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CFA checklist—non-personal injury agreements

CFA checklist—non-personal injury agreements A: General requirements Complete section A for all conditional fee agreements (CFAs) except for personal injury or clinical negligence CFAs which are subject to a separate checklist. If you answer ‘no’ to any question, the CFA you are proposing may be unenforceable and/or you may breach the SRA’s regulatory regime. Requirement Compliant Additional information Agreement is in writing Yes/No The agreement must be in writing CFA relates to advocacy or litigation services Yes/No You can only have a CFA for advocacy or litigation services. CFA does not relate to criminal proceedings, apart from proceedings under section 82 of the Environmental Protection Act 1990 Yes (it does not)/No (it does) CFA does not relate to family proceedings Yes (it does not)/No (it does) Family proceedings are proceedings as listed in section 58(A)(2) of the Courts and Legal Services Act 1990 You are satisfied the CFA is suitable for the client's needs and take account of their best interests Yes/No...

Commercial contract review and execution (business personnel)—checklist

Commercial contract review and execution (business personnel)—checklist This is a Checklist for in-house lawyers to provide to those of its employees (eg procurement or sales professionals) who are engaged in negotiating commercial contracts. It sets out the primary issues to consider when negotiating or reviewing a business-to-business commercial contract, and includes practical guidance. This Checklist may be suitable for use in low risk contracts where employees who are not legally qualified are authorised to conduct negotiations and contract review. It may be customised as required to work with a company playbook on contract negotiation and review, to include suggested fall-back drafting positions and escalation points for recourse to a legal team as appropriate. As it is intended to be used by non-legal professionals, it does not include links to further detailed legal commentary in each case. For a Checklist intended for use by legal professionals with links to further information, see: Commercial contract drafting and review—checklist. In-house lawyers should check that business personnel engaged in negotiating and concluding commercial contracts...

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Checklist—road traffic accident defences

Checklist—road traffic accident defences Defence Principle Further reading Contributory negligence Where the defendant is primarily responsible for the accident, they may allege the other party was guilty of contributing to the accident. The issues to consider are:—which parties were at fault in the accident?—in what proportion should the damages be apportioned having regard to the respective responsibilities of those at fault? Practice Note: Contributory negligence in personal injury claims Contributory negligence for failure to wear a seat belt As a general principle:25% deduction to damages—if wearing a seat belt would have prevented the injuries sustained15% deduction to damages—if wearing a seat belt would have made a considerable difference to the injuries sustained0% deduction to damages—if wearing a seat belt would not have made any difference to the injuries sustained Practice Note: Defences in road traffic accidents Contributory negligence for failure to wear a motorcycle crash helmet Leading case law has suggested:15% deduction to damages—if wearing a helmet would have resulted in less severe injuries10% deduction to damages—where the claimant...

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Probate actions—lack of testamentary capacity

Probate actions—lack of testamentary capacity With increased life expectancy comes increased mental illness as people’s bodies outlive their minds. Dementia and other mental illnesses including depression, anxiety, psychosis, confusion and personality disorders may all impact a testator’s ability to make a Will. In addition, drug use, alcoholism and recent bereavement can have a significant impact on capacity. Analysis of the test for testamentary capacity For the purpose of assessing a deceased individual's testamentary capacity, recent case law maintains that the test under Banks v Goodfellow is still the appropriate test. That test provides that the testator must: • understand the nature of the act of making a Will and its effects • understand the extent of their estate of which they are disposing by Will • understand and appreciate any claims against their estate, and • not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors In Leonard v Leonard the High Court set out an authoritative and...

Relief from sanctions—illustrative decisions (from 1 January 2024)

Relief from sanctions—illustrative decisions (from 1 January 2024) This Practice Note provides a number of illustrative decisions to provide an insight into how the courts will deal with an application for relief from sanctions. It separates cases where relief from sanctions was granted from cases where relief from sanctions was refused noting the key facts of the case and details of the decision. This Practice Note provides details of relevant cases from 1 January 2024 onwards. For illustrative decisions involving relief from sanctions prior to 1 January 2024, see Practice Note: Relief from sanctions—illustrative decisions [Archived]. For guidance on when an application for relief is required and on making or opposing an application, see Practice Notes: Relief from sanctions—when is an application for relief required? and Relief from sanctions—making or opposing an application. For more detailed guidance as to the court’s approach to relief from sanctions, see Practice Note: Relief from sanctions—the courts’ approach. Relief from sanctions granted Case details and analysis Issue Decision The Occupiers of...

