Dispute Resolution Flashcards

Question

Admission in whole

Answer 1

Specified sum Court will issue a judgment order to incl accrued interest and fixed costs which D must pay (within 14 days?) D can request time to pay or in instalments D will need to provide details of assets/income/outgoings C can accept or raise objections (with reasons) C objects => court will determine an appropriate level of instalments or else list a hearing to decide Unspecified amount (ie damages) => court will stay case and set case for disposal hearing to determine level of damages D minor/protected party => court must approve an admission or any offer to pay

Answer 2

Partial admission => D will need to file defence to part in dispute Admit liability but dispute quantum (ie deny that breach caused injury/loss to the extent claimed by C) => D file defence accordingly

Answer 3

With permission from court Court will consider: Prejudice to the parties Reasons why admission was made Stress a party was under when admission made Interests of the public Time when app to withdraw admission made

Answer 4

If admission came after letter of claim, person may withdraw pre-action admission: With consent of person to whom it was made After commencement, with permission from court C issues claim after pre-action admission => party van apply for judgment on strength of the pre-action admission or party who made admission can apply to withdraw it

Answer 5

Can't simply deny, D must set out reasons D can file AoS within 14 days and defence 14 days after that (if more time needed)

Answer 6

Once AoS is filed, C can make an app for summary judgment or apply for interim payment if they can show D has no realistic defence to action

Answer 7

In AoS response pack Must make an app, supported with written evidence, within 14 days of deemed service D must not file defence until court has heard this app D’s app fails => then required to file defenceJ

Answer 8

If D fails to file defence within specified period Granted => D not permitted to defend claim further and required to pay specified amount (specified claim) or sum in damages to be decided by the court

Answer 9

D can apply to set aside. Court must be satisfied that: D has a real prospect of successfully defending the claim; and There is some good other reason why the judgement should be set aside and D allowed to defend (eg a regrettable but understandable mistake) Can also be set aside if D can show wrongly entered, eg Judgement entered too early Claim paid or settled D submitted request for time to pay which has not yet been considered App for judgment was made after an app by D to strike out claim or dismiss summarily and app not yet considered by the court D must act promptly in issuing app to set aside

Answer 10

C may discontinue by filing notice of discontinuance which gives formal notice to D that they do not wish to continue with their claim Only post-issue Once served => will bring claim to end save for question of costs

Answer 11

Will not carry legal weight unless embodied in court order setting out terms of agreement and time for paymentH

Answer 12

Admission => no longer in disupte and C will not have to prove it D fails to respond to para it is deemed to be admitted Deny => must state reasons and put out alternative version of events Fact is denied => C must prove it Non-admission D may state they neither admit not deny if facts alleged are outside D’s knowledge => C must prove it D disputes value on claim form => defence should say way and provide D’s value if poss Disputes limitation => state in defence

Answer 13

Purpose Optional and usually only prepared if something raised in defence requires a response (ie not dealt with in PoC) Not used to rectify mistakes or omissions from PoC – purpose is to clarify points Format Often incorporated in a defence to counterclaimW

Answer 14

If: D wishes to bring counterclaim against C Ds may bring claims against third parties who might be liable to C or D under facts relating to C’s claim

Answer 15

Must be brought within the same set of proceedings Key features = Brought by existing D against C Arises out of same or substantially same facts Monetary claim in own right Not a defence Can be made without court’s permission if D files CC with their defence Requires court’s permission if D wishes to make CC at another time

Answer 16

Ie if blamed for C’s loss As above, no permission required if filed at same time as defence. Otherwise court permission required New party termed third party App can be made without notice unless court directs otherwise Particulars of additional claim must be contained in or served with additional claim Third party wishes to blame someone else => fourth party etc

Answer 17

Party may serve a notice on another party (usually another D) that that party must pay the serving party some (contribution) or all (indemnity) of any payment if the serving party is ordered to pay to the C Permission of the court is not required if filed at same time as defence. Otherwise required. Claim against a party not added to claim until later in action => no permission required if party is served within 28 days of the third party filing their defence

Answer 18

D may file claim against 3rd party for their own injuries arising from same facts Court permission required

Answer 19

Where permission not required => must be served at same time as defence Permission required/issues by court later => must be served within 14 days of issue Must be served with docs required for service ie forms for defending claim etc

Answer 20

Defence to CC must be served within 14 days of date of service Not => D can obtain judgment on the counterclaim New D must file an AoS and/or defence Fails to acknowledge/defend, deemed to admit the main action

