Dispute Resolution Flashcards

Question

High Court

Answer 1

Outside London, high court centres are known as District Registries Divisions of High Court: 1. Family Division 1. King's Bench Division - Defamation - Breach of contract - Negligence - Personal injury - Land possession - Non-payment of debts 2. Chancery Division 3. Family Division

Answer 2

Outside London, high court centres are known as District Registries Divisions of High Court: 1. Family Division 2. King's Bench Division - Defamation - Breach of contract - Negligence - Personal injury - Land possession - Non-payment of debts 2a. Technology and construction court (TCC): only claims of £250,000+ 2b. Commercial court: only complex cases (mainly international) 3. Chancery Division - Equity and trusts - Commercial fraud - Tax - Intellectual property - Land - Business disputes - Contentious probate - Regulatory work - Bankruptcy - Professional negligence 3a. Bankruptcy court 3b. Companies court: technical applications made under the Companies Act

Answer 3

1. Complete claim form 2. Name court and parties

Answer 4

1. Nature of claim 2. Remedies sought 3. Statement of value (how much expects to recover in damages but disregard interest, costs and contributory negligence) e.g. amount of debt if a specified sum 3a. County court amount statements - Not more than £10,000 - More than £10,000 - More than £25,000 3b. High court amount statements - More than £100,000 for non-personal injury claims - £50,000 or more for personal injury claims

Answer 5

Claims between £10,000 to £200,000 = fee 5% of the value of the claim Claims of more than £200,000 = £10,000 fee

Answer 6

Formal written statement setting out in detail the nature of the claimants case

Answer 7

Declaration that the facts stated within the claim form are true

Answer 8

Claimant must send enough copies to serve each defendant and a copy for the court file The claimant can choose to serve the defendant or request to court to do so If the court is serving the claim form a notice of funding should be attached to confirm how the claim is being funded

Answer 9

Used if a claimant is under 18 or lacks capacity A certificate of the suitability of the litigation friend must be included with the claim form

Answer 10

Reserved for situations where parties don't dispute facts but require claim to be brought before court e.g. court must approve settlement on behalf of someone under 18 Claimants solicitor must state: - Why part 8 applies - The questions/remedies the claimant wants the courts to decide - Legal basis to claim - Capacity for representative if claim made in a representative capacity Claimant must serve witness evidence with claim form Claim form should include particulars fo claim Any statements in support must contain a statement of truth

Answer 11

When? - Within England and Wales: 4 months - Outside England and Wales: 6 months - Application for an extension can be made but must be within these time frames Who? Solicitor or court What? - Claim form - Particulars of claim - Medical reports, - Schedules of past and future losses and expenses - Notice of funding - Litigation friend certificate of suitability - Response pack (acknowledgement of service, defend or contest jurisdiction) How? - Court = first class post - Solicitor = variety of methods: 1. Service on solicitor: required if solicitor representing defendant - personal service not allowed if represented 2. Personal service on either: a. Individual b. Company = senior personnel (chairman, CEO, managing director or company director) c. Firm = partner or person in charge of partnerships officer - The individual served must physically take hold of the papers 3. Service at company's registered officer: leaving it at or sending by post - allowed even if solicitors nominated to accept service (exception to rule for personal service) 4. Fax 5. Document exchange (DX) 6. Email: only if by express consent given 7. Post: current or last known address If necessary claimant can apply to court for service by an alternative method or at alternative place (can be made retrospectively once service is made by claimant) e.g. by email even where express consent from defendant hasn't been given

Answer 12

Claim form: Indisuptuable presumption that the claim form was served on the SECOND BUSINESS DAY AFTER the relevant step required for service has occurred All other documents: deemed served only on a business day i.e. received on a Sunday would not be deemed served until Monday

Answer 13

Courts permission is required for service of a claim form outside of the jurisdiction EXCEPT for Scotland, Northern Ireland and all other locations in the United Kingdom A claimant can make a without notice application to serve a claim form on a defendant outside the jurisdiction

