Dispute resolution

Question 1

Protective proceedings

Answer 1

Protective proceedings can be issued to ensure that the limitation period does not expire. Claim form + particulars of claim must then be served within 4 months after the proceedings begun.

Question 2

Enforcement of money claims - oral examination. steps.

Answer 2

Court order to obtain more information about the debtors finances to investigate how best to enforce a money claim. Made by oral examination of the debtor by an officer of the court:
- Hearing usually set in County Court
- Creditor files notice of application which sets out name of debtor, sum and judgment to be enforced. Specific documents to be produced at hearing should be listed
- Order is personally served to debtor
- Debtor can within 7 days request payment of travel expense to and from court
- In the hearing, standard questions are asked and there is written a record
If the debtor fails to attend the order, the judge will make a committal order, which usually is suspended if the debtor complies.

Question 3

Methods for enforcing money claims

Answer 3

1. Writ or warrant of control: takes control of the goods, can seize and sell. cannot force entry in home, but might be possible for business premises.
   - Judgement under 600: Warrant in county court
   - Judgement between 600-5000: wither warrant or writ (if in the high court, the judgement must be transferred). can be enforced by an enforcement agent within 7 days clear notice, unless the court orders a shorter period.
   - Judgement over 5000: Writ of control to the High court.
   - necessary items exemption for individuals: items needed to take are of debtor + family cannot be seized.
2. Charging order: charge over land or securities, incl. jointly owned. reg in Land Reg or as a Land Charge
3. Third party debt order: debtor pays debt to creditor instead of creditors debtor. after an interim freeze order followed by hearing after 28 days
4. Attachment of earnings order: salary paid straight to creditor

Question 4

Enforcement of money claims in other jurisdictions

Answer 4

Scotland + Northern ireland: must make application to relecant court within 6 months after judgement.
Common wealth: judgement registered within 12 months and then 6 years to engorce
Other: depends on national court and creditor will have to issue fresh proceedings.

Question 5

Appeal deadlines

Answer 5

C to H: 21days
H to A: usually 21 days
H to A: 28 days.

Question 6

Appeals depending on type of judge

Answer 6

District judge in the county court → Circuit judge in the county court
Circuit judge in the county court → High court judge
Master (name of High court judges in London)/district judge in the High court → High court judge
High court judge → Court of appeal (must list oral hearing within 14 days if the application cannot be fairly determined without one. Permission is required for appeal for all cases.

Question 7

Grounds of appeal

Answer 7

Wrong (fact or law)
Unjust (procedural irregularity)

Question 8

Part 36 offer: how, when and deadlines

Answer 8

A settlement offer may be made at any time but if a party rejects a part 36 offer there are penalties if the court later finds that the offer was suitable. Penalties could encompass damages, interests and costs and would be imposed from the day the relevant offer expired (21 days after offer was made), unless the court decides it would be unjust to do so.

An offer that merely replicates the whole of the claimants claim is not considered a genuine offer and does not make the claimant entitled to benefits under Part 36 if the claimant wins the case and is awarded the whole claim, which also the settlement offer was on.

When deciding whether to impose penalties a judge will take into account the sum, time to trial and other circumstances, including whether the party receiving the offer has enough information to make an informed decision.

Part 36 offers must be: in writing, clear that it is a part 36 offer, specify that within a period of no less than 21 days if the offer is accepted, the defendant will pay the claimants costs and whether it related to whole or part of the claim. May be accepted at any time unless notice has been given that it is withdrawn (the 21 day period is somewhat redundant).

If a claimant accepted a defendant’s offer late, the court normally orders that the defendant pays costs up to that date when the period expired and that the claimant pays costs from the expiration to the acceptance.

If a defendant accepts a claimant’s offer late, the defendant will usually be liable to pay the claimants costs until acceptance.

Sum must be paid to claimant within 14 days of acceptance, if not the claimant can enter judgment.

The court has no discretion to make an award of costs between the parties where there has been a valid Part 36 offer

Question 9

Part 36 offer: effect on costs

Answer 9

Claimant makes part 36 offer, which the defendant turns down and then the defendant
Wins at trial and equals/beats offer: The defendant is faced with penalties including:
Payment of “extra” damages of 10 % extra for damages up to 500 000 and 5% for damages between 500 000 and 1 million, in a maximum total 75 000. Must be paid from 21 days after the part 36 offer was made
Increased interests from 21 days after the offer was made of up to 10% of base rate
Pay claimants costs at an indemnity basis from 21 days after the offer was made
Up to 10% above the base rate of interests on the indemnity costs
Wins at trial but is awarded less than the offer: no extra penalty are imposed
Loses at trial: the part 36 offer has no effect

Defendant makes part 36 offer, the claimant rejects and then the claimant
Wins at trial and equals/beats offer: the part 36 offer has no effect. The claimant’s refusal was just and the defendant will have to pay:
Amount of judgment + interest and
Claimant’s costs at standard basis
Wins at trial but is awarded less than the offer: the claimant will be financially punished for continuing with the claim when they should have accepted the offer. Split cost order:
The defendant pay’s the claimants costs on standard basis from when the costs were incurred until expiry of the 21 day period for accepting the offer
The claimant pays the defendant costs from day 22 after the offer until trial
Interest on the costs - a commercial rate of 1-2% is generally accepted
Loses at trial: claimant is penalized and has to pay interests from day 22 until judgment

Question 10

Can a non-party be forced to pay costs?