Answer 21

Eg to clarify matter in dispute and/or for additional info in relation to matter (ie must be relevant) Initial request for info Should first make formal request to other party Only make app to court if receiving party does not respond adequately within a reasonable period Respondent objects => should state why Court will list app for hearing unless R has failed to respond at all in which case court can consider matter on papers Party should incl statement of truth on replies Grounds for objecting incl Request unnecessary/irrelevant/improper R party unable to provide info or clarification Party requesting info gave insufficient time to reply Expense of complying with request would be disproportionate to the claim or contrary to overriding objectives of CPR R party is protected from answering by existing privilege

Answer 22

Before served => can be amended at any time without court’s permission After served => can other be amended with written consent of all other parties or permission of the court

Answer 23

Files app notice with a copy of proposed amended statement of case Parties consent => decided without a hearing Otherwise hearing will be held

Answer 24

App with supporting evidence required Court add new party if: Desirable to add new party so court can resolve all matters in dispute Issue involving new party and an existing party which is connected to the matters in dispute Court remove party if not desirable for them to be a party in the proceedings Substitute a party if: Existing party’s interest or liability has passed to new party; and It is desirable to substitute the new party so the court can resolve matters in dispute

Answer 25

Court can add or substitute only if: Relevant limitation period was current when proceedings were started; and Addition/substitution necessary New party is to be substituted for a party who was named in the claim form in mistake for new party; or Claim cannot properly be carried on by or against the original party unless the new party is added or substituted as C/D; or Original party has died or had a bankruptcy order against them and their interest/liability has passed to new party

Answer 26

Must address certain points ie whether parties have complied with PAP, case management info, whether experts are required, names of witnesses etc Judge confirm track upon receipt and make directions; or else list claim for CMC Parties must return DQs within 28 days of the date of service of the order. Not open for partied to agree an extension of time

Answer 27

Most straightforward claims Upper limit of £10k Not absolute ceiling - parties may agree or claim for more but in dispute is less than £10k PI (road traffic) = less than £5k for pain, suffering and loss of amenity (PSLA) PI (non-road traffic) = less than £1k for PSLA Hearing is less formal Recoverable costs restricted to fixed costs and reasonable expenses in attending and expert fees at £750 (BUT court can award more if party behaved unreasonably) Party can apply to set side decision if they were not in attendance App made within 14 days of service of order showing: Good reason for not attending; and Their claim or defence has reasonable prospects of success

Answer 28

Value between 10k and 25k Tight control of claims with strict time limits Trial must take place within 30 weeks of allocation Recoverable costs must be proportional to the amount in dispute (fixed according to amount C recovers in certain claims e.g. PI road) Court expects parties to consult and agree directions, often standard Evidence restricted (use of SJE encouraged) Witness evidence stand as evidence in chief Party seeking to rely on expert evidence will need to provide justification and estimate of likely cost Partied to submit costs schedules ahead of hearing

Answer 29

25k + or trial to last more than 1 day Court expects parties to agree directions More flexibility for experts – court usually allow partied to instruct own experts and in more than one field Stays for ADR encouraged Costs budgets to be filed before initial directions hearing, which often proceeds as CCMC

Answer 30

Directions given without CMC Standard directions= Disclosure – 4 weeks WS exchange – 10 weeks Expert report exchange – 14 weeks Pre-trial checklist – 20 weeks Pre-trial checklists returned – 22 weeks Trial – 30 weeks Can apply to vary directions – must do so within 14 days Fees payable on filing of pre-trial checklists (ensures parties have complied with directions and considers what else may be required to prepare case for trial) and hearing fee

Answer 31

Above steps => key in all cases Tends to be no set timetable Complex/high value => CMC listed, normally requiring: Parties to file disclosure reports at least 14 days before And costs budgets 7 days before Must file case summary CMC Opp for court to take stock of case and consider further steps that may be necessary to prepare for trial Parties should provide estimate of experts’ fees and issues on which they will give evidence

Answer 32

Failure to comply with directions may lead court to strike out claim/defence/CC Party defaults => other party should make immediate app Court usually make unless order – specifying the penalty that will be imposed unless party complies with the direction Court may make costs order instead of striking out Minor breaches not usually a problem as long as parties keep to dates of CMCs, pre-trial reviews, and trial Relief from sanctions If party has good reason for non-compliance Court will consider seriousness of the breach and reasons for breach