Answer 14

14 days after date of deemed service of particulars of claim

Answer 15

1. Admit claim or 2. File and serve a defence or 3. File acknowledgement of service: effect of this extends time to serve defence to 28 days or if complex ask for extension from claimant by agreement or court i.e. 58 days to file defence

Answer 16

Pay, if within 14 days, judgement is NOT recorded e.g. won't affect credit rating if debt paid in 14 days Ask for time to pay or to pay in instalments

Answer 17

1. Case is stayed i.e. hearing set 2. Court will determine damages

Answer 18

Clear day When period is referencing an event the day of the event is not included i.e date of deemed service would be the day after the date of deemed service Weekends and bank holidays don't count

Answer 19

1. Application for summary judgement 2. Application for interim payment

Answer 20

Typically happens when defendant believes parties have already agreed contractually to a different forum e.g. courts of a different jurisdiction or arbitration Steps: 1. Tick box on acknowledgement of service 2. Within 14 days make an application supported with written evidence 3. Defence need not be filed if jurisdiction is disputed as it could waive jurisdiction argument

Answer 21

Consequence of defendant failing to file a defence within the specified period Effects of default judgment: 1. Defendant not permitted to defend claim 2. Must pay specified claim amount or damages awarded by the court in an unspecified claim

Answer 22

On application court will decide if: - Defendant has a real prospect of success AND - Defendant has a good reason for the default e.g. key member of staff was away when defence was due to be served and acted promptly once realised mistake AND - Defendant must have acted diligently to have the default set aside Court can impose conditions on defendant to set-aside e.g. pay a fee to court

Answer 23

1. Particulars of claim 2. Defence 3. Reply

Answer 24

Provides outline of party's case on liability, causation and quantum (sets out facts and not conclusions of law) Within power of court to strike out an inadequate statement of case if it doesn't adequately address above points

Answer 25

1. Facts showing contract 2. Facts showing breach 3. Statement of damages sought 4. Statement of truth

Answer 26

Breach of contract claims: - Interest assessed from date of breach (pursuant to particular clause in contract) - Statutory interest provided by court - not fixed - at courts discretion (if contract doesn't provide for interest) - Late Payment of Commercial Debts Act

Answer 27

1. Procedural - Lack of jurisdiction - Arbitration agreement - Expiration of limitation period 2. Denial of element of claim 3. Damages

Answer 28

1. Admit to allegation 2. Deny the allegations - state reason and set out alternative version of events (defendant's positive case) 3. Neither admit nor deny if outside their knowledge Defendant can admit damages while denying liability - defendant pays only if court finds claim proved Defence of set off: if defendant claims claimant owes money they can file a defence seeking to reduce amount owed to claimant

Answer 29

Claimant may respond to defence

Answer 30

1. Third party claim: allows defendants to bring claims against other parties who the defendant says are liable for the claimants loss - either part or all of the claim 2. Counter-claim: allows defendant to make claims against the claimant 3. Claim for contribution (some): claim served against another party requesting that they contribute to damages that the defendant is ordered to pay the claimant 4. Claim for indemnity (all): claim served against another party requesting that they contribute to damages that the defendant is ordered to pay the claimant A third party can only be added by order of the court

Answer 31

Part 20 claims are regarded as separate claims to original claim No court permission required if done with defence - if made later requires court permission A fee is payable as if Part 20 claim is a fresh claim Defendant doesn't have to give notice to claimant in order to bring in a third party or to seek contribution or indemnity unless ordered by court to do so Particulars of Part 20 must be contained in or served with additional claim A Part 20 made where permission isn't necessary must be served on each party to the claim when the defence is filed or if a Part 20 claim is made later it must be served on the person against whom it's made within 14 days of issue Defence to counter-claim must be served within 14 days of date of service - failing which the defendant can obtain judgement on the counter-claim A defendant may serve a reply on defence to counter-claim to address issues which require a response or were not dealt with in the particulars of claim Additional claims bought by defendant: additional party must serve a defence if already a party - if additional party fails to acknowledge or defend claim they are deemed to admit main action and are bound by outcome New party must file an acknowledgement and/or defence and if not they are deemed to admit main action and are bound by outcome

