Outline Content of Syllabus

Guidance Notes

1. Financing Civil Litigation and Professional Conduct

Candidates must be aware of the nature of the relationship between solicitor and client and of the principles of client care. They will have a general knowledge of the relevant rules of professional conduct; they will be aware of the methods of financing civil litigation, including aspects of acting for a privately paying client; legal help and legal representation, and Community Funding; the impact of franchising and block contracting; conditional fees where relevant; the particular duties of acting for or against a party who is either publicly funded or being financed by conditional fees or contingency fees. They will be aware of the possibility of obtaining costs from one’s opponent and the impact of this on financing litigation; summary assessment and detailed assessment and relevant procedures. Candidates will be aware of issues which may arise such as conflicts of interest; the duty of confidentiality; relationships with other solicitors; and the duty of honesty in disclosure of documents. assessment of costs;

2. Pre-action Considerations

Candidates will be aware of the importance of making financial enquiries about the status of the potential defendant; establishing liability; the importance of compliance with the pre-action protocols where these apply, and of the general duty of mutual co-operation even where they do not apply; the nature of pre-action disclosure and inspection of documents, and when it is desirable; and how to obtain it; pre-action inspection of objects; obtaining evidence relevant to quantum of damages; manner of dealing with insurance companies; letters before action; the nature and effect of without prejudice correspondence; the uses of counsel; factors to establish in determining quantum of damages in general terms in personal injury and commercial cases; computation of special damages; the rules relating to interest on damages in actions in tort and contract.

3. The approach of the courts under the Civil Procedure Rules 1998

Candidates will be aware of the change in culture in civil litigation brought about by the Civil Procedure Rules 1998. In particular they will be aware both before and at all stages of the action of the importance of the overriding objectives set out in Part 1 of the Rules; of the way in which the court will apply itself to the overriding objectives; of the duties of the parties under Rule 1.3; and of the court’s duty to manage cases under Rule 1.4; and of its general powers of case management under the whole of Part 3 of the CPR. Candidates will be aware of how these changes will affect the day-to-day conduct of litigation at all stages and of the way in which the requirements of reasonableness and co-operation will impact on the approach to litigation.

4. Commencing proceedings

Candidates will be aware of all issues relating to jurisdiction of the High Court and County Court; they will understand the uses of the Civil Procedure Rules and accompanying Practice Directions; they will know the nature of the claim form and understand Part 7 of the Rules including the provisions as to venue, method of commencement; nature and content of particulars of claim and rules relevant to service of claim form under Part 6; they will appreciate the nature of a statement of truth under Part 22 and the duties of the parties; they will understand the method of responding to particulars of claim and to the contents of Parts 9, 10, 15 and 16 of the CPR; in particular they will appreciate the time limits for filing acknowledgement of service and/or defence and the consequences of not doing so; extensions of the period for filing a defence; and the contents of the defence. Candidates will know and understand the nature of statements of case and their contents and of the powers under Part 17 to amend statements of case with or without the permission of the court. They will be aware of the appropriate manner of obtaining more information concerning an opposing party’s statement of case under Part 18 of the CPR.

5. Allocation; progress to trial and directions generally

Candidates will be aware of the rules and procedures relevant to allocation to track and to case management in general under Part 26; they will know the contents of an allocation questionnaire and be aware of the principles on which allocation will be undertaken and of the possibility of reallocation during the case; they will be aware of the general directions which the court will issue in straightforward cases including for disclosure and inspection; they will know and understand the nature of standard disclosure and the concept of ‘document’; the duty of search and the appropriate procedure; the rules relating to specific disclosure and inspection and for non-party disclosure; they will be aware of the concept of privilege and of the possibility of withholding privileged documents and the procedures for making or challenging claims to privilege; candidates will be aware of the likely nature of the court’s directions as to expert witnesses under CPR Part 35; they will know and understand the duty of restricting expert evidence, the overriding duties of experts; the methods by which expert evidence is to be given; the general requirements for written reports; written questions to experts and the desirability of a single jointly instructed expert; and of the nature of the court’s powers to order discussions between experts and of the expert’s right to ask the court for directions; candidates will know and understand the rules relating to mutual disclosure of witness statements and of the requirements under Part 33 to serve them and the uses which can be made of them; candidates will be aware of the nature and uses of affidavits.

