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Question 1

What should be considered and mentioned when asked if the low value protocol is suitable for the claim? (4)

Answer 1

The type of injury, the value, if it is EL/PL or RTA, is liability disputed (in which case not suitable)

Question 2

How are directions dealt with in multi track? (3)

Answer 2

Parties should agree appropriate directions, submit these 7 days before CMC. Menu of standard directions provided

Question 3

How are directions dealt with in the fast track and what do they deal with (6, 4 examples, 2 key info)

Answer 3

Standard directions are used. They deal with; disclosure and inspection, use of experts, exchange of witness statements, preparation for trial (inc. pre-trial checklist and settling down for trial). If appropriate, proceedings can be stayed while potential settlements are discussed.

Question 4

What happens if a party fails to comply with a direction? (How can client deal with opposition if they do not comply) (6)

Answer 4

Opposing party can apply for an order to enforce or for a sanction to be imposed. Court will not allow postponement of trial unless circumstances are exceptional. Postponement/adjournment is last resort. Sanctions imposed by court include depriving party right to raise or contest issues, or relying on evidence relating to direction. If issue cannot be dealt with at trial a later trial may be ordered, defaulting party to pay costs.

Question 5

How are costs dealt with in the multi track up to but not including final hearing? (7)

Answer 5

Budgets exchanged and filed by all parties either with directions questionnaire or not later than 21 days before CMC. Budget discussion report should be agreed and filed 7 days before CMC. Budget should detail costs incurred as well as estimated future costs. Reasonable and proportionate budgets should be agreed. Court may make costs management order to control budget in respect of recoverable costs.

Question 6

When can a default judgment be set aside? (5, 3 reasons, 2 key info)

Answer 6

Under Part 13.3, if defendant has real prospect of successfully defending claim or there is some other good reason why judgment should be set aside/varied, or a reason why the defendant should be allowed to defend claim. This is to court’s discretion. (note - will client be successful in application)

Question 7

How are documents disclosed in fast track and what are three categories of disclosure (4)

Answer 7

Standard Disclosure by List in Form N265. First is docs in possession willing to disclose, Second is docs in possession not willing to disclose as they are covered by privilege, Third is docs which would be disclosed but ae no longer in possession of.

Question 8

What is the usual procedure at trial? (6 steps)

Answer 8

Claimant gives opening speech. Claimant’s ;s witnesses called. They are examined in chief, cross examined and re-examined. Defendant’s witness called and go through same process. Def gives closing speech then claimant. Judge gives decision.

Question 9

How are costs dealt with in the fast track? (5 +6 for pi)

Answer 9

Costs are at discretion of the court. There is no right as to costs. Costs usually follow event so losing party pays winning party. At end of trial judge will summarily assess costs. Controlled through proportionality test. *does QOCS apply

Question 10

Which party must prove the case and to what standard (2)

Answer 10

The burden of proof is on the claimant in civ lit. The standard of poof is the balance of probabilities.

Question 11

What four things are included in a Pre Trial Checklist? (4)

Answer 11

Ensuring directions have been complied with, availability of parties/witnesses, information concerning experts and legal representation. trial is considered (trial date set and docs and fee checklist completed)

Question 12

What is a disbursement and example (2)

Answer 12

Payment made by lawyer to third party and claimed back from client. e.g. counsel’s fees, court fees etc.

Question 13

What is the process before issue where the PI Protocol applies (e.g. liability is disputed) (8)

Answer 13

Letter of claim, 21 days to respond with insurance details, three month investigation period then state if liability is accepted or denied giving reasons for denial including relevant docs. Claimant should send schedule of special damages and supporting docs as soon as practicably possible. Rehab requirements of claimant should be considered. Joint medial expert agreed. parties should be involved in ADR throughout.

Question 14

What is the process before issue in multi track personal injury? (1)

Answer 14

Attempts should be made to follow PAP for Personal Injury

Question 15

What is the process before issue for low value PI where liability is admitted (5)

Answer 15

Three stages, fixed costs at each. Fixed costs still used if claim exits protocol. Stage 1 - submitting claim and defendant’s liability response. Stage 2 - exchange of evidence relating to quantum. Stage 3 - court assessment of damages or approval of settlement.