Answer 32

Any party can make a request to clarify any matter in dispute or for further information Request should be reasonably necessary and proportionate Process: 1. Make formal request to other party 2. If no response, then application to court - court can consider matter without a hearing If the party refuses to provide additional information they should state why - court will list a hearing to consider request

Answer 33

Before served it can be amended at any time BUT adding or removing a party requires court permission

Answer 34

When is it necessary? 1. Mistake in naming 2. Claim can't be properly carried on by or against the original party unless new party is added or substituted as claimant or defendant 3. Original party has died or has bankruptcy order made against them and their liability has passed to new party

Answer 35

Court allocates case to the relevant track - Small claims - Fast track - Multiple track Court ignores any sums not in dispute, interest, costs and contributory negligence for the purposes of allocation

Answer 36

Court allocates case to the relevant track - Small claims - Fast track - Multiple track Court ignores any sums not in dispute, interest, costs and contributory negligence for the purposes of allocation

Answer 37

Trial - Less formal procedure - District judge hears case - Hearing may take place without parties in attendance - Recoverable costs restricted to fixed costs and reasonable costs - Expert fees usually restricted to £725 - Costs are lower in this court - Easier for party to represent themselves - Application can be made to set aside a decision by a party not in attendance - within 14 days of service of Order - must prove they had good reason for not attending - party's claim or defence must have reasonable prospects of success

Answer 38

Trial - Less formal procedure - District judge hears case - Hearing may take place without parties in attendance - Recoverable costs restricted to fixed costs and reasonable costs - Expert fees usually restricted to £725 - Costs are lower in this court - Easier for party to represent themselves - Application can be made to set aside a decision by a party not in attendance - within 14 days of service of Order - must prove they had good reason for not attending - party's claim or defence must have reasonable prospects of success

Answer 39

£10,000 to £25,000 PI: more than £1,000 Tight time management of claims - must be heard within 30 weeks of allocation to track Types of cases where the costs are fixed according to the amount the claimant recovers: - Personal injury road traffic accident - Employer's liability - Public liability fast track cases Expert evidence is restricted Joint experts are encouraged Emphasis on written rather than oral evidence Directions are standardised Cost schedules are required Level of costs recoverable are restricted

Answer 40

Claims more than £25,000 or complex cases where trial will last more than one day Can be issued in High Court if value is more than £100,000 Court expects parties to discuss and agree to directions Greater flexibility for judge to make decisions compared with small claims and fast track Stays for ADR are encouraged Flexibility for experts Costs budgets must be filed before initial directions hearing - CCMC Commercial court or technology and construction court assign a judge who deals with all CCMC and pre-trial reviews for consistency

Answer 41

Recoverable costs must be proportional to amount in dispute and the parties' approach to the claim must be reasonable Case summaries and skeleton arguments may be required

Answer 42

Parties must return in 28 days Can't agree extensions Used for the purposes of allocating the claim to the relevant track and make relevant directions Matters addressed: - Stay for ADR - Whether parties have complied with pre-action protocol - Whether experts are required - Names of witnesses and issues to which their evidence relates - Estimate of length of trial - Anticipated costs of proceedings

Answer 43

Small claims - standard directions: - Documents to be exchanged 14 days before hearing - Documents to be filed or brought to court - Provisions for final hearing date - Encouragement to agree claim - Experts require express permission Fast track - standard directions: - Disclosure of required information in 4 weeks - Exchange of witness statements in 10 weeks - Exchange of expert reports within 14 weeks - Pre-trial checklist to be sent at 20 weeks to be returned by 22 week - Date of trial within 30 weeks Parties can seek to vary any directions but must do so within 14 days of when court gave the directions

Answer 44

Court will: - Review steps taken to progress claim - Review compliance with directions already given - Consider further directions - Encourage agreement where possible Multi-track specific: - Whether there is a need to clarify the points at issue - Whether cost management order is appropriate - What should be the scope of disclosure and inspection - Whether there should be a stay for ADR - Provision for exchange of witness statements and expert evidence - Whether a split trial is appropriate - How soon the trial can take place and sets trial period