Answer 33

Should be made as soon as apparent that it is necessary If poss should be made and heard at any hearing already listed Party should apply to court where action is proceeding App should be on at least 3 days' notice to other party (ie 3 days before the hearing) All evidence filed at court along with notice and required filing fee Applicant should file and serve a case summary and proposed draft order no later than 2 days before the hearing Notice unnecessary if: E.g., defeats purpose of app (search orders/freezing orders) Made without notice => must incl evidence explaining why notice was not given Order made => must be served on party with app and supporting evidence. D then has 7 days to make app to vary or set aside order App made erroneously => court likely to dismiss it with a wasted costs order (ie that solicitor, not party, pay legal costs associated with the app)

Answer 34

D has admitted liability C has obtained judgemtn but sum to be paid is not yet assessed Court is satisfied that if the action proceeded to trial, the C would obtain judgment for a substantial sum; or If the claim is against 2+ Ds, the court is satisfied that if the claim went to trial, C would obtain judgment for a substantial sum against at least one and each D carries insurance

Answer 35

Applicant should always invite R to make payment before making an app C cannot make app until time for filing AoS has passed Often combined with summary judgment app Not necessary for court to consider whether specific need for payment Court cannot award interim payment that is more than a reasonable proportion of the likely amount of the final judgment Must take contributory neg into account

Answer 36

Must be supported with evidence filed and served with app Soon as practicable but not less than 14 days before the hearing R then has 7 days before hearing to file evidence Any reply up to 3 days before hearing Written evidence must incl: Sum of money sought Items and matters in respect of which payment is sought Estimate of final judgment, attaching medical reports in PI case In PI claims a schedule of loss

Answer 37

By applicant Court may require as a condition to granting the injunction Ie that C will compensate D for any loss due to injunction if court later determines the injunction shouldn’t have been granted in the first place By D D may give undertaking in terms similar to the injunction C is seeking – D will be bound as if the injunction had been granted C will then be required to safeguard the D in the event of the C not succeeding in obtaining an injunction at trial

Answer 38

(D must apply on notice to judge) e.g. Material non-disclosure (ie C did not provide all relevant info when seeking injunction) Failure of applicant to comply with terms on which injunction was granted Facts do not justify interim injunction Injunction is oppressive Material change in circs or in law C has failed to prosecute claim with due speedFr

Answer 39

Ie freeze assets of D Granted if risk D may dispose of subject assets or remove them from jurisdiction before the claim proceeds to trial App made without notice to R Must be made to HC judge Grounds necessary: Justifiable cause of action C has good, arguable case D has assets within jurisdiction; and Real risk D may dispose of/dissipate those assets before judgment can be enforced Likely to include: Undertaking by C (usually e.g. as to damages/to notify D of order) Order freezing D’s assets (must state period of time and amount must not exceed max amount of claim) Binds third parties with knowledge of it D can apply for discharge if they offer other security for C’s claim or show C is guilty of material non-disclosure

Answer 40

Court usually only grant if considered essential and no alternative Grounds = Strong prima facie case on the merits of the underlying claim D’s activities must cause very serious potential or actual harm to C’s interests; and Clear evidence that property or evidence are in D’s possession and real possibility material may be destroyed before an app can be made on notice D must disclose whereabouts of any docs or property referred to in order Independent supervising solicitor oversees execution of the order and will undertake to: Offer to explain the meaning and effect of order to D Inform D of their right to seek legal advice and to apply to vary/discharge the order; and Prepare a written report on execution of the order an to provide it to C’s sols and the court C’s sols will undertake to: Return original docs to D within 2 days; Deliver any property in dispute to D’s sols, for them to retain securely; and Retain securely other property until court directs otherwise.

Answer 41

Only docs relevant to issues in question Obligation extends to any doc within party’s control even if no longer in party’s possession Legal rep: Legal rep must cease to act for client who is not prepared to comply eg by refusing to disclose docs adverse to their case Doc destroyed => legal rep required to inform court Party has control if: Have physical possession Have right to possess Had doc in possession but no longer have it Make reasonable and proportionate search

Answer 42

LOD – 3 sections = 1. List of docs in its control they do not object to other party inspecting 2. List of docs in its control they object to other party inspecting with reasons (usually privilege) 3. List of docs no longer in its control, stating when last in control and where they are now Disclosure statement – signed by party (not legal rep) Time limits = usually 28 days from date of directions order Inspection usually within 7 days (but often copies sent with LOD) Must be good reason for not disclosing eg public interest immunity Automatic right to inspect unless specifically challenged eg: Privilege, Doc is no longer in party’s control, Would be disproportionate to allow inspection Wants to inspect doc => must give notice to other party who must then permit inspection within 7 days of the date they received the notice Docs may be redacted to blank out irrelevant/confidential info