Answer 10

yes, at the court’s discression.

Question 11

Ways to award costs inter-partes

Answer 11

Standard basis: the receiving party will only receive proportionate costs compared with sums in issue in the proceedings, complexity of the case, work generated and wider factors involved incl. reputation) and any doubt is in the favour of the paying party.

Indemnity basis: any doubt is in the favour of the receiving party and proportionality is not taken into account.

Question 12

Summary assessment of cost - procedure

Answer 12

“Summary assessment”: procedure, usually after a fast track case, where the court assesses the costs of the successful party after an interim application or a fast track trial, or any other hearing that does not last for more than a day. Form N260 must be served 24 hours before the interim hearing or 2 days before a fast track trial

Question 13

Detailed assessments of cost - procedure

Answer 13

“Detailed assessment”: the court decides the costs in separate proceedings for multi-track proceedings. If the three months time limit after the order of costs is missed, the court may sanction a party, but the party may still initiate detailed assessments. Payable party has 21 days to dispute, the receiving party has 21 days to reply.

Question 14

Provisional assessment of costs - procedure

Answer 14

“Provisional assessment”: paper assessment where the costs claimed are less than 75 000. Sealed envelope marked “Part 36 or similar offers” is filed at court and the court tries to undertake a provisional assessment within 6 weeks. An oral hearing may be requested by either party within 21 days after the assessment.

Question 15

Qualified one way cost shifting (QOCS) of costs.

Answer 15

Since 1. April 2023 in personal injury cases. The claimant does not have to pay the defendant’s costs if the claim fails, but the defendant will have to pay the claimant’s costs if the claim is successful.

Applies to all personal injury and negligence cases except: applications for pre-action disclosure, where the claimant has pre-commencement funding, the claim is fraudulent, if the claim is for the benefit of a third party or the claim has been struck out.

Question 16

When are cost budgets filed?

Answer 16

7 days before the first case and cost management program.

Question 17

Which types of proceedings have fixed costs?

Answer 17

Road Traffic Accidents (RTA): fixed recoverable cost regime for RTA cases that settle before the issue of proceedings for up to 10 000.
Low value personal injury claims: up to 25 000
Fast track cases are fixed cost, calculated based on the value of the claim. Fixed costs generally only cover the advocate that prepares and appeals a trial, not the costs for bringing a claim and pursuing the final outcome.

Question 18

ATE

Answer 18

After the event insurance (ATE):provides insurance for if the client loses and being ordered to pay the opponents costs

Question 19

BTE

Answer 19

Before the event insurance BTE: covers potential legal costs and a solicitor should always ask client whether they may have BTE

Question 20

Damages based agreements DBA

Answer 20

Damages based agreements BDSs: type of ‘no win no fee’ agreement governed by Damages Based Agreement Regulations 2013 (DBA Reg).

VAT and counsel fees are not included in the following caps:

No more than 25% of recovered sum in personal injury cases
No more than 35% of recovered sum in employment cases
No more than 50% of recovered sum in non-personal injury cases

OBS: Council fees are included in the damages awarded. If these are covered by the opponent in addition to damages, they must be deducted from the damages to avoid double compensation.

Cannot be used for appeals. Can only be used by defendants pursuing a financial remedy via a counter claim.

Question 21

Conditional fee agreement CFA

Answer 21

Conditional fee agreement CFA: legal fees are only payable in particular circumstances e.g. client’s claim is successful. Can be with a success fee for the solicitor.

Must be in writing

Cannot cover criminal or family proceedings

Opponents cannot cover success fee

Client must know that the solicitor has an interest in the funding policy

CFA is unenforceable if the solicitor does not investigate whether the client e.g. has insurance first

In personal injury cases, the costs recoverable from claims at first instance is limited to 25% of the damages recoverable by the client. In all other cases, the claimable amount is up to 100%.

Question 22

Witness summons

Answer 22

Issued by the court. Should be served to witness at least 7 days before hearing. Witnesses must be offered a sum to cover their expenses and compensation for loss of time. Details about witnesses must be given in the Directions Questionnaire

Question 23

Pre-trial checklist deadlines

Answer 23

On fast and multi-track cases pre-trial checklists/listing questionnaires are used to ensure that the parties have completed all directions. Must be handed to court at least 8 weeks before the trial date.

