Dispute resolution Advocacy Tests Flashcards
(260 cards)
1
Q
What is the procedure for obtaining default judgment?
A
CPR 12 (Procedure: Either by filing a request or CPR 23 application)
2
Q
What are the conditions for default judgment?
A
- Failed to file an acknowledgement of service or defence
- Relevant time for doing so has expired
3
Q
What is judgment in default of acknowledgment?
A
If at the date of judgment, D has not filed an acknowledgment or a defence
4
Q
What is judgment in default of defence?
A
If D filed acknowledgment but, at the date of judgment, the defence was not filed
5
Q
Which rules set out the time period for filing acknowledgment and serving defence?
A
CPR 10 and 15
6
Q
What is the procedure to set aside a default judgment?
A
CPR 13 (Procedure: CPR 23 application)
7
Q
What are the grounds where the court MUST set aside a default judgment?
A
- D filed before the default judgment
- D applied for summary judgment before default judgment
- D filed or served an admission of liability
- The whole claim was satisfied before judgment
8
Q
What is the significance of the case Clements v Berrymans?
A
No default judgment where defence filed before judgment, albeit late
9
Q
What are the discretionary grounds where the court MAY set aside a default judgment?
A
- D has a real prospect of successfully defending the claim
- Other good reason to set aside/vary judgment
10
Q
What is the Denton 3-stage Test for relief from sanctions?
A
- Stage 1: Assess seriousness of non-compliance
- Stage 2: Reason for default
- Stage 3: All circumstances of the case
11
Q
What is the procedure for summary judgment?
A
CPR 24 (Procedure: CPR 23 application)
12
Q
What conditions must be satisfied for summary judgment?
A
- Respondent has no real prospect of success
- No compelling reason to wait until trial
13
Q
What does the case Three Rivers Council v Bank of England emphasize regarding summary judgment?
A
Not one of probability; it is the absence of reality
14
Q
What is required for an interim payment according to CPR 25?
A
- C would obtain a judgment for substantial sum
- D has admitted liability
- C obtained a judgment for damages
15
Q
What must the court be satisfied of regarding the amount of interim payment?
A
- Amount does not exceed reasonable proportion
- Need to be paid as soon as reasonably possible
16
Q
What guidelines are used to establish whether to grant an interim injunction?
A
American Cyanamid Guidelines
17
Q
What are the three stages in assessing the balance of convenience for an interim injunction?
A
- Adequacy of damages as a remedy
- Protection for the respondent if granted
- Factual circumstances and special factors
18
Q
What are the conditions for granting a freezing injunction?
A
- Applicant has a cause of action
- Good arguable case
- Existence of assets
- Real risk of dissipation of assets
- Undertaking in damages
19
Q
Under what grounds can a statement of case be struck out?
A
- No reasonable grounds for claim
- Abuse of court process
- Failed to comply with rule or court order
20
Q
What is the test for relief from sanctions under CPR 3.8-3.9?
A
- Conduct litigation efficiently
- Enforce compliance with rules and orders
21
Q
What factors are considered for track allocation according to CPR 26.13?
A
- Financial value
- Nature of remedy sought
- Likely complexity
- Number of parties
- Value of counterclaim
- Amount of oral evidence required
- Importance of claim to non-parties
- Views expressed by parties
- Circumstances of parties
22
Q
What is required for permission for late evidence?
A
- Compelling grounds for necessity of evidence
- Exceptional circumstances justifying late submission
23
Q
What happens if an application for extension is made after the deadline?
A
Courts apply the relief from sanctions test
24
Q
What principle does CPR 3.9 address?
A
Application for relief from sanctions
25
In Al Hamadani v Al Khafaf, what was the court's decision regarding the late serving of witness evidence?
Relief was granted despite the serious and significant failure to comply with the deadline
26
What was the outcome of Coal Hunter v Regulas regarding the Denton test?
Breach was serious; evidence was deemed necessary for just determination
27
What did the court allow in Currie v Thornley?
Admission of letters served after trial but before judgment
28
What is the implication of a document becoming available after directions for filing in Jones v Oven?
It is not considered 'late' and does not constitute a relief from sanction argument
29
What are the grounds for a request for security for costs under CPR 25?
* C will be unable to pay D's costs
* C has taken steps to put assets out of reach
* C is resident abroad
* C has changed address or failed to provide a correct address
* C has changed address to evade litigation
30
What must the court consider when deciding on security for costs?
* Just and fair circumstances
* Respondent's lack of money due to applicant's conduct
* Bona fide application
* Delay in applying for security
31
What are the criteria for permission to appeal under CPR 52?
* Decision was wrong
* Decision was unjust due to procedural irregularity
* Appeal has a real prospect of success
* Compelling reason for appeal to be heard
32
What are the grounds for specific disclosure under CPR 31?
* Inadequacy of disclosure
* Unreasonably limited search scope
* Concerns about redacted documents
33
What is the jurisdictional test for non-party disclosure under CPR 31.17?
