantique Societe D’Armement Maritime v Rotterdamsche Kolen Centrale (1967)


1.8 Apply the law on the formation of contract to a given situation

1.8 Application of the law to a complex scenario

2 Understand the law governing terms of contract

2.1 Explain the law governing terms of contract 2.1 An explanation of: the law governing contractual terms: representations distinguished from terms: relevant case law eg, Bannerman v White (1861), Routledge v McKay, Birch v Paramount Estates Ltd (1956); express terms distinguished from implied terms; statutory methods of implying terms: ss 12-15 Sale of Goods Act 1979; terms implied under ss 13-14 Supply of Goods and Services Act 1982; terms implied by custom of location or trade practice; criteria for implying a term by custom: common law devices for implying terms – terms implied by fact: the business efficacy test: see The Moorcock (1889); the officious bystander test: see Shirlaw v Southern Foundries (1926) Ltd (1939); terms implied by common law, eg, Liverpool CC v Irwin (1976), Scally v Southern Health & Social Services Board (1992) , Equitable Life Assurance v Hyman (2002); the status of terms: distinguish conditions, warranties and innominate terms: see, eg, Poussard v Spiers & Pond (1876), Bettini v Gye (1876), Hong Kong Fir Shipping v Kawasaki Kisen Kaisha (1962)


2.2 Analyse the law governing terms of contract

2.2 Analysis and assessment of the rules for distinguishing representation from term; the effect of classification as mere representation or as a term; devices for implying terms; the relationship between express and implied terms; the tests for determining the status of terms as conditions, warranties or innominate terms; judicial and academic opinion

2.3 Explain how terms are implied by custom 2.3 Implied by the custom of location or trade practice; criteria for implying a term by custom: long duration, reasonable and not inconsistent with an express term; for implying by trade use: existence of usage and it is acceptable to the court

2.4 Apply the law governing terms of contract to a given situation

2.4 Application of the law to a complex scenario.

3 Understand the law of misrepresentation

3.1 Explain the law of misrepresentation 3.1 An explanation of the law of misrepresentation: untrue statement of fact made by one party to the other, inducing the other to enter the contract; requirement of actual and reasonable reliance on the misrepresentation; distinguishing types of misrepresentation: fraudulent, negligent (under the Misrepresentation Act 1967) and innocent misrepresentation: see ss 2(1) and (2) Misrepresentation Act 1967; relevant case law: eg, Howard Marine & Dredging Co Ltd v Ogden & Sons (Excavations) Ltd (1978); remedies available in respect of innocent, negligent, and fraudulent misrepresentation; tortious nature of damages in misrepresentation; rules of remoteness of damage in mis-representation; relevant case law: eg, Royscot Trust v Rogerson (1991), Naughton v O’Callaghan (1990), Smith New Court Securities v Scrimgeour Vickers (1996)


3.2 Analyse the law of misrepresentation 3.2 Analysis of tortious nature of misrepresentation, the influence of this upon remedies; the rules of remoteness of damage in misrepresentation, and the comparison and contrast of them with the rules of remoteness of damage in contract; comparison and contrast of damages in misrepresentation and in contract; identification of the tactical advantages in an action in negligent misrepresentation and comparison and contrast of them with an action in contract

3.3 Apply the law of misrepresentation to a given situation


4 Understand duress and undue influence

4.1 Explain the law of duress 4.1 An explanation of the law of duress: the common law rules on duress to the person and economic duress and possible remedies; relevant case law: eg, Barton v Armstrong (1975), R v A.G. for England and Wales (2003), The Sibeon v the Sibotre (1976), Atlas Express v Kafco (1989), The Atlantic Baron (1979)

4.2 Explain the law of undue influence 4.2 An explanation of the equitable rules relating to undue influence; the classifications of undue influence, and their practical implications; remedies; relevant case law: eg, Williams v Bailey (1866), Allcard v Skinner (1887), National Westminster v Morgan (1985), BCCI v Aboody (1990), Barclays Bank v O’Brien (1993), RBS v Etridge (No 2) (2001)


4.3 Analyse the law of duress and undue influence 4.3 Comparison and contrast of actions in undue influence and duress; analysis of the development of both actions; analysis of the nature of fiduciary relationships required in undue influence

4.4 Apply the law of duress and undue influence to a given situation


5 Understand the ways in which a contract might be discharged

5.1 Explain how a contract may be discharged by performance

5.1 An explanation of the law on discharge of contract: identify ways discharge may come about: by performance, by agreement, by breach, and by frustration; breach may also be anticipatory or repudiatory; waiver and accord, subject to existence of agreement and consideration; common law position on frustration; effect of frustration at common law; Law Reform (Frustrated Contracts) Act 1943: the payee rule, the payer rule, and the valuable benefit rule; the use of force majeure clauses; relevant case law: eg, Cutter v Powell (1795), re Moore & Co v Landauer (1921), Hoenig v Isaacs (1952), Taylor v Caldwell (1863), Metropolitan Water Board v Dick Kerr (1918), Chandler v Webster (1904), Appleby v Myers (1867), Fibrosa Spolka Akcyjna v Fairborn Lawson Combe Barbour Ltd (1943)


5.2 Analyse the law on discharge of contract 5.2 To include analysis of: reasons for ‘strict performance’ requirement in contract; consideration of the meaning of strict performance; evolution of discharge by frustration; the payee rule, the payer rule, and the valuable benefit rule

5.3 Apply the law on discharge of contract to a given situation

5.3 Application to a complex scenario

6 Understand the remedies available where a contract has been breached

6.1 Identify the remedies available when a contract has been breached

6.1 Repudiation, damages, rescission, specific performance, injunction

6.2 Analyse the purpose and meaning of damages in contract

6.2 Monetary compensation aimed at putting the innocent party in position he would have been had the contract not been breached: eg, Robinson v Harman (1848)

6.3 Explain the requirements for claiming damages 6.3 The Claimant needs to show (a) the breach caused the loss, (b) the loss was not too remote: see, for eg, Hadley v Baxendale (1854), Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1949), The Heron II (1969), and (c) that the innocent party has attempted to mitigate the losses claimed; eg, C&P Haulage v Middleton (1993), Payzu v Saunders (1919), Smith, Hogg & Co v Black Sea Insurance (1939), Pilkington v Wood (1953)


6.4 Explain heads of damages 6.4 Explanation of: damages for non-pecuniary loss: loss of enjoyment, inconvenience, distress, eg, Jarvis v Swans Tours Ltd (1973), Farley v Skinner No. 2 (2001); damages for pecuniary loss: reliance loss, eg, Anglia TV v Reed (1972); expectation loss (cost of cure, cost of replacement etc), eg, Ruxley Electronics and Construction Ltd v Forsyth (1996), loss of bargain; consequential loss; liquidated damages clauses; penalty clauses; relevant case law: eg, Chaplin v Hicks (1911), Watts v Morrow (1969)

6.5 Explain the remedies of specific performance and injunction

6.5 Definitions of the remedies; equitable nature of the remedies, discretionary, granted where damages inadequate; outline of criteria used when granting these remedies

6.6 Analyse remedies 6.6. Comparison and contrast of remedies; assessment of their practical effectiveness in contractual situations; demonstration of understanding of their limitations in commercial and consumer situations

6.7 Apply the law on remedies to a given situation 6.7 Application to a complex scenario



Unit aim(s) To accredit a broad and detailed understanding of Contract Law

Unit review date 28 Feb 2015


This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically: SFJ1B17: First line consumer legal advice and SFJ1B18: Consumer legal advice and casework


Na


Na


Na



Name of the organisation submitting the unit Chartered Institute of Legal Executives (CILEx)

Availability for use Only available to the owning awarding organisation

Availability for delivery 1st April 2013


Unit 2

Title The Law Relating to Employers’ Liability

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the scope of the doctrine of negligence

1.1 Evaluate the established duty of care of an employer towards an employee

1.1 The action or omission of the employer

1.2 Explain what constitutes negligence in this context

1.2 An act or omission of the employer

1.3 Explain what standard of care is expected of the employer

1.3 Falling below the standard of the reasonable employer

1.4 Apply the standard of care expected of the reasonable employer to a given situation

1.4 Application of the key case: Stokes v Guest Keen & Nettlefold (Bolts & Nuts) Ltd 1968; weighing up the risk and balancing it; note the application in Latimer v AEC Ltd (1953)


2. Understand the fourfold classification which specifies and contextualises the broad duty

2.1 Explain the traditional fourfold classification 2.1 “one applicable in all circumstances... to take reasonable care for the safety of his men”; Wilsons and Clyde Coal v English (1958); competent staff; adequate plant and equipment; safe place of work; safe system of working

2.2 Explain the employers’ duty in the context of the need to provide competent staff

2.2 Selection, training, supervision

2.3 Explain the employers’ duty in the context of the need to provide adequate plant and equipment

2.3 Having the right equipment, inspection, repair and maintenance

2.4 Explain the employers’ duty in the context of the need to provide a safe place of work

2.4 No duty to take unreasonable precautions; link with Occupiers’ Liability Act 1957 and Workplace Regulations 1992

2.5 Explain the employers’ duty in the context of the need to provide a safe system of work

2.5 Layout; sequence; warnings; modifications; allowing for carelessness; applying General Cleaning Contractors v Christmas (1953); ensuring system is enforced; provision for the non-routine

2.6 Apply the law relating to the employers’ duty to a given situation


3 Understand the limits of the scope of the employers’ duty

3.1 Analyse where the limits of the employers’ common law duty lie

3.1 The day’s work; disobedience; special vulnerabilities; applying Paris v Stepney Borough Council (1951); risk which cannot be eliminated; applying Withers v Perry Chain Co (1961); contrast with Coxall v Goodyear Great Britain (2002); the non-delegable duty; applying McDermid v Nash Dredging (1987)

3.2 Apply knowledge of the limits of the scope of the employers’ duty to a given situation


4 Understand the overall 4.1 Analyse what is meant by a statutory duty 4.1 Obligation imposed by statute or secondary


framework of the imposition of a duty by statute and the consequences that flow from a breach of that duty

legislation; distinct from common law duty

4.2 Identify who is protected by the statutory duty and upon whom the duty falls

4.2 Application of Caswell v Powell Duffryn (1940)

4.3 Explain the consequences (in a civil context) of a breach of statutory duty

4.3 Liable in damages for personal injury:

- General damages for pain suffering and loss of amenity - Special damages

4.4 Explain how a breach of statutory duty is proved 4.4 There must be:

- Legislation intended to impose civil liability - Legislation imposed duty on defendant - Legislation intended claimant to be protected - Breach by the defendant - Harm suffered by the claimant

4.5 Analyse the role of breach of statutory duty in employers’ liability cases

4.5 The effect of: s15 Health and Safety at Work Act 1974: power to make rules and s47 HSWA 1974: imposing civil liability

4.6 Analyse the use of common terms from health and safety legislation

4.6 Reasonably practicable; suitable; shall

4.7 Evaluate the application of the term ‘strict liability’ in personal injury litigation

4.7 Where fault is not required; set behaviour is specified in order to get a pre-determined result The impact of strict liability in the following key cases: - Stark v Post Office (2000) - Horton v Caplin Contracts Ltd (2002) - Searby v Yorkshire Traction Co Ltd (2003) - Fytche v Wincanton Logistics plc (2004)


4.8 Apply knowledge of the duty by statute and the consequences that flow from a breach of that duty to a given situation


5 Understand the statutory framework of regulations applying to the work environment of employees

5.1 Identify the main areas in which there is statutory regulation of the work environment of employees

5.1 Personal Protective Equipment at Work Regulations 1992 (‘PPEWR’); Provision and Use of Work Equipment Regulations 1998 (PUWER 1998); Workplace (Health Safety & Welfare) Regulations 1992 (‘Workplace Regs 1992’); Work at Height Regulations 2005; Manual Handling Operations Regulations 1992 (‘MHR 1992’)

5.2 Analyse the circumstances in which the Personal Protective Equipment at Work Regulations 1992 will apply

.

