Dispute Resolution Flashcards

Question

List some important things to note RE parties to a claim?

Answer 1

- Identify all potential D's early on to avoid incurring costs later (usually 1 but N.B. VL, consumer action against retailer and manufacturer). - Ensure D is traceable to communicate the claim and issue necessary proceedings. - Ensure D is sued in correct capacity and is worth suing through CH enquiries.

Answer 2

Where no relevant protocol exists, with aims consistent with CPR as a safety net to ensure that no civil claim escapes the requirement to follow the pre-action procedures. - Under PDPAC, unless the limitation period is about to expire, the client should write to the customer with concise details of the claim and disclose key documents.

Answer 3

- Litigation should be a last resort, consider ADR and settlement prior. - Parties should exchange sufficient information to understand each other's position, reduce costs of resolution, consider ADR etc.

Answer 4

'Reasonable and proportionate' with only proportionate costs incurred in doing so.

Answer 5

Parties review their respective positions after following the Practice Direction, and at least narrow the issues in dispute.

Answer 6

- The party at fault pays some or all of their opponents costs (on indemnity basis) - Depriving a C who is at fault some or all of the interest they may be awarded on damages recovered. - Requiring a D who is at fault to pay interest on any damages awarded to C at rate of up to 10% per annum above base rate.

Answer 7

- 14 days in straightforward claim - 3m max in complex claim.

Answer 8

Professional Negligence Debt claims

Answer 9

- Preliminary notice letter to professional (contains information about C, brief outline of C's grievance and indication as to claim's financial value). - Letter of claim (professional to acknowledge within 21 days of receipt). - Within 3m, respond with letter of response. - Letter of statement if professional intends to make settlement proposals for all or part of the claim. - If letter of response denies the claim entirely and no settlement offered, C can begin court proceedings.

Answer 10

Potential claimant must give full information on the debt owed, including an up-to-date statement of account with details of interest and charges, and how debt can be paid. Standard reply form, information sheet and financial statement forms annexed to the protocol should also be included to encourage settlement.

Answer 11

30 days; proceedings cannot be issued before this deadline.

Answer 12

Contempt of court.

Answer 13

To avoid the delay and expense of a subsequent transfer and so the claim proceeds in the court with judges and procedure best suited to deal with the matter.

Answer 14

Yes; to ensure that the Welsh and English languages are treated equally. - Measures include that provided the court is informed, hearings in Wales may be conducted entirely in Welsh if all the parties and witnesses consent, and documents placed before the court may also be in Welsh.

Answer 15

County Court.

Answer 16

High Court. - Even if a claim is issued in the High Court, the judge may decide to later transfer it to the Crown Court.

Answer 17

Where the value of the claim is £50,000 or more.

Answer 18

Where the claim is complex in relation to facts, legal issues, remedy or procedures, or the outcome is important to the public.

Answer 19

Deals with more straightforward specified and unspecified claims. All money-only claims made on paper (including both specified and unspecified) must be sent to the Civil National Business Centre (CNBC). If a hearing is then required, the matter will be transferred to the County Court hearing local to Defendant. Online claims for specified sums of money (debt claims) for amounts of up to £100,000 can be made via the website Money Claim Online.

Answer 20

1) King's Bench Division - workload consisting primarily of actions in contract and tort. 2) Chancery Division - used for disputes arising over land, trusts, contentious inheritance matters, partnership claims, and company law. 3) Family Division - used for family disputes.

Answer 21

When Claimant or their solicitor sends a claim form (form N1) and other relevant documents (particulars of claim and docs required to be annexed by the CPR e.g. copy of contract) to the appropriate court to be 'issued'.

Answer 22

A summary of the most important aspects of the claim; should be sufficiently detailed for court and other parties to understand Claimant's case. Particulars of Claim either served with claim form (simple debt cases) or subsequently (more complex cases) but within 14 days after service of claim form.

Answer 23

When the claim form is received in the court office.

Answer 24

On the date entered on the form by the Court.

Answer 25

- Heading. - Details of the parties. - Brief details of claim. - Statement of value. - Defendant's name and address for service. - Financial summary of claim. - Preferred (most convenient) CC hearing centre. - Witnesses (Y/N). - Human Rights (rare). - Particulars of claim. - Statement of truth.

Answer 26

Details of the relevant court and the solicitors fee account (so court fee can be paid) in the top right hand corner. The court will then assign a claim number when the form is issued, which is to be included on all subsequent court documents and correspondence.

Answer 27

Names and status must be correctly described; failure to do so may result in proceedings being struck out. - Individuals (described using full names and titles). - Sole traders (described in the business name; 'trading as'). - Partnerships (described in the name of the firm). - Companies (described in the correct registered name and address on CH). N.B. Where defendant is an individual who has died before proceedings are commenced, the claim should be made against the PR's or appointed executors/administrators.

Answer 28

Concise statement of the nature of the claim and specify the remedy C is seeking.

Answer 29

An estimated or actual value of claim to be inserted. - For specified (debt) claims, precise figure including any accrued interest. - For unspecified claims, Claimant to put an estimate of how much they 'expect to recover'. -- In HC, 'Claimant expects to recover more than £100,000'. -- In CC, Claimant must state whether they expect to recover; --- Not more than £10,000 --- More than £10,000 but not more than £25,000 --- More than £25,000 but not more than £100,000 --- More than £100,000. N.B. Do not include any possible awards of interest, costs, contributory negligence or counterclaims when calculating this.

Answer 30

Bottom left hand side of the form; or solicitors details provided either Defendant or their legal representative have confirmed in writing that the latter have been instructed to accept service of the court proceedings on their client's behalf.

Answer 31

Includes; - Exact figure in the 'amount claimed' box (includes interest that has accrued to the date of issue of proceedings). - For unspecified claims, estimate of amount of damages claimant expects to recover). - The court fee payable on issue based upon this 'amount claimed' (maximum fee payable is £10,000). - The legal representative's costs are fixed for specified money claims, and 'to be assessed' for others after court proceedings.