* Likely to support the applicant's case or adversely affect another party's case
* Necessary for fair disposal of the claim or saving costs
34
What are some example grounds to challenge the admissibility of evidence?
* Evidence is not relevant
* Should be excluded under CPR 32.1
* Issues of credibility and reliability
* Documents are privileged
* Opinion evidence by a witness of facts
35
What is the duty of a solicitor regarding conflicts of interest?
Must not act for multiple clients if there is a conflict of interest
36
What should solicitors do when the opponent is a litigant in person?
Must not take unfair advantage of their lack of legal knowledge
37
What is the solicitor's duty in relation to the disclosure process in civil litigation?
Must inform clients of obligations and ensure relevant documents are preserved
38
What must solicitors avoid when dealing with evidence?
Must not knowingly mislead the court or influence witness evidence
39
What should a solicitor do if they inadvertently receive a privileged document?
Stop reading the document and return it to the source
40
What is the duty of solicitors regarding allegations without merit?
Must not advance arguments that are not properly arguable
41
What must solicitors provide to clients regarding costs?
Information about legal costs, including potential liabilities
42
How should solicitors address judges in court?
Use appropriate titles depending on the judge's position
43
44
What are the preliminary matters to consider before advising a client on a claim?
1. Parties
2. Cause of action
3. Consider limitation period
4. What is the claim for?
5. Is D worth suing financially?
## Footnote
These matters help establish the viability of the claim.
45
Who can sue or be sued?
The correct identity of the opponent must be established
## Footnote
This includes identifying who can legally bring or defend a claim.
46
What is a cause of action?
A legally recognizable reason for bringing a claim based on facts and evidence
## Footnote
Examples include breach of contract or wrongful act of tort.
47
What should be considered regarding the limitation period?
Ascertain whether the claim is statute-barred
## Footnote
Limitation periods dictate the time frame within which a claim must be filed.
48
What does a client want to achieve from a claim?
Damages, interest, performance, etc
## Footnote
Understanding the client's objectives helps in formulating a strategy.
49
What is important to assess about the defendant (D) before suing?
Whether D is financially viable to pay a judgment
## Footnote
Check D's assets and financial status before proceeding.
50
What is the role of Alternative Dispute Resolution (ADR) in claims?
Explore all options and consider whether a settlement is likely or possible
## Footnote
The court expects parties to attempt settlement before and after issuing a claim.
51
What does the Practice Direction on Pre-Action Conduct (PD PAC) require?
Parties must take steps before issuing a claim, including exchanging information
## Footnote
This aims to facilitate settlement and efficient case management.
52
What are potential consequences of non-compliance with the PD PAC?
1. Stay proceedings
2. Adverse costs awards
3. Adverse interest awards
## Footnote
The court can impose sanctions for failing to comply with the PD PAC.
53
What steps should be taken before issuing a claim in non-protocol cases?
1. Letter before claim
2. Response to letter before claim
3. Disclosing documents
## Footnote
These steps help clarify the issues and facilitate resolution.
54
What should a letter before claim include?
1. Basis of the claim
2. Summary of facts
3. Desired outcome and calculation
## Footnote
This letter initiates the pre-action communication process.
55
What is the response timeline for straightforward cases after a letter before claim?
Within 14 days
## Footnote
More complex cases may allow up to 3 months for a response.
56
What are the claims that must be brought in the County Court?
1. Claims for £100,000 or less
2. Claims for personal injuries of less than £50,000
## Footnote
Certain statutes also confer exclusive jurisdiction to the County Court.
57
What types of claims must be brought in the High Court?
1. Equity claims exceeding £350,000
2. Probate claims above £30,000
3. Defamation claims
4. Intellectual property claims
5. Public contract claims
## Footnote
These claims are typically more complex or of higher value.
58
What is the significance of concurrent jurisdiction?
Allows claimants to choose between the High Court and County Court for certain cases
## Footnote
This applies to claims over £100,000.
59
What are the four procedural tracks for claims?
1. Small Claims Track
2. Fast Track
3. Intermediate Track
4. Multi-Track
## Footnote
The court allocates claims based on their complexity and value.
60
What characterizes a Small Claims Track case?
Value ≤ £10,000, with specific limits for personal injury claims
## Footnote
Simplified procedures are applied for lower value claims.
61
What is the value limit for a Fast Track claim?
Value ≤ £25,000
## Footnote
Trials are likely to last no longer than 1 day.
62
What are the criteria for an Intermediate Track claim?
1. Value ≤ £100,000
2. Trial not expected to exceed 3 days
3. Limited number of parties and experts
## Footnote
This track is for less complex cases needing more than Fast Track procedures.
63
What defines the Multi-Track?
1. Cases that do not fit the other tracks
2. Cases that must be allocated to Multi-Track
## Footnote
Typically involves more complex and higher value claims.
64
What does CPR 26.13.2 address?