If neither party complies, the court will order that if the pre-trial checklist is not received within 7 days, both the claim and defence will be struck out.
Judge will review and decide whether further directions are necessary

Question 24

trial bundle deadlines

Answer 24

Trial bundles: a file of all documents the judge needs to decide on the case. Indexed + paginated + generally no longer than 250 p.
Usually prepared by claimant
Served between 7-3 days before the hearing
Includes key documents such as: claim form and particulars of claim, case summary, requests for information, witness statements, notice of intentions to rely on hearsay evidence, expert reports, directions orders, other necessary documents.

Question 25

How can priviliged documents be exempted from disclosure

Answer 25

A party can in some instances withhold documents, usually because they fall under the legal professional privilege (privileged documents). They must still be disclosed in the list with a general description, but may not be inspected. Advice privilege: extends to legal advice given by lawyers, conveyancer and foreign lawyers. The dominant purpose of the document must be to seek legal advice. Commercial advice is not covered. Litigation privilege: document must be 1. Passing between a lawyer or lawyer and a third party, 2. Came into existence when litigation was ongoing or contemplated, and 3. Produced with a view of litigation Without prejudice correspondence: information about a party’s genuine attempt to settle the case. Likely to be encompassed by the disclosure. The point is that the trial judge shall be unaware of the content. Disclosure is solely between the parties. To simply mark a document with “without prejudice” is not

Question 26

Deadlines disclosure

Answer 26

Small claims track: each party shall at least 14 days before the final hearing file and serve everyone with copies of all docs that they intend to rely on at the hearing. Fast track: order for standard disclosure. Multi-track: usually standard disclosure, but may also be tailored. The parties must compile a disclosure report, filed and served no less than 14 days before the first CMC and the parties must agree on a disclosure 7 days before the first CMC. Upon reception of the list, the other party has a right to inspect documents included in Part 1 as long as the request is made in writing and granted within 7 days unless something else is agreed between the parties. If the opposing party becomes aware that a party has not included all relevant documents in their disclosure, they should

Question 27

Disclosure - duty to search

Answer 27

parties are required to make a “reasonable and proportionate” search for documents that adversely affect their case or the other party’s case or supports another party’s case. A search can be limited for documents that existed before a specific date, specify a particular place to search or limit the categories of documents. Electronic documents include deleted documents as long as there is a storage or backup. The court will give directions regarding disclosure of electronic documents in the CMC.

Question 28

Pre-action disclosure - procedure

Answer 28

Pre-action disclosure: during pre-action protocols, a party is not required to show the other party contents of documents. This must be required by court order and an application for pre-action disclosure supported by witness statements. TO grant a pre-action disclosure, the court must be satisfied that the parties are likely to be a part of the proceedings, that the documents would be part of a standard disclosure and that disclosure is desirable for a fair proceedings Non-party disclosure: a party can apply after proceedings have commenced, if it would help to resolve an issue in the case. Application must be supported by witness evidence and the court must be satisfied that the documents would support the case, and disclosure is necessary for a fair case.

Question 29

Witness summons

Answer 29

a party must apply to court to serve a witness summons - summoning a witness to a hearing. Witness summons must be effective at least 7 days before trial and only issued with less time to the trial upon approval from the court.

Question 30

Witness statement

Answer 30

If a party calls a witness for an oral hearing, they must serve a witness statement setting out all the facts that witness will present orally. Without a statement, a witness rarely gets to speak. Must be served at least 3 days before hearing. Includes: Formalities about witness, numbered paragraphs within the witness statement in chronological order, written in first person and verified by statement of truth. Confirmed at trial by oath before their oral statement and cross-examination. Usually exchanged simultaneously. Must be signed by the witness and cannot be signed by legal representative on the witness’ behalf

Question 31

Witness summaries

Answer 31

Served if a witness statement can’t be obtained e.g. because a witness is abroad. Party must apply to court without notice (as soon as possible) for an order. Witness summaries include name and address, evidence the witness can provide and matters the witness would be questioned about at trial.

Question 32

Procedure to submit hearsay evidence

Answer 32

A statement made outside of court, repeated in court to provide the truth of a matter. The reason is to prove the truth of words said. Must give the other party the statement if a witness will be providing hearsay evidence. It us then up to the opponent to decide whether the maker of the original statement must attend the hearing or serve note of intention to attack the hearsay evidence. A witness witnessing about hearsay cannot be cross-examined (can apply to court) Admissible, but considered “second best” evidence, as it cannot be ruled out that what was heard was a lie. The court must take into account whether the person behind the original statement should be called, whether the witness has the statement fresh in memory, if there are multiple hearsays and a risk of mishearing, a motive to misrepresent, whether the original statement was edited or whether hearsay is an attempt to avoid the proper weight of the evidence.