Answer 32

Must be in the witnesses' own language, signed and dated. Can be signed by either the party or their legal representative. Simple where claimant is an individual, but if not; -- For Company, can be signed by any of the Partners holding a senior position e.g. director, secretary, chief executive, treasurer. -- For Partnership, can be signed by any of the partners or a person having control of the management of the business.

Answer 33

Yes; taken as their statement that the client has authorised them to do so, confirming the client's belief in the truth of the stated facts, and they have explained the possible consequences (contempt of court) if found that he did not have honest belief in the truth of the facts.

Answer 34

The court may strike out the document and even if not, Claimant is precluded from relying upon its contents.

Answer 35

Yes, unless claim form has not yet been served.

Answer 36

It is desirable; 1) To add a new party to resolve the matters in dispute. 2) To remove a party, or 3) To substitute a party where the existing party's liability or interest has passed to them.

Answer 37

May only be done if limitation period was current when proceedings started, and; - The original party was named by mistake, or - The original party has died/is subject to bankruptcy order, or - The claim cannot be properly carried on without the new party.

Answer 38

4 months (must be sent to or delivered to defendant so they are aware of existence of proceedings). N.B. CPR allows 6 months for claim form to be served on the other parties if outside the jurisdiction.

Answer 39

If Defendant has nominated them in writing and should not just be presumed. Once nominated, all documents to be served on the solicitors unless (exceptionally) the document must be served personally on the party.

Answer 40

1) Personal service. 2) 1st class post or document exchange. 3) Leaving claim form at a specified place. 4) Fax or other means of electronic communication. 5) Any other method authorised by the court (e.g. sending text or leaving voicemail on particular number).

Answer 41

Individuals - handing it to them; if they refuse to accept, it may be left with or near them. Partnerships - may be left either with a partner or a person with control/management of the partnership as its main place of business. Companies - may be left with a person holding a senior position.

Answer 42

Where no solicitor authorised to accept service and Defendant has not given address for service. Individuals - usual or last known residence. Individual sued in name of a business (sole trader or Partnership) - usual or last known residence of the individual/business. Companies - principal office of the Company; or any place of business of the Company within the jurisdiction that has a real connection with the claim.

Answer 43

Where both the party to be served (or their solicitor) have expressly confirmed that they are willing to accept service in this manner; an email address/fax number on the party's headed paper is not enough to satisfy this requirement.

Answer 44

On the date; - Personal service was effected or delivery made at the relevant place, or - The letter was posted or left with the DX provider, or - The transmission of the fax was completed or email sent. N.B. Once done, C has completed required step for claim form service.

Answer 45

On the 2nd business day after the step required has occurred.

Answer 46

Depends on with/without 4:30pm cut off time; - Personal service, delivering documents to permitted address, fax and email - that day if served before 4:30pm on a business day or next day if not. - 1st class post and DX - 2nd day after it was posted provided that day is a business day or if not, the next business day.

Answer 47

No; but special provisions exist to govern the methods of service of claim form that are acceptable.

Answer 48

Yes; unless the contract contains an English jurisdiction where no permission is required.

Answer 49

When particulars of claim are served (either with claim form or subsequently), D must 'do something' within 14 days of deemed service, with form N9 (response pack) assisting with this.

Answer 50

1) To file an admission (in whole or part). 2) To file an acknowledgment of service. 3) To file a full defence. 4) Ignore proceedings completely.

Answer 51

Brings matter to an early end and limits their liability for costs; in defendant's interests if they know they owe the money and have the means to pay it. Specified claims - admission of entire claim; - Defendant submits details of income and expenditure with an offer to pay (in full or instalments). - Upon receipt, Claimant can file a request for judgment. Specified claims - admission of part of claim; - Claimant has 14 days to respond to any offers made and decide on; -- Accept in full satisfaction (request judgment for admitted amount). -- Accept admission but not payment terms (court decides suitability). -- Reject the offer (proceed as defended action). Unspecified claims - court will notify Claimant to confirm acceptance of offer. -- If Claimant accepts, judgment entered for that amount (possibly with instalments). -- If Claimant rejects or no offer is made, damages determined at a disposal hearing.

Answer 52

Gives them more time to gather evidence; now has 28 days (up from 14) of deemed service of particulars of claim to file a defence.

Answer 53

May be done within 14 days (or 28 if acknowledgment of service filed). Once defence filed, a copy must be served on all other parties. As part of Defendant's response, they may pursue their own counterclaim against Claimant.

Answer 54

If all parties agree and by a maximum of 28 days; gives Defendant 56 days from date of service of particulars of claim. N.B. Any further extensions would require court's permission.

Answer 55

Claimant will then apply for judgment in default (mechanism whereby Claimant can force the issue and ensures Defendant does not evade liability by doing nothing). 1st day to apply for default judgment is day after COB on 14th day. N.B. C must satisfy court that the particulars of claim have been served on Defendant and Defendant has not filed an acknowledgment of service or defence within relevant time period.

Answer 56

If there is a pending application by Defendant for summary judgment, or to have Claimant's statement of case struck out.

Answer 57

- Indicate the date payment was due. - Calculate an up-to-date total for the interest claimed. - State a daily rate at which interest accrues. N.B. This allows court to enter judgment for the correct figure on any given day. N.B. Once final judgment has been entered, payment is usually required within 14 days.

Answer 58

Disposal hearing.

Answer 59

1) Mandatory ground. 2) Discretionary ground.

Answer 60

If default judgment was wrongly entered into; -- Judgment entered too early (before the time for filing acknowledgment of service or a defence expired). -- Claim already been paid in full.