5.2 Personal Protective Equipment at Work Regulations 1992 (‘PPEWR’); the broad purpose of the Regs; obliging the employer to provide protective equipment when other measures are insufficient; definition of ‘personal protective equipment’; all equipment intended to be worn or held which protects against risks (Reg 2(1) PPEWR 1992); the secondary nature of PPE; if exposed to risk and risk not adequately controlled then PPE is required (Reg 4(1) PPEWR 1992); duty to ensure PPE provided that is ‘suitable’; appropriate; ergonomics and health condition; fit; control risk without increasing it (so far as reasonably practicable): (Reg 4(1) PPEWR 1992)

5.3 Analyse what the employer must do under the Protective Equipment at Work Regulations 1992

5.3 What else the employer must do under the Regs Assessments (Reg 6(3) PPEWR 1992); training; proper use (Reg 10(1) PPEWR 1992); maintained in an efficient state, in efficient working order and in good repair (Reg 7(2) PPEWR 1992)


5.4 Analyse the circumstance in which the Manual Handling Operations Regulations 1992 will apply

5.4 Manual Handling Operations Regulations 1992 (‘MHR 1992’); the objective of the MHR 1992; primarily aimed at eliminating/reducing the risks posed by manual handling; the MHR 1992 cover: manual handling “any transporting or supporting of a load…by hand or bodily force” (Reg 2 MHR 1992); what constitutes a load: 'the intrinsic characteristic of weight in the ordinary sense' and 'a burden of some significance'; see, eg, Hughes v Grampian Country Food Group Ltd (2007) CSIH 32; the MHR 1992 apply to an employer in respect of his employees (Reg 2 MHR 1992)

5.5 Analyse what the employer must do under the Manual Handling Operations Regulations 1992

5.5 To comply the employer must: avoid manual handling so far as reasonably practicable Reg 4(1) MHR 1992); assess the manual handling (reg 4(1) MHR 1992) and re-assess if required (reg 4(2) MHR 1992); consider the employee, his clothing, knowledge and training and other risk factors identified (Reg 4(3) MHR 1992); reduce risk of injury to the lowest level reasonably practicable (reg 4(1) MHR 1992); provide information to the employee (reg 4(1) MHR 1992); explain the effect of the key cases: Koonjul v Thameslink (2000) PIQR P123 (CA); Hawkes v London Borough Southwark (2008) Unreported (CA); Parr v Gravatom Engineering Systems Ltd (2007) EWCA Civ 967; Egan v Central Manchester etc UH NHS Trust (2008) EWCA Civ 1424; Ghaith v Indesit Co UK Ltd (2012) EWCA Civ 642

5.6 Apply the regulations to a given situation 5.6 Whether the MHR and/or PPEWR apply to a complex set of facts and advise on whether or not they have been breached


6 Understand the scope and application of the employers’ liability/public liability protocol with reference to use of the portal

6.1 Explain how the employers’ liability/public liability protocol scheme works in outline

6.1 Employers’ liability cases not exceeding £25,000; the need for there to be an admission; 3 stages of claim; use of the electronic portal.

6.2 Explain what happens during each stage of the employers’ liability/public liability protocol

6.2 Explanation of stages 1, 2 and 3

6.3. Apply the employers’ liability/public liability protocol to a given situation

6.3 Application of the protocol to a complex situation

7 Understand fixed and predictable costs in employers’ liability cases

7.1 Explain the fixed costs regime under the employers’ liability/public liability protocol

7.1 CPR 45 qualifying conditions; method of calculation of amount; success fee; allowable disbursements

7.2 Explain fixed recoverable costs in relation to employer’s liability claims which have been settled

7.2 CPR 45 where parties issue costs only proceedings following settlement or where Part 8 proceedings issued to approve child settlement: fixed recoverable costs disbursements; success fee

7.3 Explain how the predictable costs system operates in employer’s liability cases

7.3 CPR 45 2 stages of fixed success fee; different rates for employer’s liability and disease cases; provision for application to vary the uplift in the largest cases

7.4 Apply knowledge of fixed and predictable costs in employers’ liability cases to a given situation




Unit aim(s) The learner will have a broad understanding of the law relating to employers’ liability in relation to Personal Injury Claims. This includes an understanding of the statutory framework of regulations applying to employees’ work environment and the fixed and predicable costs in employers’ liability cases.

Unit review date 28th Feb 2015


This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically SFJ1B14: Personal Injury Legal Advice and Casework


N/A


N/A


N/A




Unit 3

Title The Law Relating to Road Traffic Accidents

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the driver’s duty of care to other users of the road

1.1 Analyse the driver’s duty of care to other users of the road

1.1 Reasonable skill and care towards people using the highway whom he/she could reasonably expect to be affected by his/her driving

2 Understand the role of the Highway Code in road traffic accident (RTA) claims

2.1 Evaluate the evidential status of the Highway Code in RTA claims

2.1 S38(7) Road Traffic Act 1988 renders it admissible on the question of duty but breach of the Code does automatically mean that there was negligence, eg, Goad v Butcher (2011)

2.2 Explain what the Highway Code is used for in RTA claims

2.2 Liability, Contributory Negligence, Contribution or Indemnity

2.3 Apply knowledge of the role of the Highway Code in road traffic accidents to a given situation


3 Understand the application of the duty of care in the context of a variety of road traffic accident

3.1 Explain the impact of not wearing a seatbelt in relation to RTA claims

3.1 The rule in Froom v Butcher (1976) establishing: 15% reduction if injuries would have been lighter, 25% reduction if injuries would have been avoided entirely; parental obligation: liable to order for


scenarios

contribution, eg, J (a Child) v Wilkins (2002) 3.2 Explain the rules relating to the application of the duty of care of particular importance to cyclists in personal injury claims

3.2 The need for drivers to be careful; whether or not the cyclist needs to wear a helmet; contributory negligence, eg, Smith v Finch (2009); whether lack of a helmet made any difference, eg, Phethean-Hubble v Coles

3.3 Explain the rules relating to the application of the duty of care of particular importance to pedestrians

3.3 The need for drivers to keep a lookout especially for children; the need for pedestrians to keep a lookout for cars

3.4 Evaluate the effect of a driver driving at speed in establishing breach of the duty of care in RTA

3.4 The impact of ‘speed’ whether above the speed limit or not; the position on the road of the respective parties; the junction between major and minor roads; the impact of a car having suffered a breakdown; the effect of the rules for Zebra Crossings

3.5 Apply the law relating to duty of care in the context of a variety of road traffic accident scenarios to a given situation


4 Understand the practical steps that need to be taken in investigating an RTA claim

4.1 Analyse what insurance enquiries need to be made in investigating an RTA claim

4.1 s154 RTA 1988 identification; Motor Insurers Bureau database; Police Accident Report

4.2 Evaluate what evidence may assist the investigation of an RTA claim

4.2 Location; conditions, on the ground with traffic, weather; sequence of events


4.3 Explain which part of the contents of the police accident report may assist the investigation of an RTA claim

4.3 Statements; plan of accident; photographs; measurements; all important as they may help prove what happened

4.4 Explain which part of the contents of the medical records may assist the investigation of an RTA claim

4.4 Accessing triage notes from hospital; may be the only contemporaneous record of the claimant’s version of events

4.5 Explain how the maintenance history of a vehicle may assist the investigation of an RTA claim

4.5 If issue is one of condition of the car then records may help establish the facts

4.6 Explain how the conviction of a party may assist the investigation of an RTA claim

4.6 s11 Civil Evidence Act 1968 makes convictions admissible in evidence; rule in Stupple v Royal London Insurance (1970)

4.7 Apply knowledge of the practical steps that need to be taken when investigating an RTA claim to a given situation


5 Understand the scope and application of the RTA Protocol with reference to use of the Portal

5.1 Explain how the RTA Low Value Protocol scheme works in outline

5.1 RTA cases not exceeding £25,000; the need for there to be an admission; 3 stages of claim; use of the electronic portal

5.2 Analyse what happens during each stage of the application of the RTA Protocol

5.2 Stage 1: claim, response content and timing, matter exiting the scheme Stage 2: Interim payment; seeking £1,000: RTA 4; seeking more than £1,000: RTA 4; insurer’s response Stage 2: RTA 5; claimant obtains medical report; submission of RTA5; response acceptance or counter-offer Stage 3 Part 8 proceedings (PD8B); used if no settlement on quantum; submission of RTA 6 and RTA 7; issue of Part 8 claim; service acknowledged N210B; paper hearing or hearing if requested or


claimant is a child; the impact of Part 36 on claims under the scheme

5.3. Apply knowledge of the RTA protocol to a given situation


6 Understand Fixed and Predictable Costs in RTA cases

6.1 Explain the fixed costs regime under the RTA Protocol

6.1 CPR 45 Qualifying conditions; method of calculation of amount; success fee; allowable disbursements

6.2 Explain fixed recoverable costs in relation to RTA claims which have been settled

6.2 CPR 45 where parties issue costs only; proceedings following settlement or where Part 8 proceedings issued to approve child settlement; fixed recoverable costs; disbursements; success fee

6.3 Explain how the predictable costs system operates in RTA cases

6.3 CPR 45: 2 stages of fixed success fee; provision for application to vary the uplift in the largest cases

6.4 Apply knowledge of fixed and predictable costs to a given situation


7 Understand the key elements and underlying principles of RTA insurance policies

7.1 Analyse common terms which may be found in RTA insurance policies

7.1 Common extensions to the policy: persons permitted to drive; limitations which may be imposed on use; the condition of the vehicle; liability in damages; invalid terms; breaches of condition; the duty to satisfy judgments


7.2 Analyse the doctrines of ‘Utmost Good Faith’ and Subrogation in the context of RTA

7.2 The duty of ‘Utmost Good Faith’ and how it can apply to RTA insurance; the doctrine of Subrogation and how it can apply to RTA insurance

7.3 Evaluate the situations in which a driver might be uninsured

7.3 No insurance cover for the vehicle at all; insurance cover but driver is not named driver; insurance cover but insurer voids policy due to breach by driver/applicant eg, false statements made when applying for policy; insurance cover but driver driving without permission, eg, stolen vehicle

7.4 Evaluate the obligation of an RTA insurer to pay claims in respect of an uninsured driver.

7.4 Driver is insured - cover effective under s151 RTA1988; driver is not insured but is driving stolen car which is insured – insurer will provide cover under s151 RTA 1988

7.5 Evaluate the role and scope of the Motor Insurers’ Bureau (MIB) scheme in relation to RTA claims

7.5 The role of the Motor Insurers’ Bureau; where driver has no insurance and no policy of insurance covers the car the Uninsured Drivers’ Agreement 1999 will apply; preconditions which must be met; exceptions to payment under the Agreement: voluntarily, knowledge, intoxication; fatal accidents; driver is not traced - the Untraced Drivers’ Agreement 2003 will apply; death or personal injury; damage to property; notification; longstop date (ordinary limitation); matters not covered; conditions precedent to liability; use of the accelerated procedure; use of the normal procedure

7.6 Apply knowledge of the MIB scheme to a given scenario

7.6 Application of the MIB to a complex scenario



Unit aim(s) The learner will understand the law relating to Road Traffic Accidents (RTA) including the application of the duty of care in the context of a variety of RTA scenarios, how to investigate an RTA claim and the scope and application of the RTA protocol with reference to the use of the Portal.