Question 16

How long does defendant have to file defence (2)

Answer 16

14 days or 28 if AoS filed

Question 17

What should be filed to begin debt proceedings? (3)

Answer 17

Claim Form, PoC and fee should all be sent to CCMCC

Question 18

What does the court take into account when allocating a matter to a track? (6 point + 1 part of CPR)

Answer 18

Points contained in CPR 26.8 - value, nature of remedy sought, complexity, number of parties involved, value of counterclaim, amount of any oral evidence required at trial.

Question 19

What is statement of truth and what happens if it is false? (2, 4)

Answer 19

Statement highlights importance of telling the truth in court, it provides that the contents are true and seeks to avoid guesswork. If untrue maker can be held in contempt of court and committal proceedings may take place. Court may exercise own powers and impose costs sanctions or strike out statements of case.

Question 20

Example statement of truth

Answer 20

I believe that the facts stated in this [doc] are true. Signed [cli name] Dated [exam]

Question 21

How is an application for Summary Judgment made? (6)

Answer 21

Application Notice and statement in support (which can be WS or statements of case can be relied on) are sent to court. Must be served at least 14 days before summary judgement hearing and response can be served 7 days before with response to that 3 days before. Hearing before DJ.

Question 22

What are the outcomes of a summary judgement application where the defendant makes the application? (7)

Answer 22

court wholly in favour of applicant = claim struck out and matter will not proceed. Court may dismiss application = matter proceeds to trial. Applicant will likely be ordered to pay respondent’s cost as well as their own. Court may give directions for continuance or make conditional order, which requires respondent to take particular step such as paying money into court

Question 23

What is the process to enforce judgment by way of Charging Order? (4)

Answer 23

Applications processed at CCMCC. Court officer makes interim order then parties have 28 days to object to making of final charging order, which will be made if debtor fails to pay. Once FCO made, creditor can apply for order for sale.

Question 24

What is the process to enforce judgment by way of control of goods? (3)

Answer 24

Application made to court for writ or warrant of control (depending if high court (over £5k) or county court (under £600)). HCEO or bailiff takes control of goods and sells at auction to satisfy judgment.

Question 25

How to check if a defendant is worth suing if they are a business (6)

Answer 25

Companies House reveals info about financial state of company, credit rating company (cheap), private investigator (more expensive), Land Reg search, search of Reg of Judgments. Obtain info from client and other sub contractors.

Question 26

How to check if a defendant is worth suing if they are an individual (5)

Answer 26

credit rating company (cheap), private investigator (more expensive), search of Land Reg or Reg of Judgments. Client info

Question 27

What does an arbitration clause require parties to do and what is the process? (6)

Answer 27

Go through arbitration rather than court proceedings. Disputes referred to independent arbitrator who is expert in subject matter and not bound to follow court procedure, though appropriate procedure should be adopted. Decision made by arbitrator which is final and binding. Arbitrator can reserve award until he is paid. Award can be enforced through courts.

Question 28

What are advantages of arbitration? (6)

Answer 28

Faster than litig (where company is client this means not affecting business for long period), cheaper than going to court. Preserves business relationships. Confidential so keeps business matters private (helps businesses maintain reputation), because arbitrator is expert the parties will be satisfied in their understanding, binding decision (gives certainty)

Question 29

How can a client fund a claim (pi focused) (5)

Answer 29

Retainer basis. QOCS alleviates issue of paying defendant’s costs if claim fails. CFA where success fee is paid if successful but solicitor’s fees not paid if unsuccessful. DBA, contingency fee paid to solicitor if successful. BTE Insurance may cover legal expenses

Question 30

What is meant by ‘unbundling’ and give three examples? (5)

Answer 30

Used to describe provision of legal assistance under limited retainer rather than traditional full retainer. Allows client to undertake some work themselves, keeping costs down. Includes providing discrete advice about specific steps and checking drafting of docs. Self help packs may be provided.

