Unit Specification Handbook

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

Issued: July 2014

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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 four 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.

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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.

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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;

 Alternatively, and more commonly, where the unit specification calls for “any relevant case law” or provides examples of case law, then the student will be expected to have identified and understood relevant examples for that specific topic or issue;

• 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.

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Section 1- Level 3 Law Unit

Unit Number Unit Title Page numbers Unit 5 Law of Tort 6-16

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Unit 5

Title: Law of Tort

Level: 3

Credit Value: 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the meaning of the term ‘the 1.1 Define ‘tort’. 1.1 Civil wrong. tort of negligence’ 1.2 Describe the scope of tort. 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 Describe the effects/functions of the law of 1.3 Normative rules, compensation, retribution. tort.

1.4 Define ‘negligence’. 1.4 Definition by reference to relevant case law, particularly the comments of Alderson B in Blyth v Birmingham Waterworks Co (1856).

1.5 Explain what must be demonstrated in 1.5 Duty of care, breach of duty of care, order to mount a successful claim in damage resulting from the breach of duty of negligence. care. Relevant case law: eg: Glasgow Corporation v Muir (1943), Barnett v Chelsea & Kensington HMC (1969).

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2 Understand the tests for establishing a 2.1 Describe the general legal tests governing 2.1 Neighbour Test – Donoghue v Stevenson duty of care in cases of physical personal duty of care in negligence. (1932) injury and physical damage to property 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 Apply the tests for establishing duty of care 2.2 & 2.3 Application of the Neighbour test and in negligence to a given set of facts. the 3 stage test to given scenarios.

2.3 Use the current law to predict probable legal outcomes deriving from given facts. 3 Understand the concept of public policy, 3.1 Explain the meaning of public policy in the 3.1 Consideration by the court of whether a particularly in the context of duty of care in context of duty of care in negligence. duty of care should exist: s1 Compensation negligence 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 Explain the role of public policy in the 3.2 Historical development of case law relating establishment of duty of care in the context to psychological/psychiatric harm.(also of psychological harm. 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.

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The “rescuer” situation. Relevant case law: eg: Chadwick v BRB (1967), White & Ors v CC of S Yorkshire Police & Ors (1999).

3.3 Explain the current law relating to duty of 3.3 Nature and quality of harm suffered; care in cases of psychological harm. 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 Identify situations giving rise to actionable 3.4, 3.5 & 3.6 Application to given scenarios of psychological harm (nervous shock). the law relating to public policy and the duty of care owed to primary and secondary 3.5 Apply the tests for establishing duty of care victims in respect of psychiatric harm. cases of psychological harm in negligence in ‘factual’ situations.

3.6 Use the current law to predict probable legal outcomes deriving from given facts. 4 Understand the law governing breach of 4.1 Describe the standard test for breach of 4.1 The standard (basic) “reasonable man” test; duty of care duty. test is objective. Relevant case law: eg: Blyth v Birmingham Waterworks Co (1856), Alderson B.

4.2 Explain the requirement of reasonable 4.2 Reasonable foreseeability of harm at the foreseeability. 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 4.3 Standard of care expected of a defendant skill, judgment and experience. 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

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body of professional opinion) Chester v Afshar (2004) (duty to explain).

4.4 Explain the ‘magnitude of risk’ test. 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 Explain the law’s approach to the 4.5 The factors considered when assessing the importance of the Defendant’s objective standard of care expected of a Defendant: when the tort was committed. 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 Identify breach of duty. 4.6, 4.7 & 4.8 Application to relevant scenarios of the standard test for breach of duty, 4.7 Apply the tests for establishing breach of reasonable foreseeability, questions of skill, duty of care in negligence to a given set of judgment and experience, the magnitude of facts. risk test and the factors considered when assessing the standard of care. 4.8 Use the current law to predict probable legal outcomes deriving from given facts. 5 Understand the law governing ‘Causation’ 5.1 Explain the need to demonstrate damage 5.1 The Claimant must demonstrate a causal caused by breach of duty of care. link between the breach of duty by the Defendant and the damage suffered by the Claimant.

5.2 Explain the need to demonstrate causation 5.2 There must be: in fact and causation in law. (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

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be successful.

5.3 Explain the legal tests on causation in fact. 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 Explain the tests used in situations where 5.4 Successive causes of harm. Relevant case there are multiple causes of harm. 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 v Corus UK (2006), Sienkiewicz v Grief (2011). s3 Compensation Act 2006.

5.5 Explain breaks in the Chain of Causation. 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 &

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Portsmouth Hospitals NHS Trust (2001).

5.6 Explain the test for remoteness of harm 5.6 Foreseeability of type of injury. Relevant (causation in law) in negligence. 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 Identify situations in which causation in law 5.7, 5.8 & 5.9 Application of the law relating to and fact are in issue. causation to given scenarios.

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 6 Understand the law governing vicarious 6.1 Describe the doctrine of vicarious liability. 6.1 Definition of the doctrine: Liability for acts of liability in the context of negligence third parties. (Employer’s liability for wrongful acts of employee). The effect of vicarious liability.

6.2 Explain the requirements for establishing 6.2 The three requirements for establishing vicarious liability. 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

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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 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 Identify situation in which vicarious liability 6.3 6.4 & 6.5 Application of the law relating to may be in issue. vicarious liability to given scenarios.

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.

7 Understand defences to claims in 7.1 Explain function and nature of defences. 7.1 Full defences defeat entire action; partial negligence defences reduce damages.

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7.2 Identify appropriate defences. 7.2 Identify appropriate common law and statutory defences from a given scenario.

7.3 Explain the defence of ex turpi causa. 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 7.4 Definition & explanation. Relevant case law: non fit injuria). 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 Explain the defence of contributory 7.5 Definition & explanation. negligence. 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

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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 7.6 Nature and purpose of limitation periods. defence. 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 Explain the use of exclusion and limitation 7.7 Relevant statutory provisions: ss2(1), 2(2) & clauses to actions in negligence. 11 & Schedule 2 Unfair Contract Terms Act 1977.

7.8 Apply the relevant law to given facts. 7.8 & 7.9 Application of the law relating to full and partial defences and exclusion and 7.9 Use the law governing defences to predict limitation clauses to given scenarios. legal outcomes.

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8 Understand the principles governing the 8.1 Explain the principles governing the award 8.1 The purpose of damages in tort: to put the calculation of damages of damages. claimant in the position he would have been in had the tort not occurred. 8.2 Categorise harm suffered under 8.2 Special Damages: quantifiable financial appropriate Heads of Damages. 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.

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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 Courses of study leading towards the achievement of the other standards or curricula (if appropriate) 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 N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

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Section 2- Level 3 Professional Skills Units

Unit Number Unit Title Page numbers Unit 16 Client Care Skills 18-24 Unit 17 Legal Research Skills 25-30

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Unit 16

Title: Client Care Skills

Level: 3

Credit Value: 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the professional requirements 1.1 Identify appropriate modes of professional 1.1 Using appropriate greetings, eg, not using the of a client care interview conduct 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 Identify the key elements of 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 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.

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1.3 Describe the ways in which these 1.3 Understanding that clients can be emotional, elements are realised in the course of an angry etc; clarifying the client’s objectives with interview 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 Produce an attendance note for an 1.4 Taking notes in interviews – the function of interview with a client 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 2.1 Write a letter to the client using 2.1 Understanding the purpose and main elements requirements of client care communications appropriate client care conventions of an initial client care letter, and the way it is 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

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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 Respond to client queries using 2.2 Use of appropriate telephone conventions: the telephone and/or email 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 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 Write other correspondence on behalf of 2.3 This may include: emails, additional file notes, the client letters to other parties involved in the case, witnesses.

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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 3.1 Explain the requirement to always act 3.1 Acting in the best interests of the client without governing the relationship with the client impartially 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 Describe what information needs to be 3.2 Explaining the process they are entering into – given to a client before they are who will be working with them, the allocation of represented tasks between the fee earner and non-fee earner, the calculation of the fee, the complaints procedure.

3.3 Explain the importance of client 3.3 The duty is to ensure that any information confidentiality and disclosure 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 Describe the different ways in which a 3.4 Private paying client, fee based on hourly rate; case may be funded fixed fees and when these are used; conditional fee agreements and how these work.

3.5 Explain the importance of accurate 3.5 Understanding time recording – its purpose,

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recording of administrative information (i.e. recording the amount of time spent in units, time recording and client billing) 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 Explain the current money laundering 3.6 Client identity – two forms of identification provisions affecting fee earners 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 3.7 The Solicitors’ Code of Conduct identifies the your duties in the event of a conflict of types of conflict and one’s professional interest responsibilities both to the client from the outset and also in the event of a conflict developing.

3.8 Identify the appropriate way in which to 3.8 Knowing that client money is held, whilst work handle a client’s money 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 Describe why giving advice on regulated 3.9 That the fairness and impartiality of the legal financial services is prohibited advice given is potentially compromised if financial services are not regulated; knowing that financial services are regulated by the

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Solicitors Financial Services Rules; that all requests have to be given to independent financial advisors (either within the business or outside).

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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 This unit may provide relevant underpinning knowledge relevant national occupational standards (if and understanding towards units of the Legal Advice appropriate) 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

Availability for use Only available to owning awarding body

Availability for delivery 1 June 2012

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Unit 17

Title: Legal Research

Level: 3

Credit Value: 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Know how to find and read statutes 1.1 Find a statute using online resources 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 Describe the relevance of the name and 1.2 Knowing that statutes are given names date of a statute 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 Describe the relevance of the chapter 1.3 Knowing that this is the number of the statute number as it is given royal assent in a particular year.

1.4 Describe what the statute contains 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.

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2 Understand the purpose and status of the 2.1 Identify the reasons why the statute was 2.1 Identifying where in the statute the initial statute created 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 Describe what function the statute is now 2.2 Using any explanatory notes, sub-headings to designed to perform understand what the statute covers; any specific issues it is meant to address.

2.3 Identify whether a statute has come into 2.3, 2.4, 2.5, 2.6 Using the commencement section force of the statute; finding the date of royal assent; checking whether all sections of the statute 2.4 Identify the date when a statute came into have the same commencement date; checking force sections will come into force; where no commencement date is given, checking for a 2.5 Identify whether the statute came into relevant section in the statute which gives the force upon royal assent being given Secretary of State the power to set a commencement date. 2.6 Identify whether a section is set to come into force upon the creation of a relevant statutory instrument 3 Understand how to use sections of the 3.1 Identify those terms and/or phrases 3.1, 3.2, 3.3 Knowing how to use the interpretation statute that provide supporting guidance whose meaning requires interpretation section of the statute to check for the meaning for the user of words/phrases; understanding that words 3.2 Locate and use the interpretation section and/or phrases might have their definitions of the statute to check for assistance with elsewhere, eg in other/related statutes, in specific words and/or phrases statutory instruments, in case law.

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 3.4, 3.5 Knowing how to use the revocation section instrument has been amended or revoked to check which statutes and statutory instruments have been revoked and are 3.5 Locate and use the revocation section of intended to be revoked in the future. the statute to identify revocations

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4 Understand how to use information from a 4.1 Find relevant supporting information on 4.1 Identifying the relevant Government statute appropriate Government and Government- department from the statute; understanding that related websites 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 4.2 Explanation of terms/concepts/issues and to a given situation application of information to a scenario or similar situation

4.3 Report in an organised way all relevant 4.3 The purpose of report writing; understanding information 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.