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Unit 4

Title The Law Relating to Tripping, Slipping and Occupiers’ Liability

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the scope of the liability under the Highways Act 1980

1.1 Define what a highway is 1.1 A highway is a way over which there exists a public right of passage for all subjects and at all seasons, to pass freely without let or hindrance; Ex p Lewis (1888) 21 QBD

1.2 Evaluate the duty to maintain the highway 1.2 Highways Act 1980 (‘HA 1980’); is it maintainable at the public expense? (s36 HA 1980); then there is a duty to maintain; note the liability in respect of snow and ice s41(1A)


2 Understand the test for breach of the obligation to maintain under the Highways Act 1980

2.1 Describe the test posed by Section 41 HA 1980 2.1 Interpret the words read into s41 HA 1980 “not dangerous for traffic”; apply the Mills v Barnsley (1992) test; dangerous to traffic; note “a real source of danger”; note there must be a real foresight of harm; Meggs v Liverpool (1968) measurements; danger created by failure to maintain - injury resulted

2.2 Explain what evidence is required to establish a breach of duty under section 41 HA 1980

2.2 photographs, measurements, statements (claimant, witnesses, people with knowledge of condition), medical records, inspection records

2.3 Apply the law relating to maintaining the highways to a given situation

2.3 Application of law relating to maintaining the highways to a complex scenario

2.4 Evaluate the section 58 HA 1980 defence 2.4 Onus upon highway authority to show that it had used reasonable care; such care as was reasonably required to secure that...the highway...was not dangerous for traffic (s581); factors to be considered; character of highway and nature of traffic; question of different standards for different types of highway; appropriate standard of maintenance; reasonable state of repair; actual and constructive knowledge; questions of inspection: Day v Suffolk (2007); questions of delay: Rogers v National Assembly (2004); warnings given

2.5 Advise on whether the section 58 HA 1980 defence is established on the facts of a given case

2.5 Apply law of section 58 HA 1980 defence a complex scenario

3 Understand the scope of the liability of a statutory undertaker concerning the highway

3.1 Analyse the steps required in bringing a claim against a statutory undertaker in respect of work done to the highway

3.1 The duty of care required of a statutory undertaker: Brett v Lewisham LBC (1999); use of the New Roads and Streets Act 1991 to support a claim; dealing with cases of concurrent liability

3.2 Apply knowledge of the scope of the liability of a statutory undertaker concerning the highway to a



given situation

4 Understand the basis on which a claim for a supermarket slip or trip will succeed

4.1 Analyse the duty of supermarket as an occupier of premises

4.1 Provided that the shopper is a ‘visitor’ then the common duty of care of the occupier applies; but the practicalities are governed by self-contained rules

4.2 Explain the basis for the rule in Ward v Tesco (1976) and how it assists the claimant

4.2 The rule in Ward v Tesco (1976); was the event one which ought not to occur in a well-managed supermarket; if so the evidential burden shifts to the defendant

4.3 Explain what arguments may be run by a defendant

4.3 Arguments that: - The defendant did not cause the accident - There was a proper system in place - The system was operated by competent staff - The accident would have happened anyway

4.4 Apply a knowledge of the law relating to a supermarket trip or slip to a given situation

4.4 Application of the law relating to a supermarket trip or slip to a complex scenario

5 Understand the key features of the Occupiers’ Liability Acts (OLA) 1957 and 1984

5.1 Explain the statutory provisions 5.1 OLA 1957, OLA 1984: what ‘premises’ are; whether there are premises within the meaning of the Acts on the facts of a given case; what an ‘occupier’ is and how to apply this classification

5.2 Advise on whether a person is within the scope of the Acts on the facts of a given case

5.2 Definition of whether a person is a visitor or non-visitor or does not fall within the scope of the Acts on the facts of a given case; the categories of ‘visitor’ and ‘non-visitor’ and how to apply these classifications; the doctrine of obvious danger in relation to both Acts and how to apply it; whether there is an obvious danger within the meaning of the Acts on the facts of a given case; the threshold test, of where the danger arises from, as it applies to both Acts; the effect of Section 1 of the Compensation


Act 2006 and the common law doctrine than preceded it (Tomlinson v Congleton Borough Council (2003))

6 Understand the scope of the Occupiers’ Liability Act 1957 and 1984

6.1 Compare the scope of the application of the Occupiers’ Liability Act 1957 and 1984

6.1 Whether a person is a non-visitor at the start or whether they have gained such status as a result of their own actions; the effect of such a change of status

6.2 Analyse the scope of an occupiers’ duty of care 6.2 The difference between the common duty of care under the 1957 Act and the duty of care under the 1984 Act; what is meant by duty of care and how it is applied; the scope of the duty, and the distinction between latent and obvious dangers; who the duty falls on, and common ways of satisfying the duty; the special provision made for children under the 1957 Act; the less extensive provisions to be made for professional visitors who fall within the protection of the 1957 Act; the relationship between giving a warning and satisfying the common duty of care under the 1957 Act; the doctrine of willing assumption of risk and how it operates under the 1957 Act.; the relationship between giving a warning and satisfying the duty of care under the 1984 Act; the doctrine of willing assumption of risk and how it operates under the 1984 Act

6.3 Apply knowledge of the Occupiers’ Liability Act 1957 and 1984 to a given situation

6.3 Application of the Occupiers’ Liability Act 1957 and 1984 to a complex scenario



Unit aim(s) Learners will understand the scope of liability under the Highways Act 1980 and the test for breach of employers’ liability under the Act. They will also understand the Occupier’s Liability Act 1957 and 1984 and the basis on which a claim for a supermarket trip or slip can succeed.





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Section 4 - The Practice Units

Unit Number Unit Title Page numbers Unit 5 Corporate Insolvency 63-67 Unit 6 Damages, Settlement and Costs in Personal Injury Cases 68-76 Unit 7 Introductory Considerations for PI Lawyers 77-85 Unit 8 Personal Insolvency 86-90 Unit 9 Preparations for Personal Injury Trials 91-103 Unit 10 Resolving a Commercial Dispute in England and Wales 104-115 Unit 11 Tactics and Costs in Commercial Litigation 116-123


Unit 5

Title Corporate Insolvency

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the key practical, financial and fiscal implications in choice of business medium

1.1 Analyse the advantages and disadvantages of different business media

1.1 Media to include: sole trading, partnership, limited liability partnership, private limited company, public limited company, company limited by guarantee; implications to include: liability, including joint and several liability, unlimited and limited liability, eg, Salomon vs Salomon (1897); formal requirements; practical considerations, including, nature, size and risk of business

1.2 Outline the tax regimes applying to each of the different business media

1.2 Tax definitions, eg, income tax, corporation tax, capital gains tax, inheritance tax, stamp duty and VAT; responsibility of individuals and/or the business media, the rates of taxation for different media and individuals, and the procedure for taxation


2 Understand the liabilities relating to the management of different business media

2.1 Analyse the ‘rescue culture’ 2.1 Aims of insolvency law to protect and balance the interests of competing creditors, deal with the management responsibly and promote rescue and recovery

2.2 Evaluate the key responsibilities of partners 2.2 The key responsibilities of partners including their powers, duties and liabilities: contractual relationship; agency relationship; within authority; duty of care and skill; fiduciary duties, eg, disclosure to each other, declare personal financial benefit, no competition; liabilities, eg, liability for contracts, debts and legal obligations

2.3 Evaluate the effect of insolvency on a partnership 2.3 PA 1890: effect of unlimited liability; joint and several liability; Insolvent Partnerships Order 1994; provision for bankruptcy of a partner; dissolution in default of provision; Partnership Voluntary Arrangement; LLPA 2000 and limited liability

2.4 Analyse how directors exercise their duties and powers both as a board and as individuals

2.4 The importance of board meetings and the requirement for minutes of these meetings; executive and non-executive directors; exercise of powers, eg, standard of care, ie, Re City Equitable (1925); s214 IA 1986; s174 CA 2006; fiduciary duties and duties of care and skill; statutory duties, ie, s170 CA 2006 and ss171-177 CA 2006; statutory factors to be considered; s232 CA 2006: cannot exempt by provision in articles etc; can insure directors: s233 CA 2006; effects of breach; court may relieve a director of liability for breach in whole or in part if has acted honestly and court thinks just in circumstances, eg, Re Duomatic (1969); disqualification: ss2-5 and 11 CDDA 1986; s178 CA 2006 breach of duty liability; s180 CA 2006 consent

2.5 Explain the potential liabilities of company officers 2.5 s212 IA 1986: summary remedy against delinquent directors; s213: fraudulent trading; s214:


wrongful trading”

2.6 Apply the law relating to the management of different business media to a given situation


3 Understand the administration and disclosure requirements of the company

3.1 Explain the administrative and disclosure requirements of company officers

3.1 Filing requirements, eg, resolutions, share issues, charges, appointment and departure of directors, annual return, accounts; officers responsible; penalties for non-compliance; company searches

3.2 Analyse the key documents and records required for the maintenance of registration

3.2 Statutory records, eg, registers of members, directors and secretaries; charges; directors’ interests; minute book; accounting records

3.3 Apply an understanding of the administration and disclosure requirements of a company to a given situation


4 Understand the process of corporate insolvency

4.1 Explain the company’s duties and responsibilities if the company is insolvent

4.1 Definitions; duty to creditors, eg, West Mercia (1988); insolvency practitioners

4.2 Explain the purpose of possible corporate insolvency options

4.2 Definitions; rescue regimes; comparison and contrast of company voluntary administration, administrative receivership and receivership arrangements, winding up


4.3 Explain the process of company voluntary arrangements

4.3 CA 2006: schemes of arrangement; company voluntary arrangements: IA 1986, as amended by IA 2000; process; supervisor; proposal; meetings and approval; failure leading to administration; success into solvency

4.4 Analyse the processes of administration, administrative receivership and receivership

4.4 Rescue regime; Enterprise Act 2002, Schedule B1; administrator appointment; purposes; receiver’s appointment; purposes; administrative receiver’s appointment; purposes; effects of appointment of each; role, powers and duties; avoidance powers; collection and distribution; Enterprise Act 2002: priority of distribution, ie, Crown -“top-slicing”

4.5 Explain the processes of liquidation and winding up

4.5 Compulsory and voluntary liquidation, Members’ and creditors’ voluntary winding up; process; resolutions; statements; appointment of liquidator; effect; priority; court winding up: s124 IA 1986; the process of ‘striking off’ the Register

4.6 Apply the law of the administration and disclosure requirements of a company to a given situation




Unit aim(s) The learner will understand how different business media can impact on an organisation’s financial and fiscal responsibilities. They will also understand the different ways of managing corporate debt and insolvency.



This unit may provide some underpinning knowledge and understanding towards units of the legal advice standards, specifically:SFJ1B 12: Money and debt legal advice and casework.


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Unit 6

Title Damages, Settlement and Costs in Personal Injury Cases

Level 4 Credit value 8




1 Understand the use of General Damages in personal injury litigation

1.1 Evaluate General Damages 1.1 The need for assessment where precision is not possible; the scope of damages for pain suffering and loss of amenity

1.2 Analyse matters to be considered by the judge when awarding damages for pain, suffering and loss of amenity

1.2 The extent of injuries; prognosis of the injuries; the JC Guidelines; and comparable case law

1.3 Evaluate factors to be considered by the Claimant’s solicitor when claiming damages for pain suffering and loss of amenity

1.3 Matters which will be considered by the judge: - The severity of injury - The duration of injury - The impact of pre-existing conditions; and - The impact of the injury

1.4 Evaluate the use of the JC Guidelines in personal injury litigation

1.4 A core setting out guidelines; provides the starting point for assessment; how the JC Guidelines are laid out


1.5 Apply given JC Guidelines through worked examples

1.5 Application of the Guidelines concerning minor whiplash through worked examples; application of the rule in Simmons v Castle [2012] EWCA Civ 1039; use of comparable case law concerning minor whiplash through worked examples

1.6 Analyse other miscellaneous issues relating to the award of general damages

1.6 Application of the approach in Durau v Evans (1996); application of the approach in Hale v London Underground (1993); application of the approach in Haw v Hampshire CC (1987); handicap in the labour market applying Smith v Manchester Corporation (1974) and its inter-relationship with Ogden Table calculations

1.7 Apply knowledge of the rules on general damages to a given scenario involving minor injuries

1.7 Application to a complex scenario; minor injuries could include whiplash, cuts and bruises and travel anxiety

2 Understand the use of Special Damages in personal injury litigation

2.1 Explain the purpose of Special Damages 2.1 The loss can be itemised with precision 2.2 Analyse the contents of a basic loss of earnings claim

2.2 Contents: - Fixed earnings - Variable earnings - Obtaining evidence of loss of earnings - Allowing for the prospect of promotion - Dealing with undeclared income - Giving credit for statutory sick pay - Considering alternative employment - Calculating loss of pension rights


2.3 Evaluate other important heads of special damage

2.3 Accommodation (rule in Roberts v Johnstone (1989)); extra fuel costs; extra travel costs; loss of ability to perform housekeeping, gardening and DIY; recovering for damage to personal property; recovering for damage to and loss of use of vehicles

2.4 Analyse the provisions covering nursing and other medical care

2.4 The impact of s2(4) Law Reform (Personal Injuries) Act 1948; the Impact of s5 Administration of Justice Act 1982; the impact of s17 Health and Social Services and Social Security Adjudications Act 1983; the correct rate payable for care - the ‘Crossroads’ rate

2.5 Analyse the provisions covering care provided gratuitously

2.5 Applying the rule in Hunt v Severs (1994); recovering the notional cost less the reduction for the gratuitous element; gauging the scope of gratuitous loss, eg, Giambrone v Sunworld Holidays Ltd (2004)

2.6 Apply knowledge of the principles of Special Damages to the facts of a given case


3 Understand the application of Special Damages for future loss in the context of Personal injury litigation

3.1 Explain the theory underpinning the calculation of future loss

3.1 How multiplicands and multipliers can be used in the calculation of loss; the role of the Ogden Tables and their different use in relation to: a loss which will last for life and a loss of earnings terminating at a putative retirement date; the use of the 2.5% discount column and being able to apply this knowledge; the impact of gender on the calculation of loss and being able to apply this knowledge; in relation to loss of earnings, the impact of contingencies other than mortality with particular reference to Ogden Tables A to D and being able to apply this knowledge

