TD English legal procedure

TD1: Legal profession

Training to become a solicitor: new SQE route
1. Schooling

The A levels (advanced level certificate) or equivalent

2. Academic requirements

Law degree (min 3y) or other (non-law) degree (min 3y) + Graduate Diploma in law (1y) or
equivalent

+ Solicitor qualifying exams: SQE1 and SQA2:

-SQE1: “functioning legal knowledge”: tests on substantive and procedural law

-SQE2: “core legal skills” in a range of legal contexts

+ character and suitability requirement (new)

3. Vocational training

Qualifying work experience (QWE): min 2 years, not just in 1 firm: up to 4 placements (ex: law clinics
or as a paralegal in a law firm)

4. Admission: “admitted to the roll of solicitors”

Then 2y under supervision of a senior solicitor

Training to become a barrister

1. High school

A level or equivalent

2. Academics requirement

Law degree (min 3y) or other (non-law) degree (min 3y) + Graduate Diploma in law (1y)

Non-graduate mature student + Graduate Diploma in law (2y)

3. Membership of an Inn of court + Vocational (practical) training

Bar professional training course (1y)

Inn of court= association where barrister practice collectively

4. Admission: “called to the bar”

Admission as a junior barrister

5. Full qualification after completing training period: Pupillage

1y: 6months + 6month (pleading under supervision a of senior barrister)

Session 2: the judiciary
1. Structure of the courts
2 broad categories:

- civil (compensation…)

- criminal (punishment; deterrent; safety of the rest of the community…)

2 sub-categories:

- superior (higher-appeal) courts

- inferior (lower) courts: at first instance

Civil courts:

- Inferior court:

County Court

- Superior courts:

High Court: 3 divisions: - King’s Bench (general, commercial, administrative, admiralty, technology,
construction Courts) - Chancery - Family

Court of Appeal (Civil Division)

Supreme Court

Criminal courts:

- Inferior court

Magistrates Court

-Superior courts

Crown Court

Court of Appeal (Criminal Division)

Supreme Court

2. Magistrates
Lay people= Magistrates are not legally qualified, they are volunteers (don’t get any salary, but some
expenses), have to live locally.
There are 3 magistrates in courts and a legal adviser who advise magistrate in the law.
They get an initial training (3 or 5 days), there is a character requirement, must have no conflict of
interest.
British nationality is not a requirement, but you must be willing to take the Oath of Allegiance to the
Crown.

Bitch

Session 3: Civil procedure I: pre-commencement

I. CIVIL PROCEDURE REFORMS
1) The reformed civil process:
1994 Lord Justice Woolf Inquiry into rules and procedures of civil courts in England and Wales

Woolf Report 1995 found civil legal system to be:

- complicated: too many steps and rules

- costly

- excessively protracted (long delays).

Recommendations led to:

- Civil Procedure Act 1997

- Civil Procedure Rules 1998 (CPR)

2) civil procedure rules 1998

A new procedural code applies to court proceedings in:

• High Court

• County Court

Supplemented by practice directions (interpretive guidance) and pre-action protocols (PAPs)

Aim: to simplify procedures and expedite matters

Overriding objective of CPR Deal with cases:

- justly

- at proportionate cost

Rule 1.1:

Ensure parties are on an equal footing

Reduce cost

Deal with cases proportionate to:

- amount of money involved

- importance of the case

- complexity of the issues

- financial position of the parties

How?

By enforcing parties’ compliance with:

- procedural rules

- practice directions

- court orders

3) Civil procedure rules (continued)

Court’s duty to manage cases

Active case management includes:

- encouraging the parties to use an alternative dispute resolution procedure

- helping parties to settle the case

- fixing timetables

-otherwise controlling progression of a case

4) Effect of reforms
Claims filed in High Court:

 1995 - 153,654
 2012 - 14,454

Claims filed in County Court:

 1995 - 2, 245, 324

 2013 - 1, 445, 339 (43,093 hearings)

II) INTRODUCTION TO CIVIL LITIGATION

1) civil law and criminal law
Purpose of civil proceedings:

- Compensate the claimant for a civil wrong

Parties:

- Claimant

- Defendant

Purpose of criminal proceedings:

- Punish the offender for a crime

Parties:
- Crown / Queen (R v Davis)

- Defendant (Accused)

2) civil procedure
Rules of the procedures to be followed in a civil case.

2 main types of civil case

- 1. Contract (breach of contract)

To establish breach of contract, a claimant has to prove that the defendant did not comply
with the terms of the contract (voluntary agreement).

