Cheap marks Flashcards

Question

Time limit: Filing and serving witness evidence in reply on which the applicant wishes to rely

Answer 1

At least three days before the hearing.

Answer 2

At least seven days before the hearing.

Answer 3

At least three days before the hearing.

Answer 4

Within such period as the court specifies OR If no period is specified, not more than seven days after the date on which the order was served on the party making the application.

Answer 5

After the end of the period for filing an acknowledgment of service.

Answer 6

At least 14 days before the hearing.

Answer 7

At least seven days before the hearing.

Answer 8

At least three days before the hearing.

Answer 9

At least 14 days before the hearing.

Answer 10

At least 21 days before the hearing. The parties can agree to accept less notice.

Answer 11

At least 14 days before the final hearing.

Answer 12

As directed by the court. This is typically four weeks after notice of track allocation (PD 28.3.12).

Answer 13

As directed by the court.

Answer 14

No more than seven days after the date on which notice received.

Answer 15

No more than seven days after the date on which notice received.

Answer 16

No later than 21 days before trial.

Answer 17

By the latest date for serving witness statements OR Within seven days of disclosure of the document, whichever is later.

Answer 18

At least seven days before the date on which the witness is required to attend before the court or tribunal. The court may direct that a summons will be binding, although served less than seven days before that date (CPR34.5(2)).

Answer 19

At least 21 days before the hearing.

Answer 20

No later than the latest date for serving witness statements.

Answer 21

No more than 14 days after service on the applicant of a notice of intention to rely on hearsay evidence.

Answer 22

No more than 14 days after service of the hearsay notice.

Answer 23

No more than 28 days after service of the notice of discontinuance on the defendant.

Answer 24

Within 14 days of the date on which the parties agreed the sum was payable by the claimant OR Within 14 days of the date on which the court ordered the costs to be paid.

Answer 25

No more than seven days, and no less than three days, before the start of the trial.

Answer 26

No later than seven days after the legal representative received notice of the costs order. Within 14 days unless court says otherwise.

Answer 27

On the third party, no less than 21 days before the date fixed for hearing for a final third part debt order. On the judgment debtor, no less than seven days after a copy has been served on the third party and seven days before the date fixed for the hearing.

Answer 28

Within seven days of being served with the order.

Answer 29

Within six years of the judgment or order. A writ of execution, warrant of possession or warrant of delivery may be renewed by court order.

Answer 30

12 months from the date of issue. A writ of execution, warrant of possession or warrant of delivery may be renewed by court order.

Answer 31

6 year Limitation periods for claims in contract and tort. The special Limitation rules applying to personal injury claims (3 years), including ss. 14 and 33, to latent damage cases, and to claims brought by children etc.

Answer 32

In non-specific protocol cases the defendant may acknowledge the letter of claim, and has a reasonable period to make a formal response by letter: 14 days in a straightforward case and no more than 3 months in a very complex one.

Answer 33

* 4 and 6 month periods of validity for claim forms (for service within and outside the jurisdiction respectively). * The rules on deemed dates of service both for claim forms and other types of document set out in CPR, Parts 6 and 7. * The rules for calculating time set out in CPR, r. 2.8. * The periods for responding to claims by acknowledging service, filing a defence and agreed extensions of time for responding to particulars of claim. * The related periods for entering judgment in default.

Answer 34

Part 8 claim: C serves written evidence with the Part 8 claim form. Part 8 claim: D files & serves written evidence with Acknowledgment of Service. Part 8 claim: C may file & serve further written evidence 14 days after D's evidence

Answer 35

Calculating service 3 clear days before the hearing in interim applications. 14-day; 7-day and 3-day time limits for serving written evidence in summary judgment and interim payment applications. 7-day period for applying to set aside or vary (i) orders made by the court of its own initiative; and (ii) orders made without notice. Interim applications must be made as soon as it becomes apparent it is necessary or desirable (PD 23A para 2.7).

Answer 36

Minimum 14-day period for returning directions questionnaires in small claims. Minimum 28 days for returning directions questionnaires in fast track and multi-track claims. The 30 week period between allocation and trial in fast track claims. Maximum 28-day agreed written extension to an ‘unless order’.