Answer 43

Can apply for specific disclosure Serve a notice to admit facts Apply for unless order

Answer 44

App may arise if a party believes another party’s disclosure is inadequate (normally takes places after standard disclosure) Order may require respondent to: Disclose certain docs or classes of doc Prepare supplemental LOD Carry out a search to the extent specified in the order Disclose any doc located by the search Party should make written request for docs before issuing the app. Evidence in support must include a statement of belief that the disclosure is inadequate

Answer 45

App usually available only against a person who is likely to become a party to the proceedings Can be made against non-parties if case involves: 1. Freezing injunctions 2. Search orders 3. Apps for preservation of property; or 4. Requests for further info pursuant.

Answer 46

Existence must be disclosed but party holding it has right to withhold doc from inspection Can be: legal advice privilege, litigation privilege, common interest privilege, WP privilege, public interest immunity

Answer 47

I.e. comms with a client Protects compulsory disclosure of all types of comm between a client and their lawyer in which advice is given within a relevant legal context

Answer 48

Relates to comms with third parties (ie experts and barristers) in relation to the preparation of pending or contemplated litigation Must be real likelihood of litigation, a mere possibility is insufficient Docs with multiple purposes => privileged only if court decides its dominant purpose is to prepare for litigation (different from stated purpose) Burden on person asserting privilege and bar is high Privilege lost if docs is to be used at trial

Answer 49

May apply where there are multiple Ds or group actions To apply common interest must have been present at the time of disclosure between the parties If subsequently the parties’ relationship breaks down, the right to c laim privilege to third parties subsists Privilege can only be waived if all interested parties agree to waive it

Answer 50

Ie if disclosure may harm the nation or the administration of justice Court will balance risk with the value that disclosure may have for the other party

Answer 51

May be waived by the client Once disclosed cannot be restored Mistaken disclosure (Ie inadvertently waived by the sol) - The party who has inspected it may use it only with permission of the court - Court may prevent use if there has been an obvious mistake in making it available for inspection - Court will also consider interests of justice and the overriding objective

Answer 52

Signed statement generally required to testify: Endorsed by statement of truth and served on opponent on time; Then attends court for cross-examination WS not served => party cannot call that witness to give evidence unless court gives permission Defaulting party can apply to adduce the evidence despite failure to serve on time if they can demonstrate a good reason for the failure Competency of witness and service of summons: Competent if they can be lawfully called to give evidence (eg with mental capacity) Witness can be compelled to give witness by serving a witness summons on the witness: Court will issue witness summons on the witness at least 7 days before the hearing Witness entitled to conduct money for travel and lost time, incl earnings lost on account of attending the trial Party decides not to call a witness whose evidence has been served, other party can still refer to the statement (court will treat as hearsay evidence)

Answer 53

Incl a statement of truth As standard If party’s rep is making a statement: 1. Firm's name and address should be given, with confirmation that maker is party’s legal rep 2. Not direct evidence => should preface any reference to facts outside personal knowledge with ‘i am informed’ Not possible to obtain witness statement => party may serve witness summary (which identifies the witness and summaries the factual issues their evidence will cover) Affidavit = written statement by oath or affirmation 1. Whereas WS contains a statement of truth, an affidavit must be ‘sworn’, usually before a sol who will endorse to say that the maker had sworn begore them that the contents were true 2. Some apps may requires affidavit eg freezing injunctions or search orders

Answer 54

Must be: 1. Made outside court; and 2. Its purpose must be to prove the truth of what is being stated Ie stops becoming hearsay when witness attends at court Claimant's case: 1. C’s witnesses will give evidence first 2. Asked whthere their sig on WS and if yes that will stand as their evidence in chief and cease to be hearsay D’s reps then cross-examine Then D’s witnesses give evidence in chief and are cross-examined

Answer 55

Judge will not put as much weight on this evidence Judge will consider: 1. Whether it would have been reasonable or practicable to force the witness to attend 2. Whether the original statement was made contemporaneously with the event 3. Whether the evidence involves multiple hearsay 4. Whether there was any motive to misrepresent the position/conceal facts 5. Whether the original statement was edited Trial must indicate weight they have attached to hearsay evidence Party wishes to rely on hearsay evidence => must serve notice on opponent Witness attending => service of WS constitutes notice Witness not attending => party must serve formal document giving notice If party served seeks to call witness at trial/seek to attack witness’s credibility at trial => must within 14 days of service make an app to call witness to court