3.2. Apply knowledge of the law relating to the award of Special Damages (Future Loss) to a given



scenario 4 Understand the law relating to the application of interest on damages in the context of personal injury litigation

4.1 Analyse the rules in relation to calculation of interest on general damages

4.1 The rule in Lawrence v Chief Constable of Staffordshire (2000); interest at 2% running from the date of service of proceedings

4.2 Analyse the rules in relation to calculation of interest on special damages (past loss)

4.2 Application of the Jefford v Gee (1970) principle; distinguishing between long-term and short term loss

4.3 Apply knowledge of the rules relating to the calculation of interest on special and general damages to a given situation

4.3 Application to a complex scenario and set of calculations

5 Understand the recoupment of benefits in personal injury litigation

5.1 Identify the legislation applying to the recoupment of benefits

5.1 Social Security (Recovery of Benefits) Act 1997

5.2 Explain the scope of legislation relating to the recoupment of benefits

5.2 When the Act applies: s1 SS(RB)A 1997; the relevant period for which the Act applies: s3 SS(RB)A 1997

5.3 Explain the application of the legislation 5.3 Obtaining a certificate of recoverable benefits: s4 SS(RB)A 1997; the contents of such a certificate: s5 SS(RB)A 1997; who is bound to pay under the Act: s6 SS(RB)A 1997; what sanctions may be applied: s7 SS(RB)A 1997; the effect of discharging the CRU obligation: s8 SS(RB)A 1997; the role of the Court and the impact of CPR Part 36; other general matters relating to the operation of the system

5.4 Apply knowledge of the recoupment of benefits in personal injury litigation to a given situation


6 Understand the recoupment of the cost of road traffic accidents (RTA) and other medical treatment in personal injury litigation

6.1 Identify the legislation applying to the recoupment of RTA and other medical treatment costs

6.1 Road Traffic Act 1988 and Health and Social Care (Community Health and Standards) Act 2003

6.2 Explain the scope of legislation relating to the recoupment of RTA and other medical treatment costs

6.2 Road Traffic Act 1988 and Health and Social Care (Community Health and Standards) Act 2003; arising out of use of a motor vehicle: s157 RTA 1988; If compensation is paid: s150 HSCA 2003

6.3 Explain the application of the legislation relating to the recoupment of RTA and other medical

6.3 Under RTA 1988:


treatment costs - Payment of cost of in-patient hospital treatment - Payment of costs of outpatient hospital treatment - Payment of the cost of vehicle use Under HSCA 2003: - Payment of cost hospital treatment - Payment of cost of ambulance services - Other general matters relating to the operation of the system

6.4 Apply knowledge the recoupment of the cost of RTA and other medical treatment in personal injury litigation to a given situation


7 Understand final costs orders and how those costs are assessed by the court

7.1 Explain the concept of costs 7.1 Concept used to assist one party to recoup part of their legal fees and expenses from the opposing party

7.2 Analyse the matters which the court may take into account when making a costs order

7.2 Usual rule that loser pays the winner’s costs; other factors to be taken into account including whether winner has succeeded on all issues; offers other than Part 36; conduct; CPR 44.5 factors to be taken into account when deciding amount of costs

7.3 Differentiate between the “standard basis” and “indemnity basis” of assessment of costs

7.3 Standard basis: costs must be proportionate and reasonably incurred; any doubt resolved in favour of paying party; any costs which are disproportionate will not be allowed; costs can be necessary but disproportionate Indemnity costs: costs must be reasonably incurred – any doubt resolved in favour of the receiving party

7.4 Analyse the particular orders which may be made in relation to costs

7.4 CPR 44: the power that the court has to make different types of award; rules relating to the assessment of additional liabilities - success fees, insurance premiums; costs capping; the effect of


estimates as to costs; the parameters set by an estimate and when a party will be held to an estimate

7.5 Outline the procedure for the detailed assessment of costs

7.5 Drawing up detailed bill; use of costs draftsman; format of bill; notice of commencement of detailed assessment; time for commencement; service of points of dispute by opponent; replies to points of dispute; request to court to commence detailed assessment proceedings; lodging case files at court; court will provisionally assess costs without a hearing; court will send bill as provisionally assessed to parties; either party may request court to list assessment for full argument at hearing; procedure at detailed assessment hearing; consideration of any offers made in relation to costs; costs of detailed assessment process

7.6 Apply knowledge of final costs orders and how those costs are assessed by the court to a given situation


8 Understand the methods available for compromising a claim

8.1 Evaluate the role that negotiation plays in personal injury litigation

8.1 Try and settle case early without going to trial, saving time and costs for the parties and court time; accords with the overriding objective CPR 1

8.2 Explain the function of “without prejudice” communications

8.2 “Without prejudice” communications can be letters, telephone conversations or meetings; contents of communications cannot be referred to in the legal proceedings; used to make offers of settlement; offers will be kept secret from judge “Without prejudice save as to costs” used to preserve right to refer to the offer after judgment has been given; may be used in context of costs arguments

8.3 Describe how to effect the compromise of a dispute

8.3 Assessing the strengths and weaknesses of a case; the process of negotiation from initial (low) offer via counter-offer to accord and satisfaction;


general outline of the tactics used in negotiation; having objectives; understanding the opponent; understanding strengths and weaknesses; knowing where to begin; low bids; evaluation; closure; establishing trust

8.4 Evaluate the role that mediation plays in personal injury litigation

8.4 Form of non-determinative alternative dispute resolution (ADR); often used alongside the litigation process to assist parties in settling outside court; mediator explores each parties’ case with them; discovers party’s needs/wants/expectations; does not express view on prospects of success; but can break deadlock by reality testing; attempts to broker settlement between parties without parties negotiating face to face; appropriate where parties have reached deadlock in negotiations

8.5 Draft a valid consent order

8.5 Requirements of valid consent order CPR 40.6; “Tomlin” orders; which settlement terms must be recorded on face of order and which terms should go into schedule in order to gain court approval

8.6 Explain how to make a valid Part 36 offer 8.6 Requirements of valid Part 36 offer 8.7 Analyse the implications for both parties of accepting a Part 36 offer

8.7 Time for acceptance; when accepted, action stayed and automatic costs consequences – amount must be paid within 14 days of acceptance

8.8 Analyse the implication for both parties of rejecting a Part 36 offer

8.8 If not accepted, interest and costs consequences at trial; Claimant has failed to obtain a judgment more advantageous than defendant’s Part 36 offer CPR; Defendant recovers costs from the date the offer expired, interest on costs Claimant has obtained a judgment at least as advantageous as its own Part 36 offer; Defendant pays 10% increase in damages; Defendant pays costs on the indemnity basis from the date the offer expired; Defendant pays interest on costs

8.9 Evaluate the impact of benefits recoupment and 8.9 CPR 36.15: need to specify CRU element of


lump sum payments on Part 36 offers offer; CRU element discounted from calculation when calculating advantage

8.10 Explain the process for obtaining court approval of the settlement involving a minor

8.10 The need for the court’s permission to be gained under CPR 21; the effect of CPR 21.10: the need for court approval and the impact of lack of that approval on validity of any compromise reached; the information to be filed by a claimant under CPR PD 21 para 5.1-5.2; the use of the Part 8 procedure

8.11 Apply knowledge of the methods available for compromising a claim to a given situation



Additional information about the unit Unit aim(s) The learner will understand the key concepts

relating to claims for damages, recoupment of benefits and/or costs of medical treatment as part of a claim in Personal Injury cases. They will also understand the methods available for compromising a claim as well as the concept of costs and how those costs can be assessed by the court.

Unit review date 28 Feb 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Name of the organisation submitting the unit Chartered Institute of legal Executives (CILEx) Availability for use Only available to the owning awarding

organisation Availability for delivery 1st April 2013


Unit 7

Title Introductory Considerations for Personal Injury Lawyers

Level 4 Credit value 8 Learning outcomes The learner will:



1 Understand the key features of Personal Injury litigation

1.1 Define ‘personal injuries’

1.1 Limitation Act 1980 definition: includes any disease or impairment of a person’s physical or mental condition; S38 LA 1980, CPR 2.3

1.2 Identify the key participants in a PI case 1.2 The claimant, the claimant’s lawyer, the defendant, the defendant’s lawyer and the defendant’s insurer

1.3 Analyse the roles of the key participants in a PI case

1.3 The claimant has suffered the personal injury and is responsible for bringing the case. The claimant’s lawyer conducts the claim on behalf of the claimant. The defendant (who may be an individual or a company) is alleged to have been legally responsible for the claimant’s personal injury and defends the case. The defendant’s lawyer acts on behalf of the defendant and conducts the defence. The defendant’s insurer will be responsible for paying any damages and costs if the case is proven


1.4 Evaluate the factors that may impact on the attitude and behaviour of the different participants in a PI case

1.4 The claimant is likely to have suffered physical pain and/or mental illness. He or she may have a sense of injustice and may have immediate and long-term financial needs.

The claimant’s lawyer will have a direct financial interest in the client winning or achieving a settlement. He or she will be concerned that the work required is proportionate to the prospects of success.

The defendant may have a sense of injustice and, usually, a strong desire to end the case as soon as practical. The defendant will normally expect his insurers to pay if the claim is lost.

The defendant’s lawyer may be sceptical in relation to the claimant’s claim, particularly the extent of the injuries. He or she will usually have an established commercial relationship with the insurer which is likely to be a higher priority than the wishes of the defendant.

The defendant's insurer will be keen to minimise the damages claim as well as the legal expenses, possibly by pooling the risk. The insurer will be conducting litigation by cohort and will be operating on low profit margins.

1.5 Apply knowledge of the key features of personal injury litigation a given situation


2 Understand the professional culture and terminology of medical experts involved in the litigation process

2.1 Explain the different roles of the medical personnel involved in the litigation process

2.1 GPs, consultants, specialist registrars, Foundation Year 1 and Foundation Year 2 doctors

2.2 Describe the main professional medical bodies 2.2 General Medical Council and the British Medical Association


2.3 Outline the functions of the main parts of the skeleton and tissues of the human body

2.3 Bones, muscles, joints, tendons, ligaments, nerves and cartilage

2.4 Explain how an accident can cause injury. 2.4 Direct physical injuries resulting from an accident; indirect physical injuries resulting from an accident; an accident may exacerbate existing injuries; an accident may accelerate a pre-existing condition

2.5 Identify the main types of scarring 2.5 1st, 2nd and 3rd degree burns, contracture scars, keloid scarring, hypertropic scars

2.6 Describe the main types of fractures in the human body

2.6 Hairline, greenstick, simple, unstable, comminuted, impacted, crush

2.7 Outline the effect on the human body of a whiplash injury

2.7 Injury to soft tissue of the spine

2.8 Apply knowledge of the culture and terminology of medical experts to a given situation


3 Understand how damages-based agreements operate in PI cases

3.1 Explain what a damages-based agreement is 3.1 Section 45 of Legal Aid, Sentencing and Punishment of Offenders Act 2012; Section 58AA Courts and Legal Services Act 1990; agreement whereby client makes payment of fees to lawyer if they are successful in recovering damages; the payment is a percentage of the damages recovered and is paid from the damages recovered

3.2 Explain the legal formalities which must be met for a damages-based agreement to be enforceable

3.2 Damages-Based Agreements Regulations 2012: Regs 1, 2, 3, 5, 6, 7, 8, and 9


3.3 Explain the detail and purpose of the information that must be provided by a solicitor to a client when entering into a damages-based agreement

3.3 SRA Code of Conduct Chapter 1; this includes information to be given, when costs will be payable, challenging the costs and explaining the meaning and effect of the agreement

3.4 Apply knowledge of damages-based agreements to a given situation


4 Understand how conditional fee agreements (CFA) operate in PI cases

4.1 Explain what a conditional fee agreement is 4.1 Section 58 Court and Legal Services Act 1990; agreement whereby client does not makes payment to lawyer or only pays part of the fees if they are unsuccessful in recovering damages

4.2 Explain the legal formalities which must be met for a CFA to be enforceable

4.2 s58A Court and Legal Services Act 1990; certain types of cases cannot be the subject of a CFA; S58(3) and (4) set out conditions for CFA; also section 44, Legal Aid, Sentencing and Punishment of Offenders Act 2012; Conditional Fee Agreements Order 2012 and Conditional Fee Agreement Regulations 2012

4.3 Explain the operation of success fees 4.3 Section 58(2)(b); how the 100% cap on a success fee works; staged success fees and fixed success fees; success fees for RTA and employers’ liability claims are fixed by the court under CPR 45