Interest, costs and contributory negligence
65
How does the court generally treat claims involving counterclaims?
It will generally regard the largest of them as determining the value
66
What factors does the court consider when determining case allocation?
9 factors set out in CPR 26.13
67
What is the maximum time frame for trials in Fast and Intermediate Tracks from the date of the directions order?
30 weeks
68
Under what circumstances may a claim be allocated to the Intermediate Track?
When it is in the interests of justice, except if it must be allocated to the Multi-Track
69
Where can Multi-Track claims be heard?
High Court or County Court
70
What is a key consequence of a claim being allocated to a lower track?
The recoverability of costs is extremely limited
71
Which claims are subject to fixed recoverable costs rules?
Fast Track and Intermediate Track claims
72
What is required for a Part 7 Claim (Form N1)?
It is the usual procedure for civil claims
73
What is the purpose of Part 8 Claim (Form 208)?
For claims that do not have a substantial dispute of fact
74
What must be included in a claim form when starting a Part 7 claim?
Key info about the parties, the claim and the remedy sought
75
What are the two options for a defendant (D) in responding to a claim?
File DEFENCE or File ACKNOWLEDGMENT then file DEFENCE
76
What happens if D fails to file a response on time?
C may seek a default judgment
77
What must the defence do regarding allegations in the particulars of claim?
It must deal with every allegation, stating which are denied, admitted, or neither
78
What is required if D wishes to make a counterclaim?
It can be filed with the defence without permission; otherwise, permission is needed
79
What must be included in a statement of truth?
A declaration that the facts stated are true
80
What is the court's general duty under CPR 1.1?
To further the Overriding Objective by dealing with cases justly and at proportionate cost
81
What does the Overriding Objective entail?
* Ensuring equality of footing for parties
* Saving expense
* Proportionality in dealing with cases
* Expeditious and fair case handling
* Proportionate use of resources
* Enforcing compliance with rules
82
What is a Case Management Conference (CMC) used for?
To decide what further steps should be taken in a case
83
What must all statements of case include?
Verification by a statement of truth
84
What happens if a statement of case is not verified?
It may be struck out by the court
85
What is the significance of a statement of case being numbered and divided into paragraphs?
It must be clear and organized for effective understanding
86
What is the purpose of the CPR Timeline?
To outline the timeline of a typical Multi-Track claim
87
What is the purpose of a Case Management Conference (CMC)?
To consider suitable directions for future steps in litigation and estimate litigation costs
## Footnote
A CMC may also address amendments, disclosure of documents, and expert evidence requirements.
88
In which cases is a CMC usually ordered?
In cases allocated to the multitrack, and sometimes in fast track and intermediate track cases
## Footnote
CMCs are unusual in small claims track cases.
89
What are the potential consequences of failing to comply with court directions?
Severe sanctions, including striking out a claim or defense, and cost consequences
## Footnote
The court reviews compliance and can impose penalties for non-compliance.
90
What does proceeding on quantum only mean?
The case on liability has been won or admitted, and no liability issues need to be raised during damages assessment
## Footnote
This streamlines the process to focus solely on damages.
91
What is a Request for Further Information under CPR 18?
A party can request the other party to provide further information about statements of case to clarify disputes
## Footnote
This request is expected to be made voluntarily before involving the court.
92
What happens if a party fails to respond to a Request for Further Information?
The requesting party may apply to the court for an order requiring a response
## Footnote
The court will only issue an order if the request is deemed proper and proportionate.
93
What is required for a party to amend a statement of case under CPR 17?
They must apply for permission to amend through a court application if advancing a different case
## Footnote
The likelihood of permission depends on whether the opponent will be significantly prejudiced.
94
What are automatic sanctions under CPR?
Consequences for breaching specific CPR rules, such as being precluded from calling a witness
## Footnote
Example: Failure to serve a witness statement on time prevents the witness from giving oral evidence.
95
What are discretionary sanctions?
Sanctions imposed by the court at its discretion for non-compliance with rules or orders
## Footnote
These can include costs orders, stays of proceedings, or striking out claims.
96
Fill in the blank: A party can request an extension of time for up to _____ days under CPR 3.8(4).
28
97
When should parties apply for time extensions?
Early, before the time limit is due to expire
## Footnote
This avoids the need for retrospective permission and ensures compliance with deadlines.
98
What is a Buffer Order?
An order allowing the extension of time for filing a defense for 28 days
## Footnote
It does not apply to filing the defense itself but can be used when time difficulties arise.
99
100
What is the effect of a sanction imposed by a rule or court order?
A sanction has effect unless a party obtains relief from it by making an application to the court.
## Footnote
Refer to CPR 3.8 for the rules regarding sanctions and relief applications.
101
What must a party do to call witnesses after serving their statements late?
The party must apply for relief from the sanction specified in CPR 32.10.
## Footnote
This applies to situations where witness statements are served after the court's deadline.
102
What are the two main considerations of the CPR 3.9 test?