Answer 45

Consider liability issue first before expenses are incurred on valuing the claim

Answer 46

If a party doesn't comply with the courts direction the court may: - Strike out the claim, defence or counter-claim (drastic remedy unless the non-defaulting party has applied for an unless order which is granted) - Order costs - Award indemnity costs - Increase interest - Order defaulting party to pay money into court - Bar a party from relying on evidence - Restrict the number of witnesses a party can call - Disallow evidence Sanctions are discretionary with judge

Answer 47

Directs the party to comply within a specific timescale and specifies the penalty unless order is complies with

Answer 48

Court will consider: - Seriousness of breach - Why the breach occurred - Circumstances of case - Litigation must be conducted efficiently and proportionately

Answer 49

Application for a judicial application e.g. to set aside a default judgement or for an Unless Order

Answer 50

1. In writing in application notice form 2. On notice i.e. served on other side prior to hearing - As soon as practicable - 3 clear days before hearing - No notice if it would interfere with purpose of the interim application 3. State what order is being sort and why

Answer 51

A device which allows the court to decide a claim or a particular issue in a claim without a trial Either party can make application on basis: - No real prospect of success and no other compelling reason to succeed Written evidence must be served by: - Applicant at least 14 days before hearing - Respondent at least 7 days before hearing - Applicant's reply to respondents evidence at least 3 days before hearing Burden of proof on applicant - two tests must be satisfied: 1. Other party has no real prospect of prevailing 2. No other compelling reason case should proceed If defendant is successful claim is struck out If claimant successful summary judgement will be ordered

Answer 52

Court has discretion to order interim payment in certain circumstances - examples: 1. When defendant has admitted liability 2. When claimant has obtained judgment but final sum not yet assessed e.g. split trial Can't be made until the time for filing the acknowledgement of service has expired Application must be supported by evidence filed and served with application including: - Sum of money sought - Items and matters for which payment is sought - Estimate of a final judgement - In PI case medical reports and schedule of loss Must be served as soon as practicable but no less than 14 days before the hearing Defendant must respond with written evidence no less than 7 days before hearing Applicant can reply up to 3 days before the hearing

Answer 53

Requires a party to do or to stop doing something Mandatory: order to do something Prohibitory: order to refrain from doing something Examples: 1. Freezing order: prevents removal of assets 2. Search order: order to permit applicant on to premises to preserve evidence Can obtain an interim injunction within 48-72 hours of making the application Applications can be made by telephone and out of hours Application must show: - Matter is urgent - It is desirable in the interests of justice Injunctions are discretionary Injunction will not be granted if damages would be an adequate remedy

Answer 54

- Material non-disclosure: not all relevant information was provided by applicant when seeking injunction - Failure of claimant to comply with terms on which injunction was granted - Facts do not justify injunctive relief - Injunction was oppressive - Material change in circumstances - Failure of claimant to prosecute claim with due speed

Answer 55

Always made without notice as risk defendant may dispose of subject assets or remove them from jurisdiction before claim proceeds to trial Application must be to High Court judge Applicant must lodge (at least 2 hours before hearing): - Application notice - Statements of case - Copies of affidavits and exhibits - Any previous orders issued in the case - Skeleton argument or summary Granted if: - Justifiable cause of action - Defendant has assets within jurisdiction - Real risk defendant may dispose of assets before judgement can be enforced

Answer 56

Three basic grounds: 1. Strong prima facie case for underlying claim 2. Defendant's activities must cause very serious potential or actual harm to the claimant's interests 3. Clear evidence that property or documents are in the defendant's possession and may be destroyed

Answer 57

1. Offer to explain meaning and effect of order to defendant 2. Inform defendant of rights to seek legal advice and to apply to vary or discharge order 3. Prepare written report and provide it to claimant's solicitor and the court

Answer 58

1. Return original documents to defendant within 2 days 2. Deliver any property in dispute to defendant's solicitors 3. Retain securely all other property until court directs otherwise

Answer 59

Clearly identifying and informing the other side of the existence of documents Disclosure doesn't mean the documents are actually disclosed but rather a generic description informing the other party of the existence of the documents and what it's about