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5 Understand the purpose of a statutory 5.1 Find a statutory instrument (SI) using on- 5.1 Understanding of available websites, eg, OPSI, instrument (SI) line resources Lexis Nexis, Westlaw; knowing how to use a relevant website to identify statutory instruments (SI) by name, subject, and chapter number.

5.2 Describe how the statutory instrument 5.2 Understanding that each statutory instrument relates to the statute (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 Explain how delegated legislation works 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 6.1 Apply information obtained from a 6.1 Explanation of terms/concepts/issues and statutory instrument (SI) statutory instrument to a given situation application of information to a scenario or similar situation.

7 Understand the way in which case law 7.1 Find an example of case law using on-line 7.1 Understanding of available websites, eg, OPSI, works and progresses resources 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 Describe the significance of the headnote 7.2 Knowing the headnote is a summary of the key points in the case.

7.3 Explain how a case report is structured 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 Read and interpret a case report, using 7.4 Understanding the idea of law being “overruled” the basic concept of legal precedence through successive judgments; the role and where required hierarchy of the courts in making and applying case law.

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8 Understand how to use information from a 8.1 Apply information obtained from a case 8.1 Explanation of terms/concepts/issues and case report report to a given situation application of information to a scenario or similar situation.

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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

Availability for use Only available to owning awarding body

Availability for delivery 1 June 2012

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Section 3 - The Level 4 Law Units

Unit Number Unit Title Page numbers Unit 1 Contract Law 32-41 Unit 2 The Law Relating to Employers’ Liability 42-49 Unit 3 The Law and Practice Relating to Road Traffic Accidents 50-60 Unit 4 The Law Relating to Tripping, Slipping and Occupiers’ Liability 61-68

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Unit 1

Title Contract Law

Level 4

Credit value 11

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the law on the 1.1 Define a contract 1.1 A contract is an agreement giving rise to formation of contract 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)

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1.3 Analyse the law on the intention to create legal 1.3 An explanation of: the law on intention: the relations 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

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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, 1.6 An explanation of the law on communication; acceptance, and revocation 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)

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

2 Understand the law governing 2.1 Explain the law governing terms of contract 2.1 An explanation of: the law governing terms of contract 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)

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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 2.4 Application of the law to a complex scenario. given situation

3 Understand the law of 3.1 Explain the law of misrepresentation 3.1 An explanation of the law of misrepresentation: 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)

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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 3.3 Application of the law to a complex scenario situation

4 Understand duress and undue 4.1 Explain the law of duress 4.1 An explanation of the law of duress: the influence 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)

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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 4.4 Application of the law to a complex scenario given situation

5 Understand the ways in which 5.1 Explain how a contract may be discharged by 5.1 An explanation of the law on discharge of a contract might be performance contract: identify ways discharge may come discharged 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)

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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 5.3 Application to a complex scenario situation

6 Understand the remedies 6.1 Identify the remedies available when a contract 6.1 Repudiation, damages, rescission, specific available where a contract has has been breached performance, injunction been breached 6.2 Analyse the purpose and meaning of damages in 6.2 Monetary compensation aimed at putting the contract 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)

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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 6.5 Definitions of the remedies; equitable nature of and injunction 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

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Additional information about the unit

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

Unit review date 28 Feb 2015

Details of the relationship between the unit and This unit may provide relevant underpinning knowledge and relevant national occupational standards (if understanding towards units of the Legal Advice standards; appropriate) specifically: SFJ1B17: First line consumer legal advice and SFJ1B18: Consumer legal advice and casework

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

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Unit 2

Title The Law Relating to Employers’ Liability

Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the legal 1.1 Identify and explain the legal tests for 1.1 Identification and explanation of criteria used framework in which an establishing an employer/employee for establishing the existence of the employer’s tortious liability relationship relationship, control, integration ‘multi- factorial test’: relevant case law (e.g.) Ready may arise Mixed Contract (South East) v MPNI (1968); Stevenson, Jordan & Harrison v McDonald & Evans (1952)

1.2 Explain the legal implications of the existence 1.2 Liability in tort may arise either vicariously or of the employer/employee relationship for an by breach of the employer’s personal duty in employer’s liability in tort negligence to the employee; actions accruing before the Enterprise and Regulatory Reform Act 2013 came into force may also be brought in the tort of breach of statutory duty

1.3 Explain, in outline only, the legal position in 1.3 Action might be brought by employee against cases arising before the coming into force of employer in common law negligence and/or the Enterprise and Regulatory Reform Act breach of statutory duty under s47 of the Health & Safety at Work Act 1974 2013

1.4 Explain, in outline only, the legal position in 1.4 s69 of the Enterprise and Regulatory Reform cases arising after the coming into force of s69 Act 2013 amends s47 of the Health & Safety of the Enterprise and Regulatory Reform Act at Work Act 1974 in actions brought by the employee against the employer to effectively 2013 abolish civil liability for breach of statutory duty as a cause of action save where specifically provided for in legislation

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1.5 Analyse the effect of Section 69 of the 1.5 Cases arising (determined by date of breach) Enterprise and Regulatory Reform Act 2013 after the implementation date of the Act may be brought in common law negligence only; cases arising before implementation (determined by date of breach) may be brought in common law negligence and/ or breach of statutory duty

2 Understand the law on 2.1 Explain the law on the vicarious liability of 2.1 Explanation of the concept of vicarious liability: employers’ vicarious liability employers a party is liable in law for the acts of another in tort for intentional and (irrespective of fault). Explain what must be demonstrated in order to establish an unintentional wrongdoings of employer’s vicarious liability: there was a the employee contract of employment; a tortious or criminal act was done by the employee; the act was done in the course of employment or was so closely connected with the employment that it would be fair just and reasonable to hold the employer vicariously liable. Relevant case law: (e.g.) Joel v Morrison (1832); Limpus v London Omnibus Co (1862); Lloyd v Grace Smith & Co (1912); Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942); Kay v ITW (1967); Rose v Plenty (1976); Lister v Hesley Hall (2002); Hawley v Luminar Leisure (2006); Brinks Global Services v Igrox (2010); Weddall v Barchester Healthcare & Wallbank v Wallbank Designs (2012); Various Claimants v Catholic Child Welfare Society (2013) 2.2 Apply the law on vicarious liability to a given 2.2 Application of the law to a complex scenario situation

3 Understand the employer’s 3.1 Explain how the duty of care arises 3.1 Implied term of the contract of employment: personal duty of care in Wilsons & Clyde Coal v English (1938) common law negligence

3.2 Explain the nature and content of the 3.2 Employer owes a personal, non-delegable duty employer’s duty of care to the employee in to the employee. That duty is to: employ common law negligence reasonably competent staff; take reasonable care to provide safe tools and equipment; take

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reasonable care to ensure that work processes and methods are reasonably safe, per Lord Wright, Wilsons & Clyde Coal v English (1938). Relevant authority (e.g.) as to employment of competent staff: Hudson v Ridge Manufacturing (1957); Hawkins v Ross Castings Ltd (1970); as to provision of safe tools and equipment: Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) (1968), Employers Liability (Defective Equipment) Act 1969; as to safe system of work: Thompson v Smith Ship Repairers (North Shields) (1984), Latimer v AEC (1953), James v Hepworth & Grandage (1967), Qualcast (Wolverhampton) Ltd v Haynes (1959), General Cleaning Co v Christmas (1958); stress/psychiatric harm: Walker v Northumberland County Council (1994), Hatton v Sutherland (2002), Barber v Somerset (2004)

3.3 Apply the law on duty of care to a given 3.3 Application of the law to a complex scenario situation

4 Understand the law on breach 4.1 Explain the general criteria for determining 4.1 Explanation of Alderson B’s statement in Blyth of duty of care whether breach of duty has occurred v Birmingham Waterworks Co (1856); explanation of the legal characteristics of the ‘reasonable person’: objective standard established by the courts. Judicial tests and criteria for determining whether the standard of the reasonable person has been met: levels of skill and experience; judgment; magnitude of risk taken; importance of the objective to be attained; skilled and professional activities when judgement is involved; the use of hindsight; characteristics of individual Claimant: relevant authority (e.g.) Latimer v AEC (1953), Watt v Herts CC (1954), Knight v Home Office (1990), Roe v Ministry of Health (1954), Paris v

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Stepney LBC (1951)

4.2 Apply the law on breach of duty of care to a 4.2 Application of the law to a complex scenario given situation

5 Understand the law on 5.1 Explain the law on establishing, in fact, that 5.1 Legal tests for establishing causation in fact: causation the breach of duty of care caused harm to the the ‘but for test’: Barnett v Chelsea & Claimant Kensington Hospital Management Committee (1968); the ‘material contribution test’: Bonnington Castings v Wardlaw (1956); the ‘material increase in risk test’: McGhee v National Coal Board (1973); dealing with multiple causation: relevant authority (e.g.) Baker v Willoughby (1970); Jobling v Associated Dairies (1981), Fairchild v Glenhaven Funeral Services (2003), Baker v Corus (2006), for mesothelioma only, s3 Compensation Act 2006, Sienkiewicz v Greif (2011); apportionment generally: Holtby v Brigham & Cowan Ltd (2000) and Civil Liability (Contribution) Act 1978 5.2 Explain the law on establishing, in law, that 5.2 The principle of remoteness of damage: harm employer’s breach of duty of care caused that is too remote is not recognised by the law harm to the Claimant (Remoteness of and so is not actionable. Test for deciding on Damage) remoteness of damage: The Wagon Mound (No 1) (1961), Hughes v Lord Advocate (1961); acts of third parties. The principle of ‘take your victim as you find him’: relevant case law (e.g.) Smith v Leech Brain & Co Ltd (1961), Robinson v Post Office (1974). Breaks in the chain of causation – new and intervening acts of the Claimant and of third parties: relevant case law (e.g.) McKew v Holland Hannen & Cubitts (1969), Wieland v Cyril Lord Carpets (1969), Rouse v Squires (1971), Knightley v Johns (1982); Corr v IBC Vehicles (2008); Spencer v Wincanton Holdings (2009)

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5.3 Explain the law on proving that an employer 5.3 Burden and standard of proof: who asserts was negligent must prove upon the balance of probabilities

The doctrine of res ipsa loquitur (the thing speaks for itself) and its impact on the burden of proof; the circumstances in which the doctrine res ipsa loquitur may apply: relevant authority (e.g.) Scott v London & St Katherine ‘s Dock Co. (1865), Ward v Tesco Stores (1976)

S11 Civil Evidence Act 1968 5.4 Apply the law on causation and/or proof of 5.4 Application of the law to a complex scenario negligence to a given situation

6 Understand the tortious 6.1 Explain the principles for calculating damages 6.1 Purpose of damages: compensatory, to place damages available in respect in tort in respect of fatal and non-fatal (in so far as money is able) in the position the of a claim against an employer personal injury claims Claimant was in before the harm was suffered. Special Damages: actual pecuniary loss to date of trial. General Damages: future pecuniary loss, pain, suffering, loss of amenity, mental distress. Death: survival of deceased's right of action - Law Reform (Miscellaneous Provisions) Act 1934; claims for financial loss and bereavement - Fatal Accidents Act 1976, Administration of Justice Act 1982.

