QUESTION ONE A
The first procedure involves meeting up with the claimant for the first interview. In the first interview, the paralegal will ensure that the claimant Mrs. Susan Richards is comfortable and can recount the matters leading to the claim instituted against the defendant. The claimant must give me the (paralegal) an account of all the facts, including the contract they made with Crazy Camping Limited for a holiday in France. The claimant must also explain in detail how the defendant breached the agreement between them. The fact pattern provides that the defendant breached the contract and caused disappointment and distress to the claimant.
After meeting up with Mrs. Susan Richards, the first thing is to ascertain whether the current claim corresponds with the limitations clause. The limitations clause provides that claims under contract must be filed before the lapse of six years after the breach of arrangement occurred. For torts, the limitation clause provides that claims must be filed within six years after the resulting damage has occurred. The limitation clause in the Limitation Act of 1980 provides that claims falling under personal injury must be filed within three years after they arose. These timelines are listed by the Limitation Act of 1980. The Civil procedure Rules also limit timelines, including when parties should serve and issue claims to opposing parties, the timeframe for filing a defense, and pre-trial direction concerning the claim. Mrs. Susan Richards must provide me (paralegal) with information regarding when the defendant breached her contract. This ensures that the institution of the suit is not time-barred hence restricted by the Statute of Limitations.
After ascertaining that the Statute of Limitations does not restrict the claim, I will discuss the following issue with Mrs. Richards on viability. Viability is a critical issue that must be adequately addressed at the beginning of instituting the claim. When talking about viability with the claimant, we will first address the defendant Crazy Camping Limited’s solvency. This will assist us in determining whether he is in a position to pay the costs resulting from the suit if the judge rules in our favor. It is impossible to enforce a judgment against a defendant who is bankrupt or under liquidation.
The other thing that we need to discuss with Mrs. Susan Richards is the defendant is located. If Mrs. Richards is unable to recall the whereabouts of the defendant company, we might seek the help of an inquiry agent. This will significantly help us in serving them the claims and other documents regarding the claim.
The third thing I will discuss with the claimant is the claim of breach of contract against Crazy Camping limited. Mrs. Susan Richards, like all other claimants, believes that she has a perfect claim against the defendant company. However, each case is different from the other, and the claim needs to be examined before proceeding to the next step. As the paralegal, I must inform the claimant that we must balance the merit of her case to the overall costs we will incur in pursuing the claim successfully. Cost is an important aspect that needs to be discussed before proceeding with the client.
Additionally, I must inform the client of possible outcomes of the claim. One of the possible outcomes is to either get a ruling in her favor or favor of the defendant. Mrs. Richards must be aware that earning is a ruling in her favor is one thing, and the other tricky thing is executing the judgment against the defendant.
The fourth thing I will discuss with Mrs. Susan Richards is the burden of proof in her claim.
The burden of proof in civil cases against Crazy Camping Limited must be proven on two grounds. The first ground is the legal burden where she must provide evidence that there exists a valid contract between her and the defendant and further that the defendant breached the contract. The second ground is the balance of probabilities, where the judge will judge the case by weighing the evidence provided by the two parties in the claim.
QUESTION ONE B
The relationship between an advocate and a client is a fiduciary relationship where the client trusts the advocate concerning the case. In the given case scenario from the fact pattern, Mrs. Richards has no money to fund her case. One of the paramount concerns for every litigation case is whether the client can afford or can pay the resulting legal fees. Additionally, other than the legal fees, the client may be required to pay costs orders made by the court at the end of the case. Mrs. Richard’s case against Crazy Camping Holidays Ltd arising from breach of contract is a small claims matter.
There are two options of funding in legal claims
- The first category is the fee-paying client.
A fee-paying client takes up his legal costs and settles them by himself. A fee-paying client is consequently ineligible for public funding.
- The second category is the publicly funded client.
Public funding comprises the legal aid given to clients in their claims. A client must be informed about the legal assistance by the solicitor during the first meetings.
Legal aid covers the following scope.