Answer 37

* Filing disclosure reports in multi-track claims 14 days before the first CMC. * 7 day period after disclosure for serving a notice to prove. * Applications to cross-examine the maker of a hearsay statement issued not less than 14 days after service of notice of intention to rely on the hearsay. * Notice of intention to rely on evidence to attack the credibility of hearsay evidence must be served not less than 14 days after service of notice of intention to rely on the hearsay. * Notice to admit must be served no later than 21 days before trial. * Notice of intention to rely on a deposition must be served no later than 21 days before trial. * Unless the court gives permission for shorter notice, the 7-day before trial period for issuing and serving a witness summons.

Answer 38

* 21 day minimum “relevant period” for offers to settle under Part 36. * Filing & serving costs schedules 24 hours before hearings of no more than a day. * Filing & serving costs schedules 2 days before fast track trials * Filing and exchanging costs budgets 7 days before the first CMC (or as directed in the notice of proposed allocation). * 3 months from order to lodge bill of costs in a detailed assessment.

Answer 39

Judgments and orders take effect on the date they are given or made. Judgments for money, and for paying costs, must be complied with within 14 days.

Answer 40

The 21 day period from the lower court’s decision for bringing an appeal.

Answer 41

* Where a C seeks the court’s decision on a question * Which is NOT likely to involve a substantial dispute of fact: r.8.1(2) * BUT provided there is not PD forbidding the use of Part 8: r.8.1(4)! * Where a rule or PD requires or permits the use of Part * For approval of a settlement for a child or protected party (as in Q5) * For a claim for provisional damages, settled before proceedings have begun: PD8 para 3.1 * Where a rule, statute or PD says the claim should be brought by originating summons/application (the RSC version of this) PD 8 para 3.3

Answer 42

* No defence required (Part 15) * No default judgment available (Part 12): r.8.1(5) * Claim treated as being allocated to the multi track * See: r.8.2 for required contents of Part 8 claim form * See r.8.5 and PD8 para 7 for the evidential rules * Key difference: evidence is provided at the outset * (You need to make yourselves notes on these)

Answer 43

* Apply to extend time for service of/renew the claim form: r.7.6 * Seek an order that alternative has already been effected under: r.6.15 * Seek an order for service to be dispensed with under : r.6.16

Answer 44

* Power to order by an alternative method or at an alternative place: r.6.15 * Test: Is there a good reason? * Will it get to the attention of the D? PD6A para 9 * Procedure: r.6.15(3) and PD6A, para 9 * application supported by evidence, stating: * Reason why order is sought and the proposed alternative method/place of service and why it is believed it will get to the attention of D in this way * may be made without notice

Answer 45

* A valid/good reason should be advanced * As the reason is highly material * Generally the reason must be difficulty in effecting service * Ds have a right to be sued within the limitation period * If there is a good reason, court will balance the hardship between the parties in either granting or refusing the extension of time

Answer 46

* Pre-action protocol (if any) * Issue and serve claim form * Serve Particulars of Claim * C must file certificate of service if served by C: r.6.17(2)(b) * No response to PoC, i.e. no Ackn of Service within 14 days and/or no Defence within 28 days * File a request for (most money cases) or apply (non-money claims)for Judgment in Default

Answer 47

* D’s obligations to respond do NOT arise until service of the PoC: r 9.1(2) * PoC could be with the C: r.7.4(1)(a) * If not,must be served within 14 days of service of the CF: r.7.4(1)(b) * And must be served no later than the latest time for serving the CF (ie within the 4 months in r 7.5): r.7.4(2) * Always from the deemed date of service

Answer 48

* Once PoC have been received by D, he must respond in 14 days * 14 days from the deemed date of service of the PoC * 3 choices: file/serve an admission, file a defence, file an acknowledgement of service (A/S): r 9.2 * Admissions: Part 14: r. 14.2 * A/S: Part 10: r. 10.3: * Defence: Part 15: r.15.4

Answer 49

* D must: * Either file a defence: within 14 days of the deemed date of service of PoC: r.15.4(1)(a); * Or file an acknowledgement of service within 14 days of the deemed date of service of PoC * And file a defence within 28 days of the deemed date of service of the PoC r.15.4(1)(b) * But parties may agree extra 28 days for D to file defence: r.15.5, D must notify the court of the agreement