Non compensatory damages: exemplary, nominal, contemptuous 6.2 Apply the law on remedies to a given situation 6.2 Application of the law to a complex scenario

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7 Understand the defences 7.1 Explain the defence of Consent (Volenti non 7.1 Consent (Volenti non fit injuria): C agreed to available to an employer fit injuria), with particular reference to take the risk; C had sufficient knowledge to employment situations make agreement real; C’s agreement was voluntary. Constraints on use in claims by employees. Relevant case law (e.g.) Smith v Baker (1891), Bowater v Rowley Regis (1948), ICI v Shatwell (1965) Haynes v Harwood (1935)

7.2 Explain the defence of contributory 7.2 Partial defence; D must show: C was at fault in negligence, with particular reference to that he was careless of his own safety; C’s employment situations carelessness contributed to the harm suffered;

D must show that the act of C was reasonably foreseeable as causing harm to C. Sections 1 and 4 Law Reform (Contributory Negligence) Act 1945. Judicial attitudes to contributory negligence in employment situations. Relevant case law: (e.g.) Jones v Livox Quarries Ltd (1952), Caswell v Powell Duffryn Collieries (1940), Stapley v Gypsum Mines (1953), Sherlock v Chester City Council (2004), Sharp v Top Flight Scaffolding (2013)

7.3 Explain the law on statutory bars to claims in 7.3 Procedural device which extinguishes the right tort to a remedy (not the cause of action) upon the expiry of 6 years (general time limit) or 3 years (in personal injury cases) from the date of harm or ‘date of knowledge’. Relevant

authority: Limitation Act 1980 (as amended) ss2, 11, 14, 33. Mackie v Secretary of State for Trade & Industry (2007), Aktas v Adepta &

Dixie v British Polythene Industries (2010), A v Hoare (2008), Horton v Saddler (2007)

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7.4 Apply the law on defences to a given 7.4 Application of the law to a complex scenario employment situation

8 Understand the scope and 8.1 Explain how the employers’ liability/public 8.1 Employers’ liability cases not exceeding application of the employers’ liability protocol scheme works in outline £25,000; the need for there to be an liability/public liability admission; 3 stages of claim; use of the protocol with reference to use electronic portal. of the portal 8.2 Explain what happens during each stage of 8.2 Explanation of stages 1, 2 and 3 the employers’ liability/public liability protocol 8.3 Apply the employers’ liability/public liability 8.3 Application of the protocol to a complex protocol to a given situation situation

9 Understand fixed and 9.1 Explain the fixed costs regime under the 9.1 CPR 45 qualifying conditions; method of predictable costs in employers’ employers’ liability/public liability protocol calculation of amount; success fee; allowable liability cases disbursements

9.2 Explain fixed recoverable costs in relation to 9.2 CPR 45 where parties issue costs only employer’s liability claims which have been proceedings following settlement or where settled Part 8 proceedings issued to approve child settlement: fixed recoverable costs disbursements; success fee

9.3 Explain how the predictable costs system 9.3 CPR 45 2 stages of fixed success fee; operates in employer’s liability cases different rates for employer’s liability and disease cases; provision for application to vary the uplift in the largest cases

9.4 Apply knowledge of fixed and predictable 9.4 Application to a complex scenario costs in employers’ liability cases to a given situation

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Additional information about the unit

Unit aim(s) The learner will have a broad understanding of the law relating to employers’ liability in relation to Personal Injury Claims.

Unit review date 1st April 2015

Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards; specifically

SFJ1B14: Personal Injury Legal Advice and

Casework

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st September 2014

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Unit 3

Title The Law and Practice Relating to Road Traffic Accidents

Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the duty of care 1.1 Explain the common law duty of care in law 1.1 Common law duty of care in law not to cause owed by a road user to other owed by road users to other users of the road harm to people using the highway whom users of the road he/she could reasonably expect to be affected by his/her use of the highway, such as driving, pedal cycling, motorcycling, walking; Eg Donoghue v Stevenson (1932); Nettleship v Weston (1971)

1.2 Explain the common law duty of care on the 1.2 Duty of care on facts: recognition of the need facts to establish the particular claimant is owed a duty of care by the defendant on the facts – the foreseeable claimant eg, Bourhill v Young (1943); Palsgraf v Long Island Railroad (1928)

1.3 Explain the Highway Authority’s duty of care 1.3 Highway Authority’s common law duty and owed to users of the road non-delegable statutory duty to maintain highways maintainable at public expense: sections 41 and 36 Highways Act 1980; Dabinett v Somerset County Council (2006)

1.4 Apply the law relating to duty of care in the 1.4 Application of the law to a complex scenario context of a variety of road user scenarios to a given situation

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2 Understand the common law 2.1 Outline the relevant legal principles to consider 2.1 Standard of care: ‘reasonable person’ test eg, duty of care in relation to when analysing breach of common law duty of Blyth v Birmingham Waterworks Co (1856); breach of duty, causation, care in road traffic accident (RTA) claims Glasgow Corp v Muir (1943); Nettleship v damage and defences in the Weston (1971); not hindsight test nor a context of a variety of road standard of near perfection eg, Roe v Minister traffic accident scenarios of Health (1954); Stewart v Glaze (2009); Smith v Co-operative Group Ltd (2010); Birch v Paulson (2012); Mansfield v Weetabix Ltd (1998); elements to consider/balance in relation to standard of care: likelihood of harm eg, Bolton v Stone (1951), Hilder v Associated Portland Cement Manufacturers Ltd (1961); seriousness of harm eg, Paris v Stepney Borough Council (1951); cost of taking precautions eg, Latimer v AEC Ltd (1953); social value of the defendant’s conduct eg, Watt v Hertfordshire County Council (1954), Ward v London County Council (1938)

2.2 Describe the importance of causation in RTA 2.2 The Claimant must establish that defendant’s claims breach of duty caused claimant’s injuries and losses eg, Barnett v Chelsea and Kensington Hospital Management Committee (1969); Whittle v Bennett (2006)

2.3 Summarise the requirement for 2.3 The Claimant must prove that damage/loss/harm in RTA claims in common damage/loss/harm suffered was the kind that law negligence was a reasonably foreseeable result of the defendant’s breach of duty eg, Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) (No 1) (1961)

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2.4 Identify factors relevant to a novus actus 2.4 Recognise and apply law relevant to break in interveniens in relation to road traffic accident chain of causation between original defendant claims and claimant e.g. Weld-Blundell v Stephens (1920); Rouse v Squires (1973); Knightley v Johns (1982); Wright v Lodge (1993); claimant’s own negligence: McKew v Holland and Hannen and Cubitts (Scotland) Ltd (1969); Wieland v Cyril Lord Carpets (1969); significance of the Civil Liability (Contribution) Act 1978

2.5 Summarise the law relevant to the defences of 2.5 The Law Reform (Contributory Negligence) Act contributory negligence, volenti and ex turpi 1945 section 1(1) - applies to RTA claims; causa, and the significance of these defences in courts’ approach; partial defence; reversal of relation to road traffic accident claims burden of proof; s149 Road Traffic Act 1988 excludes reliance on volenti defence in relation to RTA passenger claims; ex turpi causa - complete defence; eg, Gray v Thomas Trains Ltd and Another (2009); Pitts v Hunt (1991); Delaney v Pickett (2011) - defence may fail if damage suffered by claimant was not caused by his/her unlawful act; Joyce v O’Brien (2013)

2.6 Explain the impact of not wearing a seatbelt in 2.6 The rule in Froom v Butcher (1976) relation to RTA claims establishing: 15% reduction if injuries would have been lighter, 25% reduction if injuries would have been avoided entirely; Stanton v Collinson (2010); Gawler v Raettig (2007); parental obligation: liable to order for contribution under Civil Liability (Contribution Act) 1978, eg, J (a Child) v Wilkins (2002); Hughes v Williams (deceased) (2013)

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2.7 Explain the effect of a driver driving at speed in 2.7 The impact of ‘speed’; whether above the speed establishing breach of the duty of care in RTA limit or not eg, Quinn v Scott (1965); Richardson v Butcher (2010)

2.8 Explain the court’s approach to passengers 2.8 Knowledge of risk eg, Owens v Brimmel travelling with intoxicated drivers (1977); Booth v White (2003)

2.9 Explain the rules relating to the conduct 2.9 The need for drivers to be careful, to keep a required for a road user to discharge his/her look out for other road users and drive with the duty of care and the rules relating to conduct standard of care to be expected of an which may give rise to a finding of contributory experienced, skilled and careful driver, negligence on the part of a road user Nettleship v Weston (1971).

The need for pedal cyclists and motorcyclists to keep a lookout; whether or not the pedal 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 (2012); motorcyclist not wearing helmet eg, O’Connell v Jackson (1972); wearing helmet but not securing chin strap eg, Capps v Miller (1989).

The need for pedestrians to use due care for his/her own safety eg, Nance v British Columbia Electric Railway Co Ltd (1951); the need for drivers to keep a lookout especially for children; the need for pedestrians to keep a lookout for cars eg, Birch v Paulson (2012); contributory negligence eg, Eagle v Chambers (2003) on percentage deduction generally; court’s approach to child pedestrians generally and, in particular, very young children, children under 12 years of age eg, Richardson v Butcher (2010) and, in contrast, teenagers eg,

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Ehrari v Curry (2006); Paramasivan v Wicks([2013) 2.10 Analyse common situations where drivers are 2.10 Non-exhaustive list of examples, and involved in road traffic accidents cases, of common situations where drivers are involved in road traffic accidents: the position on the road of the respective parties and the relevant obligation eg, Powell v Moody (1966); the junction of major and minor roads eg, Heaton v Herzog (2008); the consequence of a car having suffered a breakdown eg, Houghton v Stannard (2003); the effect of the rules for Zebra, Pelican and Puffin pedestrian crossings

2.11 Identify relevant factors to consider when 2.11 Condition of highway - foreseeable danger - analysing the Highway Authority’s breach of failure to maintain - damage caused by statutory duty of care in road traffic accident dangerous condition; eg Rider v Rider (1973); claims awareness of purpose and status of Dept of Transport’s Well- maintained Highways - Code of Practice for Maintenance Management, eg AC(1) DC(2) TR(3) v Devon County Council (2012)

2.12 Summarise the statutory defence available to 2.12 Defence set out in Section 58 Highways Act; the Highway Authority defendant driver joining Highway Authority as another defendant, eg AC(1) DC(2) TR(3) v Devon County Council (2012)

2.13 Apply the law relating to common law 2.13 Application of the law to a complex scenario negligence and/or breach of statutory duty, in the context of a variety of road traffic accident scenarios, to a given situation

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3 Understand the role of the 3.1 Evaluate the evidential status of the Highway 3.1 Section 38(7) Road Traffic Act 1988 renders it Highway Code in road traffic Code in RTA claims admissible on the question of breach of duty, accident (RTA) claims but breach of the Code does not automatically mean that there was negligence, eg, Powell v Phillips (1972); Goad v Butcher (2011)

3.2 Explain what the Highway Code is used for in 3.2 Liability, Contributory Negligence, RTA claims Contribution or Indemnity

3.3 Apply knowledge of the role of the Highway 3.3 Application to a complex scenario Code in road traffic accidents to a given situation