Welfare Benefit Appeals, debt, housing employment, private family law, consumer and general contract law, and clinical negligence cases. Legal aid, however, does not cover the following areas, small claims of less than £10,000. The eligibility test for legal support requires that the client meet the financial tests necessary to qualify for legal aid. The second requirement is the merits of the case. Mrs. Richard is therefore ineligible for public funding as her case falls in the small claims matters.
QUESTION 2 A
In this case, the claim between the claimant and the defendant is one dealing a claim of money for the loss suffered by the claimant. The claimant made a booking with Crazy Camping Limited on behalf of her family. They were, however, distressed and disappointed by the defendant as he breached the contract with the plaintiff. The following are the documents that the parties should prepare before the commencement of the claim.
The claim form
The claim form is made by or on behalf of the claimant by a solicitor, and it is made in triplicate form. One of the copies is served upon the defendant, another copy is served to the court, and the plaintiff retains the remaining copy. The claim form consists of particulars such as the names of the court proceedings that will kick off. On this part, the claimant must provide a clear and concise statement of facts that she wishes to rely upon in the case. The claimant must also provide precise details of any interests he or she has a claim to in the case. Specific information regarding the interests sought must be provided. This includes a concise provision of whether the damages sought are exemplary, provisional, or aggravated.
Secondly, the full names and addresses of the parties to the claim must be listed. Thirdly, the claim form must also include the name and address of the solicitor acting for the claimant. The claim form also indicates the amount in issue. It sets out the specific characteristics of the current claim. It also includes an executed statement of truth that the contents laid down in the claim form are actual. It must also include fees and costs claimed by the plaintiff. A report of truth verifies that the information provided by the party is believed to be accurate. Consequently, documents containing a statement of fact may be adduced in court as evidence.
Thirdly the court fees are required to depend on the value of the claim in issue. The higher the declaration sought by the plaintiff, the higher the court fees.
Once the defendant receives the claim form consisting of the particulars of the claim, a statement of truth illustrating the contents of the claim is true, and the respective court fees, the defendant may pay the monies listed in the claim by the claimant. He may admit the contents wholly or partially and resort to paying the share in installments. He may file an acknowledgment of service or file a defense counterclaiming the contents in the claimant’s claim. These are the respective documents filed by both parties before the proceedings begin.
QUESTION TWO B
After the claims Crazy Camping Holidays Limited service, the defendant has 14 days to respond. The following response options are available to the defendant. First, the company may accept the claim and further pay for it. Secondly, the defendant can admit the contents of the claim, including the claim itself. Thirdly, the defendant’s company has an option to reveal part of the claim. Fourth, after it has been duly served with the lawsuit, the defendant can in turn file to the court an acknowledgment of service. Denying the claim is also one of the options available for the defendant. The defendant may choose to file a counterclaim after admitting the claim. The defendant may also choose to do nothing concerning the claims served upon it.
QUESTION TWO C
A defendant has 14 days from the service date to respond to the claim served upon him or her. If the defendant has not replied through the available options such as accepting the claim, admitting the claim and filing a counterclaim, the claimant may apply to the court to enter judgment in default.
Judgment in default
A claimant may institute a judgment to be entered in default where the defendant has ignored the claim served upon him or her. The claimant has an option to petition the court for a summary judgment where the defendant has served a weak defense or has not filed an absolute defense to the claims against him. In the case of the decision to be entered in default, the claimant prepares a document known as a form for the request for entry of judgment. It constitutes the form initially sent to the claimant informing the claimant that the court has duly served the respective defendant. This form acts as proof of service and evidence that the defendant ignored it despite receiving the claim. The document also includes the date upon which the court did the service to the defendant and the time frame required the defendant to respond to the lawsuit. The court then enters judgment in default in favor of the claimant.
Summary Judgment in instances where the defendant has filed a weak defense
Some defendants may file weak defenses or no factual defenses to delay their time to settle debts. These defenses are entered to avoid the judgment entered in default from being issued against the defendant. Suppose a defendant files a defense and acknowledgment of service, which the claimant has reasonable grounds to believe weak and unsatisfactory. In that case, the claimant may petition the court to enter a summary judgment.