Answer 56

(ie sig lack of cooperation to tell the truth on behalf of the party who called them) Can be declared ‘hostile witness’ If judge agrees, witness can be cross examined on facts of case to eg provide the witness has made inconsistent statement in the past

Answer 57

Facts capable of agreement and admission => serve Notice to Admit Facts on opponent no later than 21 days before trial Notice served, facts not admitted but then proved at trial => court may order party who refused to admit to pay associated costs

Answer 58

Party believes a doc produced by opponent is not authentic => can serve notice to prove the document at trial Must be served by last day available for WS exchange or within 7 days of disclosure of the doc (whichever is later) Recipient proves authenticity of doc => court may make costs order against party who served notice

Answer 59

Opinion evidence (unless expert, or unless facts as perceived by them) Privileged Without prejudice comms Evidence protected by public interest immunity Irrelevant evidence Court may also disallow evidence that would normally be admissible (ie court has a discretion)

Answer 60

Experts may give opinion evidence as long as expert qualified to give the opinion and the expert evidence is reasonably required to resolve the proceedings Opinoin must depend on special knowledge that is not within the ordinary experience of the judge Expert must demonstrate that they can be regarded as a true expert in the particular field of expertise Exoert must give evidence to a reasonable degree of certainty regarding their opinion, inference, or conclusions; and Expert must be able to demonstrate the basis of their opinion and conclusions Expert must exercise independence, integrity and impartiality (owes duty to court)

Answer 61

Report prepared by expert should: 1. Be independent and uninfluenced 2. Provide an objective unbiased opinion 3. State the facts on which the opinion is based; and 4. Make clear when an issue falls outside the author’s field of expertise or where there is insufficient evidence or research on which to base an opinion

Answer 62

Default is oral evidence not required unless court directs otherwise. Party requesting oral evidence must establish that: 1. Expert oral evidence is likely to have an effect on the outcome 2. It will assist the judge 3. There is a risk of injustice if the expert evidence is not tested; and 4. The costs of the experts attending are not disproportionate

Answer 63

Parties should try to agree identity Not possible => court will choose from a list provided by the parties Fast track => court must give directions for a SJE unless good reason not to Parties share fee until conclusion (at which point losing party claims responsibility) Different from agreed expert in PI claim: (Ie an expert nominated by the C’s rep in the PAP process) - D does not object => C will instruct, but not instructed jointly and D retains right to instruct own expert

Answer 64

More likely in multi-track Must persuade court it is reasonable to do so, eg: 1. Complex issues and high value 2. Parties already have own experts from pre action stage 3. Number of schools of thought 4. Issue may have huge significance in outcome of action ie addressing challenging issues to liability and quantum Directions likely to include requirement that parties arrange a WP meeting - Legal reps should not be present when experts meet

Answer 65

Parties can ask questions to expert within 28 days of expert sending report Should be proportionate and for clarification Each party must send a copy of their questions to the other party

Answer 66

Usually in form of tomlin order which incl: The order, which confirms that the parties have agreed settlement and that they have agreed that the case is stayed pending the terms of the settlement being carried out; and A schedule confirming the amount to be paid, by whom, and what dates this needs to be paid by

Answer 67

Fast track case => court will usually fix the trial date or window when giving directions after receipt of the DQs Multi track => court more likely to list the case for a pre-trail hearing on consideration of the pre-trial checklists completed by the parties Pre-trial review hearings take place approx 10 weeks before the trial date Purpose = make sure everything in place for the matter to be heard at trial to ensure effective use of court time Court may: 1. Consider the extent to which parties have complied with orders and directions; 2. Set a trial timetable; and 3. Set the number of experts and witnesses that may give evidence at the trial Parties required to file and serve an agreed (where possible) case summary before hearing with a list of issues 1. Must not be more than 500 words 2. Should incl agreed upon facts, what is in dispute, and a synopsis of the evidence that is believed to be required

Answer 68

Purpose = to compel a witness to attend court to give evidence at trial Issued by the court on the request of a party Send to court separate summons for each witness to be served plus one copy of each plus court fee Party must also send appropriate sum to cover witness’s expenses in attending trial and compensating them for their time (conduct money) Conduct money not incl = summons is ineffective Effect = if witness then fails to attend they will be in contempt of court CC => likely a fine To be effective must be serve don witness at least 7 days before the trial

Answer 69

Magistrates => Your Worship or Sir/Madam - begin letters 'Dear [full name]' District Judge => DJ => Judge Circuit Judge => HHJ => Your Honour => Judge Master => Master => Master => Master HC => J => My Lord/My Lady => Judge CoA => LJ => My Lord/Lady => Lord Justice