Answer 60

Any documents which the party relies AND documents that adversely affect its case

Answer 61

Enabling other side to view the disclosed documents

Answer 62

In fast track and some multi-track case the Court will usually make an order for standard disclosure it usually requires each side to disclose Requirement: - Documents on which a party relies - Documents that adversely affect a party's case - Documents that adversely affect the other party's case or support the other party's case

Answer 63

A party must disclose all documents in its control including: - Documents parties possess - Documents parties have a right to possess - Documents parties may inspect or copy - Documents parties no longer have If a client refuses to disclose adverse documents a solicitor can't continue to represent them

Answer 64

Filing with court and serving on other party a disclosure list by direction deadline Standard form has three sections: 1. Documents in party's control that it doesn't object to other party inspecting 2. Document's in party's control that it does object to other party inspecting 3. Documents no longer in party's control stating when they were last in their control and where they are now

Answer 65

Automatic inspection: arty has an automatic right to inspect all documents within the other party's control and which there are no objections to disclosure Party wishing to inspect must give notice to other party and other party must permit inspection within 7 DAYS of receiving notice If requesting party takes vies that disclosure is inadequate (i.e. clearly missing documents the) then they should request in writing to other party to voluntarily disclose but if refused can make application fro specific disclosure Specific disclosure:

Answer 66

1. Legal advice privilege between solicitor and client 2. Litigation privilege relates to preparation for contemplated of actual litigation e.g. between barrister or experts 3. Common interest privilege 4. Without prejudice privilege: communication to another party with a view to settling the claim 5. Public interest doctrine - public interest immunity (PII): inspection would harm the nation or administration of justice

Answer 67

Witness can't be called to testify unless BEFORE trial they provided a statement Must be served by date of direction unless court grants permission Elements: - Tittle of case - Indicate on whose behalf the statement was made - Name and initials of witness - Whether they are a party or employed by a party - Statement of truth

Answer 68

Identify witness and summarise factual issues their statement will cover If unable to obtain a witness statement before date of exchange in directions order Permission from court must be obtained before serving a witness summary

Answer 69

Written statement confirmed by oath - sworn statement Sworn before a solicitor who will endorse the statement to confirm the maker swore the contents of the statement were true

Answer 70

A statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence on matters stated Statement made outside of court Hearsay is generally admissible in a civil case Less weight may be placed on hearsay A written witness statement = hearsay BUT no longer hearsay when the witness gives oral evidence in proceedings

Answer 71

If the witness is in court then they are not required to give oral evidence and the witness statement can stand as their evidence in chief In court the witness will swear that they will give true evidence and be asked if their signature on statement THEN the witness statement is no longer hearsay and instead evidence in chief Not subject to cross-examination but can be

Answer 72

Party relying on statement: - Must serve notice of intention to rely on hearsay evidence - If witness statement is served the statement comprises notice but must explain why witness can't give evidence - If no statement served, party must serve notice identifying hearsay evidence and explaining why witness won't be called Party served: - Can make application to have witness attend WITHIN 14 DAYS of receiving notice - Can serve notice to attack credibility of witness WITHIN 14 DAYS of being served by showing bias or untrustworthiness

Answer 73

Effect of admission or lack of admission: - If facts are admitted, no need to prove them - If not admitted and proved at trial, the recipient of the notice to admit may be ordered to bear the costs of proving the fact

Answer 74

1. Opinion evidence: inadmissible unless from expert witness directed by court 2. Without prejudice correspondence: offers to settle can't be used at trial

Answer 75

A person who has been instructed to give or prepare expert evidence for the purpose of proceedings A professional qualification is preferred but not essential Experience can make someone an expert

Answer 76

- Not within the ordinary experience of the judge i.e. legal expert - Expert must have true expertise in the field - Expert must give evidence to a reasonable degree of certainty - Expert must demonstrate basis of opinion and conclusions

Answer 77

Duty to court not party who instructed them Must provide a full appraisal of their opinion in their report and must support views by reference to scientific and technical data Objective Ensure their integrity and independence are preserved Ensure the court doesn't

