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Claims in contract or torts generally


If you receive an application for legal aid for a claim in contract or torts (e.g. personal injuries), seek the following information:

  1. The relevant facts;
  2. A broad statement of the law and how the law applies to the facts. This must include addressing the ingredients of the tort or breach of contract, for example:
For common law negligence:
  1. That a duty of care (including statutory duty) for the Plaintiff existed on the part of the Defendant
  2. That there was a breach of that duty (including statutory duty)
  3. That the breach was caused by the Defendant’s actions
  4. That it was not too remote – that is, that there is “proximity” between the Defendant’s actions and the Plaintiff’s injuries. If there are too many intervening acts between the
  5. Defendant’s act and the Plaintiff’s injuries, the Court will not grant judgement for the Plaintiff.
  6. That the breach resulted in loss to the Plaintiff
  7. If contributory negligence on the part of the Defendant is being alleged, specify this also.

For a breach of contract

  1. That the elements of a contract existed (offer, acceptance, consideration, intention to create legal relations)
  2. That the parties to the contract were the Plaintiff and the Defendant
  3. That there were express or implied terms of the contract
  4. That there was breach of the express or implied terms of the contract on the part of the Defendant
  5. That the breach resulted in loss to the Plaintiff

3. The likelihood of the case being successfully prosecuted / defended;
4. The extent of the injuries / loss to the applicant – including if the injuries/loss are trivial;
5. In the event that the applicant is seeking to take a money damages case, the known resources of the intended defendant and the prospect of making a successful recovery in the event that a judgement is obtained against the defendant (including whether the defendant had insurance that might be able to meet the claim);
6. Any history of litigation – in particular if there is a history of litigation between the parties it may be that the provisions of section 24 and section 28(2) are less likely to be met; and
7. If the case is in torts, and there were previous criminal proceedings arising out of the alleged tort, what the outcome of those proceeding were.
8. If the case is for personal injuries:

a. Any evidence establishing the injuries sustained e.g medical reports
b. The extent of the applicant’s injuries

9. The likelihood of the applicant pursuing the case at his or her own expense if he or she were a reasonably prudent person whose means were such that the cost of seeking the services, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense and a solicitor or barrister acting reasonably would be likely to so advise.
10. The Risk tab is fully completed, including a correctly calculated Statute of Limitations expiry date.
 

If the applicant is the intended Plaintiff, grant the application if (all factors must be true):

  • The applicant has a cause of action (a reason to go to Court). In deciding this, look at the facts of the case and the law as outlined by the solicitor and decide whether the facts of the case match the law as outlined, i.e. that all the elements of the tort or breach of contract are present. If it appears that the solicitor has addressed some but not all the elements of the tort or breach of contract is in order to revert to the solicitor and ask them to revise their statement of facts prior to taking a decision..
  • The applicant has reasonable prospects of success, in the opinion of their solicitor or Counsel. If there were previous criminal proceedings and the Defendant was convicted, this threshold should be considered met.
  • The damages the applicant would be likely to be awarded would be more than the costs to the Board of the case
  • The proceedings are not statute barred
  • The solicitor considers that a reasonably prudent person would pursue the case if they were spending their own money
  • The intended Defendant is
    • a legal person (a company or statutory body)
    • a partnership or firm,
    • a natural person and that it is
      apparent that the defendant would have the resources to meet a judgement .
  • None of the reasons to refuse apply, or if any do apply, having weighed up and considered the entirety of the circumstances of the application, it is considered reasonable to grant the application.

If the applicant is the Defendant, grant the application if (all factors must be true):

  • The applicant has a legal defence
  • The applicant intends to enter a Defence to the proceedings
  • The applicant has a reasonable chance of successfully defending the proceedings, in the opinion of their solicitor or Counsel
  • The solicitor considers that a reasonably prudent person would defend the case if they were spending their own money
  • If the applicant is making a Counterclaim, apply the factors for granting legal aid to a Plaintiff also.
  • None of the reasons to refuse apply, or if any do apply, having weighed up and considered the entirety of the circumstances of the application, it is considered reasonable to grant the application.
     

Consider refusing the application if (any factors below are true):

  • The likelihood of success is, in the solicitor or Counsel’s opinion lower than having reasonable prospects of success
    [Refuse having regard to s24(a) & (b) s28(2)(c)]
  • The damages the applicant would receive would be less than the estimated cost to the Board of the proceedings
    [Refuse having regard to s24(a) & (b) and s28(2)(d) and (e)]
  • It is apparent that the intended Defendant would not have the resources to meet any judgement obtained against them.
    [Refuse having regard to s24(a) & (b) and s28(2)(d) and (e)]
  • The applicant is seeking to re-litigate a relatively recent judgement obtained against them
    [Refuse having regard to s24(a) & (b) and s28(2)(e)]
  • The proceedings are summary proceedings in the High Court and the applicant accepts that the debt is owed
    [Refuse having regard to s24(a) and s28(2)(b),(c) and (d)]
  • The proceedings are summary proceedings in the High Court and the solicitor recommends refusal on the basis that the applicant has no genuine Defence to the proceedings and entering a Defence would only ultimately serve to increase the costs of the action
    [Refuse having regard to s24(a) and s28(2)(b),(c) and (d)]
  • The applicant is the intended Plaintiff and the proceedings are statute barred. [Refuse having regard to s24(a) & (b) and s28(2)(b) and (c)]

It should be noted that while many of these applications will relate to specific court proceedings, this does not preclude an application being made to terminate legal services at any stage where it is considered that the provisions of section 24 are not met.