1. Conduct litigation efficiently at proportionate cost
2. Enforce compliance with the rules, Practice Directions, and court orders
## Footnote
This test is applied alongside the three-stage test in Denton v White.
103
How are applications for relief from sanctions typically made?
By way of Part 23 application notice and supporting witness statement.
## Footnote
Oral applications are also permissible under CPR.
104
What should a party do if they anticipate difficulties in complying with CPR or court orders?
Consult with the court at the earliest practicable time.
## Footnote
Early communication can help mitigate sanctions.
105
What is the purpose of a buffer order under CPR 3.8(4)?
To address potential difficulties in complying with a time limit.
## Footnote
It allows parties to seek permission before a deadline is missed.
106
What is an interim application according to CPR 23?
An interim application is made when a party seeks an order or directions before the trial or substantive hearing of the claim.
## Footnote
Governed by CPR 23 and PD 23A.
107
What happens if a defendant fails to file an acknowledgment of service or a defense within time limits?
They risk having a default judgment entered against them.
## Footnote
Refer to CPR 12 for details on default judgment.
108
What are the mandatory grounds for setting aside a default judgment as per CPR 13.2?
If a judgment has been wrongly entered, such as when the time has not expired or if an acknowledgment or defense was filed in time.
## Footnote
The court must set it aside even without a defense on the merits.
109
What distinguishes summary judgment from strike-out applications?
Summary judgment focuses on the evidence while strike-out applications focus on the pleading.
## Footnote
Summary judgment requires showing no real prospect of success and no compelling reason for a trial.
110
What is a strike-out application under CPR 3.4?
It allows the court to strike out all or part of a statement of case for lack of reasonable grounds or abuse of process.
## Footnote
Can be initiated by a party or by the court's own initiative.
111
What are the consequences of discontinuing a claim under CPR 38?
1. Cannot bring the same proceedings in the future without court permission
2. The claimant is liable for costs incurred by the defendant up to the discontinuance date.
## Footnote
It is recommended to seek a settlement before discontinuing.
112
What is a Consent Order according to CPR 40.6?
A judgment or order made by the court based on an agreement reached between the parties.
## Footnote
This can relate to interim matters or the entire proceedings.
113
What is a Tomlin Order?
A type of Consent Order that stays proceedings on agreed terms, with terms outlined in a separate schedule.
## Footnote
It allows parties to include terms without detailing them in the order itself.
114
Fill in the blank: A party may discontinue a claim or part of a claim before trial under _______.
CPR 38
115
True or False: A defendant can discontinue their defense under CPR 38.
False
116
What is the legal test for default judgment under CPR 12?
A defendant risks default judgment if they fail to file an acknowledgment of service or defense within time limits.
## Footnote
Default judgment can lead to early determination of claims.
117
What are the discretionary grounds for setting aside a default judgment as per CPR 13.3?
The court has discretion to set aside a default judgment if it does not fall under CPR 13.2.
## Footnote
The decision may depend on the specifics of the case.
118
What is a Consent Order?
A Consent Order stays proceedings with liberty for a party to go back to the court to enforce the agreement if one of the parties does not comply with it.
## Footnote
Consent Orders are court orders that formalize agreements between parties in legal proceedings.
119
What distinguishes a Tomlin Order from a Consent Order?
A Tomlin Order includes scheduled terms that are a contractual agreement, while a Consent Order is an order of the court.
## Footnote
This distinction is important for understanding the enforceability and privacy of the agreements.
120
How does the court's approval differ between Consent Orders and Tomlin Orders?
The court approves and orders a Consent Order, but for a Tomlin Order, it only approves and orders the terms of the Consent Order, not the schedule.
## Footnote
This reflects the nature of the agreements involved.
121
What is the court's authority regarding the terms of a Consent Order?
A court will not make a Consent Order unless satisfied that it has power to do so.
## Footnote
This ensures that the court only issues orders within its jurisdiction.
122
What is the privacy difference between Consent Orders and Tomlin Orders?
Consent Orders are open to public inspection, while the terms of a Tomlin Order's schedule are confidential.
## Footnote
This confidentiality is crucial for sensitive agreements.
123
How are breaches of Consent Orders and Tomlin Orders handled?
Consent Orders are enforceable as court orders; Tomlin Orders require further court action to convert obligations into enforceable orders.
## Footnote
This means that parties may need to return to court for enforcement of Tomlin Orders.
124
What must a party do to enforce a Tomlin Order if the scheduled terms are not complied with?
The party must apply to the court under CPR 23 within the existing proceedings to convert the obligation into one enforceable by the court.
## Footnote
This involves requesting an order from the court for enforcement.
125
When is a Tomlin Order considered suitable?
A Tomlin Order is suitable when the terms of the agreement are complex, go beyond the boundaries of the claim, or the agreed terms are confidential.
## Footnote
In contrast, a simple Consent Order is preferable for straightforward monetary settlements.