6. The small claims track

Candidates will be aware of the scope of the small claims track and of Part 27; they will appreciate how the ordinary rules differ in small claims cases, the court’s powers to grant a final remedy and to give, vary or revoke directions; the court’s power to call a preliminary hearing; and the rules relating to conduct of the hearing; they will be aware of the procedural possibilities including the consequences of non-attendance and of the possibility of disposal without a hearing; they will be aware of the particular costs rules on the small claims track.

7. The fast track

Candidates will be aware of Part 28 and the particular nature of fast track cases; they will be aware of the directions likely to be given and of standard directions and of the general form of case management timetable and the possibility of varying it; they will know the rules relating to the listing questionnaire and understand the practicalities of the case being listed; they will understand the particular rules relating to the conduct of trials on the fast track and the way in which the limits and restriction on trial costs may impact on the process; they will be aware of the possibility of allocation of certain issues to different tracks in so far as affects the fast track.

8. The multi track

Candidates will know and understand Part 29 of the CPR; they will particularly understand the duties of case management and the way in which case management may well be undertaken in larger or more complex cases including the use of case management conferences and pre-trial reviews; they will know and understand the rules relating to variation of the case management timetable and of the use of the listing questionnaire and of the manner in which a trial timetable will be fixed.

9. Preparation for trial and applications for court orders

Candidates will be aware of the principles of evidence in civil litigation including issues relating to the burden and standard of proof; the uses of presumptions; the introduction of testimony and the course of the trial; the uses of hearsay evidence including evidence by witness statement and affidavit; the relevance of Part 2 of the Civil Evidence Act 1968 and of the Civil Evidence Act 1995 and the rules applicable under each of those statutes; the particular rules relating to the court’s power to control evidence and other provisions relevant to evidence and attendance of witnesses under Parts 32, 33 and 34 of the CPR; the practicalities surrounding the use of expert evidence under Part 35 of the CPR and the duties of co-operation in relation thereto; the uses of notices to admit and produce documents; the use of notices to admit facts; methods of ensuring attendance of witnesses at trial. Candidates will also understand the way in which application for court orders during the course of proceedings will be made under Part 23; they will understand the nature of an application notice and how it is to be filed at the appropriate times when an application is to be made; they will understand those kinds of applications which may be dealt with without a hearing and the powers of the court to proceed in the absence of a party; they will be aware of the more familiar forms of applications likely in mainstream proceedings; they will know and understand the nature of the Practice Direction on summary assessment of costs and how this will impact on interlocutory applications; candidates will also be aware of the procedure by which cases may come on for trial and the way in which they may be listed and hearing dates fixed; they will be aware of other tactical and practical features in the immediate stages preceding trial, including contacts with witnesses; preparing the brief for counsel; pre-trial conferences and other issues arising out of use of counsel including change of counsel and negotiating counsel’s fees.

10. Termination without trial

Candidates will be aware of the various procedures by which an action may be brought to an end or compromised before trial. These include all aspects of striking out including, in particular, striking out of the court’s own motion under Part 3; obtaining judgment in default under Part 12 and the relevant procedure; and of the procedure for setting aside or varying a default judgment under Part 13; the nature of admissions under Part 14 and the possibility of applying for judgment thereon; summary judgment under Part 24 against claimant or defendant and the types of proceedings in which summary judgment is available, the nature of the evidence to be used and the court's powers; stay of proceedings, discontinuance of proceedings under Part 38 and the consequences; compromise and the use of Tomlin orders; dismissal of proceedings in pursuance of the sanctions available to the court for non-compliance.

11. Offers to settle; interim payments and interim relief including injunctions

Candidates will be aware of Part 36 and of the nature of defendant’s offers to settle under Part 36; they will know and understand the form and content of a Part 36 offer and the relevant time limits; they will know the court’s general powers in relation to costs and the consequences of acceptance or non-acceptance of an offer; they will understand the nature of a claimant’s Part 36 offer and the effect of acceptance or refusal of it and the relevant costs consequences dependent on outcome; they will understand the particular provisions relating to interest and deduction of benefits. Candidates will know Part 25 of the CPR and understand the particular rules thereunder in relation to interim remedies; in particular they will understand the time when an order for an interim remedy may be made and the method of application; they will know the rules relating to inspection of property before commencement or against a non-party; they will understand the rules relating to interim payments, the general procedure and the conditions to be satisfied and matters to be taken into account; they will understand the powers of the court where it has made an order for interim payment. They will be aware of the uses of interim payments and of the possibility of obtaining voluntary interim payments without formal application to the court; they will understand the tactical and costs consequences of obtaining an interim payment. Candidates will be aware of the nature of interim injunctions and the rules relating to their grant or refusal, including all aspects of practice and procedure; they will also be aware of the specialised forms of injunction now known as freezing injunctions and search orders and the cases where either of these may be useful or possible and of the techniques for obtaining them and enforcing them.