QUESTION 3 A
The case between Mrs. Susan Richards and Crazy Camping Holidays limited is a small claims Track. Small claims track deals with claims not exceeding £10000 or personal injury claims not exceeding £1000. Matters falling under this category of small claims track are dealt with by the county court. The District Judge presides over the case in the county court, and arbitration is mainly applied to settle the disputes. The judge in these claims has no power to award costs to any party. The parties that are the defendant and the claimant bear his costs arising from the proceedings. However, a judge may order a party to a suit to pay costs where it is proven that the party wasted the court’s time by behaving unreasonably during the trial or brought a claim that lacked merit.
In a small claims track, the parties may be represented by qualified paralegals. The judge allocates the claim a track after he is sure that it has satisfied the necessities under the small claims track. A small claim track is mainly informal compared to ordinary court proceedings. In these claims, the parties are given a chance to resolve their issues arbitrarily and arrive at mutually beneficial understandings.
After the judge has categorized the claim as a small track claim, the judge may consequently order an unnecessary hearing. The parties must be informed about the judge’s decision through a Notice of Allocation. The parties must reply whether they wish to proceed with or without hearing as proposed by the judge. If both parties, the claimant and the defendant, agree to proceed without a hearing, the claim is subsequently dealt with on paper. If one of the parties opposes, the judge fixes a hearing date and notifies all the parties to the lawsuit. The rationale behind this rule is that each party has a right to a fair hearing, including the right to be heard.
The fact pattern indicates that the defendant breached the contract with Mrs. Susan Richards. The defendant might have hi defense explaining why they violated the agreement. Some of the shields may include that they encountered factors that were beyond their control. This means that Crazy Camping Holidays, the defendant, would prefer to proceed to a hearing to defend the claim. Therefore, the parties Mrs. Susan Richards and Crazy Camping must file and serve to the opposing party the documents they wish to rely on in the hearing within 14 days before the hearing date. The parties must also serve each other with witness statements they seek to rely on in the hearing. In the preliminary hearing, the court will strike out a defense that lacks merit and is unsatisfactory. After that, the judge will issue a Notice of the hearing date and give exceptional directions to the parties in the claim.
QUESTION 3 B
If the claim between Mrs. Susan Richards and Crazy Camping Holidays Limited was a case worth £20, 000 it would fall under the Fast Track Category. Fast Track deals with claims that are above £ 10 000 but below £25 000. Fast Track matters are dealt with in the Country Court and presided over by the presiding judge. Therefore, the county court has jurisdiction to determine such claims unless the claims consist of significant complexities or are based on public interest. The High Court has jurisdiction to hear and determine Fast Track claims of significant complexities based on public interest. Unlike in small claims, the court has the jurisdiction to set costs in Fast Track Claims.
Once the court is satisfied that Mrs. Susan Richards’ claim against Crazy Camping Holidays Limited falls under the Fast Track claims category, the court issues the Notice of Allocation. It serves it upon all parties to the claim. The Notice of Allocation comprises directions on the documents to prepare and serve on the opposing parties in a suit. This ensures that the parties disclose the evidence the other party is relying on in the claim. Disclosure ensures that the opposing parties prepare defenses on the evidence provided, and it does not catch them by surprise once a party tables evidence against it in court.
The listing questionnaire accompanies the Notice of Allocation. The parties must return the listing questionnaire within 28 days after service. The listing questionnaire consists of whether the parties have complied with the directions issued by the court and whether the parties need any further recommendations concerning the claim; it also asks if the parties seek permission to provide evidence orally at the hearing. It enquires about the number of witnesses who will not be available for the hearing and enquires about their respective addresses. The questionnaire seeks to enquire whether the parties will be represented by a solicitor or a counsel and the duration the trial is intended to last.