Answer 70

C’s sol must prepare and bear expense of preparation Must be filed within 3 and 7 days before trial At least 6 bundles should be filed

Answer 71

Judge has discretion to depart from the timetable if they intend to Usually = 1. Opening submission for C 2. Opening submissions for D 3. Consideration of any preliminary issues 4. C’s witnesses give evidence (incl EiC, XE, and RE) 5. C’s experts give evidence 6. D’s witnesses give evidence 7. D’s experts give evidence 8. C’s counsel makes closing submissions 9.D’s counsel makes closing submissions Leading question = one that prompts or encourages the desired answer Both leading and non-leading permitted during XE, but only non-leading are permission during RE Judgment may be given or reserved (and list hearing for another date to ‘hand down’) After judgment hand down the parties may make submission on any other matters that flow from the judgment (Eg interest, costs, time to pay, stay of execution, permission to appeal)

Answer 72

Must file and serve a notice of discontinuance Sometimes must obtain permission to do so (incl when court has granted interim injunction or interim payment) Consequence = C who has discontinued is liable to pay the costs of the D in defending the action, subject to the application of qualified one-way costs shifting

Answer 73

DJ -> CJ -> HCJ -> CoAJ Master -> HCJ -> CoAJ

Answer 74

No automatic right to appeal in civil cases => party needs to seek permission To lower court where decision was made To appeal court in the notice

Answer 75

The decision is wrong in fact, low or the exercise of the court’s direction; or The decision is unjust because of serious procedural or other irregularity in the proceedings

Answer 76

Can be made orally immediately after judge has made the decision/given order Can also make formal application within 21 days of judgment hand down (more time => must be sought from the judge) Usually considers appellant’s notice and application without a hearing Granted => listed for hearing for appeal to be heard Not granted and within 7 days of service of the order refusing to grant permission => appellant may request an oral hearing to make reps (court not required to grant this request) Does not seek permission of lower court and no request for extension fo time => cannot make permission app after 21 days BUT party can apply in appropriate case to CoA for permission retrospectively (court treats this as an app for relief from sanctions and so must look at): 1. The seriousness and significance of the failure to comply with the rules 2. Why the default occurred; and 3. Evaluation of the circs of the case, so that the court can deal with the application in a just manner

Answer 77

Party wishing to appeal must send appeal form to the court with copy of sealed order, the subject of the appeal, and the application notice Specifies grounds on which party is appealing Respondent may cross-appeal using similar process

Answer 78

Appeal hearing is limited to a review of the decision of the lower court (NOT a re-hearing so party not allowed to rely on evidence that was not available at the original hearing) May be dealt with as a rolled-up hearing

Answer 79

Key principle = loser pays the winner’s costs Costs are always at the discretion of the court (may depart when eg failure to follow preaction protocol) Indemnity principle = party cannot recover more from an opponent than they are liable to pay their own legal rep (ie limit is actual costs) Costs are calculated by looking at time recording

Answer 80

Standard basis = court allows only proportionate costs and exercises any doubt in favour of the paying party Indemnity basis = court does not consider proportionality - Used when the court has doubts in the receiving party’s favour - Difficult for paying party to object to costs unless it was unreasonable for the sol to do the work at all - Only a sanction against a party for incurring unnecessary costs by their conduct - Costs must be reasonable incurred and reasonable in amount

Answer 81

Parties have a hearing to determine costs (an ‘assessment’) Court will consider: 1. Value of the claim 2. Complexity and importance of the claim 3. Skill and effort involved 4. Time spent 5. Location (as may be differing overheads)

Answer 82

Stated amount for costs Payment of costs up to a certain date or up to certain steps in the case Order to pay only a proportion of the other party’s costs

Answer 83

Aim = to limit costs In multitrack cases both parties file and exchange costs budgets Case worth <£50k => filed with DQ Case worth >£50k => filed 21 days before first CMC Often first considered by judge at CMC (=> called CCMC) Judge may make a costs management order (CMO) at this hearing Made => costs budget should not be departed from (leeway of 20%) Party sees they will exceed CMO => must apply to court for new order No budget filed => risk that no costs will be awarded bar the applicable court fees

Answer 84

= for lower value cases and interim applications Statement of costs must be filed by the parties 24 hours before a hearing or 2 days before a trial Judge will make a summary assessment of the costs payable at conclusion of the hearing Court normally orders costs to be paid within 14 days Receiving party entitled to interest from the time of judgement until costs are paid