Question 33

Expert evidence deadlines and procedure

Answer 33

A deadline will be imposed by the court to exchange expert reports, after which each party has 28 days to ask clarifying questions. Answers will be part of the report. The court will usually order a “without prejudice discussion” between the experts without the parties where the content is not shared, to narrow down the issues. Legal council may only join such without prejudice discussions if the court gives permission or the experts and parties agree. Expert evidence includes their qualifications, literature relied on, conclusion and verification by statement of truth Experts in fast track procedures: Written reports are exchanged simultaneously Costs are shared Evidence is solely written report Multi-track Written reports are exchanged simultaneously Each party has 28 days to ask written questions to the expert A without prejudice discussion is held Written joint statement summarizing issues Oral evidence at trial discussion between experts

Question 34

Costs budgets and when provided

Answer 34

must be provided by the parties in multi-track proceedings. Includes incurred costs and estimated future costs. Must be filed with the directions questionnaire of the claim is for less than 50 000 GBP or no later than 21 days before the first CMC in all other cases Failure to file cost budget on time will be treated as if the party only filed a cost budget consisting of a court fee Extremely difficult to amend once approved

Question 35

Cost management order

Answer 35

Costs management order: the court records which costs are incurred or budgeted and agreed between the parties and which costs are not agreed. The effect is to control the party's budgets. If there is no cost management order and the costs claimed are more than 20% higher than those in the cost budget, that party must send in a statement to explain why the costs deviate.

Question 36

Can a party apply straight to court for sanctions if the other party does not comply?

Answer 36

should first try to approach the party.

Question 37

Track allocation - difference between tracks

Answer 37

Small claims track: less than 10 000 GBP Typically consumer disputes, ownership of goods, landlord - tenant Allows for litigation in person and parts of CPR regarding disclosure, inspection, evidence and experts do not apply. Fast track: between 10 001 - 25 000 GBP No longer than 1 day hearing Differences from Multi-track: standard and not tailored directions, limited expert witnesses, no longer than 1 day and limited power to award costs. Multi-track: more than 25 000 GBP The court usually gives directions regarding case management and sets a time table for steps towards trial Case management conferences (CMC) for complex cases: review steps taken to prepare the case so far, check that the parties have complied with directions from the court and consider future directions. OBS if a case is less than 25 000 but require expert evidence and more than one day hearing, it can be allocated as multi-track in the county court.

Question 38

How are courts allocating cases to tracks? what is decision based on?

Answer 38

Directions questionnaire: a key document used by the court to confirm allocation. Sent out by court after defence is filed. The parties must cooperate in order to fill it out. Contains information about attempted settlements, experts, witnesses, costs and so on. Must be completed and serviced within 28 days of the deemed date of service of the Notice of Proposed Allocation. Failure to file directions questionnaire may lead to: Claim for money in the county court: court serves a notice with a 7 day deadline. Failure to deliver the directions questionnaire within the 7 days leads to the statement of case (Sets out the facts of the case) being struck out. All other cases: The court is free to make an order and e.g. order a case management conference or strike out the statement of case.

Question 39

Interim appliations procedure

Answer 39

Made by using: using Form N244 under part 23. Verified by statement of truth (signed by either party or legal council) + Witness statement stating why the order is sought + draft order, except for in very simple cases Deadline for applications with notice: must be served to the opponent at least 3 full days before the court hearing (excluding date of the hearing and date of the service). can be served without notice if it is e.g. exceptionally urgent, but then with evidence of e.g. why notice is not given.

Question 40

Summary judgement - procedure

Answer 40

Enables a party to bring a matter to an early conclusion if the other defence/claim received is so poor that the defendant has: No real prospects of success for either party AND There is no compelling reason why the case should go to trial (normally time to investigate, complicated/Technical or need for witnesses are compelling) Can be requested by either party at any time. Must be permitted by the court if filed before the defendant has filed an acknowledgement of service or a defence. Application N244 + witness statement Timeline: Applicant files + serves N244 + witness statement at least 14 days to the hearing Respondent file + serve written evidence at least 7 days before the hearing Applicants can serve evidence until 3 days before the hearing.

Question 41

What is a part 20 claim?

Answer 41

Part 20 claim = counterclaim Handed in with defence and “defence and counterclaim” Permission is not required from the court, unless defence has already been filed Defence to counterclaim Normal deadlines for a defence: 14 days after the counterclaim , unless a 28 day extension has been agreed. If no defence is filed, the claimant can ask for a default judgment for the counterclaim

Question 42

What is a statement of case and can it be amended?

Answer 42

Formal documents where the parties set out their cases, including: Claim form Particulars of claim 1. Contract and negligence Status of praties Existence of contract + terms Alleged breach Consequence Alleged damages Interest (must be claimed to be awarded). OBS for negligence, the court has a general discretion to award interests on damages in negligence cases Summary of relief (remedies) Statement of truth Defence Formalities (name, case number etc.) Whether limitation period is upheld Relevant proof Party can file part 18 requests, served in writing and allow for reasonable time to respond to request more information about statement of case. The request should be concise and confined to what is reasonably necessary and proportionate. Response must be served to all parties, filed with the court and verified by a statement of truth After filing, but before service: amendments may be made at any time After filing and service: an amendment can only be made with written consent of all parties or permission from the court Amendment after the expiry of the limitation period is only allowed if: A new claim can be added or substituted of this arises out of the same or substantially the same facts as an existing claim To correct a genuine mistake e.g. name

Question 43

Default judgement

Answer 43

If the defendant does nothing within the deadlines above, it may be faced with a default judgment. If the claim is for a specific sum, claimant must indicate: Payment date Interests Daily interest rate Default judgment for unspecified sums: A disposal hearing is needed to decide the amount of damages Default judgments may be set aside on mandatory and discretionary grounds: Mandatory grounds: when it is wrongly entered into, e.g. too early Discretionary grounds: the court has the power to set aside a judgment where the defendant has real prospect of success with the claim or there are other good reasons why the defendant should be allowed to defend the claim (e.g. on holiday. Workload or misplaced docs are usually not enough).

