Risk Assessment in Litigation

Abstract

This thesis consists of this volume together with the book Risk Assessment in Litigation published by Butterworths in 2001. The research presented as a whole represents work conducted over the period from 1999 to 2013 focussing on the assessment of risk in civil litigation in England and Wales in the context of conditional fee agreement and after the event insurance. The published works that form part of the thesis collectively present ‘doctrinal’ and ‘empirical’ legal research, terms considered in the light of the published works and the research underlying them. The initial research project commenced in 1999 and was funded by the European Social Fund, Blake Lapthorn solicitors and Litigation Protection Limited (an insurance intermediary). That project researched the question of whether and if so how a method or methods of risk assessment could be devised that could form the basis of a training programme for litigation solicitors. The outcomes of that research were a set of risk assessment methods that were later formed into a continuing professional development format and delivered across England and Wales. The methods were also incorporated into the book Risk Assessment in Litigation and into Butterworths Costs Service. The thesis sets out via the published works that a positive answer can be and was given to the initial research question. Part of that answer involves defining and researching tacit knowledge and the difficulties inherent in the transfer of tacit knowledge all of which is explored in chapter four: What is legal research? The present volume develops the topic of probability theory as applied to risk assessment in litigation and reviews the treatment of that topic in the original publication Risk Assessment in Litigation and takes the debate further in light of the decision of the Court of Appeal in Motto & Ors v Trafigura Ltd & Anor [2011] EWCA Civ 1150 where the book is cited in the judgment of Lord Neuberger MR. The research presented in this thesis also consists of detailed analysis of the law relating to the funding of civil litigation under conditional fee agreements and after the event legal expenses insurance. Over the period 1999 to 2013 the published works show a development of the law in this field and a change in government policy in respect of the regulation of conditional fee agreements with attendant changes to the law and therefore the practice of litigation. The impact on risk in litigation of these changes is considered in detail in the published works.

Date of Award	25 May 2014
Original language	English
Awarding Institution	University of Winchester
Supervisor	David Birks (Supervisor) & Alan Murray (Supervisor)