Answer 50

Does the D have **_real prospects of successfully defending the claim?_** Or, is there **_some other good reason why the judgment should be set aside or varied, or D should be allowed to defend?_** real prospects of success: real = not fanciful, a case which is better than merely arguable

Answer 51

* D must act promptly (or if not, explain why) * the court will look at the overall justice of the case – apply the overriding objective * relief from sanctions r.3.9: it seems that this is likely to be/must considered

Answer 52

* If the PoC are not served with the Claim Form, they must be served within 14 days of service of the CF: r.7.4(1)(b) * But this is subject to r.7.4(2): * PoC must be served no later than the latest time for serving the CF * This is no later than midnight 4 calendar months after the issue of the CF: 7.5(1) * ie within the period of validity of the Claim Form.

Answer 53

Parties must disclose documents _**that party relies upon which adversely affect his own case which adversely affect another party’s case which support another party’s case**_ as required by any Practice Direction – PD 31B – electronic disclosure is the relevant one See: r 31.6 See WB commentary paras 31.6.2-31.6.4 on the syllabus and the Note on Moodle

Answer 54

The parties themselves - declaring that they have made all the necessary checks in the appropriate places for the documents

Answer 55

* Application Notice under Part 23 * Application Notice must specify the terms of the order sought PD 31A para 5 * set out documents or classes of documents for which disclosure sought WB para 31.12.1 * be supported by evidence, which should include the grounds, if these are not in the Application Notice

Answer 56

* (iii) Test: * all the circumstances of the case taken into account * in particular the overriding objective (r.1.1) * are documents necessary for the just disposal of the case? * has the D failed to comply with his obligation to disclose? * if so, court will usually make the order * Obligation under standard disclosure: * documents: he relies on, adversely affect his case, or another’s case or support another’s case r.31.6 (and WB para 31.6.3) * Relevance/significance of the documents? * are the documents in the control of the D? * likelihood of existence of documents * expense/cost of searching * proportionality of search * court must balance one party’s right to a fair hearing (ECHR art 6) with the other party’s right to respect for private life (ECHR art 8)

Answer 57

* Standard disclosure is the default order for disclosure, where menu option disclosure does not apply (see below): r 31.5(1)(a) * But the court may dispense with or limit standard disclosure, in any event: r3.15(1)(b) * And the parties may agree to dispense with or limit standard disclosure: r3.15(1)(c)

Answer 58

* This means that the court has a choice of what kind of disclosure to order * From the ‘menu’ at r.31.5(7) * It applies to all multi track cases * Except personal injury (pi) multi track cases * But ‘unless the court otherwise orders’, * r 31,5(2), means that the court may choose to direct menu option disclosure in a multi track pi case or in a fast track case

Answer 59

2 stage test: Jurisdiction first r.31.16(3) and S 33(2) SCA 1981 Then should discretion be exercised?

Answer 60

* Where C does not know the identity of the proposed D * C may apply against someone who has innocently become mixed up in the wrong doing * And who has facilitated it * For information as to the identity of the wrongdoer * So the proceedings may be brought against the proper D * The respondent to such an application is more than a mere witness

Answer 61

* Disclosure against a non party is exceptional * Court must be satisfied: * The documents (or class of documents) exist * The documents would be disclosable under standard disclosure * Disclosure is necessary in order to dispose fairly of the claim/save costs

Answer 62

confidential communications between a legal adviser and client for the purpose of giving/seeking legal advice

Answer 63

confidential communications between legal adviser and a third party for the dominant purpose of conducting litigation at the time pending, or reasonably in prospect

Answer 64

* The sender of the letter is asserting that the letter is not admissible in evidence because it is part of the negotiations * The negotiations (here, in the letter) must actually form part of negotiations (or other ADR) which constitute a genuine attempt to settle the dispute