4.4 Explain the detail and purpose of the information that must be provided by a solicitor to a client when entering into a CFA

4.4 SRA Code of Conduct Chapter 1; this includes information to be given, when costs will be payable, challenging the costs and explaining the meaning and effect of the agreement


4.5 Evaluate the likelihood of recovering the costs incurred under a CFA from the opponent

4.5 The Claimant has to demonstrate that the CFA is valid; for CFAs entered prior to 1 April 2013, the Defendant may challenge the level of success fee based on the viability of the claim; cogency of the evidence and the assessment of litigation risk at the time when the CFA was entered into For CFAs entered into after 1 April 2013, the success fee may not be recovered from the opponent at all; Section 44(4) Legal Aid, Sentencing and Punishment of Offenders Act 2012

4.6 Apply knowledge of conditional fee agreements to a given situation


5 Understand how legal expenses insurance works in PI cases

5.1 Explain how Before the Event (BTE) insurance works

5.1 Add on policy; checking the policy; client choice; the Insurance Companies (Legal Expenses Insurance) Regulations 1990; reasonable grounds for not relying upon a BTE policy, eg, Sarwam v Alam (2001)

5.2 Explain how After the Event (ATE) insurance works

5.2 Stand-alone policy; S 29 Access to Justice Act 1999; extent of cover required and what the solicitor must disclose, eg, Tankard v John Frederick Plastics Ltd (2008)

5.3 Evaluate the likelihood of recovering the premium for an ATE policy from the opponent

5.3 For policies taken out before 1 April 2013: opponent could challenge the cost of the policy, the coverage of the policy, or suggest that the policy should have been a stage premium (including the application of the Liverpool ATE Test Case (2012) on cases governed by the RTA Low Value Protocol) For policies taken out after 1 April 2013: the premium is not recoverable; see s46 Legal Aid, Sentencing and Punishment of Offenders Act 2012


5.4 Apply knowledge of legal expenses insurance to a given situation


6 Understand how compensation for PI may be recovered via an insurer in an employer’s liability case

6.1 Analyse the use of Employer’s liability insurance 6.1 The effect of s1 Employer’ Liability (Compulsory Insurance) Act 1969 and in particular: every employer shall insure against liability for bodily injury or disease arising out of employment

6.2 Explain the claimant’s options in PI cases if the employer defendant becomes insolvent

6.2 The effect of Third Parties (Rights against Insurers) Act 1930; the role of the Employers’ Liability Tracing Office; the application of the requirements of s1TP(RI)A 1930 and in particular relevant insurance, actual liability and insolvent defendant; precondition to liability under the Act including admission or a judgment of the court; eg, Post Office v Norwich Union (1967)

6.3 Analyse the limitations on the claimant’s options if the employer defendant becomes insolvent

6.3 Limitations include: no rights where company dissolved, eg, Bradley v Eagle Star (1989), getting pre-action disclosure, eg, Burns v Shuttlehurst (1999); getting Part 18 further Information, eg, Harcourt v FEF Griffin (2007); the effect of the Third Party (Rights against Insurers) Act 2010 [not yet in force]; in particular, transfer of rights will take place before judgment obtained

6.4 Apply knowledge of how compensation may be recovered via an insurer to a given situation


7 Understand the right to bring a direct action against the insurer in a road traffic case

7.1 Explain how the insurer may be sued direct in road traffic cases

7.1 The effect of the European Communities (Rights against Insurers) Regulations 2002; the effect of Reg 3 EC(RI) Regs 2002, including residence, cause of accident, place of accident; right to sue the insurer direct


7. 2 Apply knowledge of the right to bring a direct action against the insurer in a road traffic case to a given situation


8 Understand the impact of the doctrine of Limitation of Actions on PI claims

8.1 Explain why limitation is important for PI lawyers 8.1 Limitation Act 1980

8.2 Explain the important terms used in the relevant legislation relating to the Limitation of Actions

8.2 ‘cause of action’, ‘significant’, ‘knowledge’

8.3 Explain the ordinary limitation period in personal injury claims

8.3 The effect of s11 LA 1980; 3 years from accrual of the cause of action

8.4 Explain the latent damage period in personal injury claims

8.4 The effect of s11 LA 1980; 3 years from the date of knowledge, if later; the effect of s14 LA 1980; the legislation noting that knowledge includes constructive knowledge acquirable personally or through expert advice (but not if claimant has sought and acted on advice): s14(3) LA 1980; the need to consider (and be able to advise in relation to) significance and the instituting proceedings test: s14(2) LA 1980; the injury was attributable to the breach and the identity of the defendant s14(1) LA 1980; the effect of these key cases including: A v Hoare (2008), B v MOD (2011)

8.5 Evaluate what steps can be taken to disapply the limitation bar

8.5 The effect of s 33 LA 1980; being able to apply the following principles: balancing prejudice to claimant and prejudice to defendant: s33(1) LA 1980; taking into account all the circumstances of the case and in particular: length of claimant’s delay, reasons for delay, effect on cogency of evidence, conduct of defendant, disability of the claimant (if any), promptness of action following knowledge, steps to obtain advice and advice given; making a decision based on what is ‘equitable’: s33(1)LA 1980; including the need to be wary of windfall to the


defendant, eg, Cain v Francis (2008); consideration of forensic prejudice, eg, McDonnell v Walker (2009); and general rule in cases of long delay, eg, Horton v Sadler (2006)

8.6 Apply the law on limitation of actions to a given situation



Additional information about the unit Unit aim(s) The learner will have a broad understanding of

the key features of personal Injury litigation. They will also have a broad understanding of the roles of the different medical professionals who may be involved in personal Injury cases and the key symptoms and medical terminology that may be featured in Personal Injury cases. An understanding of costs, compensation and direct actions will also be gained.

Unit review date 28 Feb 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 8

Title Personal insolvency

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand undefended debt claims

1.1 Analyse debt collection practices 1.1 Definition of debt in a personal insolvency context, including claims for interest; Protection from Harassment Act 1997, Administration of Justice Act 1970; Office of Fair Trading guidelines; case law, eg, Ferguson v British Gas Trading Ltd (2009)

1.2 Explain how to trace debtors

1.2 Tracing agents and the requirements to comply with the Data Protection Act 1998; Solicitors’ Code of Conduct; bankruptcy searches to confirm status of debtor, eg, bankruptcy status, subject to a debt relief order or Individual Voluntary Arrangement etc


1.3 Analyse the processes required to initiate a debt claim

1.3 The parties to a claim; required detail of a letter of claim in both commercial debts and consumer debts; function and details of a statement of case and particulars of claim in contract and simple debt action; claiming interest; issue of proceedings under the Civil Procedure Rules (Part 7); limitation and enforcements; court and method of service of claim; Northampton Bulk Centre

1.4 Apply the law on undefended debt claims to a given situation


2 Understand enforcement of money judgments

2.1 Analyse the processes required for entering judgment against a debtor

2.1 Examination of deadlines for filing acknowledgments of service (CPR Part 10) and defences (CPR Part 15) and applying for default judgment (CPR Part 12); preliminary response to service of defence and referral to internal departments

2.2 Analyse the processes for the enforcement of money judgments

2.2 The County Court Remedies Regulations, Order To obtain information (Part 71)

2.3 Analyse the process of execution against goods and third party debt orders

2.3 Domestic Violence, Crime and Victims Act 2004; Tribunals, Courts and Enforcement Act 2007; High Court and County Courts Jurisdiction Order 1991, warrant of execution in the County Court, Part 72 and 73 (eg, Roberts Petroleum Ltd v Bernard Kenny (1983)), writ of fieri facias and transfer from County Court to High Court (RSC Order 47 (schedule to CPR))


2.4 Analyse the process of obtaining a charging order and an attachment of earnings order

2.4 Charging orders, their advantage of pursuing a debt through the court opposed to statutory demand, obtaining judgment and security for creditors by way of an equitable charge, Attachment of Earnings Act 1971 and Tribunals Courts and Enforcement Act 2007, CCR Order 27 Schedule 2, CPR

2.5 Apply the appropriate methods of enforcement to a given situation


3 Understand Debt Relief Orders 3.1 Analyse the consequences of a debt relief order 3.1 Eligibility for a debt relief order, qualifying debts and exclusion from eligibility, listing on the Individual Insolvency Register, impact on the individual’s banking arrangements, home welfare benefits, and pension

3.2 Analyse the process for obtaining a debt relief order

3.2 The Insolvency (Amendment) Rules 2009; The Debt Relief Orders (Designation of Competent Authorities) Regulations 2009, the requirements for being a competent authority and for being an intermediary; The Insolvency Proceedings (Fees) (Amendment) Order 2009, The Insolvency Proceedings (Monetary Limits) (Amendment) Order 2009, and any replacement equivalent orders

3.3 Apply the appropriate methods of enforcement to a given situation


4 Understand Individual Voluntary Arrangements

4.1 Evaluate the nature and advantages and disadvantages of an Individual Voluntary Arrangement (IVA)

4.1 Individual Voluntary Arrangement, a voluntary arrangement between the debtor and creditors; duration; comparative advantage against bankruptcy


4.2 Explain the mechanism of how to bring an IVA into effect

4.2 How to apply for an interim order and those who may become involved (eg creditors, and creditors meetings, supervisors); eg, Re Julie O’Sullivan (2001), Insolvency Act 1986 and Insolvency Act 2000; Insolvency Rules 1986; challenging decisions made at a creditors’ meeting

4.3 Apply the law of Individual Voluntary Arrangements to a given situation


5 Understand Bankruptcy Order and Bankruptcy Petition

5.1 Analyse the consequences of a Bankruptcy Order

5.1 The impact on the bankrupt’s banking arrangements, home and pension (Welfare Reform and Pension Act 1999); the role of the Official Receiver, comparison and contrast of bankruptcy and IVA

5.2 Explain the preliminary steps of a Bankruptcy Order

5.2 The statutory demand (s268 Insolvency Act 1986 and r6 Insolvency Rules 1986); service of demand; setting the demand aside; Re a Debtor (Lancaster No 1 of 1987) (1989)

5.3 Explain the purpose of a Bankruptcy Petition 5.3 Creditor’s Petitions (s268 Insolvency Act 1986 and r6 Insolvency Rules 1986); service and extension for service of petitions; notice of oppositions; notices by creditors; list of appearances; the hearing; debtor’s petition (s272 Insolvency Act 1986 and r6 Insolvency Rules 1986); compare and contrast the use of a claim form to recover a debt

5.4 Apply the law of Bankruptcy Orders and Bankruptcy Petitions to a given situation




Unit aim(s) The learner will understand the underpinning principles of personal insolvency and the different ways that it can legally be addressed.



This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically:SFJ1B 11: First line money and debt legal advice and SFJ1B 12: Money and debt legal advice and casework.