QUESTION 3 C
Once the court is satisfied, the case between Mrs. Susan Richards and Crazy Camping Holidays Limited is a fast track claim. It has jurisdiction to hear and determine the matter, and it produces a Notice of Allocation accompanied by the Listing Questionnaire. All parties must return the questionnaire within 28 days after it has been issued and served upon the parties.
The following is the procedure applied in the disclosure and inspection of documents.
Both parties in the claim disclose civil litigation. Each party provides documents it wishes to rely on in the hearing to the opposing party. Disclosure helps in saving the courts time and assists the parties in preparing appropriate defenses in their cases. Each party must disclose any documents in his possession and control and are relevant to the claim. These documents include contracts, receipts, bills, invoices, and letters.
Under disclosure of documents, each party must provide the other party with documents that the other party has no control of. Parties must also disclose those documents in their possession and power that they wish not to share with the opposing side. These documents are referred to as qualified documents as they contain information that is critical to the case hence qualified. Parties to a claim must also disclose essential records that they might have relied on that are no longer in their possession or control.
On the other hand, an inspection of documents requires each party to exercise its right to inspect documents that the opposing party has listed. Parties must make copies and share them with opposing counsels so that the papers are thoroughly reviewed.
Disclosure and inspection enable the parties to determine which documents are relevant for the claim and which should not be relied upon. The bundles are classified, numbered, and listed as “agreed bundles.”
QUESTION 3 D
A pre-trial bundle consists of documents that parties seek to rely on in court. The pre-trial bundle occurs where parties disclose documents to opposing parties allowing them to adequately prepare defenses. After the disclosure of the records has taken place, the parties inspect the documents to come up with the “agreed bundles,” which will be relied upon in trial. The pre-trial bundle should be made immediately after the parties have disclosed and inspected the provided documents. This should be made 22 weeks after the court produces the Notice of Allocation.
QUESTION 3 E
ATTENDANCE NOTE
Name: Mrs. Susan Richards
Address:
Telephone:
Matter: damages for breach of contract
Date:
Fee earner reference
Time: two hours
Funding: It is advisable for you, Mrs. Susan Richards should seek legal aid to cater for solicitor’s fees and any other costs that may arise from the claim.
Key facts: The claimant is a customer who requested the services of the defendant for their vacation. The defendant Crazy Camping breached its contract with the defendant. The defendant seeks damages for the loss and distress suffered.
Loss and damage suffered: The claimant sustained both monetary and emotional upset resulting from the breach.
Client concerns and objectives: Mrs. Richards wants to get damages for the loss she suffered. She wants the defendant company held accountable for the loss caused.
Professional conduct issues: I advised the claimant that the claim is ripe for the institution since the limitations clause has not been met. I explained to her my duty as her paralegal.
Relevant law and procedure: The legal issue arising from this case is on contract law. Breach of contract must be established for the defendant to bear the total liability of his violation.
Preliminary advice: I have advised the client that she is highly likely to succeed in the claim
Action and next steps: We agreed that we would commence the proceedings against the defendant.
QUESTION 3 F
To Mrs. Susan Richards (email addresses)
SUBJECT: THE VARIOUS ROUTES OF APPEAL AVAILABLE FOR YOUR CASE
Dear Mrs. Richards,
The claim you lodged against Crazy Camping Limited is a small claims matter since it involved a breach of the contract worth £ 20 000. The county court handles your claim as it has jurisdiction to hear and determine issues involving small claims. Consequently, should the county court’s judgment be unsatisfactory, we have a right to make an appeal with the Circuit Judge in county court.
Kind regards
(name of the solicitor)
QUESTION FOUR A
Damages are the amount awarded to a claimant by the court for the loss he suffered due to the defendant’s breach of contract. In this case, Mrs. Richards was awarded £12 000 as damages. This then leads to the enforcement of judgments against the defendant. Two significant problems are encountered by judgment creditors when enforcing judgments against judgment debtors. One of these problems occurs where the judgment creditor lacks funds to pay the judgment debt. The second challenge faced may be that the judgment creditor moved, and the judgment debtor cannot locate him to execute the judgment debt.