Answer 61

Where Defendant; -- Has a real prospect of successfully defending the claim (e.g. a dispute about quality of the consignment), or -- There is some other good reason why the Defendant should be allowed to defend the claim; evidence required (e.g. was ill or away so could not respond within time constraints). N.B. Court to also take into account the promptness of Defendant's application to set aside default judgment; important that it is issued as soon as Defendant aware of it.

Answer 62

- If default judgment is set aside under mandatory ground, Claimant pays Defendant's costs. - If Defendant's application to set aside default judgment fails, Defendant pays Claimant's costs. - If Defendant's application to set aside default judgment succeeds, Defendant pays Claimant's costs.

Answer 63

Claimant can discontinue all or part of a claim despite no settlement being reached at any time during proceedings by filing and serving a notice of discontinuance on the parties to proceedings. Permission is not usually required but; - If more than one Claimant, cannot discontinue unless every other party consents in writing or court gives permission. - If more than one Defendant, Claimant may discontinue the claim against all or any of the Defendant's. Effect = proceedings end against Defendant on the date the notice of discontinuance is served on them; Claimant becomes liable for costs of proceedings unless court orders otherwise.

Answer 64

The prospective Claimant will not be entitled to recover their legal costs unless this has been agreed. Agreed settlement terms must be clearly recorded in writing for enforcement of agreement if either party defaults.

Answer 65

It is preferable to be recorded in a court order or judgment for easier enforcement of payments or costs. Consent orders or Tomlin orders.

Answer 66

- The order agreed by the parties must be drawn up in the terms agreed, and expressed as being 'by consent'. - It must be signed by the legal representative acting for each of the parties to whom the order relates. - Effect = as long as monies are paid by the stated deadline, the claim comes to an end. If unpaid, interest will start to run on the sum and Claimant can take enforcement action. N.B. Only terms within the powers of the court to order may be agreed.

Answer 67

They are open to public inspection; used if you want to keep confidential terms away from customers etc and/or any terms are beyond the courts power to order. Confidential terms are placed in the schedule to the agreement or in a separate document. Often, it will be for the payment of a sum of money so that other businesses or customers cannot see how much the matter was settled for.

Answer 68

Must state so on the acknowledgment of service; then has 14 days after filing acknowledgment of service form to make a challenge, failing which they will be treated as having submitted to the jurisdiction.

Answer 69

Service of the claim form will be set aside and proceedings come to an end.

Answer 70

The original acknowledgment of service ceases to have effect and the defendant must file a further acknowledgment within 14 days. Proceedings then continue in the usual way.

Answer 71

The formal documents in which the parties concisely set out their respective cases; served between the parties and filed at court. N.B. Central to the litigation as they ensure that each party knows their opponent's case at an early stage, providing them with the opportunity to assess how strong it is, to determine what evidence is needed to counter it and to consider whether to make an offer to settle and on what terms.

Answer 72

Usually includes claim form and particulars of claim. May also include a defence, reply, counterclaim, defence to counterclaim and response to request for further information.

Answer 73

The court will only decide those issues raised in the statements of case so important that they are drafted carefully and continually reviewed as the matter develops.

Answer 74

The firm name.

Answer 75

A concise statement of the facts on which the claimant relies and if the claimant is seeking interest, a statement to that effect and the details. E.g. claim based on breach of contract. -- Status of parties (starting point, chronology to explain events that occurred). -- Existence of contract (rarely disputed). -- Terms. -- Breach alleged and particularised. -- Factual consequences (continuation of chronology where claimant explains what happened as a result of breach). -- Damage and loss alleged and particularised. -- Interest. -- Summary of relief (summarise remedies claimed at end of particulars of claim). -- Statement of truth (same requirements as claim form).

Answer 76

By the date, type (written or oral), parties, subject matter and consideration. Where a claim is based on a written contract, a copy of the contractual documents must be attached to or served with the particulars of claim. Where the claim is based on an oral agreement, the contractual words used, by whom, to whom and when/where should be specified.

Answer 77

By giving details of any express terms or implied terms to limit the areas of dispute for the court to consider.

Answer 78

By giving general details of which terms were breached and specifically how e.g. failure to pay for goods, late delivery, poor quality of items supplied etc. Then, particularise these by giving details of exactly what claimant alleges defendant did wrong (list of how they fell short of express/implied terms).

Answer 79

Allege general damage first e.g. claimant suffered damage and loss, then itemise the losses (clear to defendant exactly what is being claimed from them and how this is calculated).

Answer 80

1) Contractual interest - specified ROI payable on any outstanding sum. 2) Statutory interest - in the absence of a contractual provision, Late Payment of Commercial Debts (Interest) Act (8% above BOE's base rate). 3) Discretionary interest - courts can award interest under Senior Courts Act (High Court cases) or County Courts Act (County Court cases). N.B. For specified claims, interest payable must be calculated as a lump sum for the amount accrued from breach of contract up to date of issue of proceedings + daily rate so as to provide an updated total.

Answer 81

Advise the client to amend the statement of case and if client refuses to do so, cease to act but do not tell court or any other party why you are no longer representing your client.

Answer 82

Narrow down the issues between the parties so only the matters in dispute are tested by the court. Must state for each allegation whether it is denied (explain why), not admitted or admitted; vital not to miss an allegation as the effect of this will be that it is deemed to be accepted. N.B. Only if defendant denies claimant's allegation will claimant then have to prove allegation.

Answer 83

- Name of the court. - Claim number (URN allocated by court on issue of proceedings). - The parties. - The title (DEFENCE). - The date and signature of solicitors in the name of the firm. - The statement of truth. - Details of who is to be served and where.

Answer 84

Put details of this in the defence showing when it began and expired. Burden of proof then passes to claimant to show that the claim is not time-barred.

Answer 85

Contributory negligence and a failure by the claimant to mitigate its loss.