Question 44

Jurisdiction - how to determine + deadlines

Answer 44

Jurisdiction depends on: - Defendant's domicile - Date the proceedings were instigated (before 31 December 2020, courts of E&W had jurisdiction under the European rules if the defendant was domicile in E&W. After 1 january 2021: must follow Hague Convention. Application for permission to serve proceedings outside of E&W must be made. Requires evidence of a connecting factor between the claimant + E&W and will be refused if the court does not think E&W is the right forum. A party receiving a claim form must file an acknowledgement of service and this must include whether the jurisdiction is disputed. After the acknowledgement is filed, a party has 14 days to challenge the jurisdiction. This challenging method is also used for DEFECTIVE SERVICE If it is not challenged, this will count as an acceptance. If the court refuses the dispute, the defendant must file another acknowledgement within 14 days.

Question 45

The deadline for filing a defence

Answer 45

When receiving the particulars of claim, the defendant must within 14 days after service: Admit whole or part of the claim File an acknowledgement of service and thereafter file a defence within 28 days of the service of the particulars of claim File a full defence Ignore proceedings → judgment by default The deadline for filing a defence may be extended by a maximum of 28 days, upon agreement between the parties. The defendant will then have in total 56 days to file the defence: 14 + extended 14 + agreed additional 28. If a defence is filed, the court serves all parties with a copy If responding to a claim where the claimant has served the claim for to a defendant in an EU country, the defendant must send an acknowledgement of claim within 21 days after receiving the particulars of claim - VS the regular 14 day deadline

Question 46

When are claim formes and particulars of claims deemed served

Answer 46

Deemed service: when the document is considered as arrived - here when the defendant will be considered to have received the claim form. Claim form: Indisputable presumption that the claim form was received on the second business day after the step required has occurred. Business day does not include Saturday, Sunday, bank holidays, Good Friday and Christmas Day Particulars of claims can be served with the claim form or separate. If served with the claim form it is considered served as above. If served separately, it must be served within 14 days after the claim form (no later than 4 months after the date of issue if the claim form). OBS the 14 days are hence counted from the delivery of the claim for until service of the particulars of claim. Outside jurisdiction: 21 days and 6 months.

Question 47

When are other docs e.g. part 36 offers (not claim form and particulars of claim) deemed served?

Answer 47

Other documents (e.g. part 36 offer): depends on the method of service. First class post or DX: the second day after it was posted, provided that this is a business day. If not, the next business day. OBS hence different than claim forms Personal service, delivery to address, electronic communication: on the day it was served if it was served before 4.30 PM. If not, the next business day.

Question 48

allocation of claim in county court or high court

Answer 48

100 000 or 50 000 personal injury. OBS money claims for up to 10 000 are digital and personal injury claims from road traffic accident are filed in portal if less than 25 000 excl. interest.

Question 49

Deadlines in pre-action protocols

Answer 49

regular: defendant has 14 days - 3 months to respond. debt claims: 30 days professional negligence: must file defence within 14 days after receiving the particulars of claim or if the defendant files an acknowledgement of service, within 28 days after the particulars of claim. 21 days to confirm in writing that the claim is received and 3 months to investigate. Personal injury: confirm within 42 days and 6 month to confirm liability.

Question 50

Types of damages that may be awarded in civil cases

Answer 50

Provisional damages: where the claimant may suffer a change in their condition Aggravated damages: may be awarded by the court for the defendants objectionable behavior Nominal damages: infringement of a legal right, but no loss Contemptous: indicate that the action was technically justified, but without merit and should not have been brought Exemplary damages: as a penalty Personal injury Special damages: relates to actual pecuniary loss (measurable) to the date of trial. General damages: relates to loss that cannot be calculated and must be assessed by the court at trial

Question 51

Potential equitable remedies awarded in civil cases

Answer 51

Prohibitory injunctions Mandatory injunctions Quia timet: a party must take action to prevent harm Interim injunctions can be granted by the high court. County court has limited jurisdiction. The injunction will remain in force until a return date if it was made by application without notice and until trial if it was made with notice. Conditions for an injunction: the claimant has “locus standi” ( a substantive cause of action), equitable maxims are complied with and damages are not an adequate remedy.