4 Understand the practical 4.1 Analyse what insurance enquiries need to be 4.1 s154 RTA 1988 identification; Motor Insurers steps that need to be taken in made in investigating an RTA claim Bureau database; Police Accident Report investigating an RTA claim 4.2 Evaluate what evidence may assist the 4.2 Location; conditions on the ground with traffic, investigation of an RTA claim weather; sequence of events 4.3 Explain which part of the contents of the 4.3 Statements; plan of accident; photographs; police accident report may assist the measurements: all important as they may help investigation of an RTA claim prove what happened

4.4 Explain which part of the contents of the 4.4 Accessing triage notes from hospital: may be medical records may assist the investigation the only contemporaneous record of the of an RTA claim claimant’s version of events

4.5 Explain how the maintenance history of a 4.5 If issue is one of condition of the car, then vehicle may assist the investigation of an RTA records may help establish the facts claim

4.6 Explain how the conviction of a party may 4.6 s11 Civil Evidence Act 1968 makes relevant assist the investigation of an RTA claim s11 convictions admissible in evidence; rule in Stupple v Royal London Insurance (1970); examples of possible relevant convictions: Road Traffic Act 1988 - s2 dangerous driving; s3 driving without due care and attention; s4

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driving or being in charge of a motor vehicle when unfit through drink or drugs, or s5 if alcohol intake is over the legal limit; s41D driving whilst holding hand-held mobile phone; s14 not wearing seat belt; s15 inappropriate child restraint; s16 motorcyclist not wearing safety helmet 4.7 Apply knowledge of the practical steps that 4.7 Application to a complex scenario need to be taken when investigating an RTA claim to a given situation 5 Understand the scope and 5.1 Explain how the Pre-Action Protocol for Low 5.1 RTA cases not exceeding £25,000 – method application of the RTA Value Personal Injury Claims in Road Traffic of valuing; the need for there to be an Protocol with reference to Accidents (the RTA Protocol) works in outline admission; 3 stages of claim; use of the use of the Portal electronic portal 5.2 Analyse what happens during each stage of 5.2 Stage 1: claim, response content and timing, the application of the RTA Protocol 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.

Main steps to take under Personal Injury Pre- Action Protocol, if claim exits RTA portal.

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5.3 Apply knowledge of the RTA Protocol, and 5.3 Application to a complex scenario outline knowledge of Personal Injury Pre- Action Protocol, to a given situation 6 Understand costs in RTA 6.1 Explain main methods of funding RTA claims 6.1 Before the event insurance; conditional fee cases agreements and success fees; after the event insurance; damages based agreements 6.2 Explain the fixed costs regime under the RTA 6.2 CPR 45 Section III Qualifying conditions; Protocol method of calculation of amount of fixed costs under PI RTA Protocol; success fee calculation and recoverability before and after 1 April 2013, ATE premium recoverability before and after 1 April 2013; allowable disbursements; outline fixed exit costs under CPR 45 Section IIIA 6.3 Explain recoverable costs, disbursements and 6.3 Fixed costs, disbursements and success fees success fees in relation to different types of in relation to: CPR 45.29 where parties issue settlements/judgments in RTA claims costs only proceedings following settlement; CPR 45.21 and 45.22 where Part 8 proceedings issued to approve child settlement; CPR 45.20 or 45.26 where the claimant obtains judgment for more or less than the defendant’s Protocol offer; costs provisions applicable to multi-track-value claims; outline effect of qualified one-way costs shifting on defendant’s recoverability of costs following successful defence 6.4 Apply knowledge of costs to a given situation 6.4 Application to a complex scenario

7 Understand the key elements 7.1 Analyse common terms which may be found 7.1 Common extensions to the policy; persons and underlying principles of in RTA insurance policies permitted to drive; limitations which may be RTA insurance policies imposed on use; the condition of the vehicle; liability in damages; invalid terms; breaches of condition; the duty to satisfy judgments

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7.2 Analyse the doctrines of ‘Utmost Good Faith’ 7.2 The duty of ‘Utmost Good Faith’ and how it and Subrogation in the context of RTA can apply to RTA insurance; the doctrine of Subrogation and how it can apply to RTA insurance 7.3 Explain significance of European 7.3 Reg 3 of the 2002 Regulations: where Communities (Right against Insurers) claimant has a right of action in tort against an Regulations 2002 SI2002/3061 insured defendant; he/she has right of action against the defendant’s insurance company; therefore can issue proceedings against insurer, defendant or both 7.4 Evaluate the situations in which a driver might 7.4 No insurance cover for the vehicle at all; be uninsured 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 7.5 Evaluate the obligation of an RTA insurer to 7.5 Driver is insured - cover effective under s151 pay claims in respect of an uninsured driver. RTA1988; driver is not insured but is driving stolen car which is insured – insurer will provide cover under s151 RTA 1988

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7.6 Evaluate the role and scope of the Motor 7.6 The role of the Motor Insurers’ Bureau; where Insurers’ Bureau (MIB) scheme in relation to driver has no insurance and no policy of RTA claims 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

7.7 Apply key elements and underlying principles 7.7 Application to a complex scenario of RTA insurance policies to a given scenario

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Additional information about the unit

Unit aim(s) The learner will understand the law relating to Road Traffic Accidents (RTAs) 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.

Unit review date 1st April 2015

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st September 2014

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Unit 4

Title The Law Relating to Tripping, Slipping and Occupiers’ Liability Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills The learner will: The learner can: 1 Understand the scope of the 1.1 Define what a highway is 1.1 A highway is a way over which there exists a liability under the Highways public right of passage for all subjects and at Act 1980 all seasons, to pass freely without let or hindrance: ex parte Lewis (1888); ‘Highway’ may include roads, footpaths, pavements, public paths etc

1.2 Evaluate the duty to maintain the highway 1.2 S 41(1) of the Highways Act 1980: definition of Highway Authority. Duty arises in relation to the highway itself and to things which may have become part of the highway: relevant case law (e.g.) Thomas v Warwickshire County Council (2011); duty extends to both surface of highway and structure; relevant case law (e.g.) Burnside v. Emmerson (1968), The Department of Transport, Environment and the Regions v. Mott Macdonald Ltd. (2006); duty does not extend to transient risks and things lying on the surface of the highway: relevant case law (e.g.) Goodes v. East Sussex County Council (2000), Haydon v. Kent (1978) Q.B. 343 (CA), Valentine v. Transport for London (and another) (2010), Ali v. The City of Bradford (2010) Duty in relation to ice and snow: s41(A) HA 1980: “In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway Page 61 of 135

is not endangered by snow or ice.”; relevant case law 2 Understand the test for 2.1 Describe the test posed by Section 41 HA 1980 2.1 s41 HA 1980 provides that the highway breach of the obligation to authority is under a duty to maintain the maintain under the Highways highway; s 58 (1) HA 1980 provides the Act 1980 highway authority may avoid liability by demonstrating that the highway was “not dangerous for traffic”; Mills v. Barnsley MBC (1992) sets out what a Claimant must establish in order to demonstrate breach of s41 duty: the highway was in such a condition that danger from its use might reasonably have been anticipated in the ordinary course of human affairs; the dangerous condition was caused by a failure to maintain; and the injury resulted from that failure. Other relevant case law (e.g.) Meggs v Liverpool (1968), Littler v. Liverpool Corporation (1968)

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2.2 Explain what evidence is required to establish a 2.2 Photographs, measurements, statements breach of duty under section 41 HA 1980 (claimant, witnesses, people with knowledge of condition), medical records, inspection records

2.3 Apply the law relating to maintaining the 2.3 Application of law relating to maintaining the highways to a given situation 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; delay; relevant case law: (e.g.) Day v Suffolk County Council (2007); Rogers v National Assembly of Wales (2004)

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

3 Understand the scope of the 3.1 Analyse the steps required in bringing a claim 3.1 The duty of care required of a statutory liability of a statutory against a statutory undertaker in respect of work undertaker: Brett v Lewisham LBC (1999); use undertaker concerning the done to the highway of the New Roads and Streets Act 1991 to highway support a claim; dealing with cases of concurrent liability

3.2 Apply knowledge of the scope of the liability of a 3.2 Application to a complex scenario statutory undertaker concerning the highway to a given situation

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4 Understand the basis on 4.1 Analyse the duty of supermarket as an occupier 4.1 Potential liability to lawful visitors under the which a claim for a of premises Occupiers’ Liability Act 1957; potential liability supermarket slip or trip will to trespassers under Occupiers’ Liability Act succeed 1984

4.2 Explain the basis for the rule in Ward v Tesco 4.2 Facts of Ward v Tesco Stores Ltd (1976)(CA); (1976) and how it assists the claimant principles of law employed in judgment in Ward v Tesco Stores Ltd: (a) basic principles of liability arising in common law negligence (duty, breach, harm); (b) doctrine of res ipsa loquitur (the thing speaks for itself) and requirements for its use: rule of evidence which transfers burden of proof to the Defendant; facts of accident must give rise to inference (rebuttable presumption) of negligence/mismanagement by the Defendant; facts must be clear and unambiguous: (i) the Defendant had control of the thing that caused the damage and (ii) the accident would not have happened in the ordinary course of things without negligence on the part of the Defendant; Defendant may then attempt to disprove negligence (i.e. rebut the presumption raised)

4.3 Explain what arguments may be run by a 4.3 Arguments that: defendant - 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 - the Claimant was contributorily negligent

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

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5 Understand the key features of 5.1 Explain the statutory provisions 5.1 Occupiers' Liability Act 1957: Duty is owed by the Occupiers’ Liability Acts ‘occupiers’ of premises: s1(2) OLA 1957, (OLA) 1957 and 1984 common law test for occupier: Wheat v Lacon (1966); duty determined by nature of occupation; there may be more than one occupier, (e.g.) Fisher v CHT (1966). The meaning of ‘premises’: s1 (3) OLA 1957; relevant case law (e.g.), Bunker v Charles Brand (1969), Wheeler v Copas (1981). Duty is owed to lawful visitors: express and implied permission to be on land; lawful authority: s2(6) OLA 1957; the limits to permission: s2(2) OLA 1957, relevant case law (e.g.) The Calgarth (1927), Gould v McAuliffe (1941), R v Smith & Jones (1976), Stone v Taffe (1974). Those who do not qualify as visitors under OLA 1957: public and private rights of way, trespassers, persons entering by an access agreement or order: s2 (4) OLA 1957. The content of the occupier’s duty: common duty of care: s2 (2) OLA 1957, relevant case law (e.g.) Ogwo v Taylor (1987). Special groups under OLA 1957: Children: s2(3)(a) OLA 1957; relevant case law (e.g.) Glasgow Corpn v Taylor (1922), Liddle v Yorkshire (North Riding) County Council (1934), Phipps v Rochester Corpn (1955). Common calling: s2(3)(b) OLA 1957; relevant case law: (e.g.) Salmon v Seafarer Restaurants Ltd (1983), Bird v King Line (1970), Roles v Nathan (1963). Discharging duty under the Act: warnings of danger: s2(4)(a) OLA 1957; independent contractors:s2(4)(b) OLA 1957; relevant case law (e.g.) Haseldine v Daw (1941), Woodward v Mayor of Hastings (1945). Section 1 of the Compensation Act 2006; general defences: s2(5) OLA 1957 - willing assumption of risk; s2(3) OLA 1957 - contributory negligence; s2(1) OLA 1957 –

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exclusion of liability by way of contract but note implication of s2 Unfair Contract Terms Act 1977.