Answer 86

If the defendant has actually suffered loss attributable to the claimant; treated as if it were a standalone claim and filed in addition to the defence (permission to do so only required where defence has already been filed). - If defendant simply has a good reason for not paying the monies owed but has not incurred any loss, should only file a defence. N.B. When structuring counterclaim, refer back to defence to prevent repetition on agreed things e.g. existence and terms of contract.

Answer 87

Indemnity. Contribution. Additional claims against a non-party.

Answer 88

Where there is a contractual relationship between the defendant and the third party, in which the latter is obliged by the terms of a contract to indemnify the defendant if they are found liable for the claim.

Answer 89

Where joint wrong-doers and defendant argues that 3rd party is partly responsible for the harm claimant has suffered.

Answer 90

If the notice is filed and served either before or at the same time as filing defence.

Answer 91

By filing a defence within 14 days (unless extension of up to 28 days has been agreed with defendant). N.B. Failing this, defendant may enter judgment in default on the counterclaim.

Answer 92

Yes; at any time.

Answer 93

Only with the written consent of all the parties or court's permission. N.B. To apply for permission, the applicant must file a copy of the statement of case with proposed amendments; court then decides whether to grant the application.

Answer 94

1) To add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim. 2) To correct a (genuine) mistake as to the name of a party. 3) To alter the capacity in which a party claims.

Answer 95

To clarify any matter in dispute or obtain additional information in relation to any such matter. Done by first serving a written and signed request on the other party, allowing a reasonable time for a response. -- Concise (single doc) request confined to matters that are reasonably, necessary and proportionate to enable the applicant to prepare their own case or understand the case they have to answer. Served on all parties, filed with court and verified by statement of truth.

Answer 96

To ensure that the case proceeds as quickly and efficiently as possible in accordance with the overriding objective.

Answer 97

1) To ensure compliance with procedural matters. -- Permission to serve a claim form out of the jurisdiction. -- Challenging the court's jurisdiction. -- Permission to amend a statement of case or to make an additional claim. 2) To request more time. -- To serve a claim form or defence. -- To serve the list of documents. 3) To assist in preparation for trial. -- Requiring a reply to a request for further information. -- Seeking disclosure of documents. 4) To consider penalties. -- Applying for a sanction against the opponent for failing to meet a deadline. -- Applying for a relief from a sanction imposed by the court.

Answer 98

Applicant prepares formal application notice and form N244 to be sent to the court where the claim started or where it has been transferred (if relevant). Applicant must state what order is being sought and why. -- If issues raised are straightforward, applicants to use N244 alone, but if insufficient, a witness statement may be filed at the same time (including the factual information and evidence in support of application; anticipating opponent's case where possible). -- May also rely on contents of a statement of case and must be verified by statement of truth. Draft order also required (except in most simple applications) to assist the judge. N.B. First try to resolve matters between parties through exchange of correspondence etc.

Answer 99

On the opponent at least 3 clear days (day posted and hearing day excluded) before the court hearing to allow the other party to respond and object to the application should they wish to do so. N.B. Exception in case of summary judgment (14 days before hearing to allow respondent to respond within 7 days of service of order upon them)

Answer 100

Yes; in exceptional circumstances where there is exceptional urgency or the overriding CPR objective would be best achieved this way e.g. freezing injunction. In such cases, the evidence must explain why notice was not given, and the applicant has a duty of full and frank disclosure which means they cannot take advantage of the respondent's absence at the hearing and must draw the court's attention to evidence and arguments they reasonably anticipate the respondent would wish to make.

Answer 101

Can apply to the court for an order to be made by consent without the need for attendance at the hearing. - Advantage = cost saving; provide court with sufficient material to be satisfied.

Answer 102

The court order. The application notice. Any supporting evidence. N.B. The respondent may then apply to set aside or vary the order within 7 days of service of the order upon them.

Answer 103

Yes; general rule being that interim applications with a time estimate of 1 hour or less will be conducted by telephone if at all possible. N.B. Exceptions such as hearing of an application notice made without notice to the other party.

Answer 104

Loser to pay the winner's costs. -- Thus, if application is granted, normal to order the respondent to pay the applicant's costs.

Answer 105

1) Summary judgment. 2) Interim injunctions. 3) Interim payments.

Answer 106

The claimant (or defendant in rare cases) to bring the matter to an early conclusion. N.B. Useful mechanism that should be considered by parties where appropriate as it complies with the CPR overriding objective.

Answer 107

If; -- It considers that the party has no real prospect of succeeding on the claim, defence or issue and -- There is no other compelling reason why the case or issue should be disposed of at trial. N.B. Both must be proved by claimant applicant but a defendant respondent need only succeed in preventing the claimant from proving one aspect to ensure application dismissed.

Answer 108

The need to allow more time for the matter to be investigated, perhaps due to difficulties contacting an important witness. The claim or defence is of a highly complicated and/or technical nature so it can only be properly understood with all the evidence that would be available at a full trial. The need to hear from witnesses, particularly if one of the central issues (e.g. terms of a contract) is disputed oral evidence.

Answer 109

Can be made at any time by either party (court's permission only required where the claimant wishes to apply before the defendant has filed an acknowledgment of service or defence - unlikely). Applicant applies with form N244 form and accompanying witness statement at least 14 days before the hearing. Respondent files and serves own evidence at least 7 days before the hearing. Applicant may file and serve further evidence at least 3 days before the hearing.

Answer 110

1) Judgment on the claim. -- Claimant has succeeded in application; matter proceeds to enforcement. -- Defendant pays claimant's costs (either fixed or summarily assessed at future disposal hearing). 2) Striking out/dismissal of the claim. -- Defendant has succeeded in their application to dispose of claimant's claim; matter comes to an end. -- Claimant pays defendant's costs of whole claim (either fixed or summarily assessed depending on which track claim is proceeding on). 3) The application is dismissed. -- Applicant has failed to bring the case to an early conclusion; matter to proceed to trial. -- Loser pays winner's costs of the summary judgment hearing. 4) A conditional order; neither side has won.