Answer 85

= for larger value claims or cases of greater complexity Hearing to consider costs will take place after main action has concluded (unless parties agree amount of costs payable) Receiving party prepares detailed ‘bill of costs’ that must be served on opponent within 3 months of judgment/order Paying party files ‘points of dispute’ within 21 days thereafter (do not do so => receiving party can apply for default costs certificate) Often ‘provisionally assed’ by DJ - ie consider reasonableness of the bill and indicate an amount of costs that they would be prepared to sanction - Costs claimed exceed £75k => no provisional assessment - Receiving party not happy with amount in provisional assessment => challenge within 21 days and ask to be listed for detailed assessment hearing Final costs certificate issued once parties agree or following assessment (Poss for court to issue interim costs certificate where hearing is some time away) Bill 20% more than costs budget => C must file statement of reasons . Court will not depart from budget without good reason Costs awarded should be paid within 14 days of final costs certificate

Answer 86

D may apply for this if they are concerned C will not be able to pay if D wins (ONLY D may apply for this) Type of interim app Granted => C may be required to pay money into court or provide a bond Court will consider whether there is reason to believe C will not be able to pay Subject to court’s discretion Party cannot make app unless: 1. C is resident outside the jurisdiction 2. C is a company/other body and there is reason to believe that it will be unable to pay D’s costs 3. C has changed address since claim was started with a view to evading the consequences of litigation 4. C failed to provide an address or gave an incorrect address on the claim form 5. C is acting as a nominal C (ie suing for the benefit of another person) 6. C has taken steps in rel to assets that would make it difficult to enforce an order for costs against them

Answer 87

Court has jurisdiction to award costs in cases involving a non-party Exceptional but, as costs are at court’s discretion, are possible in situations where the non-party funds the proceedings and controls or benefits from them Procedure = 1. Non-party must be added as a party to the proceedings for the purposes of costs only 2. Non-party must be given the opp to attend a hearing at which the court will consider the matter further

Answer 88

PI claims => C does not pay D’s costs if claim fails unless: 1. Claim was fundamentally dishonest 2. Claim was made for the financial benefit of another 3. Claim was struck out for disclosing no cause of action or abuse This is called qualified one way costs shifting Where receiving party may enforce a costs order, they can do so only to the level of damages awarded BUT C can lose QOCS protection if D has made a Part 36 offer to settle - C fails to beat the offer, D can recover their costs up to the level of damages awarded

Answer 89

made if a sol’s conduct has been improper, unreasonable, or negligent Court must be satisfied that: 1. Legal rep acted improperly, unreasonably or negligently 2. Conduct caused unnecessary cost; and 3. It is just to make the order Made at the end of the trial or hearing Sol must advise the client within 7 days of the court making the order

Answer 90

Must specify amount that party would be prepared to pay or to accept to settle the claim Can be made using court form (N242A) but most sols prefer to set it out in a letter Must: - Be in writing - State clearly that it is made pursuant to CPR Part 36 - Specify a period (relevant period) of not less than 21 days within which the offeree can accept (during this period the offer cannot be removed without the court’s permission) - State whether the offer relates to the whole or part of the claim - State whether the offer takes into account any counterclaim Usually made inclusive of interest Whether made by C or D, if accepted within the relevant period, D will pay the costs of the claim to the point of acceptance and the costs will be assessed on the standard basis (ie reaosnable costs) if the parties cannot agree them

Answer 91

=> offeree can request clarification within 7 days Offeror does not provide suitable clarification within 7 days, offeree may apply to court for an order requiring the offeror to clarify

Answer 92

Can be withdrawn as long as offeree has not served a notice of acceptance Before expiry of relevant period => Takes automatically effect upon expiry of the relevant period After acceptance (during relevant period) => - Offeror may apply to court for permission to withdraw the offer or change its terms within 7 days of the offeree’s notice of acceptance - Court will give permission if satisfied that there has been a change of circumstances since the offer was made and it is in the interests of justice to give permission (otherwise acceptance will be effective) After expiry of relevant period => - Can be withdrawn/amended without permission - If this happens and new offer is made which is less advantageous to the offeree, then usual costs consequences flowing from a validly made Part 36 offer will not attach to the withdrawn offer

Answer 93

Must be accepted in writing Can be accepted at any time (incl after relevant period) as long as offeror has not withdrawn it Acceptance during trial requires permission C wishes to accept D’s P36 offer when multiple Ds => must seek court’s permission

Answer 94

=> D’s liability to pay costs runs only up to the end of the relevant period - C cannot recover costs incurred after this date unless parties agree otherwise - Parties cannot agree who pays costs after this date => court will decide, but usual order = C should pay D’s costs from end of relevant period to date of acceptance