Occupiers’ Liability Act 1984: covers some of those unprotected by OLA 1957: trespassers, those entering under access to countryside agreement or order, users of private or public rights of way; duty of care arises in relation to occupiers of premises, subject to conditions in s1(3) OLA 1984. The content and nature of the occupier’s duty to those who qualify under OLA 1984: s1(4) OLA 1984; discharge of duty owed under 1984 (by notice and otherwise): s1 (5) OLA 1984; liability in respect of harm to property: s1(8) OLA1984; child trespassers; the effect of Section 1 of the Compensation Act 2006; limits to OLA 1984 liability: S1(7) OLA 1984. Defences under OLA 1984: warnings: s1(5) OLA 1984; voluntary acceptance of risk: s1(6) OLA 1984; relevant case law: (e.g.) Platt v Liverpool CC (1997), Tomlinson v Congleton BC (2003), Young v Kent County Council (2005), Keown v Coventry NHS Trust (2006), Donoghue v Folkestone Properties Ltd (2003) 5.2 Advise on whether a person is within the scope of 5.2 Analyse and apply Occupiers’ Liability Acts the Acts on the facts of a given case 1957 and 1984, and relevant case law, and advise (on the facts of the case) on whether a person who has suffered harm falls within the scope of the 1957 or 1984 Act

6 Understand the scope of the 6.1 Compare the scope of the application of the 6.1 Analyse the scope of the application of the Occupiers’ Liability Act 1957 Occupiers’ Liability Act 1957 and 1984 Occupiers’ Liability Act 1957 and 1984; identify and 1984 the similarities and differences between the two Acts and distinguish between them and their application by the courts (using relevant case law)

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6.2 Analyse the scope of an occupiers’ duty of care 6.2 Analyse the scope of the occupier’s duty of care under the Occupiers’ Liability Act 1957 and 1984; identify the similarities and differences between the two Acts and distinguish between them; analyse the application of the two Acts by the courts (using relevant case law) when assessing the nature of the duty and whether it has been breached

6.3 Apply knowledge of the Occupiers’ Liability Act 6.3 Application of the Occupiers’ Liability Acts 1957 1957 and 1984 to a given situation and 1984, and relevant case law, to a complex scenario

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Additional information about the unit

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 Occupiers’ Liability Act 1957 and 1984 and the basis on which a claim for a supermarket trip or slip can succeed.

Unit review date 1st April 2015

Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification Name of the organisation submitting the unit Chartered Institute of Legal Executives (CILEx) Availability for use Restricted

Availability for delivery 1st April 2013

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Section 4 - The Practice Units

Unit Number Unit Title Page numbers Unit 5 Corporate Insolvency 70-74 Unit 6 Damages, Settlement and Costs in Personal Injury Cases 75-84 Unit 7 Introductory Considerations for Personal Injury Lawyers 85-94 Unit 8 Personal Insolvency 95-99 Unit 9 Preparations for Personal Injury Trials 100-111 Unit 10 Resolving a Commercial Dispute in England and Wales 112-123 Unit 11 Tactics and Costs in Commercial Litigation 124-135

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Unit 5

Title Corporate Insolvency

Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the key 1.1 Analyse the advantages and disadvantages of 1.1 Media to include: sole trading, partnership, practical, financial and different business media limited liability partnership, private limited fiscal implications in company, public limited company, company choice of business limited by guarantee; implications to include: medium liability, including joint and several liability, unlimited and limited liability, e.g., 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 1.2 Tax definitions, e.g., income tax, corporation different business media 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

1.3 Analyse a given legal situation on choice of 1.3 Analysis of a complex scenario to offer business medium in order to offer practical practical advice and assistance, e.g., taking advice and assistance account of the client’s needs, business types available and potential liability

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2 Understand the liabilities 2.1 Analyse the ‘rescue culture’ 2.1 Aims of insolvency law to protect and balance relating to the management of the interests of competing creditors, deal with different business media 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, e.g., disclosure to each other, declare personal financial benefit, no competition; liabilities, e.g., liability for contracts, debts and legal obligations 2.3 Evaluate the effect of insolvency on a 2.3 PA 1890: effect of unlimited liability; joint and partnership 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 2.4 The importance of board meetings and the and powers both as a board and as requirement for minutes of these meetings; individuals executive and non-executive directors; exercise of powers, e.g., standard of care, i.e., Re City Equitable (1925); s214 IA 1986; s174 CA 2006; fiduciary duties and duties of care and skill; statutory duties, i.e., 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, e.g., Re Duomatic (1969); disqualification: ss2-5 and 11 CDDA 1986; s178 CA 2006 breach of duty liability; s180 CA 2006 consent

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2.5 Explain the potential liabilities of company 2.5 s212 IA 1986: summary remedy against officers delinquent directors; s213: fraudulent trading; s214: wrongful trading”: s216/7 re-use of company name, civil and criminal penalties, permission procedure

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

3 Understand the 3.1 Explain the administrative and disclosure 3.1 Filing requirements, e.g., resolutions, share administration and disclosure requirements of company officers issues, charges, appointment and departure requirements of the company of directors, annual return, accounts; officers responsible; penalties for non-compliance; company searches

3.2 Analyse the key documents and records 3.2 Statutory records, e.g., registers of members, required for the maintenance of registration directors and secretaries; charges; directors’ interests; minute book; accounting records

3.3 Apply an understanding of the administration 3.3 Application of the law to a complex scenario and disclosure requirements of a company to a given situation

4 Understand the process of 4.1 Explain the company’s duties and 4.1 Definitions; duty to creditors, e.g., West corporate insolvency responsibilities if the company is insolvent Mercia (1988); insolvency practitioners

4.2 Explain the purpose of possible corporate 4.2 Definitions; rescue regimes; comparison and insolvency options contrast of company voluntary administration, administrative receivership and receivership arrangements, winding up

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4.3 Explain the process of company voluntary 4.3 CA 2006: schemes of arrangement; company arrangements 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, 4.4 Rescue regime; Enterprise Act 2002, administrative receivership and receivership 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, i.e., “ring-fencing”

4.5 Explain the processes of liquidation and 4.5 Compulsory and voluntary liquidation, winding up 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 4.6 Application of the law to a complex scenario disclosure requirements of a company to a given situation

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Additional information about the unit

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.

Unit review date 1st April 2015

Details of the relationship between the unit and This unit may provide some underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the legal advice standards, specifically:SFJ1B 12: Money and debt legal advice and casework.

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st April 2013

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Unit 6

Title Damages, Settlement and Costs in Personal Injury Cases

Level 4

Credit value 8

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the use of 1.1 Evaluate General Damages 1.1 The need for assessment where precision is General Damages in not possible; the scope of damages for pain personal injury litigation suffering and loss of amenity

1.2 Analyse matters to be considered by the 1.2 The extent of injuries; prognosis of the judge when awarding damages for pain, suffering injuries; the JC Guidelines; and comparable and loss of amenity case law

1.3 Evaluate factors to be considered by the 1.3 Matters which will be considered by the judge: Claimant’s solicitor when claiming damages for pain suffering and loss of amenity - 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 1.4 A core setting out guidelines; provides the injury litigation starting point for assessment; how the JC Guidelines are laid out

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1.5 Apply given JC Guidelines through worked 1.5 Application of the Guidelines concerning minor examples 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 1.6 Application of the approach in Durau v Evans the award of general damages (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 1.7 Application to a complex scenario; minor damages to a given scenario involving minor injuries could include whiplash, cuts and injuries bruises and travel anxiety

2 Understand the use of 2.1 Explain the purpose of Special Damages 2.1 The loss can be itemised with precision Special Damages in personal injury litigation 2.2 Analyse the contents of a basic loss of earnings 2.2 Contents: claim - 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

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2.3 Evaluate other important heads of special 2.3 Accommodation (rule in Roberts v Johnstone damage (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 2.4 The impact of s2(4) Law Reform (Personal other medical care 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 2.5 Applying the rule in Hunt v Severs (1994); gratuitously 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 2.6 Application to a complex scenario Damages to the facts of a given case

3 Understand the application 3.1 Explain the theory underpinning the calculation 3.1 How multiplicands and multipliers can be used of Special Damages for of future loss in the calculation of loss; the role of the Ogden future loss in the context of Tables and their different use in relation to: a Personal injury litigation 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

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

4 Understand the law relating 4.1 Analyse the rules in relation to calculation of 4.1 The rule in Lawrence v Chief Constable of to the application of interest interest on general damages Staffordshire (2000); interest at 2% running on damages in the context of from the date of service of proceedings personal injury litigation 4.2 Analyse the rules in relation to calculation of 4.2 Application of the Jefford v Gee (1970) interest on special damages (past loss) principle; distinguishing between long-term and short term loss

4.3 Apply knowledge of the rules relating to the 4.3 Application to a complex scenario and set of calculation of interest on special and general calculations damages to a given situation

5 Understand the recoupment 5.1 Identify the legislation applying to the 5.1 Social Security (Recovery of Benefits) Act 1997 of benefits in personal recoupment of benefits injury litigation 5.2 Explain the scope of legislation relating to the 5.2 When the Act applies: s1 SS(RB)A 1997; the recoupment of benefits 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 5.4 Application to a complex scenario in personal injury litigation to a given situation

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6 Understand the recoupment 6.1 Identify the legislation applying to the 6.1 Road Traffic Act 1988 and Health and Social of the cost of road traffic recoupment of RTA and other medical treatment Care (Community Health and Standards) Act accidents (RTA) and other costs 2003 medical treatment in personal injury litigation 6.2 Explain the scope of legislation relating to the 6.2 Road Traffic Act 1988 and Health and Social recoupment of RTA and other medical treatment Care (Community Health and Standards) Act costs 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 6.3 Under RTA 1988: to the recoupment of RTA and other medical 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 6.4 Application to a complex scenario RTA and other medical treatment in personal injury litigation to a given situation

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7 Understand final costs 7.1 Explain the concept of costs 7.1 Concept used to assist one party to recoup part orders and how those of their legal fees and expenses from the costs are assessed by the opposing party court 7.2 Analyse the matters which the court may take 7.2 Usual rule that loser pays the winner’s costs; into account when making a costs order 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; CPR qualified one way costs shifting; CPR 3.12-18 costs budgeting.