126
Fill in the blank: A Consent Order is enforceable as a _______.
court order.
## Footnote
This provides a direct means of enforcement through the judicial system.
127
True or False: The terms of a Tomlin Order are part of the court order.
False.
## Footnote
The terms of a Tomlin Order's schedule do not form part of the court order.
128
What remedies apply if a party breaches the terms of a Tomlin Order?
Usual contractual remedies apply, and a party may commence fresh proceedings for breach of contract.
## Footnote
This allows for enforcement outside of the original court order context.
129
What happens if parties wish for specific provisions in a Tomlin Order to be directly enforceable?
They must include those provisions in the order itself.
## Footnote
This ensures that those specific terms can be enforced without further court action.
130
What is a freezing injunction?
A form of an interim injunction that restrains a party from disposing of or dealing with its assets.
131
What is the purpose of a freezing injunction?
To preserve the assets until the applicant has taken steps to obtain and enforce a judgment.
132
What may happen if the respondent disobeys a freezing injunction?
It may lead to committal proceedings for contempt of court, resulting in imprisonment, a fine, or seizure.
133
What is security for costs?
An order requiring the opponent to pay money into court or provide security against which the other party can enforce an order for costs.
134
When can security for costs be sought?
If there is reason to believe that the other party will be unable to pay any adverse costs award made against it.
135
What is an interim injunction?
An order that requires a party to either do a specific act (Mandatory Injunction) or to refrain from doing a specific act (Prohibitory Injunction) during proceedings.
136
What guidelines does the court apply when deciding on an interim injunction?
The American Cyanamid guidelines.
137
What is an interim payment?
A payment on account of any damages, debt or other sum which D may be held liable to pay to or for the benefit of C.
138
What is the purpose of disclosure?
To allow the court to do justice between the parties with 'all the cards on the table'.
139
What does disclosure mean?
Formally stating that documents or classes of documents exist or have existed, and are or were in your control.
140
What is inspection in the context of disclosure?
The process by which the party who has disclosed a document allows the opponent to view the originals or provides copies of disclosed documents.
141
True or False: 'Disclosure' and 'inspection' are the same procedural steps.
False.
142
What is a 'standard disclosure' order?
It requires a party to disclose documents on which they rely, documents that adversely affect their case, and documents required by a relevant practice direction.
143
What does 'documents' encompass in the context of disclosure?
All media on which information is recorded, including tapes, computer records, emails, and paper.
144
What does 'party's control' mean in terms of disclosure?
It refers to past or present physical possession, right to possession, and right to inspect or take copies.
145
What is the duty to conduct a reasonable search?
The obligation to carry out a reasonable search for documents, considering the circumstances of the case and proportionality.
146
Is the disclosure duty ongoing?
Yes, it continues until the proceedings are concluded.
147
What is a disclosure statement?
A signed statement certifying the extent of the search made and that the signer believes the disclosure duty has been fulfilled.
148
What are the three sections of the list of documents?
* Inspection Permitted
* Inspection Withheld
* Inspection Impossible
149
What must be done if a document comes to light after the exchange?
It should be sent to the opponent as soon as possible and subsequently disclosed formally in a supplemental list.
150
What is electronic disclosure?
The disclosure of electronically stored information and proper management of large volumes of electronic documents.
151
What documents do not have to be disclosed?
* Documents outside the ambit of the disclosure order
* Disclosure would damage the public interest
* Listing would be disproportionate to the issues in the case
152
What is legal professional privilege?
A fundamental right allowing a party to withhold from production certain documents, including those for legal advice.
153
What is the significance of Akzo Nobel v Akcros?
Legal advice privilege includes in-house Counsel's advice if given in a legal capacity rather than commercial.
154
What must the person signing a disclosure statement believe?
That the statement is true and that they have fulfilled their duty of disclosure.
155
What is the definition of legal advice in the context of privilege?
Legal advice is to be broadly construed to include not just advice on the law but advice as to what should prudently/sensibly be done in relevant legal context.
156
What is required for a communication to be considered privileged?
The communication must have been produced for the purpose of giving or receiving legal advice.
157
What does 'Litigation Privilege' apply to?
Confidential communications between a legal adviser and its client, or between one of them and a third party, where the dominant purpose is to seek or obtain evidence for use in litigation.
158
True or False: Litigation must be more than a mere possibility to apply for privilege.
True.
159
What is the dominant purpose test in the context of expert advice?
Any advice given by an expert acting in an advisory role for a party will be privileged if the dominant purpose test is satisfied.
160
What does 'Without Prejudice' privilege apply to?
Communication generated as part of a genuine attempt to settle an existing dispute.
161
Fill in the blank: Without prejudice privilege applies to communication generated as part of a genuine attempt to __________.
[settle an existing dispute]
162
What does 'Without prejudice save as to costs' mean?
The parties may limit the operation of the Without Prejudice rule by agreeing that communication may be put before the court regarding costs.
163
What happens to privilege if materials are created for one legal action?