Answer 65

1. The public policy is to encourage parties to settle rather than litigate\* 2. Each party will be protected from embarrassment by any admissions or acknowledgements made during the negotiations 3. The protection extends to prevent negotiations from being disclosable to third parties 4. If the letter is a mere assertion of someone’s rights, or arguing the case, it will not attract the privilege 5. The use of ‘without prejudice’ is useful, but not a conclusive indicator 6. And omitting the words is not fatal 7. There must be a sufficient proximity to the litigation 8. So, the privilege can attach to pre litigation disputes 9. However, the without prejudice material will be admissible on the issue of whether or not an agreement was actually reached (ie where one party is disputing the settlement) 10. Without prejudice communications can also be used to interpret the terms of a negotiated settlement, where those are part of the factual matrix or surrounding circumstances 11. Without prejudice privilege is effectively a joint privilege and cannot be waived by one party alone 12. If one party wishes to change the basis of the negotiations to an open negotiation, the burden is on that party to bring the change to the attention of the other party 13. The privilege will be lost if there is unambiguous impropriety and a very clear case of the privilege being abused

Answer 66

* Application notice (App N) (N244) * which states what order is sought and briefly why r.23.6 * Draft order (if complex and if one was attached to App N) * Supported by written evidence, which can be: * in a witness statement (this is the usual method) * in an affidavit (sworn witness statement - rare, other than for freezing orders) * on the application notice (if with a statement of truth) r. 32.6(2)(a) and see WB para 22.1.14 and r.22.1(3) * in a statement of case * skeleton argument * application bundle * statement of costs

Answer 67

* if exceptionally urgent * to further the overriding objective * if all parties consent * with the court’s permission * when there is already a hearing date * When permitted by an order, rule or PD PD23A, para 3 * when there is a **_good reason for not giving notice_**: r.25.3 * but, unless secrecy is essential, informal notice should be given: WB commentary 25.3.2

Answer 68

App Notice served as soon as practicable after it is filed: r 23.7(1) In any event, at least 3 days before hearing r.23.7(1) Written evidence, must be served at the same time r.23.7(3)

Answer 69

**_D has no real prospect of successfully defending the claim;_** [1 mark] and there is **_no other compelling reason why the case should be disposed of at trial_** [1 mark] Exact words required r 24.2

Answer 70

* Real as opposed to fanciful: Swain v Hillman [2001] 1 All ER 91 * Real means a case which is better than merely arguable, a case which carries a real conviction: ED&F Man Liquid Products Ltd v Patel [2003] CP Rep 5 * may be fanciful if entirely without substance: Three Rivers DC v Bank of England (No 3) [2003] 2AC 1 [para 95] * may be fanciful if contradicted by contemporaneous documentation: [para 95] Three Rivers * no real prospects: the absence of reality: Three Rivers etc WB 24.2.3

Answer 71

* Pre-action Protocol (if any) * Issue claim form * Serve claim form and PoC * Defendant Ackn Service (Ack S) or files and serves Defence (Def) * Claimant or Defendant can apply for summary judgment (or court) * So, not until after Ackn S has been filed, but you could wait until after Def has been filed: r 24.4(1) * Most sensible time: between D filing Ack S and C filing its directions questionnaire: WB 24.4.1

Answer 72

* Sum Judgment: Test = No real prospect of success and no other compelling reason for a trial. Burden on Applicant. * Judicial act - disposal on the papers and submissions (no live witness evidence); but D is participating (either filed Ack S or Def) * Compare with: Default Judgment: administrative act, when D has not responded to the PoC – D played no part in the process * Both are judgment without trial

Answer 73

* see r 24.3 * no restrictions against a C * against a D * possession proceedings of residential property against a mortgagor or a protected tenant under RA 1977 or HA 1988 * proceedings for an admiralty action in rem

Answer 74

a C: to speed up the obtaining of judgment in a defence without merit or a D to attack a weak claim or it may be used by the court of its own initiative

Answer 75

* Application notice stating that summary judgment is sought supported by written evidence/a witness statement * Application notice and any evidence to be served at least 14 days before the hearing * D’s evidence in reply to be served at least 7 days before the hearing * Any further evidence by C at least 3 days before the hearing