A Judgment debt may be enforced through a warrant of execution issued by the High Court. Under this form of enforcement, the warrant of arrest given to the claimant by the High Court authorizes the county court bailiff to seize property belonging to the defendant to facilitate the settlement of the judgment debt.
The second way a judgment debt may be executed is through the third-party debt order. This form of execution applies where a judgment creditor learns an existing debt between a third party and the judgment debtor. She may write to the court to have the third party divert the money to her instead of the defendant.
A charging order is a method of enforcing judgment debts. This method applies where the defendant has no assets and funds but has interests in inland, stocks, or shares.
The appointment of a receiver ensures that a judgment creditor is assured of being paid the judgment debt since a receiver is a new neutral third party.
Under attachment of earnings, the court will instruct the judgment debtor’s employer to pay part of the debtor’s salary to settle the judgment debt. Other forms of enforcing judgments against judgment debtors include bankruptcy and liquidation, providing a warrant of specific delivery and possession, and committal for contempt of court.
QUESTION FOUR B
Part 36 of the civil procedure rules represents the option of settling the claim out of court. An offer to resolve the matter out of court may be made before or after the commencement of proceedings. One party makes this offer to the other, requesting him or her to agree and settle the matter out of court. Both parties must accept the offer and consequently proceed to make arrangements on the same. However, once the parties agree on the out-of-court settlement of the dispute, the court must allow the application for the parties to settle the matter out of court. If the court declines the offer, the claim proceeds to trial, and a hearing date is issued.
Pre-Action settlements are settlements agreed upon by the parties to settle the claim out of court before the commencement of the proceedings. Claimants who enter into pre-action agreements are only entitled to the exact claims negotiated between the two parties. Other fees or claims that had not earlier been included, such as legal cost, must be identified and indicated to the other party in writing. Where the defendant declines to pay the agreed fees, the claimant must seek enforcement through court proceedings.
Post-Action settlements are entered into between a claimant and a defendant after the proceedings have commenced. The parties must agree in writing. Moreover, the parties need not be present in court to prove that they want to settle the matter out of court.
After the defendant has made an offer to the claimant, he must pay the offered amount in court. The claimant has 21 days to either agree or decline the request made by the defendant. If a claimant decides to accept the offer proposed by the defendant, she should seek the leave of the court.
If the claimant declines the offer, the defendant can recover the money he offered if he wins the case. If the claimant is successful, then he is paid more than the money provided in court. If the claimant is successful and the judge gives him damages equal to the money paid in court, the defendant will pay her. However, if the court provides the claimant with a lesser award, the claimant must pay the defendant’s costs.
QUESTION 5
Once the court enters judgment favoring the claimant and issues damages, the defendant should pay the claimant the judgment debt. There are various methods the claimant may use to enforce judgments against the defendant. These methods include the following; the claimant may issue a warrant of execution against the defendant. Secondly, the claimant may use the third-party debt order to execute judgment debt against the defendant. Thirdly, the defendant may use a charging order, appointment of a receiver, bankruptcy and liquidation, attachment of earnings orders, warrant of specific delivery, warrant of possession, and committal for contempt of court.
At the first stages of the institution of the claim, the claimant must provide information regarding the location or whereabouts of the defendant. The methods listed above on enforcing judgments orders vary among different defendants. The plaintiff may have little knowledge about the defendant, but at times, the defendant might need to hire a third party to inquire about the defendant. The inquiry conducted may consider the defendant’s financial income or capital to facilitate the execution of the judgment debts.
As provided in the fact pattern, Mrs. Susan Richards knows the defendants’ assets in the given case. These include company vehicles, the company has its own offices, and the company also has a warehouse. Moreover, Crazy Camping limited also has an industrial estate. This is proof that the company can settle the judgment debt of £12 000 awarded to the plaintiff by the court.
The best form of enforcement method applicable in the given case is the Warrant of Execution. In this method of enforcing judgment debts, the claimant gets a warrant from the High court. The county court bailiff commands for the seizure of the defendant’s property. The property seized should be used to settle the existing judgment debt with the judgment creditor.
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