Answer 111

Where they conclude that it is possible, but not probable, that the claim or defence may succeed. -- The party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step in relation to their claim. -- This ensures that the party is genuine in their desire and ability to pursue the matter and, in the case of the defendant, they are not merely delaying payment.

Answer 112

An urgent remedy which if granted (at court discretion; requires compelling evidence), has the purpose of preserving the status quo until trial by forcing the respondent to do something or refrain from doing something until a trial can take place. Damages not an adequate remedy; if an applicant has to wait until trial for a remedy, harm will have been done so this is compensation for harm suffered in the meantime.

Answer 113

Either party may seek an injunction at any time after proceedings have commenced and beforehand in exceptional cases. N.B. Interim injunctions are granted before trial, and remain in force until the matter comes to trial at which point the court will decide whether or not to make a final injunction.

Answer 114

Made via an application notice supported by a witness statement.

Answer 115

When immediate secrecy is necessary; 1) Freezing injunction - can be used to prevent a party from removing its assets from the jurisdiction. -- Court must be satisfied that the applicant has a good arguable claim and there is a real risk that respondent will dispose of their assets to defeat the enforcement of an eventual judgment. -- E.g. stealing money from business and trying to move money overseas; show that employee was looking at buying property abroad. 2) Search orders - where the applicant believes the respondent has documents or property belonging to them. -- Strong prima facie case an applicant will suffer serious harm if order is not made. -- Respondents must have incriminating materials in their possession.

Answer 116

By contempt of court.

Answer 117

Whether there is a serious question to be tried. Whether damages are an adequate remedy for either side. Whether the balance of convenience lies in favour of granting/refusing the injunction. Whether there are any special factors.

Answer 118

An advance payment on account of any damages, debt or other sum (excluding costs) that a defendant may be held liable to pay. Interim payment procedure enables a claimant who has a strong case on liability to avoid the financial hardship and/or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination.

Answer 119

Try to negotiate with the defendant or the defendant's insurance company to obtain a voluntary interim payment. - Only if one is not forthcoming, should an application be made (supported by a witness statement explaining how much claimant expects to recover in the action and the amount of interim payment sought).

Answer 120

Not until after the time for acknowledging service has expired, but can make one during the proceedings.

Answer 121

Application notice must be served at least 14 days before the hearing date with evidence. Respondent files and serves own evidence at least 7 days before the hearing if choosing to counter. Applicants may file and serve further evidence at least 3 days before the hearing.

Answer 122

The defendant has admitted liability, or The claimant has obtained a judgment against the defendant for damages to be assessed or for a sum of money, or The court is satisfied that if the case went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs). -- High burden on applicant; must prove on balance of probabilities that they will succeed (not enough that court considers it is likely they will do so).

Answer 123

1) Should an order for an interim payment be made? -- If the issues are complicated or difficult questions of law arise, the court may decide against ordering an interim payment at all. 2) If yes, what will the amount be? -- Sum cannot be more than a reasonable proportion of the likely amount of the final judgment and contributory negligence/other counterclaims must be considered. N.B. Court may order an interim payment in 1 sum or instalments.

Answer 124

Trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless defendant consents (rare cases).

Answer 125

To promote justice but in a way that makes best use of the court's resources, to ensure cases are pushed through effectively and efficiently.

Answer 126

- To make, vary or revoke orders. - To strike out a party's statement of case. - To impose penalties on a party who falls short in some way.

Answer 127

1) Ensuring that the parties are on an equal footing. 2) Saving expense. 3) Dealing with the case in ways that are proportionate to; -- The amount of money involved. -- The importance of the case. -- The complexity of the issues. -- The financial position of each party. 4) Ensuring that the case is dealt with expeditiously and fairly. 5) Allotting it to an appropriate share of the court's resources, whilst taking into account the need to allot resources to other cases. 6) Enforcing compliance with rules, practice directions and orders.

Answer 128

The court must give effect to the overriding objective when making procedural decisions, and The parties are required to help the court to further the overriding objective. - Imposes a positive duty upon the parties; court to expect high level of co-operation from those involved throughout litigation process.

Answer 129

Encouraging the parties to co-operate with each other in the conduct of the proceedings. Identifying the issues at an early stage. Deciding promptly which issues need to be fully investigated and dealt with at trial. Deciding the order in which issues are to be resolved. Encouraging the parties to use ADR if appropriate. Helping the parties to settle the case. Fixing timetables or otherwise controlling the progress of the case. Considering whether the likely benefits of taking a particular step justify the cost of taking it. Dealing with the case without the parties needing to attend at court.

Answer 130

This can impede the goal of enabling the court to deal with a case justly as parties may not be on an equal footing. Having identified those who are vulnerable (communication/language difficulties, physical disability/impairment, health condition), the court may order appropriate provisions such as allowing a party or witness to give evidence remotely by video conference or questioning them through an intermediary e.g. translator.

Answer 131

Ensures that the most difficult and highest value claims receive greater resources and attention than simpler matters. -- Small claims track requires the least formality to recognise the low value of the claims and the fact they are often conducted by litigants in person. -- The fast track is the standard route for most cases. -- Intermediate next. -- Multi-track incorporates greater flexibility to reflect the variety and complexity of these cases.

Answer 132

Initial decision made by a court officer, confirmed after the involvement of the parties. -- When a defence is filed, the court will provisionally decide which track appears most suitable for the claim. -- The court will then serve a notice of proposed allocation, requiring them to file and serve a completed directions questionnaire by a specified date. -- Parties to co-operate in completing directions questionnaire.

Answer 133

Key document in progress of a case; used by the court to confirm track, assign the case to a complexity band (if appropriate) and determine directions for case management. Prepare case summary, disclosure report and a costs budget and budget discussion report to go alongside the directions questionnaire in claims provisionally allocated to the multi-track, with draft order to accompany return of it.