Answer 78

- Experts academic and professional qualifications - Written and oral instructions given to expert - All material provided - Who carried out any necessary measurements, tests etc. - Extracts of literature referred to - Statement that expert has complied with duties to the court - Statement of truth

Answer 79

- Evidence must be likely to impact outcome - Evidence must assist the judge - Risk of injustice if expert evidence if not tested - Cost of expert attending is not disproportionate

Answer 80

When claimant's expert and defendant's expert give evidence at. the same time

Answer 81

- Usually single joint expert - Multi-track experts can instruct their own experts if justified to judge at case management conference

Answer 82

- Record the terms of the agreement - Prepare a consent order (no automatic right to payment without order)

Answer 83

Formalises the parties’ settlement by recording its terms and having the court issue the settlement as a consent order. Advantage: - Parties can enforce the order in court if necessary - No need to restart proceedings if a party fails to comply, can pick up proceedings where they left off

Answer 84

Witness summons to compel attendance: - Penalty of contempt of court for non-attendance - Witness summons must be served on party at least 7 days before trial Procedure - Send copy of summons to court - Additional summons for witness - Court fee - Separate summons for each witness - Party applying for summons must send an appropriate sum for the witnesses' expenses in attending and compensating for loss of time (conduct money)

Answer 85

Sum paid to witness to compensate for their attendance Covers loss of income Maximum for a period exceeding 4 hours = £67 Additional sums payable for substinence and overnight stays If conduct money is not paid the witness summons is not effective

Answer 86

Claimants solicitor should prepare at least 6 bundles and they bare the cost of preparation

Answer 87

1. Claimant makes opening submissions 2. Defendant makes opening submissions 3. Claimant presents witnesses (confirming their signature on witness statement) - adducing evidence in chief 4. Defendant cross-examines claimant witness 5. Claimant may re-examine 6. Claimant presents experts (if any) 7. Defendant's case 8. Claimant's closing speech 9. Defendant's closing speech

Answer 88

Usually handed down the same day May be reserved where the matter is listed for a further hearing

Answer 89

Parties may make submissions to the court in relation to any other matters that flow from the judgement including: - Interest: rate - Costs: losing party pays - Time to pay - Stay of execution: delay in enforcing the judgement - losing party may make if intend to appeal - Permission to appeal

Answer 90

District judge in county court Circuit judge in county court High court judge Court of appeal (Lord or Lady Justice of Appeal)

Answer 91

Permission required - Judge whose decision is being appealed - Court that would hear the appeal Can be made orally after judgement is handed down or in writing later

Answer 92

Permission required - Judge whose decision is being appealed - Court that would hear the appeal Can be made orally after judgement is handed down or in writing later

Answer 93

- Wrong in fact, law or exercise of discretion - Unjust because of procedural errors Wrong in fact: judge records incorrect facts from witness Wrong in law: applied. law incorrectly Error in exercise of court's discretion: judge's discretion is not absolute and can be reviewed

Answer 94

Application considered without hearing OR if written application refused appellant has 7 days to request an oral hearing AND if not granted party has 21 days to make written application BUT if out of time can apply to court of appeal for retrospective permission If granted will be listed for hearing for appeal to be heard

Answer 95

- Not a rehearing - No new evidence (without permission)

Answer 96

Solicitors fees incurred in the case and disbursements paid by solicitor on behalf of client e..g counsel fees, court fees Loser pays costs Costs are at discretion of court and they depart from general rule if: - Party fails to comply with pre-action protocol - Rejection of Part 36 offer - Exaggeration of a claim - Failure to succeed on whole claim Parties should attempt to agree costs first but if they can't hearing is held (assessment) to determine costs

Answer 97

Party can't recover more costs from opponent that they are liable to pay their own legal representative i.e. costs are limited to actual costs A rule with no exceptions

Answer 98

1. Standard basis: - Default basis - Recover proportionate costs only - Benefit of doubt given to paying party 2. Indemnity basis: - Generally used to sanction for misconduct e.g. unreasonable refusal to negotiate - Proportionality not considered - Benefit of doubt given to receiving party