The holder of privilege can assert privilege over the same communications in subsequent litigation.
164
What should be done with documents that contain both privileged and non-privileged material?
The privileged matter could be redacted to avoid inadvertently waiving privilege.
165
What can result in the loss of privilege?
Inadvertent disclosure, mentioning in a statement of case, loss of confidentiality, collateral waiver, waiver of part of an unseverable document.
166
What is the consequence of inadvertent disclosure of a privileged document?
The documents will no longer be privileged unless the court restrains the other party from using the document.
167
What is the effect of mentioning a document in a statement of case?
A party may inspect any document mentioned, which requires particular care to avoid losing privilege.
168
What must be done if a privileged document ceases to be confidential?
It can no longer be privileged.
169
What is collateral waiver?
A party who waives privilege may be obliged to reveal other related documents to prevent partial disclosure.
170
What does waiver of privilege of part of an unseverable document entail?
It constitutes a waiver of privilege as to the whole document.
171
What is the key message to convey regarding the duty to preserve evidence?
Clients should not destroy or delete relevant documents, including electronic documents.
172
What does the continuing duty of disclosure entail?
The duty of disclosure continues until judgment or settlement.
173
What should be done if new evidence comes to light after the disclosure list has been served?
The documents should be brought to the other side's attention as soon as possible.
174
What are the consequences of failing to disclose or allow inspection of a document?
The party may not rely on that document without court permission.
175
What can the court do if a helpful document has been overlooked?
The court has the discretion to allow it to be admitted in evidence.
176
What is required for a pre-action application for specific disclosure?
Conditions include parties likely to be in subsequent proceedings and documents falling within the scope of standard disclosure.
177
What is the purpose of an application for non-party disclosure?
To obtain documents held by a third party that may help or damage a party's case.
178
What is the test for obtaining non-party disclosure under CPR 31.17?
The court may make an order if the third party holds documents that may help your case or damage another party's case.
179
What is needed for non-party disclosure?
Consider whether any non-parties may hold documents that may help or damage a party's case
## Footnote
The court may make an order for disclosure by a non-party.
180
What is the application for non-party disclosure under CPR 31.17?
An application can be made when a third party holds documents that may support the applicant's case or adversely affect another party's case
## Footnote
The court has discretion to grant it.
181
What are the conditions for a non-party disclosure order?
* Documents likely to support the applicant's case or adversely affect another party's case
* Disclosure is necessary to dispose fairly of the claim or save costs
## Footnote
Disclosure against non-parties is only ordered after proceedings.
182
What is an alternative method to obtain documents from non-parties?
Witness summons under CPR 34.2
## Footnote
A witness summons can compel a witness to produce documents on the court's directive.
183
Who bears the burden of proof in civil proceedings?
The burden of proof is on C to prove its case against D on the balance of probabilities
## Footnote
Evidence can include witness, documentary, or expert evidence.
184
What is the role of a factual witness?
To explain to the court their knowledge of something that has happened
## Footnote
The witness refers to facts only as they relate to themselves.
185
What is the general rule for proving facts by witness evidence?
Proved by either written evidence at an interim application or oral evidence at trial
## Footnote
Witness statements must be prepared for both cases.
186
What are key requirements for the content of witness statements?
* In the witness's own words
* Headed with the title of the action
* Witness's occupation and address
* Process of preparation
* References to exhibits
* Consecutively numbered pages
## Footnote
The witness must specify statements made from personal knowledge versus those based on information or belief.
187
What must a witness statement include according to CPR 22?
A statement of truth confirming the witness believes the facts are true
## Footnote
Failure to verify may result in the statement being inadmissible.
188
What is the significance of hearsay evidence in witness statements?
It may be included but generally receives less weight from the court
## Footnote
Witnesses of fact cannot give opinion evidence unless it relates to their perception.
189
What must happen if a party wishes to rely on a witness statement at trial?
They must call the witness to give oral evidence or submit the statement as hearsay evidence
## Footnote
The court may give directions regarding the order of serving witness statements.
190
What are affidavits and how do they differ from witness statements?
Affidavits are sworn written evidence and include a jurat at the end
## Footnote
Generally, witness statements are used as evidence.
191
What is required for expert evidence according to CPR 35?
Court permission is required to use expert evidence
## Footnote
The evidence must be probative, useful, and cost-effective.
192
What is a Single Joint Expert (SJE)?
An expert instructed to prepare a report for the court on behalf of two or more parties
## Footnote
Different from an agreed expert, where only one party instructs the expert.
193
What are benefits of appointing a Single Joint Expert?
* Cost-efficiency
* Saves time
* Provides unified perspective
* Encourages settlement
## Footnote
SJEs are beneficial for less important or less controversial issues.
194
What are arguments against appointing a Single Joint Expert?
* Limited perspective
* Complexity of issues
* High value of claim
* Importance of issues to the outcome
## Footnote
Parties might need their own experts for critical aspects.