Answer 134

Part A - Settlement; confirm the client has been advised on settlement options and potential cost sanctions. Part B - Court; provide reasons for the case being heard at a specific court. Part C - Pre-action protocols; state compliance with relevant protocols. If not, explain reasons. Part D - Case management information; includes detailing any court applications made, any objections to the provisional allocation of the case and reasons for requesting a different track, submissions on the appropriate complexity band for fast and intermediate track cases and the scope and extent of disclosure of documents including proposals on how to deal with electronic documents. Part E - Experts; indicate whether the case is suitable for a single joint expert, or detail expert evidence and costs if not. Part F - Witnesses; the parties must name or provide the number of witnesses they intend to call at trial and identify the points the witnesses will address. Part G - Trial; a realistic estimate of how long trial will last. Part H - Costs; file costs budget if the party is legally represented and the case is likely to be allocated to the multi-track. Part I - Other information; anything else to assist the judge in managing the claim. Part J - Directions; attempt to agree on directions and submit a draft order accompanying them; standard directions for fast track and specimen directions for intermediate/multi-track claims.

Answer 135

If the claim is for money in County Court, the court will serve a notice on the defaulting party requiring compliance within 7 days. Failure to do so results in the party's statement of case being automatically struck out. In all other cases, the court will make such an order as it considers appropriate; may be an order for directions, strike out statement of case or list the matter for a case management conference.

Answer 136

Financial value of the claim. Complexity of the matter. Other factors taken into account; -- Remedy sought. -- Number of parties. -- Value of any counterclaim. -- Amount of oral evidence. -- Importance to non-parties. -- Views and circumstances of parties.

Answer 137

Interest Costs Contributory negligence Any sum not in dispute.

Answer 138

*Designed to enable litigants in person to represent themselves thus certain parts of the CPR do not apply here e.g. disclosure, inspection and provisions relating to evidence and experts. *Deals with cases such as consumer disputes, landlord/tenant disputes (not about possession), lower value personal injury cases. Directions are issued by the court but usually simple to reflect fact that solicitors are not usually involved and costs cannot generally be recovered from the losing party. E.g.; - Each party delivering to the others copies of all documents on which they intend to rely. - A requirement for them to bring original documents to the hearing. - The parties not being allowed to rely on an expert's report without express permission from the court. N.B. Hearing itself is informal and the court can make a decision based on statements of case and submitted documents rather than oral evidence if all parties agree.

Answer 139

*Only appropriate for those cases where the trial is expected to last no longer than 1 day. Court will give directions as to how matter is to proceed to trial (periods run from date of allocation), with standard directions such as; - Disclosure - 4 weeks. - Exchange of witness statements - 10 weeks. - Exchange of experts reports - 14 weeks (tends to be limited or SJE). - Court sends pre-trial checklists - 20 weeks. - Parties file pre-trial checklists - 22 weeks. - Hearing (trial) - 30 weeks. N.B. Parties may agree in writing to vary 30 week timetable but not the trial date nor date for returning pre-trial checklists. N.B. Parties may agree different directions, but must be approved by the court. N.B. Costs awarded on a fixed basis.

Answer 140

*Claims must involve a maximum of 3 parties (e.g. 1 claimant, 2 defendants), no more than 2 experts giving oral evidence on each side, and an anticipated trial length of 3 days maximum. The court may fix a case management conference (CMC) but discretionary. Parties must either agree appropriate directions (likely to be standard but tailored to individual case) or submit their proposals to the court at least 7 days prior to the conference, with matters to be dealt with including; -- Disclosure of documents. -- Service of witness statements (total length cannot exceed 30 pages). -- Expert evidence (total length cannot exceed 20 pages; oral expert evidence limited to 1 witness per party, except where a 2nd expert is reasonably required and proportionate). -- Whether to fix a pre-trial review. -- Listing for trial. N.B. Standard period between giving of directions and trial to be no more than 30 weeks. If the parties have agreed directions (which must include a timetable of the progress of the case for trial), the court may approve these without a hearing.

Answer 141

Fast track; - Band 1 = defended debt claims and road traffic accident related, non-personal injury claims. - Band 2/3 = various types of road traffic accident related personal injury claims and other personal injury claims. - Band 4 = professional negligence and other claims classified as complex. Intermediate track; - Band 1 = defended debt matters and claims with only 1 issue in dispute where the trial is anticipated to take no more than 1 day. - Band 2/3 = claims (including personal injury claims) where there is more than 1 issue in dispute. 2 = less complex, 3 = more complex. - Band 4 = most complex claims where serious issues of fact and law are to be considered, and the trial is anticipated to take 3 days. N.B. Parties are encouraged to seek to agree the band, failing which the court will assign the case.

Answer 142

Usually, court will give directions for the management of the case and set a timetable for the steps to be taken to trial. - Directions must reflect diversity of the claims dealt with (standard directions will suffice for some cases, CMC needed for others). In more complex claims, court will fix a case management conference (CMC) to ensure that appropriate directions relating to case management can be given; recognises that time required for parties to complete each step may be longer than on fast/intermediate tracks. Some flexibility as to the timing of the steps; parties may agree in writing to vary the timetable but unable to change key dates (any CMC, pre-trial review, return of a pre-trial checklist, trial or trial period) without court application. In other cases, directions to be given covering similar issues as the standard directions issued on the fast track.

Answer 143

1 is usually sufficient and will be ordered as soon as a claim is allocated to the multi-track, but others may be ordered to review progress made. 'Live issues' to be evaluated between the parties to enable discussion around necessary timeframes as case progresses to trial. - Review the steps the parties have already taken to prepare the case. - Check their compliance with any directions the court has made e.g. allowing application for summary judgment that has been dismissed). - Consider and give directions about future steps to ensure the claim proceeds in accordance with overriding objective.