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Distribution agreement—non-exclusive—short form

Distribution agreement—non-exclusive—short form This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Manufacturer); and 2 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Distributor); each of the Manufacturer and the Distributor being a party and together they are the parties. Background (A) The Manufacturer manufactures [and supplies] the Products. (B) The Distributor has agreed to distribute the Products on a non-exclusive basis in the Territory in accordance with the provisions of this Agreement. The parties agree: 1 Definitions 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Affiliate • means any entity that directly or indirectly controls, is controlled by, or is in under common control with, another entity where “control” means the beneficial ownership of...

Claim against a driver for a collision caused by misleading signals

Claim against a driver for a collision caused by misleading signals IN THE COUNTY COURT AT [insert] Claim No: Parties 1 A B Claimant and 2 X Y Defendant _____________________________________________________________________________ PARTICULARS OF CLAIM _____________________________________________________________________________ 1 At all material times, the Claimant was the owner and driver of a [insert make and model of vehicle] registration number [insert registration number]. The Defendant was the owner and driver of a [insert make and model of vehicle] registration number [insert registration number]. 2 On [insert date], the Claimant was lawfully waiting at the intersection of [insert street name] and [insert street name, town, county]. The Claimant was stationary and preparing to turn left. As she waited, the Defendant’s vehicle approached from the Claimant’s right. The Defendant’s vehicle slowed and signalled to turn left into the Claimant’s street. In reliance on the Defendant’s signal, the Claimant commenced her left turn. The Defendant failed to turn left and proceeded across the junction, colliding with the Claimant’s vehicle. 3 The accident was caused...

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Can a company pay for or indemnify one of its directors in relation to a fine which has been imposed on such director following civil or criminal proceedings?

Can a company pay for or indemnify one of its directors in relation to a fine which has been imposed on such director following civil or criminal proceedings? We assume in this Q&A that the company is a private company limited by shares. A company is generally prohibited from indemnifying its directors against any liability in connection with any negligence, default, breach of duty or trust in relation to the company (section 232(1) of the Companies Act 2006 (CA 2006)). However, directors can be protected from liability by the acquisition and maintenance of insurance by the company for its directors against liabilities and by the company giving qualifying indemnities to its directors against certain liabilities (CA 2006, s 232(2)). Accordingly, a company may purchase a directors’ and officers’ insurance policy (D&O policy) to protect a director from liability (CA 2006, s 233). A D&O policy covering the liabilities of directors is a commercial product. The range of cover will depend on the terms negotiated with the...

Should an application for relief from sanctions be made if documents are served with the court before the deadline but don’t reach the defendant’s solicitors until a day after the deadline? The defendant’s solicitors are requesting that an application for relief from sanctions is made.

Should an application for relief from sanctions be made if documents are served with the court before the deadline but don’t reach the defendant’s solicitors until a day after the deadline? The defendant’s solicitors are requesting that an application for relief from sanctions is made. Serving documents CPR 6.20 sets out the methods by which to serve documents other than the claim form. Types of documents that this includes are: application notices, witness statements, court orders (eg interim charging orders). CPR 6.26 sets out the deemed date of service of a document, other than a claim form, served within the UK. This varies according to the method of service used. For further information, see Practice Note: Serving documents (excluding the claim form, particulars of claim and defence). For guidance on the rules governing the deemed service date of a claim form, see Practice Note: Service of the claim form—deemed service (CPR 6.14). Why is compliance important? Compliance refers to the parties’ need to comply with the...

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Re-opening refusal of permission to appeal for failure to undergo medical testing (Clarke v Matthew Poole and others)

PI & Clinical Negligence analysis: The claimant suffered a serious brain injury in a road traffic accident. The defendants’ expert considered she may have pre accident myotonic dystrophy (MD) which would undermine life expectancy and care levels in the claim. Electromyographic neurophysiological (EMG) testing could determine this issue. The claimant refused to have testing. The defendants were granted a stay pending agreement to testing in respect of damages for future loss. The claimant’s application for permission to appeal was refused. They therefore asked for permission to reopen this issue. CPR 52.30 permits reopening of appeals to avoid injustice in exceptional and appropriate circumstances where no alternative effective remedy is available. The court held that refusal to give permission omitted concerns raised about the claimant’s autonomy and detriment to her mental health. Permission to appeal was therefore granted. The appeal application has yet to be heard. Written by Marcus Weatherby, serious injury and clinical negligence solicitor, Pattinson and Brewer Solicitors.

Ruling on the scope of ‘same damage’ in a contribution claim pursued by a motor insurer sued directly (Navid Doroudvash v Zurich Insurance plc)

PI & Clinical Negligence analysis: Can a motor insurer sued directly under the European Communities (Rights Against Insurers) Regulations 2002 (2002 Regulations) bring a Part 20 claim in its own name pursuant to the Civil Liability (Contribution) Act 1978? The potential additional party argued not. Written by Jamie Clarke, barrister at Crown Office Chambers.