Answer 76

* **_Setting aside default judgment:_** D has _a real prospect of success_ (ie real, not fanciful) or there is _some other good reason_ to do so. Burden on D. [r.13.3] * **_Summary judgment:_** R has _no real prospect of success_ in his claim/defence and there is _no other compelling reason why case should be disposed of at trial_. Burden on A. r.24.2 * **_Interim payment:_** _If claim went to trial, C would recover substantial damages_ Balance of probabilities Would, not might Burden on A [r. 25.7]

Answer 77

* Any claim by D against C can be pleaded as a Counterclaim (c/c). * Counterclaims are not restricted to money: * need not be connected with claim * can be for any form of relief * Counterclaim is not a defence to the claim unless it is a set off. * All set-offs are counterclaims, but not all counterclaims are set-offs. * See: r 16.6 – defence of set off * If D’s only answer to the Summary Judgment appn is a counterclaim, court will enter Summary Judgment and D must bring his c/c by separate proceedings * But not if c/c is a set off: this operates as a defence * Complete defence if value of set off matches or exceeds claim * Partial defence if set off has value less than claim; Summary Judgment then entered for undisputed balance * If c/c not a set off, but linked: possibly Summary Judgment but with a stay pending determination of c/c WB para 24.2.6 * See: APA Civil 24.30

Answer 78

* Set off can only arise where * C is claiming money * D counterclaims a sum of money from C * Set off must usually be connected to or arise out of the claim – note specific categories recognised by the courts * A recognised set off is a defence to the claim (if successful) * A set off can be defence to part or all of claim, depending on amount, and so, Q: is set off less than the value of C’s claim? * If set off is greater than value of C’s claim * (i) the set off is complete defence (if successful); * (ii) D can recover the difference on his Counterclaim

Answer 79

* Mutual debts: owed between C and D. (Note: This type of set off can be unrelated to the facts of the claim.) * Price of goods sold. Counterclaim for breach of SGA implied terms is a set off: s.53. * Price of service delivered. Counterclaim for damages for poor workmanship is a set off. * Claim by a tenant for damages for breach of covenant in lease is a set off, where Landlord is claiming arrears of rent under same lease. * Equitable set-off. “Inseparably connected”.

Answer 80

Contract: Q1 Time runs from? accrual of cause of action – i.e. breach Q2 Limitation period? 6 Years Tort Q1 Time runs from? Accrual of cause of action – in negligence = from damage Q2 Limitation period? 6 years

Answer 81

* Limitation runs until the claim is brought (as opposed to issued or served) * Date of issue i.e. when form is date stamped is usually best evidence of when claim brought * If C sends a letter with claim form requesting issue (plus issue fee) – date of receipt of letter (which may precede by a few days the date of issue) will stop time running * When a Cl delivers all relevant docs to court for issue (even if court office closed) claim deemed brought * If court office closed on final day of limitation, proceedings deemed to be in time if issued next day court office open

Answer 82

* Personal Injury: Limitation Period 3 years from injury or date of knowledge * Fatal Accident: Limitation Period 3 years from death or date of knowledge * Negligence actions (not PI) where facts relevant to cause of action not known (Latent Damage): 6 years from accrual OR 3 years from starting date (Knowledge of: 1. relevant damage sufficiently serious to justify proceedings; 2. damage attributable to alleged negligence; 3. D’s identity) * Contribution Claims: 2 years from judgment or settlement; in a split trial, time runs from judgment on quantum: see WB Vol 2 8-22, Aer Lingus v Gildacroft Ltd

Answer 83

Equitable to allow action to proceed Balancing the prejudice to the C in not granting the application and The prejudice to the D in granting the application s 33(1)

Answer 84

* The court shall have regard to all the circumstances of the case, in particular the: * length of and reasons for C’s delay * extent to which the evidence will be less cogent as a result of the delay * conduct of the D after the cause of action arose, including the reasonableness of D’s response to c’s requests for information etc * duration of any disability of C (arising after the cause of action accrued) * promptness and reasonableness of C after he knew he might have an action against the D * steps taken by C to obtain expert advice and the nature of that advice * Other important factors for s 33 applications * Is there a potential claim against the C’s first solicitors: (Thompson v Brown [1981] 1WLR 747) * Was the D notified of the claim early? (Donovan v Gwentoys [1990] 1 All ER 1018) * What is the degree of forensic prejudice to the D? (Cain v Francis [2009] QB 754)