Question 52

Limitation periods for most common areas

Answer 52

Limitation periods for contract and tort are generally 6 years from the date of the cause of action to the commencement of the proceedings, with the limitation period starting the day after. Contract: runs from the breach of contract Tort (other than personal injury, consumer protection act and latent damage): runs from when the tort was committed, or for negligence from when the damage occurs. Exceptions: Latent damages: Negligence where the damage is hidden the limitation starts to run: - 6 years from the date of the action - 3 years from the date of knowledge of the damage - No later than 15 years after the date of the negligent act or omission Personal injury claims: 3 years from the date of the action or the date of knowledge of the injured person, except: - For children the limitation does not start to run until they turn 18 - For persons with an unsound mind from the day that they are sound.

Question 53

What individuals and legal persons have capacity to be a party in a civil lawsuit?

Answer 53

Children must be 18+ or have a “litigation friend” Not be a patient under the Mental Health Act 1983 Companies are legal “persons” and can sue in their own names LLPs are separate legal persons can be sued and sue in their own names Partnerships are not separate legal entities. Can either - sue or be sued in their individual names OR - sue or be sued in the name of the firm as a whole (add "a firm" to the title). QLTS questions seems to indicate sued as a firm is preferred. Sole traders may sue and be sued in their trading names. A claimant should sue in their own name + “trading as …” and as a defendant be sued in their business + “a trading name” Associates, including trade unions, may be sued or sue in their name. The exceptions are clubs, which must sue or be sued in the names of their members Trusts and trustees must be sued in the name of all the trustees. Beneficiaries does not have to be parties, but a judgement will bind them. Estate of the deceased may be sued or sued by the person whom the interest or liability is passed to. If the claim started before death, it cannot commence until a representative is appointed.

Question 54

Ex turpi causa

Answer 54

An individual is prohibited from benefiting from a legal remedy resulting from a criminal act. Applies even if third party negligence was a factor. E.g. suffers from PTSD after negligent act, but cannot claim damages after criminal act undertaken as part of PTSD.

Question 55

If a mistake has been made in the crown court, what is the procedure? can the parties appeal?

Answer 55

Both parties can appeal to the administrative court for judicial review. challenges the way the decision has been reached rather than the correctness. An appeal can be made to the King's bench in the high court if the Magistate court is wronged in law or outside its jurisdiction.

Question 56

If a party has submitted a witness statement and then refrains from calling the witness, can the other party call it?

Answer 56

The other party can use the witness statement as hear say evidence.

Question 57

When must a claim form be served to be within the 4 months deadline?

Answer 57

Is must be SENT by post before midnight on the final calendar day of the 4 months. it does not matter that it is deemed accepted after the 4 month has passed. An urgent application would then have to be made to the court to serve the particulars of claim outside of time.

Question 58

Deadlines in pre action protocol for personal injuries

Answer 58

acknowledge letter of claim within 21 days and confirm position on liability within 3 months.

Question 59

Deadline to fulfil an undertaking if a specific deadline is not agreed

Answer 59

Within reasonable time.

Question 60

When can a claimant apply for security of costs?

Answer 60

Where the claimant is a company or corporate body it can apply for security of costs when it is reason to believe that the defendant will be unable to pay the claimant's costs if ordered to do so. Can be done early on in the case e.g. after filing of a defence.

Question 61

Pre-action protocol for road traffic accidents. what must the defendant give the claimant after receipt of a letter of claim?

Answer 61

the insurers name within 21 days.

Question 62

Freeze order - requirements

Answer 62

Domestic or worldwide, against a party or third party that holds funds on behalf of party e.g. bank. applications generally without notice + with sworn affadavit evidence. - court has jurisdiction - just - there is a cause of action - applicant has a good case - sufficient assets to satisfy claim - a real risk that assets will be disposed of - claimant gives undertaking in damages or to commence proceeding the same or next working day of the injunction is granted - Disclosure requirement: Full and frank

Question 63

Can two barristers in the same chamber represent two parties with different interests?

Answer 63

Yes, as long as they observe their professional duties. Barristers in the same chamber are still considered independent practitioners.

Question 64

What is a calderbank offer?

Answer 64

an offer that does not comply with the requirements of a Part 36 offer.

Question 65

How is a partnership sued?

Answer 65

In the name of the partnership.

Question 66

What is an appopriate course of action if a claimant wants to end proceedings?

Answer 66

to avoid paying defendants costs, the claimant should make a part 36 offer for a low sum.

Question 67

How can fast-track be an option if the costs are over 25 000?

Answer 67

Both parties has to agree.

Question 68

Tomlin order

Answer 68

Stays the claim (settles a claim) on agreed terms that are set out in the order itself or a schedule. Terms that the parties with to keep confidential must be set out in the order.

Question 69

Limitation period claims under Fata Accidents act

Answer 69

3 years

Question 70

Limiation period under COnsumer protection act 1987

Answer 70

3 years

Question 71

Limitation period for person injury claim

Answer 71

3 years

Question 72

Deadline judicial review

Answer 72

3 months after the grounds for the claim arose

Question 73

Claimant's leve of knowledge for the limitation period to end

Answer 73

factual essence of the act or omission

Question 74

When does the court have discretion to extent the limitation period?