12. Part 20 proceedings

Candidates will know and understand Part 20 of the CPR and the meaning of ‘Part 20 claims.’ They will understand the particular rules and situations where a defendant may counterclaim against the claimant and a person other than the claimant and where a defendant may claim for contribution or indemnity from a co-defendant and the relevant procedures; they will know the rules relevant to service of an additional claim form and the matters relevant to questions of whether an additional claim will be separate from the main claim; they will understand the special provisions relating to default judgments and of the procedural steps for an additional claim against a non-party and of relevant case management. They will particularly understand the ways in which the court is likely to use its case management powers to regulate the conduct of Part 20 claims.

13. Special categories of litigant

Candidates will be aware of the consequences of an action where either of the parties is other than an adult individual; in particular candidates will be aware of the methods of bringing proceedings by and against a partnership and of related aspects including in particular service of documents and enforcement of judgments; candidates will likewise be aware of the special rules relating to actions for or against limited companies and the rules about representation and enforcement of orders and judgments; candidates will be aware of all aspects of acting for and against parties under a legal disability such as children and patients and, in particular, of the relevant documentation and the practical and professional conduct of these aspects; they will know and understand Part 21 of the CPR and the rules relevant to appointment of a litigation friend and of the court’s powers to change the litigation friend; they will know and understand the procedures relevant to compromise of actions by or on behalf of a child or patient and the control of money recovered.

14. Trial

Candidates will generally be aware of the way in which a civil trial is conducted bearing in mind the use of the court's case management powers and judicial intervention to restrict evidence and speeches and submissions. Candidates will also be aware of the usual rules including aspects of the order of speeches; the practicalities of calling evidence; applications to the court after judgment. Candidates will know and understand Part 39 of the CPR.

Candidates will be aware of Part 40 and the rules relevant to the drawing up and filing of judgments and orders in their service; and of the nature of consent judgments and orders and relevant time limits for compliance.

15. Judgments and enforcement of judgments

They will be aware of aspects of enforcement of judgments in the case of both money judgments and injunctions. Candidates will be aware of the practical and tactical features attaching to each of the relevant methods and know how to prepare the relevant documentation; they will know and understand the procedures under Part 70-the general rules about enforcement judgments and orders; Part 71-orders to obtain information from judgment debtors (which was previously called oral examination) Part 72-third party debt orders (formerly garnishee orders) and part 73 charging orders, stop orders and stop notices. Candidates will be aware of the contents of the necessary documentation and the methods of enforcement by order for sale once a charging order has been obtained; candidates will also be aware of enforcement of judgments by execution against goods including disputes concerning execution involving inter pleader applications and stay of executions; candidates will know how to apply for an attachment of earnings order and be aware of when such is useful and desirable; candidates will be aware of how to enforce an injunction by application for committal and of the practical and tactical features of such applications; candidates are not required to have detailed knowledge of bankruptcy procedures, but will know an outline of their existence as an alternative method of enforcement.

16. Costs

Candidates will be aware of issues relating to costs and, in particular, Parts 43 to 48 inclusive. Candidates will be expected to know the Practice Direction in relation to summary assessment of costs, detailed assessment of costs and the general principles relevant to costs. They will not, however, be asked in detail questions relevant to precise amounts of costs, rates of charging or the like, though they will appreciate the potential costs outcome of steps at all stages of a civil action and be able to advise a client concerning them.

17. Chancery Division procedure: special aspects

The CPR apply in the Chancery Division as much as in the Queen’s Bench Division and the County Court. Candidates, however, will be aware in outline of any differences in Chancery Division procedure and in particular of the following aspects, namely procedures for obtaining orders after judgment, such as for accounts and enquiries and be aware of the kinds of issues that may arise in the type of actions specifically assigned to the Chancery Division. Candidates will also be aware of the particular procedure under Part 8 of the CPR in so far as it may be relevant in Chancery Division cases.