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Unit 9

Title Preparations for Personal Injury trials

Level 4

Credit value 10

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the procedures which a litigant should follow before court proceedings are issued

1.1 Explain the general obligations of a claimant and defendant under the Practice Direction on Pre-Action Conduct (“PD-PDC”)

1.1 As set out in PD-PAC; ethos of early exchange of information and documents, promoting settlement without litigation; must follow PAPs or general guidelines under section III if no specific protocol

1.2 Identify the Pre-Action Protocols (PAP) relevant to Personal Injury (PI) claims

1.2 PAP for Personal Injury claims – applies to PI claims not covered by other specific protocols

PAP for Disease and Illness claims – applies to claims where claimant has suffered disease or illness as opposed to injury

PAP for the Resolution of Clinical Disputes – applies to claims against medical professionals for negligent medical treatment

PAP for Low Value PI Claims in RTA – applies to RTA claims where total damages are less than £25,000


PAP for Low Value Employer’s Liability and Public Liability Claims – applies where total damages are less than £25,000

1.3 Explain the obligations of a claimant under the Pre-Action Protocol for Personal Injury claims

1.3 Section 3 and Annex A: contents of letter of claim, list of proposed experts

Section 4: rehabilitation

Section 5: resolution of issues

1.4 Evaluate, in a given situation, the information required to prepare a letter before claim

1.4 Assess, in a scenario, which information is relevant and which further information is required to be collated in order to fulfil PD-PAC/PAP obligations

1.5 Explain the obligations of a defendant under the Pre-Action Protocol for Personal Injury claims

1.5 Section 2: disclosure

Section 3 and Annex B: defendant to acknowledge letter of claim within 21 days; defendant has 3 months to investigate and respond in full; should enclose documents in accordance with Annex B; must indicate whether he/she objects to suggested experts

Section 4: rehabilitation

Section 5: resolution of issues

1.6 Explain the steps which a claimant may take to obtain documents if the defendant fails to comply with their pre-action disclosure obligations

1.6 Application for pre-action disclosure under CPR 31.16; Section 33 Senior Courts Act 1981; what is desirable, eg, Black v Sumitomo Corp (2001)

1.7 Identify the sanctions which the court may impose if the parties fail to comply with their pre-action obligations

1.7 Stay of proceedings/costs/interest sanctions: Para 4 PD-PAC; also affects costs under CPR 44

1.8 Apply knowledge of the procedures a litigant should follow to a given situation



2 Understand the use of witnesses in PI cases

2.1 Evaluate the difference between a witness of fact and an expert witness

2.1 Witness of fact is someone with first-hand knowledge of facts relevant to the dispute

Expert witness is witness who will provide an opinion in a field of expertise where the court requires assistance; every PI case requires medical evidence to assist the court on the injuries suffered, ie, diagnosis, prognosis and causation

Only experts are permitted to give opinion evidence

2.2 Explain the requirements for statements of witnesses of fact

2.2 Usually at outset of case, lawyer takes initial proof of evidence; if proceedings issued, in due course, a formal witness statement must be prepared (CPR 32); mandatory service of witness statements

Formalities under PD32: statement of truth and consequences of verifying false statement; no opinion evidence

2.3 Explain who may be an expert 2.3 Person with formal qualifications; person with accumulation of experience; ideal defendant expert has a combination of both; note the need for expert to display independence and impartiality; danger that may arise where expert is well known for appearing for one side or the other

2.4 Describe what control the court exerts over experts

2.4 CPR 35: no expert evidence permitted without the court’s permission; obtained at Case Management Conference (CMC); court will permit expert evidence where needed to resolve issues in case; tight control over number and type of experts

2.5 Explain the expert’s duties to the court 2.5 CPR 35: expert’s duty is to the court, not the party instructing him; PD35 sets out duties in detail


2.6 Compare the roles of a single expert, a joint expert and separate experts

2.6 Court may allow: - a single expert instructed by one party – very

common in lower value PI cases – the other party may ask questions

- a joint expert jointly instructed by both parties - both parties may ask questions

- separate experts – each party may instruct their own expert

2.7 Explain how a lawyer could locate an expert witness

2.7 Where case involves expert issues, need to obtain preliminary view at outset; identification of experts eg, directories, firm approved list, recommendation; obtain CVs, details of experience, availability

2.8 Analyse the steps taken to prepare expert evidence where the expert is not a joint expert

2.8 Preparation of letter of instruction; report must comply with formalities under PD35; production by expert of draft report – draft is privileged until disclosed to opponent; changing the draft; scope for changing the draft is very limited – expert must give summary of instructions in the report, including instructions received orally; if report is unfavourable, may consider not disclosing it and obtaining another report from a different expert; once the report is disclosed, opponent may ask questions of the expert: CPR 35.6; if both sides have been given permission, court usually makes provision for meeting of experts and production of joint report CPR 35.12


2.9 Analyse the steps taken to prepare expert evidence where the expert is a joint expert

2.9 Parties must agree identity of expert; preparation of joint letter of instructions; if parties cannot agree the identity or remit of the instructions, must revert to the court for assistance; report must comply with formalities under PD35; no privilege or scope for changing the draft; both parties may ask questions under CPR 35.6

2.10 Analyse the ways that an opponent can attack an expert’s evidence

2.10 Opponent could question credibility on basis of:

- Lack of qualifications/experience

- Any direct or indirect links with the claimant/ allegations of bias

- Errors or inconsistencies within the report or between the report and other evidence (eg, claimant’s own witness statement)

- Failure to consider alternative possibilities – expert taking too narrow a view

- Failure to focus on detail – expert taking too wide a view

- Report which does not accord with published technical literature on the topic

2.11 Apply knowledge of the use of witnesses to a given situation


3 Understand how to commence and serve civil proceedings

3.1 Explain the procedure for issuing and serving a claim other than a claim which is low value

3.1 Procedure for claims which do not fall within the protocol(s) for low value claims; documents and fee required to issue claim; service by court or by claimant (need for certificate of service); 4 month validity period of claim form


Documents required to be served upon defendant; Particulars of Claim can be with claim form or served within 14 days afterwards CPR7.4

Methods of service under CPR 7.5; calculation of deemed date of service

3.2 Draft a claim form for a given dispute 3.2 Completion of N1 claim form in relation to scenario

3.3 Analyse the content and structure of Particulars of Claim for a given dispute

3.3 Rules on contents of Particulars of Claim focussing on personal injury claims as set out in CPR16.4 and PD16; requirement to attach medical report and schedule of special damages; meaning of statement of truth and who should sign

Defective drafts; identification of what is wrong; making corrections – mistakes could include failing to set out court heading correctly, failing to provide all information stipulated in CPR/PD 16, failing to give correct information at the end of the document

4 Understand how the defendant can respond to proceedings

4.1 Explain the options available to the defendant upon receipt of a claim form

4.1 CPR 9 Admissions, serving defence or acknowledging service; requesting extension of time for service of defence CPR 15.4; Part 18 requests if clarification required of Particulars of Claim

4.2 Analyse the dates by which the defendant must acknowledge service and/or serve a defence

4.2 Knowledge of deemed date of service (as above); CPR 10.3 & 15.4; calculating actual dates based on scenario

4.3 Analyse the range of responses that can be made to a claim

4.3 CPR 16.5 & PD16; knowledge of range of responses defendant can make to claim – admit/deny/neither admit nor deny; and implications of those responses; sufficient knowledge to critically


review/take instructions upon document

4.4 Explain what a counterclaim is 4.4 What constitutes a counterclaim; distinction between making positive allegations eg, contributory negligence as part of defence, and bringing a separate monetary claim against claimant

4.5 Explain what an additional claim is 4.5 Claims by defendant against co-defendants; claims by defendant against persons not currently party to the proceedings; usually claims for contributions/indemnities

4.6 Explain the procedures for bringing a counterclaim and for bringing additional claims

4.6 CPR 20.4; CPR 20.6 – contribution notice; CPR 20.7 - Part 20 claim form and particulars of Part 20 claim

CPR 20.3 – which CPR provisions apply to Part 20 claims

4.7 Explain the options available to a claimant in receipt of a defence and/or counterclaim

4.7 Default judgment provisions apply; must serve defence to counterclaim; optional reply; time-limits for service of defence to counterclaim and reply: CPR 15.4 & 15.8; Part 18 request if clarification required

4.8 Apply knowledge of how the defendant can respond to a given situation


5 Understand the procedure where a defendant admits liability or fails to respond to proceedings

5.1 Explain what happens if a defendant fails to acknowledge service or to serve a defence on time

5.1 Claimant can request default judgment.; judgment will be for damages to be assessed by the court

5.2 Explain the purpose of a disposal hearing 5.2 A disposal hearing is a short hearing of no more than 30 minutes during which the judge will decide how much the defendant should pay by way of damages; used for straightforward cases where either the defendant has admitted liability or


judgment has been entered for damages to be assessed; PD 26 paragraph 12.4 and CPR 32.6; evidence is limited – no oral evidence – witness statement only plus evidence attached to the claim, ie, expert report; procedure designed to “dispose” of the case quickly

5.3 Explain the purpose of a trial on quantum 5.3 A trial on quantum is a longer hearing at which the court assesses the damages payable by the defendant; used where either the defendant has admitted liability or judgment has been entered for damages to be assessed; if the issues in the case are complex, the evidence voluminous, or the claimant is required to attend for cross-examination, the case cannot be resolved by way of a disposal hearing and the court will instead list a trial on quantum; the court is likely to case manage a trial on quantum in a similar way to other trials

5.4 Evaluate the circumstances in which the court might set aside a judgment

5.4 Where default judgment has been entered: CPR 13; irregular judgment; court must set it aside; regular judgment; Defendant must show they have a real prospect of successfully defending the claim or there is some other good reason why the judgment should be set aside; court will consider whether application made promptly

Where the damages have already been assessed at a disposal hearing: CPR 39.3(3) and (4); Defendant must show acted promptly, had a good reason for not attending hearing and has a reasonable prospect of success

5.5 Apply knowledge of where a defendant admits liability or fails to respond to proceedings to a given situation



6 Understand the procedure relating to interim payments

6.1 Evaluate the grounds on which an order for interim payment may be made

6.1 The CPR 25.7 test: Admission, obtained judgment; “Would obtain...substantial sum”

6.2 Describe the limitations on the scope of the interim payment procedure

6.2 Reasonable proportion of damages (CPR 25.7(4); Contributory negligence and set-off (CPR 25.7(5)

6.3 Describe the timetable prescribed under the interim payment procedure and what evidence is required

6.3 Request to be made direct to defendant; notice of hearing and evidence in support 14 days in advance: CPR 25.6; Defendant’s evidence in response: 7 days in advance; Claimant’s counter-evidence: 3 days in advance; evidence outlined in CPR PD 25B para 2.1 setting out what is sought and why and how the CPR 25.7 test is met; note that the claimant does not have to show need, eg, Stringman v McArdle (1994) but failure to do so may give rise to an argument that the money will be wasted

6.4 Evaluate how a defendant who has made an interim payment will not be prejudiced at the trial

6.4 Court not told about the existence of an interim payment – CPR 25.9; Court can adjust the payment; adjustment between claimant and defendant; repayment, variation or discharge: CPR 25.8; adjustments between co-defendants: CPR 25.8

6.5 Apply knowledge of the procedure on interim payments to a given situation


7 Understand how the court manages cases

7.1 Describe the overriding objective 7.1 Overriding objective (CPR 1); courts to manage cases justly, dealing with cases proportionately, saving time and costs; encouragement to settle/use ADR alongside litigation process

7.2 Evaluate the court’s case management powers 7.2 Extensive powers of case management in CPR 3: General powers – CPR 3.1


Making orders of own initiative – CPR 3.3 Sanctions – CPR 3.7, 3.8 and 3.9 Power to rectify matters – CPR 3.10

7.3 Analyse the criteria used by the court to decide an appropriate track for an action

7.3 CPR 26.6-26.8; values/features of small claims track case, fast track case, and multi-track; directions questionnaire to be completed for all multi-track cases (but optional for fast track); parties can agree or court can impose small claims track in cases higher than small claims limit (£10,000)

7.4 Complete a directions questionnaire in relation to a given situation

7.4 Completion of directions questionnaire including information in relation to witnesses, experts, trial length, possible interim applications, costs

7.5 Explain the directions which a court commonly gives in a fast track PI case.

7.5 CPR 28.3 and PD 28 section 3

7.6 Explain what may happen if a party is unable to comply with the court’s directions

7.6 Parties can agree extensions of time, but there are restrictions CPR 28.4 and PD58 sections 4 and 5; if agreement cannot be reached, party can apply to the court for an extension of time; court may impose sanctions for failure to comply eg, unless orders, costs orders; range of sanctions described under CPR3

7.7 Apply knowledge of how the court manages cases to a given situation


8 Understand the rules relating to disclosure and inspection of documents

8.1 Analyse the criteria for standard disclosure 8.1 Standard disclosure obligations in CPR 31.6; parties’ duty to search for documents falling within standard disclosure: CPR 31.7; meaning of control: CPR 31.8; completion of lists: CPR 31.10; continuing duty of disclosure: CPR 31.11; PD31A regarding extent of search


8.2 Explain what inspection is 8.2 Process by which opponent obtains/reads client’s documents; various methods, eg, requesting copies, attending inspection appointment

8.3 Explain the basis upon which a party may claim a right to withhold documents from inspection

8.3 Rules on legal advice and litigation privilege

8.4 Analyse the options available to a party where the disclosure process does not produce the documents required or expected

8.4 Specific disclosure in CPR 31.12 where the opponent has failed to comply with disclosure obligations

Non-party disclosure in CPR 31.17 and s34 Senior Courts Act 1981 where the opponent does not have the documents but a non-party has them

8.5 Apply knowledge of the process of disclosure of documents to a given situation


9 Understand what is required to prepare for and attend the trial

9.1 Analyse pre-trial preparation requirements 9.1 Preparing trial bundles; booking and briefing Counsel; holding pre-trial conference with Counsel; ensuring all witnesses will be present – issuing witness summonses if necessary; keeping all persons involved fully informed as to arrangements for trial and maintaining list of contact details; lodging trial bundles at court for judge and witness box; ensuring relevant IT is available; knowing where relevant services might be obtained

9.2 Complete a pre-trial checklist in a given situation 9.2 Completion of pre-trial checklist; details of any special arrangements necessary eg, IT, video

9.3 Explain how a lawyer can compel a witness to attend trial

9.3 CPR 34; service of witness summons N20 and conduct money; consequences of failing to comply

9.4 Analyse the requirements for trial bundles 9.4 Claimant’s responsibility; format under PD39A; agree index with opponent; chronological order; pagination; number of copies (1 for each party plus 1 for each advocate, 1 for judge, 1 for witness box);


time for lodging

9.5 Explain which other documents may be required by the court in advance of the trial

9.5 Skeleton arguments, case summaries, lists of issues

9.6 Analyse what happens in court on the day of the trial

9.6 Overview of trial procedure – opening speeches, examination in chief, cross-examination, re-examination, closing speeches, costs arguments

Who sits where, role of lawyers at trial

Etiquette – no food or drinks other than water supplied on desk, mobile phones switched off completely



Unit aim(s) The learner will understand what is required to prepare for and attend trial including the use of witnesses in Personal Injury Cases, how to commence and serve civil proceedings and how the defendant can respond to proceedings. They will also have a broad understanding of how the Court manages Personal Injury Cases.