Answer 95

=> court will decide liability for costs if parties cannot agree

Answer 96

=> liable to pay C’s costs of proceedings up to the date on which letter accepting P36 is served C has automatic entitlement to those costs, to be assessed on the standard basis

Answer 97

C beats offer => D ordered to pay C’s costs of entire proceedings C does not beat offer (incl being same) => court will award D their costs on the standard basis from the date when the relevant period for acceptance expired - Unless court considers it unjust to do so - D may also be awarded interest on those costs

Answer 98

C fails to beat own offer => Part 36 has no effect C beats own offer (or gets same) => C entitled to interest on entirety of the claim at an enhanced rate of up to 10% above base rate for the period after the time for acceptance expired - Unless court considers unjust - Costs for this period will be assessed on an indemnity basis with enhanced interest on those costs of up to 10% above base rate - C may seek an additional amount of damages by virtue of D failing to accept their reasonable P36 offer Damages only or mixed claims - Amount to be paid by D will be calculated as % of damages awarded to C - Up to £50k => 10% of amount awarded - Above £50k => 10% of first £500k and 5% of amount awarded above that figure Non-monetary claims - D must pay % of costs that court has ordered D to pay to C, subject to cap of £75k - Up to £500k => 10% of costs ordered to be paid - Above £500k => 10% of the first £500k and 5% of any costs ordered to be paid above this figure

Answer 99

1. Terms of any P36 offer 2. Stage in the proceedings when any P36 offer was made, incl how long before trail 3. Info available to the parties at the time the P36 was made 4. Conduct of the parties with regard to the giving of or refusal to give info for the purposes of enabling the offer to be made or evaluated 5. Whether the offer was a genuine attempt to settle the proceedings

Answer 100

8% per annum, running from date of judgment In addition to interest court awards on the valid of the claim as part of its judgment

Answer 101

Judgment under £5k => Interest normally not payable - BUT if judgment arises from a contractual obligation and contract provides for interest, interest will be payable Judgment over £5k => 8% unless postponed - CC judgment over £600 can transfer to HC for enforcement

Answer 102

Judgment creditor (ie successful party) may apply for an order requiring judgment debtor (other party) to attend a court hearing to provide info about means and assets JC must service court order personally on JD no less than 14 days before oral hearing JC must also file affadavit not less than 2 days before the hearing, giving details of service and stating how much remains unpaid Officer of court/JC questions JD on oath Judge may make committal order if JD fails to attend Ascertains assets of JD and so what is likely to be most effective method of enforcement

Answer 103

HC enforcement officer will enforce a judgment registered in the HC (or CC if transferred) Writ of control (HC) - JC will file a request to execute the judgment, attaching a copy of the judgment and any order granting permission if required - Court issue writ of control which is then sent to enforcement officer Warrant of control (CC) - JC must certify amount remaining due and, once court seals order, it forwards it to a certified enforcement agent

Answer 104

JC must give JD no less than 7 days’ notice of JC’s intention to take control fo goods Must take place within 12 months of notice JC’s agent can enter only the stated address and must provide an inventory of any goods seized Agent must then sell the goods within 7 days with the proceeds used to discharge the debt plus enforcement costs

Answer 105

JC cannot seize: - Equipment for use in JD’s trade - Household items necessary for basic domestic needs Controlled goods agreement = agreement that permits the JD to retain custody of the goods on the understanding that the enforcement officer is taking control of them, and the debtor agrees not to dispose of them before the debt is paid

Answer 106

ie Order where bank pays money to JC instead of JD Usually where JD has money in the bank May also apply in commercial cases where JD is owed money by a third party who will then pay debt directly to JC

Answer 107

JC may obtain charge on the property which will rank as an equitable mortgage (ie gives JC right to apply for an order of sale) Can apply even where land is in joint ownership Court generally won’t order sale if eg children living there

Answer 108

JD in regular employment => this order compels an employer to make regular deductions from JD’s earnings and then pay them into court Available only in CC and only against inds Order made => either party entitled to apply on notice for terms of order to be reconsidered

Answer 109

Yes Exception = party needs court’s permission to take control of goods while an attachment of earnings order is in force

Answer 110

JD in EU country - Contract stipulates E+W courts have jurisdiction => JC can issue a claim in the UK JD outside EU - Country with reciprocal agreement with UK => creditor is permitted to trace JD and enforce the claim in that country, with the court’s permission - Otherwise v difficult