Answer 85

* Issue claim form * Application notice * Draft order * With evidence in support (witness statement) * 3 clear days’ notice to be given r 23.7 * Skeleton argument * Statement of costs, 24 hours before hearing * See Part 23 and r 25.1(a), PD 25A para 3, WB para 25.1.9. and 25.1.12

Answer 86

Tend to apply between service of proceedings and track allocation Issue claim form Serve claim form and PoC Apply for interim injunction Defence Or apply for interim injunction now Allocation questionnaires

Answer 87

URGENCY: where no time to wait 3 clear days from serving application (but informal notice should be given) and/or SECRECY: where secrecy is essential (freezing and search orders; some other interim injunctions) Apply as soon as possible after issue

Answer 88

Can apply even before issue: r 25.2(2)(b), if it is urgent, or otherwise necessary in the interests of justice

Answer 89

* All material evidence must be before the court: PD 25A para 3.3 * See WB commentary 25.3.5: disclosure duties on a without notice application * High duty * Applicant must make full, fair and accurate disclosure of material information * Including matters which are or may be adverse to it * Which are known to the applicant or could have been discovered on making reasonable enquiries * Also WB commentary 25.1.9 * See LG 4A notes, p 11

Answer 90

Undertaking in damages Undertaking to rectify any procedural anomalies arising because of the urgency of the application (eg issue and serve CF, file and serve application notice, written evidence)

Answer 91

Mandatory injunctions Final disposal injunctions (ie which finally dispose of the case) (Negative covenants ) In some restraint of trade cases No arguable defence

Answer 92

Application notice Supported by evidence r 25.3(2), r. 25.3(6) Must be served on D at least 14 days before the hearing r 25.6(3) any evidence from D in reply 7 days before the hearing r 25.6(4) Any further WS in reply from C 3 days before the hearing r 25.6(5)

Answer 93

* Note: the timetable for notice and evidence for interim payments and summary judgment applications is different from that for general interim applications. * 14 day’s notice before hearing; * D’s WS - 7 days before hearing; * any reply by C - 3 days before hearing. * Interim payment: see r.25.6(3), (4) and (5) * Summary judgment: see r.24.4(3), 24.5(1) and (2) * Happily, the same timetable for interim payment and summary judgment

Answer 94

* Principles to be applied: r.25.7 * C would obtain judgment against either one D r.25.7(1)(c) * or if against both Ds, against at least one of them, but the court can’t determine which r.25.7(1)(e)(i) * If against both: show all Ds are insured, or liability would be met under RTA or by MIB, or D is a public body r.25.7(e)(ii) * C must establish will succeed, not might succeed * On balance of probabilities * Obtain judgment for a substantial amount of money (other than costs)

Answer 95

IntP must not be more than a reasonable proportion of likely amount of final judgment r.25.7(4) Contributory negligence, relevant set-off or counterclaim must be taken into account r.25.7(5) not required to show need Generally, the amount of the interim payment should not fetter the hands of the trial judge

Answer 96

* Do not disclose to the judge; * Until all issues on liability and quantum have been finally determined: r 25.9 * Post judgment powers: * Wide powers to adjust amount, order repayment of part or all, vary, discharge, order one D to reimburse another D: r 25.8(2) * Between Ds: reimbursement, only if D to be reimbursed has made a claim for a contribution, indemnity or some other remedy (ie under Part 20): r25.8(3) * Interest may be ordered in favour of a D on any overpaid interim payment: r 25.8(5)

Answer 97

* At any time before it has been served: r 17.1(1) * Or with the written consent of the parties, after its has been served: r 17.1(2)(a) * But not if limitation has expired: r 17.4 and 19.5 * Nor if you are seeking to remove, add or substitute a party: r 19.4

Answer 98

Generally, this will be allowed assuming it is furthers the overriding objective: * is it just and proportionate? * And has some/real prospects of success. See WB 17.3.5 and 17.3.6 (APA Civil 22.16) * It is a very commonplace occurrence. * The person seeking the amendment will usually have to pay the costs of and arising from/caused by/occasioned by the amendment. * If the document in question has already been served, permission of the court (or consent of other parties) is required: r 17.1(2).