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Unit 10

Title Resolving a commercial dispute in England and Wales

Level 4

Credit value 10

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the context of commercial litigation within the English and Welsh system

1.1 Distinguish between the civil and criminal jurisdiction in England and Wales

1.1 The purpose of the case or action (to compensate rather than to punish); who starts the case or action (individual whose rights have been affected, not the state); legal terminology (claimant and defendant, not prosecution and defence); standard of proof (balance of probabilities, not beyond reasonable doubt)

1.2 Analyse the scope of commercial litigation 1.2 Wide range of types of clients/parties; main applications will be claims for breach of contract and negligence; brief outline of applications in other areas, some specialist:

- Claims relating to breach of duty eg, breach of trust/fiduciary duty/directors’ duties/employers’ or employees’ duties

- Claims relating to personal property eg,


conversion/ trespass to goods - Claims relating to real property eg, nuisance/

trespass to land - Claims relating to intellectual property eg,

breach of copyright, trademark infringement, patent infringement

- Claims relating to insurance and shipping - Claims relating to companies and insolvency

1.3 Analyse the overriding objective of the Civil Procedure Rules (“CPR”)

1.3 Civil court procedure governed by the CPR; overriding objective (CPR 1) – courts to manage cases justly, dealing with cases proportionately, saving time and costs, encouragement to settle/use ADR alongside litigation process

1.4 Explain the meaning of Alternative Dispute Resolution (“ADR”)

1.4 Meaning of “ADR” – eg, alternatives to court based litigation such as mediation, expert determination and arbitration; usual aim of using ADR is to resolve dispute more quickly, saving cost and/or to keep the dispute out of the public eye

2 Understand the procedures which a litigant should follow before court proceedings are issued

2.1 Explain the general obligations of a claimant and defendant under the Practice Direction on Pre-Action Conduct (“PD-PDC”)

2.1 As set out in PD-PAC; ethos of early exchange of information and documents, promoting settlement without litigation; must follow PAPs or general guidelines under section III if no specific protocol

2.2 Analyse the specific obligations of a claimant and defendant in relation to a claim for breach of contract (other than a simple debt claim)

2.2 Need to comply with Section III PD-PAC – no specific protocol for contract claims; and comply with overriding objective

Overview of principles: parties should exchange sufficient information to allow them to understand each other’s position and to make informed decisions about settlement and how to proceed and must make appropriate attempts to resolve the matter without resorting to proceedings; parties must


act reasonably and proportionately

Exchanging information before starting proceedings: letter before claim and full written response from defendant; suggested procedure contained in Annex A to PD-PAC

ADR: parties should consider ADR including discussion/negotiation, mediation, early neutral evaluation and arbitration; parties must continue to consider possibility of settlement at all times

2.3 Explain the specific obligations of a claimant and defendant in relation to a claim for professional negligence

2.3 PAP Professional Negligence claims:

Section B: Letter of claim, letter of acknowledgement, investigations, letter of response and letter of settlement, experts, proceedings

Students also need an awareness of the contents of Sections A and C

2.4 Evaluate the information required to prepare a letter before claim

2.4 Claimant needs to provide information as to:

- Identity of parties - Chronological summary with key dates and

documents - Specific allegations against the defendant - Explanation of how the defendant has caused

the claimant loss - Estimate of the financial loss suffered and how

calculated with supporting documents - Confirmation of whether expert appointed, if

appropriate. - Suggestion of ADR - Request that letter be forwarded to insurers

2.5 Identify the sanctions which the court may impose if the parties fail to comply with their pre-action

2.5 Possible sanctions: stay of proceedings/costs/interest sanctions - Para 4 PD-


obligations

PAC; also affects costs under CPR 44; students do not need to be able to say which particular sanctions would be applied in particular circumstances as that is at discretion of judge

2.6 Apply knowledge of procedures pre-issue to a given situation


3 Understand how to commence and serve civil proceedings

3.1 Evaluate the roles of the County and High Courts 3.1 Difference between County Court and High Court; vast majority of commercial cases in High Court; different divisions of High Court – QBD, Chancery; overview of types of cases suitable for each court; consequences of issuing in wrong court

3.2 Analyse the procedure for issuing and serving a claim where the defendant is within the jurisdiction

3.2 Defendant in England & Wales; documents and fee required to issue claim, service by court or by claimant (need for certificate of service); 4 month validity period of claim form

Documents required to be served upon Defendant; Particulars of Claim can be with claim form or served within 14 days afterwards; CPR 7.4

Methods of service under CPR 7.5; calculation of deemed date of service

3.3 Analyse the procedure for issuing and serving a claim where the defendant is outside of the jurisdiction

3.3 Same documents required as above but 6 month validity period for claim form; deemed service does not apply; overview of methods of service overseas

Need permission to serve outside of jurisdiction if defendant is outside UK and outside EU; CPR 6.36/37 and PD6B (only grounds relating to contract and tort); serve order giving permission with claim form

No need for permission if defendant is within Scotland/Northern Ireland; CPR 6.32; overview of claims which the court has jurisdiction to determine


under Civil Jurisdiction and Judgments Act 1982 – only in relation to contract, tort and jurisdiction agreements; serve N510 stating grounds with claim form

No need for permission if defendant is within Scotland/Northern Ireland or within EU; CPR 6.32 and 6.33; overview of claims which the court has jurisdiction to determine under the Brussels Regulation – only in relation to contract, tort and jurisdiction agreements; serve N510 stating grounds with claim form

3.4 Draft a claim form for a given dispute 3.4 Completion of N1 claim form in relation to scenario

3.5 Analyse the content and structure of Particulars of Claim

3.5 Rules on contents of Particulars of Claim focussing on contractual and negligence claims as set out in CPR 16.4 and PD16; calculation of simple interest on liquidated damages claim; meaning of statement of truth and who should sign; identification of issues with defective draft and how it should be corrected, eg, mistakes could include failing to set out court heading correctly, failing to provide all information stipulated in CPR/PD 16, failing to give correct information at the end of the document

3.6 Apply knowledge of drafting, issuing and serving proceedings to a given situation


4 Understand how the defendant can respond to proceedings

4.1 Explain the options available to the defendant upon receipt of a claim form

4.1 CPR 9 Admissions, serving defence or acknowledging service; disputing the court’s jurisdiction CPR 11 (overview); requesting extension of time for service of defence CPR 15.4; Part 18 request if clarification required of Particulars of Claim

4.2 Analyse the dates by which the defendant must 4.2 Knowledge of deemed date of service (as


acknowledge service and/or serve a defence to avoid default judgment

above); CPR 10.3 & 15.4; longer time limits where defendant is overseas – CPR 6.35, 6.37 and PD6B; calculating actual dates based on scenario

4.3 Analyse the range of responses that can be made to a claim

4.3 CPR 16.5 & PD16; knowledge of range of responses defendant can make to claim – admit/deny/neither admit nor deny – and implications of those responses

4.4 Evaluate the range of potential counter claims that can be presented

4.4 What constitutes a counter-claim; what constitutes a set off (in brief); distinction between making positive allegations, eg, contributory negligence as part of defence and bringing a separate monetary claim against claimant

4.5 Evaluate the additional claims that can brought in dispute proceedings

4.5 Claims by defendant against co-defendants; claims by defendant against persons not currently party to the proceedings; usually claims for contributions/indemnities

4.6 Explain the procedures for bringing a counterclaim and for bringing additional claims

4.6 CPR 20.4. CPR 20.6 – contribution notice; CPR 20.7 - Part 20 claim form and particulars of Part 20 claim

CPR 20.3 – which CPR provisions apply to Part 20 claims

4.7 Explain the options available to a claimant in receipt of a defence and/or counterclaim

4.7 Default judgment provisions apply; must serve defence to counterclaim; optional reply; time-limits for service of defence to counterclaim and reply CPR 15.4 & 15.8; Part 18 request if clarification required

4.8 Apply knowledge of responding to and defending claims to a given situation

4.8 Application to a complex scenario; calculating deadlines for responding to claim, how to respond; considering Particulars of Claim and responding to each paragraph


5 Understand how the court manages cases

5.1 Analyse the criteria used by the court to decide an appropriate track for an action

5.1 CPR 26.6-26.8; overview of values/features of small claims track cases, fast track cases and multi-track cases; directions questionnaire to be completed for all multi-track cases (but optional for fast track); parties can agree or court can impose small claims track in cases higher than small claims limit (£10,000)

5.2 Complete a directions questionnaire in relation to a given situation

5.2 Completion of directions questionnaire including information in relation to witnesses, experts, trial length, possible interim applications, costs

5.3 Explain the procedure which the court is likely to adopt in order to manage a multi-track case.

5.3 CPR 29; case management conferences (“CMC”) at which court sets directions; importance of CMC as tactical stage; who should attend CMC; obligation of parties to consider provision of case summary and to agree directions based upon specimen directions; directions will be “Usual” types of orders which will be made (clarifying/amending case, stay for ADR, disclosure and inspection, witness statements, expert evidence, split trial or preliminary issues, further CMC, fixing trial date or period, pre-trial checklists); court will require costs budgets to be prepared to be approved by the court and which cannot be exceeded or challenged later

5.4 Explain the sanctions which the court may apply if a party fails to comply with a case management direction

5.4 Range of sanctions described under CPR3; unless orders

6 Understand the rules relating to documentary evidence

6.1 Explain how a lawyer should go about obtaining and organising a client’s documents

6.1 Commercial cases commonly document heavy; obtaining and analysing client documentation; advice on duties of disclosure when first taking instructions; questions lawyer should ask at outset about client documents/document storage/computer systems

Organising documents logically for easy and


repeated access eg, categorising, removing unnecessary duplicates, chronological order, numbering

Electronic files: use of software to search and organise

Hard copy files: need to maintain integrity of original client files eg, professional negligence cases; requirement to produce originals at trial

NB CPR 1 proportionality/time/cost

6.2 Analyse the criteria for standard disclosure. 6.2 Standard disclosure obligations CPR 1.6

Parties’ duty to search for documents falling within standard disclosure: CPR 31.7; meaning of control: CPR 31.8; completion of lists: CPR 31.10; continuing duty of disclosure: CPR 31.11; PD31A regarding extent of search

6.3 Analyse how electronic documents impact on standard disclosure

6.3 Definition of document CPR 31.4 includes electronic documents; special rules in PD31B; parties to confer at early stage

6.4 Explain what inspection is 6.4 Process by which opponent obtains/reads client’s documents; various methods eg, requesting copies, attending inspection appointment

6.5 Explain the basis upon which a party may claim a right to withhold documents from inspection

6.5 Rules on legal advice and litigation privilege

6.6 Apply the criteria for disclosure to the classification of documents in a given situation

6.6 Application of standard disclosure to scenario – replication of documentary analysis in practice; completing an N265 in a simple scenario

7 Understand the rules relating 7.1 Evaluate the requirements for statements of 7.1 CPR 32: evidence to be adduced from witnesses


to witness evidence witnesses of fact of fact, mandatory service of witness statements

Formalities under PD32: statement of truth and consequences of verifying false statement; no opinion evidence

7.2 Analyse the circumstances in which the court will permit expert evidence

7.2 Only experts may give opinion evidence: CPR 35: no expert evidence permitted without the court’s permission – obtained at CMC: court will permit expert evidence where needed to resolve issues in case; tight control over number and type of experts; separate experts or joint single expert or separate experts giving evidence concurrently “hot tubbing”; expert evidence could relate to liability or quantum; CPR1