Answer 74

personal injury cases, defamation and judicial review

Question 75

Liquidated damages

Answer 75

usually stipulated in a contract as damages payable if a contract is breached

Question 76

COnditions for granting an injuction + concequent breach

Answer 76

Claimant has locus standi (they must show that they have a strong case) Damages must not be a sufficient remedy The claimant applies with equitable remedies it is conventient to grant an injunction for the court (equitable remedy) Breach: penal notice + may result in committal proceedings for contempt of court

Question 77

When does the Pre-action protocol for personal injuries apply + deadlines

Answer 77

Personal injury cases under 25 000, fast track (should be considered for cases with higher value) claimant send a Letter of Claim and defendant myst respond within 21 days after receiving the letter of claim + a full response must be provided within 3 months. if the defendant does not reply to the letter within 21 days, proceedings can commence.

Question 78

Practice direction on pre-action protocol and conduct

Answer 78

Sets out steps parties must complete before commencing proceedings. Non-compliance can lead to penalties and/or sanctions. e.g. must the parties provide each other with sufficient information. Claimant send a letter of claim to the defendant who must reply within reasonable time (generally 14 days and up to 3 months in more complex cases).

Question 79

WHen does the Pre-action protocol for debt claims apply + deadlines

Answer 79

applies to any business claiming payment from an individual. Debtor replies using a Reply Form and the creditor should not start court proceedings until at least 30 days after receipt of the Reply Form. Creditor should give debtor 14 days notice of their intention to start proceedings.

Question 80

Unless order

Answer 80

If a party fails to comply with a case management direction, the court can make an unless order.

Question 81

Procedure if party dies

Answer 81

Before claim is issued: PRs step in After Claim has commenced: the surviving party must make an application to the court to 1. substitute the deceased arty with PR or 2. if PRs are not available to direct a person to represent the estate.

Question 82

What action ends a limitation period?

Answer 82

When the claimant brings the claim for + corresponding fee to the court office for issue. It does not matter whether the court office is closed. If sent by post, the claim form + fee must have been received by the court NO later than the last day of the limitation period. After = claimant has 4 months to serve claim for + particulars of claim to defendant.

Question 83

Limitation period for enforcement of a judgement

Answer 83

6 years

Question 84

Limitation period for tort + contract

Answer 84

6 years. OBS special deadline for 3 years for negligence actions where facts relevant to the cause of action are not known at date of accrual.

Question 85

Limitation period when the claim is for relief of a conesquence of a mistake

Answer 85

runs from when the mistake is discovered or could have been discovered. Latent damages act: - 6 years from accrual - 3 years from the "starting date" (earliest date for when the defendant knew that the relevant damage was sufficiently serious to justify proceedings)

Question 86

Joint vs several liability

Answer 86

Joint: each party for the full amount Several: each party for their part Joint + several: each party for the full, and the parties must devide between themselvecs

Question 87

Pre-action disclosure applications

Answer 87

Pre-action disclosure can be requested if the other pary has failed to disclose documents relevant for the claim. This must be required by court order and an application for pre-action disclosure supported by witness statements. TO grant a pre-action disclosure, the court must be satisfied that: 1. the parties are likely to be a part of the proceedings, 2. that the documents would be part of a standard disclosure and 3. that disclosure is desirable for a fair proceedings Non-party disclosure: a party can apply after proceedings have commenced, if it would help to resolve an issue in the case. Application must be supported by witness evidence and the court must be satisfied that the documents would support the case, and disclosure is necessary for a fair case.

Question 88

The Claims Portal - which cases can be assessed?

Answer 88

Online dispute resolution system for: Road traffic Accidents Employers Liability Public Liability personal injury claims Max value of claim: 25 000 GBP. Excluded claims: involving Motor Insurance Bureau, claims with 1+ defendant, claims involving clinical negligence Mesothelioma (cancer from asbestos) Claims portal is only used PRIOR to issuing proceedings, to speed up the process where liability is admitted and issues are relatively straight forward

Question 89

The Procedure for treating claims in the claims portal

Answer 89

3 stages of procedure in the portal 1. Search in portal for previous cases + claimant files a Claims Notification Form. Claim admitted (either liability + quantum OR just liability): processed through the portal Liability is not admitted: exit portal and applicable Protocol is followed by the claimant. Fixed costs. 2. Claimant: Medical Report form + Settlement Pack Insurer: 15 days to consider or make counter offer Counter-offer: claimant has 20 days to consider If actions are concluded: payment of agreed sum + 300 RTA, 600 EL or PL for costs. 3. If settlement on liability but NOT quantum: - claimant sends insurer Court proceedings pack form - Simplified Part 8 procedure commenced - Final assessment hearing either written or oral - Fixed costs: 250 (paper hearing) + 250 advocate fee (oral)

Question 90

Search order - conditions

Answer 90

- court has jurisdiction - just - there is a cause of action - applicant has a good case - EXTREMELY strong prima facie evidence - may result in very serious damage - clear evidence of incriminating docs - docs cannot be obtained in any other way - real possibility of destruction - harm likely to be caused to defendant - claimant gives undertaking in damages or to commence proceeding the same or next working day of the injunction is granted - Disclosure requirement: Full and frank

Question 91

Claim form must include

Answer 91

Claim form must include: name, address, nature of the claim, remedy and statement of value. Include interest if the claim is for a specified sum. Disregarded from value: interest, cost, counter-claims, contributory negligence, amounts recoverable under COmpensatory Recovery Rules. Whether the claim involved HRA Set out the claimant’s Statement of Case OR indicate that the particulars of claim are to follow.