- 2. Tort (negligence)

To establish negligence, a claimant has to prove that:

- The defendant owed the claimant a duty of care

- The defendant breached that duty

- The claimant suffered damage as a result of that breach

3) 5 stages of civil litigation

4) limitation periods in tort and contract
Limitation Act 1980

1. Tort cases

- Personal injury: 3 years after the incident occurred OR the injury/damage manifested 

- All other torts: 6 years after the incident occurred or injury/damage appeared.

2. Contract cases= 6 years after breach of contract.

5) jurisdictional limits (thresholds)

High Court has exclusive jurisdiction over certain types of civil claims:

- personal injury claims over £50,000

- all other claims (contract, property damage, etc) of at least £100,000

- All lesser claims are heard by the County Court.

III) STAGE 1 PRE-COMMENCEMENT

1. What is a pre-action protocol?
Objectives of Pre-action Protocol (PAP)

Before commencing proceedings, parties must exchange sufficient information to

1. understand each other’s position

2. make decisions about how to proceed

3. try to settle the dispute

4. consider a form of Alternative Dispute Resolution (ADR)

5. support the efficient management of the case

6. reduce costs of resolving the dispute.

2) Steps before issuing a claim in court

1. Letter before claim: Claimant to write to defendant with concise details of claim

- Basis on which claim is made

- Summary of facts

- Remedy sought, including how the amount is calculated

2. Defendant’s response within a reasonable time:

- If claim accepted or, if disputed, the reasons why

- Facts relied upon

- Any counterclaim

3. Parties to disclose key documents

4. Expert evidence
- Only with court’s consent

- Not permitted for small claims track

5. Settlement and ADR

- ‘Litigation should be a last resort’ (section 8)

- At all times, before and after proceedings started

- Part 36 offers

- Provide evidence to court that ADR considered

6. Stocktake and list of issues (section 12)

- Review respective positions and narrow issues in dispute.

PRE-COMMENCEMENT CHECKLIST
1. Client’s details (name, address etc.)

2. Ask client to explain the problem (what is the claim, what relief/remedy do they want?)

3. Funding – how is the client going to pay costs?

Explain: if they lose, might need to pay the other party’s costs. Even if they win, the other
party might be bankrupt and cannot pay our client’s costs.

Does the client have any legal expenses insurance?

4. Defendant’s details for serving the claim form.

5. Check defendant’s financial position: no point in suing if s/he can’t pay!

6. Check limitation period hasn’t expired

7. Explain PAP

Filling a claim
Part 7 claim form:

Simplified process

-Used for specified (liquidated) or unspecified (unliquidated) damages

Must contain:

- Particulars of claim

- itemize elements of claim: different heads of damages, how calculated, etc

- filed and served: with Claim Form, or separately (within 14 days)

- Statement of Truth

Claim Form to specify (estimated) value of claim:

Calculated court fee:

- Claims up to £ 300= £ 35

- £ 5,000 - £ 10,000= £ 455

- £ 100,000- £ 200,000= 5% of the claim

- over £200,000= £ 10,000

Serving the claim form

Usually, the court serves the Claim Form on the defendant

Part 7 CPR: Claim form must be served on the defendant within 4 months by:

- first class post

- delivering or leaving it at defendant’s address

- personal service

- fax

- electronically (in some circumstances)

Defendant’s response
Defendant must file and serve a response within 14 days by either:

- Paying the claim, or

- admitting the claim (in whole or part), or

- Filling and serving:

- an acknowledgement of service; and

- a defense (and any counterclaim) within a further 14 days

Default judgement
- if the defendant fails to file and serve a response within the time limits:

Claimant may apply to the court for:

- default judgement

- an order for costs

2. Track allocation
Allocation questionnaire
Once statements of case are filed, the court issues an Allocation Questionnaire
Parties are to provide information about the case to assist with the case management

- number of witnesses, statements, etc

- value of the claim and any counterclaim

- any expert testimony

- estimated costs incurred to date and up to and including trial

- estimated hearing time

Allocation to a track
Court allocates a case to a track based on the value of the claim and complexity of case:

Track Value of claim

Small claims track Up to £10,000 or
£1, 000 for personal injury claims
Fast track £10,000-£25,000
Multi track + £25,000

Small claims track

Relatively inexpensive and simple way to make a claim

To minimize costs: use of lawyers is discouraged- so legal fees are not paid by losing party

Judges are encouraged to make more active role in managing the case:

- ask more questions

- ensure parties put forward their whole case