1 Introduction

Question 1

CPR - overriding objective

Answer 1

CPR 1.1 – overriding objective = enable court to deal with cases justly and at proportionate cost

Question 2

Claim form - CPR?

Answer 2

CPR 7 & CPR 16

Question 3

Particulars of claim - CPR?

Answer 3

CPR 16

Question 4

Responding to claim - options + CPRs?

Answer 4

1. Acknowledgement of service - CPR 10
2. Admission - CPR 14
3. Defence - CPR 15 & CPR 16

Question 5

Defence - what must it contain?

Answer 5

Comprehensive response to POC:

1. Allegations it denies
2. allegations it admits
3. Which it requires evidence for - put to proof

Question 6

What happens if D doesn’t file AOS within time limit? CPR?

Answer 6

D may obtain judgment in default - CPR 12

Question 7

Counterclaim - CPR

Answer 7

CPR 20 - particulars of counterclaim to be filed w. defence (or w.o defence if approval granted by court)

Question 8

What can C do if wishing to allege facts in answer to a defence which weren’t included in POC?

Answer 8

File a reply - CPR 15

Question 9

If party requires clarification of a SOC?

Answer 9

Written request to other party - CPR 18

Question 10

Interim applications - CPR?

Answer 10

CPR 23 -25

Question 11

Allocation - options? CPR?

Answer 11

CPR 26

o Small claims track £25,000

Question 12

Directions - CPR?

Multi-track cases?

Answer 12

CPR 26-29

Multi track cases:

• model directions
• case management conference

Question 13

Disclosure & inspection - CPR?

Answer 13

CPR 31

Question 14

Witness statements - CPR?

Answer 14

CPR 32

Question 15

Expert evidence - CPR

Answer 15

CPR 35

Question 16

What can parties if they wish to settle their dispute?

CPR?

Answer 16

Make evaluation of what they consider realistic value of judgment –> then offer to settle
Party 36

Question 17

Divisions of High Court?

Answer 17

1. Chancery Division
2. Queen’s Bench Division
3. Family Division

Question 18

What divisions of the High Court are contract & tort claims usually bought in?

Answer 18

Usually in QBD

Can be in Chancery Division if an element connected with Chancery areas

Question 19

What 3 matters need to be considered when deciding to bring a claim in the High Court or County Court?

Answer 19

1. Jurisdiction
2. Rules governing commencement
3. Rules governing transfer

Question 20

What are the rules governing commencement? CPR?

Answer 20

CPR 7
• Claims w. value of £100,000 → High Court or County Court
- Guidelines for deciding which court are in PD7A
- Factors set out in 7A PD 2.4 → determine if matter is sufficiently complex / of sufficient public importance to be dealt w. in High Court

Question 21

Claim w. estimated value >100,000 could still be transferred to CC - authority?

Answer 21

29 PD 2.3

Question 22

Claim w. estimated value

Answer 22

29 PD 2.2

Question 23

Some special types of case must be commenced in High Court, regardless of value - authority?

Answer 23

29 PD 2.6

Question 24

Rules governing transfer between courts

Answer 24

• Court will consider whether it should remain in the court of issue
• Criteria court uses in deciding where case should be tried in CPR 30.3

Question 25

What issues should be considered at first interview?

Answer 25

- Evidence you have or will need to obtain - THINK TRIAL - Client's objectives - Merits of case, available remedies & limitation periods - Position of the other side: FINANCIAL STATUS & what if they won't pay / if assets located abroad - Professional conduct issues - Alternative ways of achieving objectives - Costs (legal fees) - Funding

Question 26

What are the elements of the cause of action?

Answer 26

1. Duty 2. Breach 3. Causation 4. Loss

Question 27

What needs to be shown for duty in contract?

Answer 27

1. Privity of contract | 2. Duty/duties owed under that contract - derived from express term (oral or written) and/or implied term

Question 28

What needs to be shown for duty in tort

Answer 28

Duty.duties owed, for exampled, inunder common law of negligence and/or statutory duty

Question 29

What needs to be shown for 'damage' (loss)?

Answer 29

- Loss suffered was foreseeable (not too remote) | - Amount of loss

Question 30

How are damages measured for each type of claim?

Answer 30

Contract: place C in position as if contract properly performed Tort: place C in position it as if tort hadn’t been committed Debts: technically a claim for sum the D promised to pay under contract – not a claim for damages, so no duty on C to mitigate loss

Question 31

What does a case theory comprise of?

Answer 31

Answers to: 1. What needs to be proved? 2. What evidence is there to prove it? 3. Is that evidence admissible?

Question 32

On who does the burden of proof fall?

Answer 32

Generally on the party who asserts it

Question 33

What is the standard of proof in civil proceedings?

Answer 33

Balance of probabilities

Question 34

What facts need to be proved?

Answer 34

facts in issue → shown by parties’ conflicting versions of events

Question 35

When may the court treat matters as established, w.o evidence?

Answer 35

1. Formal admissions a. In statements of case; or b. In response to a notice to admit facts (CPR 32.18) 2. Presumptions (e.g. res ipsa loquitur) 3. Inferences of fact: common sense conclusions

Question 36

What conditions must be satisfied for pre-action disclosure of documents? CPR?

Answer 36

CPR 31.16: pre-action disclosure of documents if conditions met: 1. Respondent likely to be party to subsequent proceedings; 2. Applicant also likely to be party to subsequent proceedings; 3. Had proceedings started, documents would have been disclosed under standard disclosure; and 4. Pre-action disclosure desirable in order to: a. Dispose fairly of anticipated proceedings; b. Assist dispute to be resolved w.o proceedings; or c. Save costs

Question 37

What do solicitor/client costs comprise of?

Answer 37

1. Profit costs (charge out hourly rate x number of hours spent) + VAT; and 2. Disbursements + VAT

Question 38

What are 'costs on account'?

Answer 38

describes funds which client pays solicitor up front, before solicitor begins work on their case

Question 39

When is 'interim billing' used?

Answer 39

in lengthy cases – bills rendered at regular intervals

Question 40

What is the general rule in relation to party/party costs? | CPR?

Answer 40

• Generally ‘costs follow the event’ CPR 44.2(2), although court has complete discretion

Question 41

What is the courts discretion in relation to costs? | CPR?

Answer 41

``` Court has discretion as to how much, when they are to be paid and by who CPR 44(2)(1) ```

Question 42

What will the court take into account when deciding costs?

Answer 42

Factors affecting how much is payable can be found in | CPR 44.2(4) & (5)

Question 43

What is a solicitor REQUIRED to do in relation to costs? Authority? What is a solicitor EXPECTED to do in relation to costs? Authority?

Answer 43

REQUIRED O(1.13) → solicitor must give client best possible info about likely overall costs both at outset & during retainer EXPECTED - IB(1.13) → solicitor should discuss how client will pay & if legal aid is available - Solicitor should discuss whether potential outcomes will justify expense or risk involved, including, if relevant, having to pay an opponent’s costs IB(1.13)