Answer 99

Multi-track cases - Budget must be filed with directions questionnaire if case is less than £50,000 OR 21 days before first CMC if value is £50,000 or more - At CMC judge will make a costs management order - Once order made costs budget should not be exceeded but 20% leeway - If party exceeds order must apply for a new order -

Answer 100

1. Summary assessment hearing 2. Detailed assessment hearing

Answer 101

In lower value cases and interim applications a statement of costs must be filed by each party 24 hours before a hearing or 2 days before a trial Court makes judgement at conclusion of heairng Costs usually payable in 14 days of hearing Receiving party entitled. to interest from judgement until costs are paid

Answer 102

Parties unable to agree costs Receiving party prepares detailed bill of costs and serves on opponent within 3 months of judgement or order Opponent files points of dispute within 21 days - if they fail to reply the receiving party can obtain. default costs certificate Costs less than £75,000 will be provisionally assessed by costs judge

Answer 103

A defendant may apply for security for costs order if concerned that if claimant loses they won't be able to pay defendant's costs Order may make claimant pay money into court or secure a bond Circumstances where security is ordered: - Claimant is a company - Reason to believe the claimant will be unable to pay defendant's costs if ordered to do so

Answer 104

Small claims: usually no order for payment of legal costs BUT winner can claim costs of claim form issue and fixed amount for time at trial Fast track: costs for trial are fixed but costs for preparation of trial are not fixed and can be claimed in usual way Personal injury: principle of qualified one-way costs shifting applies

Answer 105

Unsuccessful claimant will not be ordered to pay unless the claim was: - Fundamentally dishonest - Made for financial benefit of another - Struck out for disclosing no cause of action or abuse

Answer 106

Legal representative acted improperly, unreasonably or negligently Which caused unnecessary costs AND It is just to make the order Solicitor pays (not party)

Answer 107

Formal mechanism for making an offer of settlement Serious cost sanctions if party refuses offer If the result at trial is less advantageous to the offeree than the offer was the judge may make the offeree pay some of the offeror's costs

Answer 108

1. In writing 2. Clearly state it is made under Part 36 3. Specify a period for acceptance (at least 21 days) - offer can't be withdrawn during this period without court's permission 4. State whether relates to whole or part of claim 5. State whether it takes into account any counterclaim If accepted during relevant period the defendant will pay the costs up to the point of acceptance If parties can't agree costs they are paid on the standard basis

Answer 109

- All claims apart from small track - Anytime including before proceedings are issued

Answer 110

Claimant pays costs on the standard basis from the date that the relevant period for acceptance expired and claimant pays own costs after the relevant period

Answer 111

1. Locate judgement debtor's assets e.g. by instructing an inquiry agent who will find the judgement debtor's assets OR process of oral examination 2.

Answer 112

Obtained by a court order Judgement creditor must apply to the court and serve order personally on judgement debtor (no less than 14 days before hearing) Judgement creditor files affidavit - Detailing service of order - Stating how much judgment debt remains unpaid At hearing judgement debtor is questioned about assets on oath Judge may make committal order if judgement debtor fails to attend

Answer 113

High court: 8% per annum from date of judgement County court: not payable on judgement under £5,000 unless contractually obligated BUT if more than £5,000

Answer 114

1. Taking control of the goods

Answer 115

High court: - judgement creditor files a request to execute the judgement - Court issues writ of control - Forwarded to High Court enforcement officer County Court - Judgement creditor certifies amount remaining - Court seals the order - Forwarded to certified enforcement agent Judgement creditor must give judgment debtor no less than 7 days notice of creditor's intention to take control of goods Officer or agent provides an inventory of goods seized and then sells goods in 7 days Trade equipment and basic household items are excluded from seizure

Answer 116

Judgement-debtor can avoid seizure by agreeing not to dispose of goods before debt is paid

Answer 117

Used to access judgement debtors money in bank - requires bank to pay judgement creditor Commercial cases where judgement debtor is owed money by a third party paid directly to judgement creditor

Answer 118

Obtain a charge on the property (equitable mortgage) - gives judgment creditor right to apply for an oder for sale even if land is in joint ownership

Answer 119

Reciprocal enforcement agreement is required