7.3 Summarise the duties of an expert witness 7.3 Expert’s duty is to the court, not the party instructing him; PD35 sets out duties in detail; expert must produce report in accordance with PD35

7.4 Explain how a lawyer could go about locating and selecting an expert witness

7.4 Where case involves expert issues, need to obtain preliminary view at outset; identification of experts eg, directories, firm approved list, recommendation; obtain CVs, details of experience, availability

7.5 Apply the rules about witnesses to a given situation

7.5 Identifying which witnesses of fact required and which area(s) of expert evidence required based on scenario and identifying upon which issues those witnesses are needed to give evidence

8 Understand what is required to prepare for and attend the trial

8.1 Analyse pre-trial preparation requirements 8.1 Preparing trial bundles; booking and briefing Counsel; holding pre-trial conference with Counsel; ensuring all witnesses will be present – issuing witness summonses if necessary; keeping all persons involved fully informed as to arrangements for trial and maintaining list of contact details; lodging trial bundles at court for judge and witness


box; ensuring relevant IT is available; knowing where relevant services might be obtained

8.2 Complete a pre-trial checklist in a given situation. 8.2 Completion of pre-trial checklist – details of any special arrangements necessary eg, IT, video

8.3 Explain how a lawyer can compel a witness to attend trial

8.3 CPR 34: service of witness summons N20 plus conduct money; consequences of failing to comply

8.4 Analyse the requirements for trial bundles 8.4 Claimant’s responsibility; format under PD39A; agree index with opponent; chronological order; pagination; number of copies (1 for each party plus 1 for each advocate, 1 for judge, 1 for witness box); time for lodging

8.5 Explain which other documents may be required by the court in advance of the trial

8.5 Skeleton arguments, case summaries, lists of issues

8.6 Analyse what happens in court on the day of the trial

8.6 Overview of trial procedure – opening speeches, examination in chief, cross-examination, re-examination, closing speeches, costs arguments

Who sits where, role of lawyers at trial

Etiquette – no food or drinks other than water supplied on desk, mobile phones switched off completely

8.7 Explain the options available for recording and reviewing evidence given at trial

8.7 Junior lawyers take notes; daily transcripts or real-time transcripts

9 Understand orders and judgments

9.1 Analyse the contents of a judgment or order 9.1 Requirements under CPR 40.2; when judgment or order takes effect – CPR 40.7 – immediately unless otherwise stated

9.2 Explain who is responsible for drawing up and 9.2 Requirements under CPR 40.3 and 40.4


serving a judgment or order

9.3 Explain when interest accrues on a judgment or order for the payment of money

9.3 When interest is payable and rates:

High Court - Section 17 Judgments Act 1838, all debts

County Court - Section 74 County Courts Act 1984, County Court (Interest on Debts) Order 1991; debts of £5,000+ only where payment not postponed

Runs from date of judgment unless otherwise ordered

9.4 Analyse the enforcement remedies available to a successful party

9.4 What happens if other party fails to make payment in accordance with judgment/order; order to obtain information CPR 71; Execution High Court RSC Ord 45; Third party debt order CPR 72; Charging orders CPR 73; Attachment of earnings CCR Ord 27; brief overview of bankruptcy/winding up as alternative option

9.5 Explain the procedure by which an unsuccessful party may appeal an order or judgment

9.5 CPR52 and PD52; need for permission to appeal and grounds for permission; time-limits for filing notice of appeal; grounds for appeal; which judge will hear appeal; requirements for appeal bundles; respondent’s notice

9.6 Apply the rules about judgments, order, interest, enforcement and appeals to a given situation




Unit aim(s) The learner will understand the difference between Civil and Criminal Law in England and Wales. They will also understand how to prepare, progress and manage a commercial litigation case.



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Unit 11

Title Tactics and costs in Commercial Litigation

Level 4

Credit value 7

Learning outcomes

The learner will:

Assessment criteria

The learner can:


1 Understand the procedures for making an interim application to the court

1.1 Explain when it is necessary and appropriate to make an interim application to the court

1.1 An issue has arisen between the parties not capable of resolution through negotiations eg, parties are not able to comply with court directions, applicant needs more time, applying for sanction against opponent who has missed deadline, applying for relief from sanction, opponent has failed to respond to Part 18 request

Other procedural matters, eg, amendment of name of party, substitution of party, addition of party. CPR 17 and 19

1.2 Analyse the range of possible interim applications available in relation to disclosure and inspection

1.2 Simple unless order where party has failed to serve list on time; specific disclosure: CPR 31.12; pre-action disclosure: CPR 31.16; 3rd party disclosure: CPR 31.17; applications challenging right to withhold documents from inspection: CPR 31.19


1.3 Evaluate the basis upon which the court may order a party to provide security for costs

1.3 Meaning of security; grounds under CPR 25.12-13.; application by defendant against claimant

1.4 Explain the procedure for making an interim application to the court

1.4 Procedure under CPR23 and PD23A; need for evidence in support either on N244 form or separate witness statement; when appropriate to apply without notice

1.5 Complete an application notice for a simple interim application to the court

1.5 Completion of N244 for simple application, eg, for unless order because opponent has failed to comply with court directions

1.6 Explain the range of costs orders which the court could make on an interim application

1.6 PD44 para 8.5 eg, Claimant’s/Defendant’s costs in any event, costs in the case, Claimant’s/Defendant’s costs in the case, costs reserved, no order for costs

1.7 Explain the procedure for the summary assessments of costs

1.7 Summary assessment of costs; completion and service of costs schedule; basis of assessment; guideline hourly rates

1.8 Review and/or correct a sample costs schedule for summary assessment

1.8 Identifying relevant fee-earners and their rates, summarising hours spent by each fee-earner on attendances on client, attendances on opponent, attendances on others, preparation of documents, preparation for hearing, travelling to court and waiting, attending hearing and identifying relevant disbursements (court fees, travel expenses, Counsel’s fees); calculating VAT


1.9 Apply knowledge of interim application procedures to a given situation


2 Understand the circumstances in which it is possible to conclude an action before trial

2.1 Explain the procedure for obtaining judgment in default

2.1 CPR 12: judgment for fixed sum or judgment with damages to be assessed; followed by directions for assessment of quantum

2.2 Evaluate which interim applications could result in termination of the proceedings before trial

2.2 CPR 3: application to strike out claim/defence on grounds that discloses no reasonable grounds for bringing/defending claim

CPR 24: Summary Judgment; extended timetable for exchange of evidence

CPR 25: Security for Costs; application by Defendant against Claimant only; if court orders security and claimant fails to pay, claim struck out

2.3 Explain how to make a valid Part 36 offer 2.3 Requirements of valid Part 36 offer

2.4 Analyse the implications for both parties of accepting a Part 36 offer

2.4 Time for acceptance; when accepted, action stayed and automatic costs consequences – amount must be paid within 14 days of acceptance

2.5 Analyse the implications for both parties of rejecting a Part 36 offer

2.5 If not accepted, interest and costs consequences at trial: Claimant has failed to obtain a judgment more advantageous than defendant’s Part 36 offer CPR: Defendant recovers costs from the date the offer expired; interest on costs

Claimant has obtained a judgment at least as advantageous as its own Part 36 offer: Defendant pays 10% increase in damages; Defendant pays costs on the indemnity basis from the date the offer expired; Defendant pays interest on costs

2.6 Explain the function of “without prejudice” 2.6 “Without prejudice” communications can be letters, telephone conversations or meetings;


communications contents of communications cannot be referred to in the legal proceedings; used to make offers of settlement; offers will be kept secret from judge

“Without prejudice save as to costs” used to preserve right to refer to the offer after judgment has been given; may be used in context of costs arguments

2.7 Analyse the types of terms which might be included in a settlement offer involving the payment of money

2.7 Amount(s)/instalments to be paid, time when to be paid, to whom it is to be paid; precise mechanism for payment eg, cleared funds, bank transfer

Other conditions to be imposed by each party eg, goods or documents to be delivered, confidentiality

What happens if payment is not paid eg, do parties revert to proceedings, if instalments, does whole amount become immediately payable: interest

What happens when payment is made eg, claim discontinued, full and final settlement, which precise claims have been settled?

Provision for legal costs incurred by both parties

2.8 Draft a valid consent order

2.8 Requirements of valid consent order CPR 40.6. “Tomlin” orders - which settlement terms must be recorded on face of order and which terms should go into schedule in order to gain court approval

2.9 Apply knowledge of concluding an action pre-trial to a given situation



3 Understand the different types of alternative dispute resolution which are commonly used in England and Wales

3.1 Explain what mediation is in a civil litigation context

3.1 Form of non-determinative ADR; mediation used in other contexts (workplace, ACAS, family) – methods used in these contexts are different to “commercial” mediation

In civil litigation context, mediation is a tool often used alongside the litigation process to assist parties in settling outside court

Although CPR refers to ADR, court has no direct control over mediation and cannot force parties to mediate

3.2 Explain the role of a mediator in civil litigation 3.2 Mediator explores each parties’ case with them; discovers parties’ needs/wants/expectations; does not express view on prospects of success, but can break deadlock by reality testing; attempts to broker settlement between parties without parties negotiating face to face

3.3 Explain the procedure adopted in a typical commercial mediation

3.3 Parties agree to mediate; joint instruction of mediator; entry into mediation agreement; opening joint session; individual sessions with mediator; possible additional joint sessions/final joint session (flexible process); drafting terms of settlement

Who attends, who pays fees, typical length - 1 day

Need to find venue for mediation with enough rooms for each party plus mediator

Important rules about confidentiality of discussions between parties and mediator; mediator cannot pass on information to other party without express permission; whole process is without prejudice to court proceedings; if settlement not reached, discussions at mediation cannot be referred to in


court proceedings

3.4 Analyse the criteria for selecting an appropriate mediator

3.4 Direct instruction; use of mediation organisation eg, CEDR, ADR Group, Consensus, In Place of Strife; obtain CV: mediation experience, legal expertise, people skills

3.5 Explain the documents usually required for a commercial mediation

3.5 Mediation agreement: agreement to confidentiality/without prejudice provisions, agreement to pay fees, who will attend

Case summary/position statement of each party

Bundle of relevant documents usually including court and disclosure documents

3.6 Analyse the basic features of arbitration, negotiation, expert determination and early neutral evaluation in comparison with mediation

3.6 Overview of the other main alternatives to litigating: determinative (arbitration and expert determination) and non-determinative (negotiation, mediation and early neutral evaluation); involvement of neutral third party (all except negotiation); advantages and disadvantages to each type

3.7 Outline the effects of an ADR or arbitration clause in a commercial contract

3.7 Such clauses increasingly common in commercial contracts; where parties in dispute are parties to a contract, need to check contract; ADR clause may oblige parties to use, eg, mediation before litigating; arbitration clause may oblige parties to use arbitration instead of litigating

3.8 Explain the possible costs consequences of refusing to attempt ADR

3.8 Costs may be disallowed at trial where party has unreasonably refused to attempt ADR eg, Halsey v Milton Keynes (2004); also CPR 43.3 and 43.5

3.9 Apply knowledge of the types of alternative dispute resolution to a given situation



4 Understand final costs orders and how those costs are assessed by the court

4.1 Analyse the matters which the court may take into account when making a costs order

4.1. Usual rule that loser pays the winner’s costs; other factors to be taken into account including whether winner has succeeded on all issues, offers other than Part 36, conduct

CPR 44.5 factors to be taken into account when deciding amount of costs

4.2 Differentiate between the “standard basis” and “indemnity basis” of assessment of costs

4.2 Standard basis: costs must be proportionate and reasonably incurred; any doubt resolved in favour of paying party; any costs which are disproportionate will not be allowed; costs can be necessary but disproportionate

Indemnity costs: costs must be reasonably incurred – any doubt resolved in favour of the receiving party

4.3 Explain the procedure for the detailed assessment of costs

4.3 Drawing up detailed bill; use of costs draftsman; format of bill; notice of commencement of detailed assessment time for commencement; service of points of dispute by opponent; replies to points of dispute; request to court to commence detailed assessment proceedings; lodging case files at court; court will provisionally assess costs without a hearing; court will send bill as provisionally assessed to parties; either party may request court to list assessment for full argument at hearing; procedure at detailed assessment hearing; consideration of any offers made in relation to costs; costs of detailed assessment process

4.4 Apply knowledge of final costs orders to a given situation




Unit aim(s) Learners will understand the procedures for making an interim application to the court and how to conclude an action before trial including the use of alternative dispute resolution approaches. They will also understand the costs involved in commercial litigation cases.



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