Question 31

How would you ask for more information where documents submitted by another party are not detailed enough? (6)

Answer 31

Part 18 req for further information. Formal request made directly to other party by written letter. Other party replies answering points raised. Both letter and reply should state they are Part 18 request or reply. Reply should only deal with matters raised in Request as an answer or objection. If response is not satisfactory or no reply is given then application can be made to court without need for hearing

Question 32

What can happen if a defendant’s Part 36 offer is refused? (6)

Answer 32

Reverses usual position of costs (that loser pays winner). If offer is effective the claimant will get costs up to end of relevant period (21 days), making a Split Costs Order. In PI QOCS can be beaten by p36. Where claimant refuses defendant’s offer and fails to better it then they are at risk of paying def’s costs 21 days from offer date. Capped at level of damages claimant recovers.

Question 33

What happens if a defendant makes a Part 36 offer and the claimant betters it? (5)

Answer 33

Claimant is entitled to include; interest on whole or part of sum awarded at rate not exceeding 10% above base rate for some or all of the period starting with date on which relevant period expired, costs on indemnity basis from ‘day 22’ (more generous than standard basis), interest on those costs at rate not exceeding 10% above base and additional amount up to 10% of that awarded

Question 34

Who prepares the trial bundle and what is included? (5)

Answer 34

Prepared by Claimant and should contain all relevant written material which will be referred to at trial. Must be paginated and indexed with description of each doc and page number. Must be the same for each copy. Copy for court, each party and one for witnesses to use at trial.

Question 35

What rules apply to the use of Experts? (10)

Answer 35

Under Part 35. Duty to co-operate under CPR. Presumption experts will be appointed from court panel with court’s permission. Court controls which experts give evidence and limits issues to be addressed. First duty of expert is to court. Usual for joint expert in fast track, to save costs and because all experts should have the same opinion. In multi track party may have own expert but joint still encouraged. Hot tubbing is name for court calling witnesses to give evidence and be cross examined concurrently, involving parties experts engaging in discussion together while in witness box. Parties can make written requests to expert to clarify report. Expert must be qualified in area of expertise.

Question 36

What is required for a Part 36 offer to be valid? (5)

Answer 36

In writing, make clear pursuant to part 36, specify a period not less than 21 days within which def is liable for claimant’s costs if accepted, state if relates to whole of claim or part of it, state whether it takes into account any counterclaim

Question 37

What is the effect of a party refusing to take part in ADR? (5)

Answer 37

Legal proceedings are last resort so ADR is actively encouraged. Not compulsory but court may require evidence parties have at least considered ADR. If declined and it can be shown declining party acted unreasonably in the circumstances, there may be consequences. If declining party wins case, court may disallow some or all costs awarded. If declining party loses, they could be penalised through indemnity costs

Question 38

How to determine the best method of enforcing judgment against an individual? (5)

Answer 38

If individual, application made on form N316 for Order to Obtain Information. Court will draw up order for individual to attend for questioning and they must attend at time date and place given, answering questions asked by court officer under oath. Creditor can attend and ask questions of debtor’s finances. Failure to do as order states may result in imprisonment.

Question 39

What can be done if documents haven’t been disclosed that you feel should be disclosed? (5)

Answer 39

Application for specific disclosure under Part 31. Interim application involving application notice specifying order for specific disclosure sought supported by evidence. Grounds for application must be set out in appln notice or evidence. Court will take into acc circumstances of case and in particular r1.1. Court will make order as is necessary to ensure obligations complied with, subject to proportionality.

Question 40

How long should a claimant wait before issuing proceedings after letter of claim in debt claims? (2)

Answer 40

Should be 30 days from date of letter (if any less court may consider this a breach of protocol and impose sanctions)

Question 41

How to issue money only claim? (2)

Answer 41

send through post or online to CCMCC

Question 42

How to ensure witness attends? (5)

Answer 42

Application for witness summons on form N20. Money should be paid for travel expenses and compensation for loss of time. If witness does not comply with summons, they will be liable to a fine (County Court) or contempt of court and so imprisonment or fine (High Court). The witness may also be liable to pay any wasted costs arising from their non-compliance.