7.3 Differentiate between the “standard basis” and 7.3 Standard basis: costs must be proportionate “indemnity basis” of assessment of costs 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 7.4 CPR 44: the power that the court has to make made in relation to costs 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

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7.5 Outline the procedure for the detailed 7.5 Drawing up detailed bill; use of costs assessment 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 7.6 Application to a complex scenario those costs are assessed by the court to a given situation

8 Understand the methods 8.1 Evaluate the role that negotiation plays in 8.1 Try and settle case early without going to trial, available for personal injury litigation saving time and costs for the parties and compromising a claim court time; accords with the overriding objective CPR 1 8.2 Explain the function of “without prejudice” 8.2 “Without prejudice” communications can be communications 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

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8.3 Describe how to effect the compromise of a 8.3 Assessing the strengths and weaknesses of a dispute 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 8.4 Form of non-determinative alternative dispute personal injury litigation 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 8.7 Time for acceptance; when accepted, action accepting a Part 36 offer stayed and automatic costs consequences – amount must be paid within 14 days of acceptance

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8.8 Analyse the implication for both parties of 8.8 If not accepted, interest and costs rejecting a Part 36 offer 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 8.9 CPR 36.15: need to specify CRU element of and lump sum payments on Part 36 offers offer; CRU element discounted from calculation when calculating advantage

8.10 Explain the process for obtaining court 8.10 The need for the court’s permission to be approval of the settlement involving a minor 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 8.11 Application to a complex scenario compromising a claim to a given situation

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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 1st April 2015

Details of the relationship between the unit This unit may provide relevant underpinning and relevant national occupational standards knowledge and understanding towards units of (if appropriate) the Legal Advice standards; specifically SFJ1B14: Personal Injury Legal Advice and Casework

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st April 2013

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Unit 7

Title Introductory Considerations for Personal Injury Lawyers

Level 4

Credit value 8

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the key 1.1 Define ‘personal injuries’ 1.1 Limitation Act 1980 definition: includes any features of Personal Injury disease or impairment of a person’s physical or litigation 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, the defendant’s insurer and the medical expert

1.3 Analyse the roles of the key participants in a PI 1.3 The claimant has suffered the personal injury case 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.

The role of the medical expert is to examine the claimant and report upon the injury sustained so that compensation can be evaluated.

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1.4 Evaluate the factors that may impact on the 1.4 The claimant is likely to have suffered physical attitude and behaviour of the different pain and/or mental illness. He or she may have participants in a PI case 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.

The medical expert should be independent of the parties and impartially report to the court. 1.5 Apply knowledge of the key features of personal 1.5 Application to a complex scenario injury litigation a given situation

2 Understand the 2.1 Explain the different roles of the medical 2.1 GPs, consultants, specialist registrars,

professional culture and personnel involved in the litigation process Foundation Year 1 and Foundation Year 2

terminology of medical doctors

experts involved in the

litigation process

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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 2.3 Bones, muscles, joints, tendons, ligaments, skeleton and tissues of the human body nerves, cartilage, organs and systems

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; non-physical injury e.g. PTSD or other psychiatric trauma 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 2.6 Hairline, greenstick, simple, unstable, human body comminuted, impacted, crush

2.7 Outline the effect on the human body of a 2.7 Injury to soft tissue of the spine; cause, onset whiplash injury and type of symptoms, duration and any complications 2.8 Apply knowledge of the culture and terminology 2.8 Application to a complex scenario of medical experts to a given situation 3 Understand how 3.1 Explain what a damages-based agreement is 3.1 Section 45 of Legal Aid, Sentencing and damages-based Punishment of Offenders Act 2012; Section agreements operate in 58AA Courts and Legal Services Act 1990; PI cases 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 3.2 Damages-Based Agreements Regulations 2012 for a damages-based agreement to be (in force from 1 April 2013): Regulation 3 enforceable

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3.3 Explain the detail and purpose of the information 3.3 SRA Code of Conduct Chapter 1; this includes that must be provided by a solicitor to a client information to be given, when costs will be when entering into a damages-based agreement payable, challenging the costs and explaining the meaning and effect of the agreement

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

4 Understand how 4.1 Explain what a conditional fee agreement is 4.1 CFAs are a method of funding litigation, where conditional fee the client does not pay the lawyer’s fee if the agreements (CFA) claim fails. If the claim is successful, the lawyer operate in PI cases will charge an uplift (known as a success fee) in addition to his basic costs; Courts and Legal Services Act 1990. The client remains liable for payment of disbursements incurred e.g. court fees, medical expert fees, counsel's fees

4.2 Explain the legal formalities which must be met 4.2 Certain types of cases cannot be the subject of a for a CFA to be enforceable CFA (s58A Courts and Legal Services Act 1990 as amended by s44 Legal Aid, Sentencing and Punishment of Offenders Act 2012).

CFAs must meet certain conditions (s58(3) and s 58(4) Courts and Legal Services Act 1990).

Further regulation is provided by the Conditional Fee Agreements Order 2013 (SI 2013 / 689).

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.

After 1 April 2013, the success fee is paid by the client. The maximum success fee that can be charged is 100% of the lawyer’s basic costs. (Article 3 CFA Order) However, in personal injury cases, the maximum success fee recovered must not exceed 25% of the

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damages, excluding damages for future care and loss. (Article 5 CFA Order).

A claimant may take out After the Event Insurance to cover their disbursements if the claim is unsuccessful. The premium is not recoverable from the defendant and remains the claimant's liability.

4.4 Explain the detail and purpose of the information 4.4 SRA Code of Conduct Chapter 1 – Client Care; that must be provided by a solicitor to a client in particular, Indicative Behaviour (IB 1.17); this when entering into a CFA 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 4.5 The Claimant has to demonstrate that the CFA is incurred under a CFA from the opponent 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.

After 1 April 2013; basic costs – in personal injury cases the general rule is that the claimant’s basic costs including disbursements will be paid by the defendant if the claim succeeds.

Success fee – the claimant will be responsible for paying the success fee. This is not recoverable from the defendant; Section 44(4) Legal Aid, Sentencing and Punishment of Offenders Act 2012.

A claimant will generally not have to pay the defendant’s costs if the claim fails. This is due to the principle of One Way Qualified Costs Shifting (QOCS). CPR 44.13 – 17.

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4.6 Apply knowledge of conditional fee agreements to 4.6 Application to a complex scenario a given situation

5 Understand how legal 5.1 Explain how Before the Event (BTE) insurance 5.1 Add on policy; types of policy and examples; expenses insurance works checking the policy; client choice; the Insurance works in PI cases Companies (Legal Expenses Insurance) Regulations 1990; reasonable grounds for not relying upon a BTE policy, e.g., Sarwam v Alam (2001)

5.2 Explain how After the Event (ATE) insurance 5.2 Stand-alone policy; S 29 Access to Justice Act works 1999; extent of cover required and what the solicitor must disclose, e.g., Tankard v John Frederick Plastics Ltd (2008)

5.3 Evaluate the likelihood of recovering the premium 5.3 For policies taken out before 1 April 2013: for an ATE policy from the opponent 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 5.4 Application to a complex scenario given situation

6 Understand how 6.1 Analyse the use of Employer’s liability insurance 6.1 The effect of s1 Employer’ Liability (Compulsory compensation for PI Insurance) Act 1969 and in particular: every may be recovered via an employer shall insure against liability for bodily insurer in an employer’s injury or disease arising out of employment liability case

6.2 Explain the claimant’s options in PI cases if the 6.2 The effect of Third Parties (Rights against employer defendant becomes insolvent Insurers) Act 1930; the role of the Employers’ Liability Tracing Office; the application of the

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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; e.g., Post Office v Norwich Union (1967) 6.3 Analyse the limitations on the claimant’s options if 6.3 Limitations include: no rights where company the employer defendant becomes insolvent dissolved, e.g., Bradley v Eagle Star (1989), getting pre-action disclosure, e.g., Burns v Shuttlehurst (1999); getting Part 18 further Information, e.g., 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 6.4 Application to a complex scenario recovered via an insurer to a given situation

7 Understand the right to 7.1 Explain how the insurer may be sued direct in 7.1 The effect of the European Communities (Rights bring a direct action road traffic cases against Insurers) Regulations 2002; the effect of against the insurer in a Reg 3 EC(RI) Regs 2002, including residence, road traffic case cause of accident, place of accident; right to sue the insurer direct

7.2 Apply knowledge of the right to bring a direct 7.2 Application to a complex scenario action against the insurer in a road traffic case to a given situation

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8 Understand the impact 8.1 Explain why limitation is important for PI lawyers 8.1 Limitation Act 1980; actions must be commenced of the doctrine of within definite time-scales; different time scales Limitation of Actions on for different causes of action; primary defence to PI claims a claim that it is Statute-barred; possibility of negligence claim against claimant lawyer

8.2 Explain the important terms used in the relevant 8.2 ‘cause of action’, ‘significant’, ‘knowledge’ legislation relating to the Limitation of Actions

8.3 Explain the ordinary limitation period in personal 8.3 The effect of s11 LA 1980; 3 years from accrual injury claims of the cause of action or date of knowledge, if later

8.4 Explain the latent damage period in personal 8.4 The effect of s11 LA 1980; 3 years from the date injury claims of knowledge, if later; the effect of s14(1) 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 (2010)EWCA 1317

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8.5 Evaluate what steps can be taken to disapply the 8.5 The effect of s 33 LA 1980; being able to apply limitation bar 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, e.g., Cain v Francis (2008); consideration of forensic prejudice, e.g., McDonnell v Walker (2009); and general rule in cases of long delay, e.g., Horton v Sadler (2006)

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

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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 1st April 2015

Details of the relationship between the This unit may provide relevant underpinning unit and relevant national occupational knowledge and understanding towards units of the standards (if appropriate) Legal Advice standards; specifically SFJ1B14: Personal Injury Legal Advice and Casework

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

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

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

Location of the unit within the 15.5 Law and Legal Services subject/sector classification

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

Availability for use Restricted

Availability for delivery 1st April 2013

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Unit 8

Title Personal insolvency Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand undefended debt 1.1 Analyse debt collection practices 1.1 Definition of debt in a personal insolvency claims 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

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1.3 Analyse the processes required to initiate a 1.3 The parties to a claim; required detail of a letter debt claim 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 1.4 Application of the law to a complex scenario given situation

2 Understand enforcement of 2.1 Analyse the processes required for entering 2.1 Examination of deadlines for filing money judgments judgment against a debtor 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 2.2 The County Court Remedies Regulations, money judgments Order To obtain information (Part 71)

2.3 Analyse the process of execution against goods 2.3 Domestic Violence, Crime and Victims Act and third party debt orders 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))

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2.4 Analyse the process of obtaining a charging 2.4 Charging orders, their advantage of pursuing a order and an attachment of earnings order 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 2.5 Application of the law to a complex scenario to a given situation

3 Understand Debt Relief Orders 3.1 Analyse the consequences of a debt relief 3.1 Eligibility for a debt relief order, qualifying debts order 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 3.2 The Insolvency (Amendment) Rules 2009; The order 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 3.3 Application of the law to a complex scenario to a given situation

4 Understand Individual 4.1 Evaluate the nature and advantages and 4.1 Individual Voluntary Arrangement, a voluntary Voluntary Arrangements disadvantages of an Individual Voluntary arrangement between the debtor and creditors; Arrangement (IVA) duration; comparative advantage against bankruptcy

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4.2 Explain the mechanism of how to bring an IVA 4.2 How to apply for an interim order and those into effect 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 4.3 Application of the law to a complex scenario Arrangements to a given situation

5 Understand Bankruptcy Order 5.1 Analyse the consequences of a Bankruptcy 5.1 The impact on the bankrupt’s banking and Bankruptcy Petition Order 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 5.2 The statutory demand (s268 Insolvency Act Order 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 5.4 Application of the law to a complex scenario Bankruptcy Petitions to a given situation

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Additional information about the unit

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

Unit review date 28 Feb 2015

Details of the relationship between the unit and This unit may provide relevant underpinning knowledge relevant national occupational standards (if and understanding towards units of the Legal Advice appropriate) standards; specifically:SFJ1B 11: First line money and debt legal advice and SFJ1B 12: Money and debt legal advice and casework.