Answer 144

If the party has a legal representative who is familiar with the case, they must attend the CMC; usually someone personally involved in the conduct of the case who can help fix timetable, identify issues and matters of evidence. N.B. Where the inadequacy of the person attending leads to the adjournment of the hearing, the court may order that the other party's costs incurred in preparing for and attending the hearing are paid by either the solicitor personally or their firm (wasted costs order).

Answer 145

Failure to comply with directions or step generally not an issue provided the parties cooperate and key deadlines are met, but a party may apply for an order to enforce compliance and court will not allow any failure to comply to cause postponement of trial date unless exceptional circumstances exist.

Answer 146

Claim chronology. Agreed issues of fact. Required evidence to decide issues not agreed. All to be prepared for CMC to assist in determining how the case proceeds to trial.

Answer 147

Enables the court to manage both the steps taken and the costs to be incurred by the parties in multi-track cases to further overriding objective. - Ensures future costs are reasonable and do not become disproportionate. N.B. Only claims of £10 million or more are excluded from this process.

Answer 148

A detailed breakdown of costs and disbursements already incurred 'incurred costs' (pre-action, issue of proceedings, statements of case) and an estimate of future costs and the assumptions on which those are based for the future phases of the proceedings 'budgeted costs' (case management, disclosure, evidence, pre-trial review, trial preparation, trial, ADR settlements). Must be dated and verified by a statement of truth signed by a senior legal representative of the party.

Answer 149

With the directions questionnaire for claims of less than £50,000 and no later than 21 days before the first CMC for all other claims. Having done so, the parties must complete a budget discussion report no later than 7 days before the first CMC (itemises figures for agreed phases and summarises grounds for dispute).

Answer 150

Will review those costs which are disputed by cross-referring between the parties' proposed directions and their budgets to ensure the suggested costs are reasonable and proportionate to the case in hand. Budget will then be revised as necessary.

Answer 151

No; very hard to amend or update once agreed or approved by the court so draft with care as mistakes/inadequacies will not be rectified. Only if the other party agrees (unlikely) or the court can be persuaded that there have been significant developments e.g. need for an additional expert's report that could not have been anticipated may a costs budget be amended by the parties filing a budget variation summary sheet (Precedent T).

Answer 152

Party treated as having filed a costs budget consisting only of the court fees; means unless the court gives relief from this automatic sanction, that party will be unable to recover any of its future legal costs apart from court fees from another party. N.B. Serious; deadlines of paramount importance in DR.

Answer 153

If the judge is not satisfied that the litigation can be conducted justly and at proportionate cost as a further means of ensuring costs are kept in check. Order will record the extent to which any incurred or budgeted costs are agreed between the parties, and in respect of the budgeted costs that are not agreed, the court's approval after making appropriate revisions will be recorded.

Answer 154

Court will thereafter control the parties' budgets in respect of recoverable costs; if at trial one party is ordered to pay another party's costs to be assessed by the court on the standard basis, the court will not depart from the receiving party's last approved/agreed budget unless satisfied there is a good reason for doing so. Consequence is that parties are tied to their costs budget figures even if the litigation proves far more expensive than anticipated.

Answer 155

More flexibility when dealing with costs. Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference. Then, the court must decide whether the additional amounts can be recovered.

Answer 156

Striking out a statement of case (brings claim/defence to immediate halt). Costs - common to require the party in default to pay the other party's additional costs on an indemnity (penalty) basis or provide an uplift on the fixed costs. Interest - orders could be made to increase or reduce the interest payable on any damages. The unless order - if a party has not taken a step in the proceedings in accordance with a court order, an application to court may be made for an 'unless' order (specific action to be taken in set timeframe).

Answer 157

When the statement of case discloses no reasonable grounds for bringing or defending the claims. There has been a failure to comply with a rule, practice direction, court order. N.B. This includes a particulars of claim that does not set out any facts indicating what the claim or defence is about e.g. 'money owed £5000' or statements of case with a coherent set of facts but those facts do not disclose a legally recognisable claim and are thus 'doomed to fail'.

Answer 158

Yes unless the party applies to obtain a relief (to overturn the penalty) with supporting evidence (hard to obtain). When deciding whether to grant relief, court to consider all case circumstances to enable it to deal justly with the application, and adopt following structured approach; 1) Identify and assess the seriousness or significance of the relevant failure. If a breach was not serious or significant, relief usually granted. 2) Consider why the failure occurred. 3) Evaluate all the case circumstances to enable the court to deal justly with the application.

Answer 159

Once the parties have filed and served their statements of case, and the court issue directions for the future conduct of proceedings.

Answer 160

To enable the parties to evaluate the strengths and weaknesses of their case in advance of the trial; assists them in making an informed decision about whether to pursue the matter or whether to seek an early settlement. N.B. Disclosure applies to all claims except those allocated to the small claims track.

Answer 161

By stating that it exists or has existed; done by preparing and serving a list of documents (information that is recorded) on all the other parties for them to inspect some of these documents. N.B. Documents has wide definition; immaterial whether it is admissible or whether a party wishes to rely on the document at trial.

Answer 162

Only the documents the parties wish to rely on at the hearing (at least 14 days before the final hearing).

Answer 163

Limited to what is necessary to deal with the case justly and at proportionate cost. On the fast track, standard disclosure is an option but the court may direct a more limited approach such as that no disclosure takes place, or specify the class of documents the parties must disclose. On the intermediate track, the court will select one of the following orders; - To dispense with disclosure. - Disclosure of documents on which a party relies and, at the same time, a request for any specific disclosure it requires from any other party. - Disclosure on an issue-by-issue basis. - Disclosure of documents which it is reasonable to suppose may contain information which enables a party to advance its own case or to damage that of another party or which leads to an enquiry which has these consequences. - Standard disclosure. - Any other disclosure considered appropriate.