195
What is the duty of an expert witness?
The expert must be qualified and their first duty is to the court
## Footnote
They owe a duty to those who instruct them to exercise reasonable skill and care.
196
What is required for expert reports according to PD 35 and CPR 22?
Must be verified by a statement of truth confirming the accuracy of the facts and opinions
## Footnote
This ensures accountability for the information provided.
197
What can the court direct regarding discussions between experts?
The court may direct discussions to identify expert issues and reach agreed opinions
## Footnote
Experts may need to prepare a statement for the court outlining agreements and disagreements.
198
What is the purpose of discussions between experts as per CPR 35.12?
To identify and discuss expert issues in the proceedings and reach an agreed opinion where possible
## Footnote
The court may specify issues for discussion and require a statement of agreement or disagreement.
199
Who ultimately decides on conflicting expert opinions in court?
The trial judge
## Footnote
The judge can reject expert opinions in favor of factual witness evidence.
200
What happens if a party fails to disclose an expert's report?
They cannot use it at trial or call the expert to give evidence without the court's permission (CPR 35.13)
## Footnote
This emphasizes the importance of timely disclosure of expert evidence.
201
Define 'Expert Witness' as per CPR 35.
A person instructed to give or prepare expert evidence for the purpose of proceedings
## Footnote
Instructions to an expert witness are not privileged.
202
What is an 'Expert Advisor'?
An expert instructed privately to advise a party on an area of expertise without the formal duties to the court applying
## Footnote
Advice or reports from Expert Advisors are privileged.
203
True or False: Hearsay evidence is automatically excluded in civil proceedings.
False
## Footnote
Hearsay evidence is not excluded purely on the grounds of being hearsay; its weight may be affected.
204
What is required when serving a hearsay notice?
A notice must be served on the opponent stating that the witness will not be called and why, by the latest date for serving witness statements (CPR 33.2)
## Footnote
Failure to serve does not render it inadmissible but may affect weight.
205
What can a party do in response to a hearsay notice?
They can request further information, adduce evidence on credibility, apply to cross-examine, or make submissions at trial
## Footnote
Specific time limits apply for some of these actions.
206
What is the purpose of a witness summons?
To compel a witness to attend court to give evidence or produce documents
## Footnote
Non-compliance may result in contempt of court or fines.
207
What must a party do to issue a witness summons less than 7 days before trial?
Obtain the court's permission
## Footnote
This applies particularly for producing documents or calling witnesses.
208
What must be offered to a witness at the time of service of a witness summons?
A sum reasonably sufficient to cover travelling expenses and compensation for loss of time
## Footnote
This is specified in PD 34A and CPR 34.7.
209
Define hearsay evidence.
A written or oral statement tendered as evidence and relied on to prove the truth of the matters stated made otherwise than by a person giving their own first-hand
## Footnote
Hearsay evidence can be first-hand or multiple hearsay.
210
What is the court's power regarding the control of evidence?
The court may give directions on the issues requiring evidence and the nature of that evidence
## Footnote
This includes limiting the issues or identifying witnesses.
211
What is a ground for challenging the admissibility of evidence?
The evidence is not relevant
## Footnote
Relevance is a pre-condition of admissibility.
212
What must be included in the Particulars of Claim if using a previous conviction?
Details of the conviction and its relevance to the cause of action
## Footnote
If not included, permission to amend is required.
213
What is the purpose of a chronology in trial preparation?
To compile a timeline of events, which is good practice and sometimes required
## Footnote
It helps clarify the sequence of events for the court.
214
What is a skeleton argument?
A written document summarizing the issues and main arguments to be addressed in court
## Footnote
It sets the tone for oral submissions and can persuade the court.
215
What happens to a witness statement once it is served?
It may only be used for the proceedings in which it is served, unless consent or court permission is obtained
## Footnote
There are exceptions for public hearings.
216
What is the overriding objective of the court in relation to evidence?
To deal with cases justly and at proportionate cost
## Footnote
This can lead to the exclusion of admissible evidence for case management reasons.
217
What is required for a party to serve a notice to admit facts?
Consider whether it is appropriate to ask the other side to admit facts to save time and costs
## Footnote
This focuses on precise facts needing proof.
218
What is the order of play in Multi-Track cases?
* C’s opening
* D’s opening
* Examination-in-chief of C’s witnesses
* Cross-examination of C’s witnesses
* Re-examination of C’s witnesses
* Examination-in-chief of D’s witnesses
* Cross-examination of D’s witnesses
* Re-examination of D’s witnesses
* Expert evidence, if any (C’s then D’s)
* C’s closing submissions
* D’s closing submissions
* C’s reply
* Judgment
* Costs and consequential orders
219
What does a trial timetable indicate?
It indicates the expected time each stage of the trial will take, including possible limits on time for speeches and evidence.
220
What is the basis of the court's discretion in awarding costs?
The court's discretion is founded on s.51 SCA and CPR 44, taking into account all circumstances of the case.