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

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Unit 9

Title Preparations for Personal Injury trials

Level 4

Credit value 10

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the procedures 1.1 Explain the general obligations of a claimant 1.1 As set out in PD-PAC; ethos of early exchange which a litigant should and defendant under the Practice Direction on of information and documents, promoting follow before court Pre-Action Conduct (“PD-PDC”) settlement without litigation; must follow PAPs proceedings are issued or general guidelines under section III if no specific protocol compliance where limitation is approaching

1.2 Identify the Pre-Action Protocols (PAP) relevant 1.2 PAP for Personal Injury claims – applies to PI to Personal Injury (PI) claims 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 1.3 Section 3 and Annex A: contents of letter of Pre-Action Protocol for Personal Injury claims claim, list of proposed experts

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Section 4: rehabilitation

Section 5: resolution of issues

1.4 Evaluate, in a given situation, the information 1.4 Assess, in a scenario, which information is required to prepare a letter before claim 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 1.5 Section 2: disclosure Pre-Action Protocol for Personal Injury claims 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 1.6 Application for pre-action disclosure under CPR obtain documents if the defendant fails to 31.16; Section 33 Senior Courts Act 1981; what comply with their pre-action disclosure is desirable, e.g., Black v Sumitomo Corp obligations (2001)

1.7 Identify the sanctions which the court may 1.7 Stay of proceedings/costs/interest sanctions: impose if the parties fail to comply with their pre- Para 4 PD-PAC; also affects costs under CPR action obligations 44

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

2 Understand the use of 2.1 Evaluate the difference between a witness of 2.1 Witness of fact is someone with first-hand witnesses in PI cases fact and an expert witness 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

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causation

Only experts are permitted to give opinion evidence

2.2 Explain the requirements for statements of 2.2 Usually at outset of case, lawyer takes initial witnesses of fact 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 2.4 CPR 35: no expert evidence permitted without experts 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

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2.6 Compare the roles of a single expert, a joint 2.6 Court may allow: expert and separate experts - 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 2.7 Where case involves expert issues, need to witness obtain preliminary view at outset; identification of experts e.g., directories, firm approved list, recommendation; obtain CVs, details of experience, availability

2.8 Analyse the steps taken to prepare expert 2.8 Preparation of letter of instruction; report must evidence where the expert is not a joint expert 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

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2.9 Analyse the steps taken to prepare expert 2.9 Parties must agree identity of expert; evidence where the expert is a joint 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 2.10 Opponent could question credibility on an expert’s evidence 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 (e.g., 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 2.11 Application to a complex scenario given situation

3 Understand how to 3.1 Explain the procedure for issuing and serving 3.1 Procedure for claims which do not fall within the commence and serve civil a claim other than a claim which is low value protocol(s) for low value claims; documents and proceedings 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 of claim form or other documents

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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 3.3 Rules on contents of Particulars of Claim of Claim for a given dispute 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 4.1 Explain the options available to the defendant 4.1 CPR 9 Admissions, serving defence or defendant can respond to upon receipt of a claim form acknowledging service; requesting extension of proceedings 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 4.2 Knowledge of deemed date of service (as acknowledge service and/or serve a defence above); CPR 10.3 & 15.4; calculating actual dates based on scenario

4.3 Analyse the range of responses that can be 4.3 CPR 16.5 & PD16; knowledge of range of made to a claim 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 e.g., 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

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currently party to the proceedings; usually claims for contributions/indemnities

4.6 Explain the procedures for bringing a 4.6 CPR 20.4; CPR 20.6 – contribution notice; CPR counterclaim and for bringing additional claims 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 4.7 Default judgment provisions apply; must serve receipt of a defence and/or counterclaim 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 4.8 Application to a complex scenario respond to a given situation

5 Understand the procedure 5.1 Explain what happens if a defendant fails to 5.1 Claimant can request default judgment.; where a defendant admits acknowledge service or to serve a defence on judgment will be for damages to be assessed by liability or fails to respond to time the court proceedings 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

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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 5.4 Where default judgment has been entered: might set aside a judgment 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 5.5 Application to a complex scenario liability or fails to respond to proceedings to a given situation

6 Understand the procedure 6.1 Evaluate the grounds on which an order for 6.1 The CPR 25.7 test: Admission, obtained relating to interim payments interim payment may be made judgment; “Would obtain...substantial sum” 6.2 Describe the limitations on the scope of the 6.2 Reasonable proportion of damages (CPR interim payment procedure 25.7(4); Contributory negligence and set-off

(CPR 25.7(5) 6.3 Describe the timetable prescribed under the 6.3 Request to be made direct to defendant; notice interim payment procedure and what evidence is of hearing and evidence in support 14 days in required 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

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test is met; note that the claimant does not have to show need, e.g., 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 6.4 Court not told about the existence of an interim interim payment will not be prejudiced at the trial 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 6.5 Application to a complex scenario payments to a given situation

7 Understand how the court 7.1 Describe the overriding objective 7.1 Overriding objective (CPR 1); courts to manage manages cases cases justly, dealing with cases proportionately, saving time and costs; encouragement to settle/use ADR alongside litigation process, enforcement of compliance with rules, practice directions and orders

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 Cost Management Order CPR 3.12-18

7.3 Analyse the criteria used by the court to decide 7.3 CPR 26.6-26.8; values/features of small claims an appropriate track for an action 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 7.4 Completion of directions questionnaire including to a given situation information in relation to witnesses, experts, trial length, possible interim applications, costs

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7.5 Explain the directions which a court commonly 7.5 CPR 28.3 and PD 28 section 3 gives in a fast track PI case.

7.6 Explain what may happen if a party is unable to 7.6 Parties can agree extensions of time, but there comply with the court’s directions 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 e.g., unless orders, costs orders; range of sanctions described under CPR3, relief from sanctions

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

8 Understand the rules 8.1 Analyse the criteria for standard disclosure 8.1 Standard disclosure obligations in CPR 31.6; relating to disclosure and parties’ duty to search for documents falling inspection of documents 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, e.g., requesting copies, attending inspection appointment

8.3 Explain the basis upon which a party may claim 8.3 Rules on legal advice and litigation privilege a right to withhold documents from inspection

8.4 Analyse the options available to a party where 8.4 Specific disclosure in CPR 31.12 where the the disclosure process does not produce the opponent has failed to comply with disclosure documents required or expected 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 8.5 Application to a complex scenario documents to a given situation

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9 Understand what is required 9.1 Analyse pre-trial preparation requirements 9.1 Preparing trial bundles; booking and briefing to prepare for and attend the Counsel; holding pre-trial conference with trial 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 e.g., IT, video

9.3 Explain how a lawyer can compel a witness to 9.3 CPR 34; service of witness summons N20 and attend trial 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 9.5 Skeleton arguments, case summaries, lists of by the court in advance of the trial issues

9.6 Analyse what happens in court on the day of the 9.6 Overview of trial procedure – opening trial 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

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Additional information about the unit

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.

Unit review date 1st April 2015

Details of the relationship between the unit This unit may provide relevant underpinning and relevant national occupational standards knowledge and understanding towards units of the (if appropriate) Legal Advice standards; specifically SFJ1B14: Personal Injury Legal Advice and Casework

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st April 2013

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Unit 10

Title Resolving a Commercial Dispute in England and Wales

Level 4

Credit value 10

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the context of 1.1 Distinguish between the civil and criminal 1.1 The purpose of the case or action (to commercial litigation within jurisdiction in England and Wales compensate rather than to punish); who starts the English and Welsh the case or action (individual whose rights system 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,

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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 1.3 Civil court procedure governed by the CPR; Procedure Rules (“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 1.4 Meaning of “ADR” – eg, alternatives to court Resolution (“ADR”) 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 2.1 Explain the general obligations of a claimant 2.1 As set out in PD-PAC; ethos of early which a litigant should follow and defendant under the Practice Direction on exchange of information and documents, before court proceedings are Pre-Action Conduct (“PD-PDC”) promoting settlement without litigation; must issued follow PAPs or general guidelines under section III if no specific protocol

2.2 Analyse the specific obligations of a claimant 2.2 Need to comply with Section III PD-PAC – no and defendant in relation to a claim for breach specific protocol for contract claims; and of contract (other than a simple debt claim) 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

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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 2.3 PAP Professional Negligence claims: and defendant in relation to a claim for professional negligence 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 2.4 Claimant needs to provide information as to: letter before claim - 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 2.5 Possible sanctions: stay of impose if the parties fail to comply with their proceedings/costs/interest sanctions - Para 4 pre-action obligations PD-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

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

3 Understand how to 3.1 Evaluate the roles of the County and High 3.1 Difference between County Court and High commence and serve civil Courts Court; vast majority of commercial cases in proceedings 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 3.2 Defendant in England & Wales; documents a claim where the defendant is within the and fee required to issue claim, service by jurisdiction 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 3.3 Same documents required as above but 6 a claim where the defendant is outside of the month validity period for claim form; deemed jurisdiction 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

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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 3.5 Rules on contents of Particulars of Claim 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 3.6 Application to a complex scenario serving proceedings to a given situation

4 Understand how the 4.1 Explain the options available to the defendant 4.1 CPR 9 Admissions, serving defence or defendant can respond to upon receipt of a claim form acknowledging service; disputing the court’s proceedings 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 above); CPR 10.3 & 15.4; longer time limits avoid default judgment where defendant is overseas – CPR 6.35, 6.37 and PD6B; calculating actual dates based on scenario

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4.3 Analyse the range of responses that can be 4.3 CPR 16.5 & PD16; knowledge of range of made to a claim 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 4.4 What constitutes a counter-claim; what that can be presented 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 4.5 Claims by defendant against co-defendants; in dispute proceedings claims by defendant against persons not currently party to the proceedings; usually claims for contributions/indemnities

4.6 Explain the procedures for bringing a 4.6 CPR 20.4. CPR 20.6 – contribution notice; counterclaim and for bringing additional claims 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 4.7 Default judgment provisions apply; must serve receipt of a defence and/or counterclaim 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 4.8 Application to a complex scenario; calculating defending claims to a given situation deadlines for responding to claim, how to respond; considering Particulars of Claim and responding to each paragraph

5 Understand how the court 5.1 Analyse the criteria used by the court to decide 5.1 CPR 26.6-26.8; overview of values/features of manages cases an appropriate track for an action 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

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higher than small claims limit (£10,000)

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

5.3 Explain the procedure which the court is likely 5.3 CPR 29; case management conferences to adopt in order to manage a multi-track case. (“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 5.4 Range of sanctions described under CPR3; apply if a party fails to comply with a case unless orders management direction

6 Understand the rules relating 6.1 Explain how a lawyer should go about 6.1 Commercial cases commonly document heavy; to documentary evidence obtaining and organising a client’s documents 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

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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 6.3 Definition of document CPR 31.4 includes standard disclosure 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 6.5 Rules on legal advice and litigation privilege claim a right to withhold documents from inspection

6.6 Apply the criteria for disclosure to the 6.6 Application of standard disclosure to scenario – classification of documents in a given situation 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 to witness evidence witnesses of fact witnesses 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 7.2 Only experts may give opinion evidence: CPR will permit expert evidence 35: no expert evidence permitted without the court’s permission – obtained at CMC: court

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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 7.4 Where case involves expert issues, need to and selecting an expert witness 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 7.5 Identifying which witnesses of fact required and situation 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 8.1 Analyse pre-trial preparation requirements 8.1 Preparing trial bundles; booking and briefing to prepare for and attend the Counsel; holding pre-trial conference with trial 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 8.2 Completion of pre-trial checklist – details of any situation. special arrangements necessary eg, IT, video

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8.3 Explain how a lawyer can compel a witness to 8.3 CPR 34: service of witness summons N20 plus attend trial 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 8.5 Skeleton arguments, case summaries, lists of required by the court in advance of the trial issues

8.6 Analyse what happens in court on the day of 8.6 Overview of trial procedure – opening the trial 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 8.7 Junior lawyers take notes; daily transcripts or reviewing evidence given at trial real-time transcripts

9 Understand orders and 9.1 Analyse the contents of a judgment or order 9.1 Requirements under CPR 40.2; when judgment judgments 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

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9.3 Explain when interest accrues on a judgment 9.3 When interest is payable and rates: or order for the payment of money 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 9.4 What happens if other party fails to make a successful party 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 9.5 CPR52 and PD52; need for permission to unsuccessful party may appeal an order or appeal and grounds for permission; time-limits judgment 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, 9.6 Application to a complex scenario interest, enforcement and appeals to a given situation

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Additional information about the unit

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.