Answer 164

Standard disclosure usually ordered but courts may tailor order to a particular case requirement if important issues or complex matters arise; done by parties compiling a disclosure report and serving it not less than 14 days before the first CMC. Orders could be anything from; - Dispensing with disclosure. - Specific disclosure. - Disclosure on an issue by issue basis.

Answer 165

A party to disclose any documents which help or hinder the party's case (includes documents relating to issues in dispute).

Answer 166

Limited to documents in the party's control. This means documents that; - Either are or were in their physical possession. - They have a right to possess (e.g. any held by 3rd parties). - They have a right to inspect (e.g. medical records).

Answer 167

Requires a party to make a reasonable and proportionate search for all documents that help or hinder their case. N.B. What is reasonable depends on the number of documents involved, the complexity of proceedings, the cost associated with retrieval and significance of any document.

Answer 168

By not searching for documents that came into existence before a particular date. By specifying a particular place or places they search. By limiting the categories of documents. N.B. Any such limitation would need to be justified and court would need to be satisfied they would not affect a proper investigation into the merits of the case.

Answer 169

Early on in proceedings (either when drafting the disclosure report or attending a directions hearing).

Answer 170

To manage them to minimise the cost incurred in disclosure and to use technology to ensure that the search is undertaken efficiently and effectively. Parties should discuss and if possible agree such matters as the categories of electronic documents to be disclosed, how data will be exchanged, the format for inspection and what keywords will be used. ALL to keep work at a sensible level.

Answer 171

By way of a list of documents; contents as follows; 1) Formalities; court, claim number and parties set out in top right hand corner. 2) Disclosure statement; -- Party or responsible individual must sign to confirm the extent of the search made to locate any documents, and certify that they understand their duty of disclosure and have carried out that duty to best of their knowledge. -- Must explain reasons for decision not to inspect particular class/category of documents if considered to be disproportionate to the issues in the case. -- False statements without honest belief may lead to contempt of court. -- Duty after signing the statement and at any time during proceedings is continuous; supplemental lists must be served for newly discovered documents and court permission required if opponent does not agree to its use. 3) The list of documents; on the final page and consists of 3 parts; -- Part 1: documents within control and available for inspection e.g. contracts, emails (must be precisely described). -- Part 2: documents within control but inspection is objected e.g. privileged. -- Part 3: documents no longer in control, with explanation as to their loss or destruction (party unable to inspect).

Answer 172

By the fact that a party who fails to disclose a document may not rely on it at trial unless the court permits, and if such a document is harmful to their claim or defence, their case could even be struck out.

Answer 173

In writing and granted within 7 days (longer period often agreed between parties). May ask for copies instead of inspecting personally if they agree to pay reasonable paying costs.

Answer 174

Such documents must still be disclosed but; - The other parties cannot inspect them and - They are described generically. Effect being that particular documents are disclosed but otherwise concealed under an umbrella description in Part 2, thus preventing identification of their maker, any recipient and the contents.

Answer 175

Where the sole or dominant purpose of the communication is to seek or give legal advice. If the document has a dual purpose, the dominant one must be established. N.B. Solicitors, licensed conveyancers, legal executives, in-house lawyers, barristers etc all protected. - E.g. letters or emails seeking or giving advice between solicitor and client, attendance notes of a solicitor/client meeting.

Answer 176

The document must be a communication; 1) Passing between the client or lawyer and a 3rd party. 2) Which came into existence when litigation was contemplated or ongoing, and 3) Which was produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in the litigation. E.g. report from an expert obtained by a solicitor in order to advise their client on existing proceedings, witness statements obtained by a legal executive for the purpose of using as evidence.

Answer 177

The right of the client, not their lawyer. Will often occur during litigation as it is the only way to advance the proceedings. E.g. while a party's solicitors are drafting statements of case and witness statements, they are privileged from inspection, but once served on the other side, privilege is waived.

Answer 178

Record of information as part of a party's genuine attempt to settle a case. The correspondence will therefore satisfy the definition of standard disclosure as it is likely to set out the strengths of a party's case and may also contain concessions that are adverse to their case and support their opponent. Purpose - so that the trial judge is unaware of the content; contrasted with disclosure process.

Answer 179

*Before applying to the court, party should write to the other side as this may lead to a quicker and cheaper resolution of the issue. If this fails, an application notice (Form N244) must be filed at court accompanied by a witness statement, and served on the opponent. - Specific disclosure. - Disputing privilege.

Answer 180

Once the list of documents has been served, the contents should be scrutinised carefully. If the disclosure appears inadequate, an application to be made for specific disclosure. This could request an order that the party; - Carry out a more extensive search. - Disclose any further documents located as a result of that search. - Disclose specific documents that the party would have expected to see. Supporting witness statement to explain why the applicant believes the document exists (perhaps been seen previously), and justify the application.

Answer 181

Application can be made to the court to challenge a claim for privilege to prevent parties hiding documents that are unhelpful to their case. The court may require the party claiming privilege to produce the document, invite any person (whether or not a party) to make representations and will determine whether it has been correctly categorised. If not, the court will order that the document be revealed to the opponent. N.B. Effectiveness of this option limited by broad nature of the claim privilege and general description in Part 2 of list of documents that makes it difficult for a party to evaluate whether privilege is being correctly claimed or not.

Answer 182

Prior to claim form being issued when parties are unsure as to the strength of their case, so select those documents they wish to show and keep the others hidden. Allows an informed decision to be made as to whether to issue proceedings against the intended defendant. N.B. Court must be satisfied that both the applicant and respondent are likely to be a party to subsequent proceedings. Application made + witness statement.

Answer 183

Where proceedings have commenced if it would help to resolve an issue in the case. - Accompanied by evidence. Often used where a party indicates in their list of documents that they no longer have a document in their possession, but X does. The other party may then write to X asking for a voluntary copy of that document. The order must specify the documents to be disclosed, and require the non-party to identify which documents are no longer in their control and which are privileged.

Answer 184

The party will have to apply to the court to enforce the judgment.