221
What principle does 'loser pays winner's costs' represent?
It is the starting point for costs recovery but can be affected by the parties' conduct.
222
What is the standard basis for costs assessment?
Costs are assessed on a standard basis, allowing only costs that are reasonably incurred, reasonable in amount, and proportionate.
223
What does indemnity basis mean in costs assessment?
Costs assessed on an indemnity basis do not consider proportionality, resolving any doubt in favor of the receiving party.
224
What is the fixed costs regime?
A system where costs are fixed in certain cases, including Fast Track and Intermediate Track cases.
225
What is the indemnity principle?
A party cannot recover more from their opponent than they have paid to their legal representative.
226
What is a non-party costs order?
A costs order made by the court in favor of, or against, a person who is not a party to the proceedings.
227
What is the two-step process for a non-party costs order?
* The non-party must be added as a party for costs only
* The non-party must be given an opportunity to attend a hearing
228
What is the purpose of a Part 36 offer?
To encourage parties to settle disputes by outlining costs consequences of offers made.
229
True or False: A judge can be informed about a Part 36 offer before the claim has been decided.
False
230
What are the requirements for a valid Part 36 offer?
* Must be in writing
* Must state it is made pursuant to Part 36
* Must indicate scope and extent of the offer
* Must specify relevant period
231
Fill in the blank: If a Part 36 offer is accepted within the relevant period, ______ pays the costs.
D
232
What are the cost consequences if C fails to beat D’s offer?
C pays D's costs with interest from the expiry of the relevant period.
233
What happens if C equals or beats its own Part 36 offer?
C is entitled to costs on indemnity basis from expiry of the relevant period.
234
What does 'costs reserved' mean?
The decision about costs is deferred to a later occasion.
235
What are 'costs thrown away'?
Costs incurred as a consequence of a judgment or order being set aside or proceedings being adjourned.
236
What is the usual order regarding costs in an application to amend a statement of case?
The party making the amendment pays the other party’s costs of preparing for and attending the hearing.
237
What is the entitlement of a party in whose favour a costs order is made when proceedings are adjourned?
The party is entitled to costs it has incurred as a consequence.
238
What does a usual order regarding an application to amend a statement of case require?
The party making the amendment must pay the other party’s costs of preparing for and attending the hearing and any consequential amendments.
239
What does 'costs here and below' mean?
The party is entitled to its costs in this proceeding and in any lower court.
240
What is the implication of an 'order silent as to costs'?
Each party bears its own costs of this part, regardless of the final costs order.
241
What are wasted costs orders?
Costs orders where the court finds that a legal representative's conduct was improper, unreasonable, or negligent.
242
Can you appeal against a decision?
Yes, if you disagree with the decision, you may appeal against it, subject to court's permission.
243
To which court do appeals in non-specialist cases generally go?
Appeals are heard by the next level of judge in the court hierarchy.
244
What are the grounds for appeal?
1. Wrong decision (error of law, fact, or discretion) 2. Unjust decision due to serious procedural irregularity.
245
What is required for permission to appeal?
You must show either a real prospect of success or provide a compelling reason for the appeal.
246
What is the deadline to file an appeal?
Within 21 days after the decision unless a different time limit is set by the judge.
247
What is the difference between a review and a rehearing in an appeal?
A review considers the relevant material without new evidence; a rehearing involves a deeper examination.
248
What is the Ladd v Marshall test related to fresh evidence?
1. Evidence could not have been obtained with reasonable diligence. 2. Evidence would probably influence the result. 3. Evidence must be apparently credible.
249
What can happen if you lose your appeal?
You may be ordered to pay the other party’s costs.
250
What happens after a successfully obtained judgment?
The court may order the other side to pay, but will not automatically ensure compliance.
251
What is a Third Party Debt Order?
An order directing a third party to pay what they owe to satisfy the judgment debt.
252
What is the 'Taking Control of Goods' Procedure?
Involves instructing an enforcement agent to take control of debtor's goods for sale to satisfy the judgment debt.
253
What is an Attachment of Earnings Order?
An order for the debtor's employer to transfer part of their salary to the judgment creditor until the debt is satisfied.
254
What is a Charging Order?
A charge over the debtor's land or securities to secure the judgment debt.
255
What is the Appointment of Receiver by way of Equitable Execution?
Seeking a receiver to collect income from the debtor's assets to satisfy the judgment debt.
256
What is the purpose of bankruptcy or winding-up orders?
To compel the debtor to pay, though they are not methods of enforcement.
257
What should be considered during the initial investigation after obtaining a judgment?
Whereabouts of the judgment debtor and the type of their assets.
258
What is the significance of the Register of Judgments, Orders and Fines?
It allows public searching of court judgments and records their satisfaction or cancellation.
259
What is the interest rate on judgment debts?
8% per year until payment unless court rules provide otherwise.
260
What is the limitation period for enforcement proceedings?
6 years from the date of judgment.