Question 92

Who can accept personal service of Claim form?

Answer 92

A person holding a senior position in a company/corporation, or a partners or person that has the control of management of the partnership business.

Question 93

If claimant serves the particulars of claim, when must they confirm service for the court?

Answer 93

Must file a Certificate of Service within 21 days of service of the particulars of claim.

Question 94

When must the court give permission for service of claim outside of the UK?

Answer 94

Scotland + Northern Ireland: no permission required Outside of the UK: no proceedings are pending, the court has jurisdiction to determine, the defendant is domicil in the UK, no other agreement conferring jurisdiction.

Question 95

Challenge defective service of claim form

Answer 95

same as challenging jurisdiction - tick box in form for acknowledgement of service within 14 days

Question 96

Part 8 procedure

Answer 96

Simplified procedure: No particulars of claim or defence is needed and witnesses are indicated in claim form + acknowledgement of service. No judgement on default possible.

Question 97

When does litigation friend terminate

Answer 97

If a party turns 18 during proceedings, litigation friend terminates. the child must: serve notice informing the other parties, indicate address of service and whether they want to carry on proceedings. For mentally ill the litigation friend continues until end of the court order, regardless of whether the condition has ended.

Question 98

Which additional claims need premission of court to be added?

Answer 98

Does not need permission: counter claim against claimant, claim for contribution or indemnity Needs permission: counterclaim against another person than the defendant

Question 99

Who can sign statement of truth accompanying the statement of claim

Answer 99

Legal rep or client

Question 100

When is directions questionnaire sent out + deadline

Answer 100

After filing of defence. includes info on ADR, evidence, experts, case management, costs (may be binding). Must be completed within 28 days of the deemed date of service of the Notice of Proposed Allocation.

Question 101

CCMC deadlines

Answer 101

14 days before CCMC: complete disclosure report and electronis disclosure questionnaire 7 days before: complete cost budget

Question 102

When does the court allocate a claims track?

Answer 102

After reviewing Directions questionnaire

Question 103

Set aside default judge

Answer 103

Mandatory grounds: - defence was filed within deadline - defendant applied for summary judgement before default judgement - defendant has made a request for time to pay and the deadline is still valid - the whole clim is satisfied Discretionary grounds: - defendant has real prospect of success - good reasons to allow case

Question 104

Case management directions

Answer 104

given by court after allocation.

Question 105

amend part 36 offer before acceptance

Answer 105

Can be done during the 21 days deadline, but if the offeree accepts before deadline ends and after the amendment, the court must grant permission to withdraw from offer/amend the offer within 7 days of the offerees notice. Utside the 21 days, the offer can be amended or withdrawn without the courts permision in writing provided the offeree has not accepted.

Question 106

Standard disclosure

Answer 106

docs in a party's control (in possession, had a right to possess or inspect) incl. docs adversely affecting the party's own case, any other party's case or support's any party's case, or specified in PD. Must make a "reasonable search for docs"

Question 107

Who can sign disclosure statement

Answer 107

only client.

Question 108

Cost in any event

Answer 108

Cost in any event: made at trial or interim hearings

Question 109

Cost in the case/application

Answer 109

Cost in the case/application: interim hearings. Costs are only awarded if that party has a cost order in his favor at trial

Question 110

Costs reserved

Answer 110

Costs reserved: costs postponed until cost-decision until trial

Question 111

Costs thrown away

Answer 111

Costs thrown away: costs awarded where a judgment or order is set aside

Question 112

Cost of and caused by

Answer 112

Costs of and caused by (an amendment): the party asking for an amendment of a statement of case (sets out the facts of the case) must also cover the costs

Question 113

costs here and below

Answer 113

Costs here and below: made on appeal and covers both the appeal and the lower courts

Question 114

No order is to cost

Answer 114

No order is to cost/each party bears their own costs: each party bears their own costs

Question 115

Wasted cost order

Answer 115

Wasted cost order: the court has held that a legal representative has acted improper and may be ordered to pay his clients costs

Question 116

Costs indemnity principle

Answer 116

a party cannot recover more than what is payable to legal rep. Not awarded costs unreasonably incurred. doubt in favour of receiving party

Question 117

Costs standard basis

Answer 117

only reasonable costs, doubt in favour of the paying party.