Answer 99

* To add/substitute/remove a party after service of the claim form (CF) always needs court’s permission: r 19.4(1) * Is it **_desirable to add a party_**, so the court can resolve **_all matters_** in dispute: r 19.2(2)(a); or * Is there an **_issue_** between a party and the new party **_connected to the matters in dispute_** and it is **_desirable to add_** the party so the court can resolve that issue: r 19.2(2)(b)

Answer 100

* Generally, not allowed, as it will deprive the D of his limitation defence * Because the amendment takes effect from the date of the original statement of case: s 35(1) LA 1980 * 3 main categories of exceptions: * Adding a new cause of action * Adding a new party * Where it affects accrued limitation rights

Answer 101

* Court will permit this after limitation has expired if * It arises out of the same or substantially the same facts as are already in issue in the original action: s 35(5)(a) LA 1980, r 17.4(2) * It arises in a personal injury case in which the court has exercised its discretion under s 33 LA 1980: s 35(3) LA 1980 * It is an original counterclaim or set off: s 35(3) LA 1980

Answer 102

* Will a D be able to amend his defence after the limitation period has expired? * Generally Yes, unless * The effect of the amendment is to blame another party whom C cannot now sue, AND * It is D’s fault in not seeking to amend earlier * But, the courts may allow D to amend if C had access to the relevant facts in any event * See APA 22.44 – 22.45; WB 17.3.5, p506: Cluey v R L Dix Heating [2003]

Answer 103

* Where the court has exercised its discretion under s 33 LA 1980 in a personal injury case * Where the amendment simply alters the capacity in which a party claims, provided the party already had that capacity at the outset of proceedings, or has since acquired it: r 17.4(4) – e.g. after grant of probate person has capacity as executor

Answer 104

Eg where the original party has died or been declared bankrupt and his interest or liability has passed to the new party: r 19.5(3)(c) Where it is legally necessary in order to maintain the action r 19.5(3)(b)

Answer 105

* r 17.4(3) * Mistake going to name but not to identity: r 17.4(3) * Restricted to genuine mistakes which would not cause a reasonable doubt about the identity of the party. You are simply altering/correcting the name, not substituting a new party: see WB 19.5.6, (helpful notes on the differences between 19.5 and 17.4). * r 19.5(3) * Mistake going to identity: r 19.5(3)(a) * Substituting a new party, in place of the one wrongly named * Here the test is: is it possible to identify the intended D by reference to a description specific to the case? WB 19.5.7 * So here, the description is right, but the name wrong and so a new party is substituted, who has already been properly described

Answer 106

* Parties may not extend the time for complying with an unless order: r 3.8(3) * Except as provided in r 3.8(4) * r 3.8(4): * written agreement * agreement made before time expires * up to 28 days maximum * extension does not put hearing at risk * provided court does not order otherwise

Answer 107

* Unless D serves the witness statements on which he intends to rely by 4pm on Friday 29 January 2016, his Defence will be struck out. * If order not complied with, no need to apply for a further order to confirm that the Defence has been struck out: PD 3A para 1.9 * C may obtain judgment by filing a request in most cases – see r 3.5(2) * See LGS 5A Notes: this procedure mirrors the procedure in relation to default judgment

Answer 108

Appeal is not the right route Could apply to vary or revoke the order: r 3.1(7): need to show a material change of circumstances; or facts forming basis of original order were misstated; or manifest mistake by the judge

Answer 109

* Apply for relief from sanctions under r 3.8 * If judgment as already been entered under r 3.5, apply for that judgment to be set aside: r 3.6 * In either case the court applies the principles/test for relief from sanctions: r 3.9 * The starting point is that the original order was properly made

Answer 110

* stage (i): identify and assess the seriousness and significance of the failure to comply with any rule, PD or court order; * stage (ii): consider why the default occurred; * stage (iii): evaluate all the circumstances of the case so as to deal justly with the application, including the factors at (a) and (b);

Cheap marks Flashcards

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