Unit review date 28 Feb 2015

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

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

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Unit 11

Title Tactics and costs in Commercial Litigation

Level 4

Credit value 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can:

1 Understand the 1.1 Explain when it is necessary and appropriate to 1.1 An issue has arisen between the parties not procedures for making an make an interim application to the court capable of resolution through discussion e.g., interim application to the parties are not able to comply with court directions, court applicant needs more time, applying for sanction against opponent who has missed deadline, applying for a costs capping order (CPR 3.20), applying for relief from sanction, opponent has failed to respond to Part 18 request; understanding link between court's case management powers and power to make orders of its own initiative and to sanction misconduct (CPR 3) and compliance with overriding objective (CPR 1); Other procedural matters, e.g. amendment of name of party, substitution of party, addition of party. CPR 17 and 19

1.2 Analyse the range of possible interim applications 1.2 Understanding distinction between disclosure and available in relation to disclosure and inspection inspection; understanding of privilege; 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;

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1.3 Evaluate the basis upon which the court may 1.3 Meaning of security for costs; conditions to be order a party to provide security for costs satisfied and procedural requirements under CPR 25.12-13; court's discretion e.g. what factors will be considered; terms of the order and its effect

1.4 Explain the procedure for making an interim 1.4 Procedural requirements under CPR23 and application to the court PD23A e.g. as to content of application notice and service (CPR 23.6 and 23.7); need for evidence in support either on N244 form or separate witness statement; need for statement of truth (CPR 22); when appropriate to apply without notice; applications which may be dealt with without a hearing(CPR 23.8); options available to set aside

1.5 Complete an application notice for a simple 1.5 Completion of N244 for simple application, e.g., interim application to the court for unless order because opponent has failed to comply with court directions

1.6 Explain the range of costs orders which the court 1.6 Understanding court's discretion in relation to could make on an interim application costs CPR 44.2 and 44.6; understanding types of costs orders and what they mean PD44 4.2 e.g. Claimant’s/Defendant’s costs in any event, costs in the case, Claimant’s/Defendant’s costs in the case, costs reserved, no order as to costs; requirement to notify client (CPR 44.8)

Understanding that If interim applications are made which, reasonably, were not included in a costs budget for a multi-track matter, the costs of such interim applications shall be treated as additional to the approved budgets (PD2E 2.9)

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1.7 Explain the procedure for the summary 1.7 Understanding procedure for summary assessments of costs assessment of costs PD44 (rule 9) and duties of the parties and representatives (rule 9.5) e.g. requirements for completion and service of statement of costs; basis of assessment and factors to be taken into account (CPR 44.4); meaning of guideline hourly rates; effect of non-compliance PD44 (rule 9.6) (failure to serve statements of costs) and of misconduct PD44 (rule 44.11)

1.8 Review and/or correct a sample costs schedule 1.8 Identifying relevant fee-earners and their rates, for summary assessment summarising hours spent by each fee-earner on attendances on client, attendances on opponent, attendances on others, work done on negotiations, site inspection; 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 if applicable (if both parties are VAT registered VAT not to be claimed)

1.9 Apply knowledge of interim application 1.9 Application to a complex scenario procedures to a given situation

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2 Understand the 2.1 Explain the procedure for obtaining judgment in 2.1 Understanding what is meant by judgment in circumstances in which it is default default e.g. judgment for fixed sum or judgment possible to conclude an with damages to be assessed followed by action before trial directions for assessment of quantum; understanding circumstances when judgment in default might be ordered CPR 12; understanding conditions to be satisfied; understanding procedural requirements for obtaining judgment by request, including claiming interest. The non-application of CPR 12 to claims commenced under CPR 8

2.2 Evaluate which interim applications could result 2.2 CPR 3: application to strike out statement of in termination of the proceedings before trial case grounds for application e.g. that it discloses no reasonable grounds for bringing/defending claim; that it is an abuse of process or there has been a failure to comply with a rule, PD or court order

CPR 24: Meaning of Summary Judgment; grounds for application; link with CPR 3; procedural requirements; court's powers if matter proceeds

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

2.3 Explain how to make a valid Part 36 offer 2.3 Requirements for form and content of valid Part 36 offer

2.4 Analyse the implications for both parties of 2.4 Time period for acceptance and effect of CPR accepting a Part 36 offer 36.9.(2); when and how offer is accepted; effect of acceptance CPR 36.11 - action stayed; effect of automatic costs consequences; payment of amount due

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2.5 Analyse the implications for both parties of 2.5 If not accepted, understanding interest and rejecting a Part 36 offer costs consequences at trial (CPR 36.14) for defendant where claimant makes offer which is rejected e.g. 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

Understanding implications for claimant where defendant makes offer which is rejected and claimant fails to obtain a judgment more advantageous than defendant’s Part 36 offer

Understanding of court's discretion and factors to be taken into account

2.6 Explain the function of “without prejudice” 2.6 Understanding link with Part 36.13 and status communications of Part 36 offers; “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

2.7 Analyse the types of terms which might be 2.7 Amount(s)/instalments to be paid, time when to included in a settlement offer involving the be paid, to whom it is to be paid; precise payment of money mechanism for payment e.g., cleared funds, bank transfer

Other conditions to be imposed by each party e.g., goods or documents to be delivered,

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confidentiality

What happens if payment is not paid e.g., do parties revert to proceedings; if instalments, does whole amount become immediately payable: interest can the receiving party apply for judgment in event of non-payment

What happens when payment is made e.g., 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 2.9 Application to a complex scenario to a given situation

3 Understand the different types 3.1 Explain what mediation is in a civil litigation 3.1 Form of non-determinative ADR; mediation used of alternative dispute context in other contexts (workplace, ACAS, family) – resolution which are methods used in these contexts are different to commonly used in England “commercial” mediation and Wales 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;

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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 3.3 Parties agree to mediate; joint instruction of commercial mediation mediator; entry into mediation agreement; position statements exchanged; 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. Negotiations likely to continue between the parties post mediation

3.4 Analyse the criteria for selecting an appropriate 3.4 Direct instruction; use of mediation organisation mediator e.g., 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 3.5 Mediation agreement: agreement to commercial mediation confidentiality/without prejudice provisions,

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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, 3.6 Overview of the other main alternatives to negotiation, expert determination and early litigating: determinative (arbitration and expert neutral evaluation in comparison with mediation 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 3.7 Such clauses increasingly common in clause in a commercial contract commercial contracts; where parties in dispute are parties to a contract, need to check contract; ADR clause may oblige parties to use, e.g., mediation before litigating; arbitration clause may oblige parties to use arbitration instead of litigating. If court proceedings are issued where there is an arbitration clause, apply to court to stay proceedings

3.8 Explain the possible costs consequences of 3.8 Costs may be disallowed at trial even if the party refusing to attempt ADR wins where party has unreasonably refused to attempt ADR e.g., Halsey v Milton Keynes (2004); CPR 44.4

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

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4 Understand final costs orders 4.1 Analyse the matters which the court may take 4.1. Understanding distinction between deciding and how those costs are into account when making a costs order whether to make a costs order and the amount assessed by the court of the costs to be ordered; usual rule is that loser pays the winner’s costs; understanding that court has discretion to make a different costs order; nature of the court's discretion - CPR44.2; other factors to be taken into account e.g. whether winner has succeeded on all issues, offers other than Part 36, conduct; understanding what conduct includes CPR 44.2; types of costs order which might be made within the court's discretion (CPR 44.2.6.) e.g. costs from or until a certain date, costs relating to particular steps in the proceedings; understanding court's power to order a reasonable sum to be paid on account of costs (CPR 44.2.8)

Understanding that a final costs order may be subject to summary or detailed assessment by the court CPR44.6; time for complying with a costs order

Understanding link between acceptance of Part 36 offer and CPR44.9 - final costs order deemed to have been made on standard basis

Understanding effect and impact of costs management orders on costs recovery CPR 3.15 e.g. importance of approved budgets and limit on costs recovery with reference to budget

CPR 44.4 factors to be taken into account when deciding amount of costs; knowledge of court's powers in relation to misconduct CPR 44.11

Understanding impact on costs recovery of failure to comply with requirements of CPR 3.14 - Mitchell v NGN Ltd (2013)

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4.2 Differentiate between the “standard basis” and 4.2 CPR 44.3 - standard basis: costs must be “indemnity basis” of assessment of costs proportionately and reasonably incurred or proportionate and reasonable in amount; any doubt resolved in favour of paying party; meaning of proportionate; any costs which are disproportionate will not be allowed; costs can be necessary but disproportionate

Understanding impact of CPR3.18 on assessing costs on standard basis where costs management order made

Indemnity costs: court will decide whether costs were unreasonably incurred or unreasonable in amount – any doubt resolved in favour of the receiving party

Understanding that in neither case will the court allow costs which have been unreasonably incurred or unreasonable in amount

4.3 Explain the procedure for the detailed 4.3 Knowledge of detailed assessment procedure assessment of costs including serving informal schedule of costs before serving Notice of Commencement; drawing up detailed bill; use of costs draftsman; format of bill; requirements for service of notice of commencement of detailed assessment; time for commencement; service of points of dispute by paying party; replies to points of dispute; request to court to commence detailed assessment proceedings; lodging case files at court

Understanding effect of non-compliance with procedural requirements - default provisions of CPR 47 e.g. as to delay in commencing detailed assessment, consequences of not serving points of dispute (application for a

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default costs certificate)

Understanding court's powers and procedure under CPR 47.15 to provisionally assess costs without a hearing for costs less than £75,000; 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 4.4 Application to a complex scenario situation

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Additional information about the unit

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.

Unit review date 1st April 2015

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

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

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

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

Location of the unit within the subject/sector 15.5 Law and Legal Services classification

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

Availability for use Restricted

Availability for delivery 1st April 2013

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