Disputes Flashcards
(98 cards)
1
Q
Outline the four essential elements required to establish the existence of a binding contract.
A
- Offer and Acceptance – a clear, unambiguous offer and an unqualified acceptance; 2. Intention to Create Legal Relations – presumed in commercial dealings; rebuttable in family contexts; 3. Consideration – each side provides something of value (past consideration is not valid); 4. Absence of Vitiating Factors – no duress, illegality, frustration or incapacity.
2
Q
Explain why past consideration is not a valid form of consideration.
A
Consideration must be given in exchange for the promise; something already done cannot count as the promise’s price.
3
Q
In what circumstances will the presumption that family agreements lack legal intent be rebutted?
A
When there is strong evidence—e.g. a clear written agreement or commercial-style terms—showing the parties intended legal relations.
4
Q
Identify four vitiating factors that can render a contract void or voidable and briefly explain one of them.
A
Vitiating factors: Duress; Illegality; Frustration; Lack of Capacity. Duress: improper threats negate genuine consent, making the contract voidable.
5
Q
Describe the requirements for a clear offer and acceptance, and how acceptance operates in a unilateral contract.
A
Offer must invite a response; acceptance must be unqualified and communicated (unless notification is dispensed with). In a unilateral contract, acceptance occurs by complete performance of the requested act.
6
Q
List the five implied terms under the Sale of Goods Act 1979 for business-to-business contracts.
A
- Goods correspond to description; 2. Satisfactory quality; 3. Fit for any express or implied purpose; 4. Correspond to sample; 5. Terms are conditions—minor breaches may be too slight to justify rejection.
7
Q
State the three implied terms under the Supply of Goods and Services Act 1982 for business-to-business service contracts.
A
- Performance with reasonable care and skill; 2. Performance within a reasonable time if no time agreed; 3. Reasonable remuneration (consideration) if price not agreed.
8
Q
Identify the four implied terms for goods and services under the Consumer Rights Act 2015.
A
- Goods match description; 2. Goods of satisfactory quality; 3. Goods fit for specified purpose; 4. Goods correspond to sample. (CRA 2015 also imports similar service terms: reasonable care & skill, time, price.)
9
Q
Explain how an express contractual term can be incorporated by a course of dealing.
A
Consistent prior transactions between the same parties on identical terms imply mutual consent to include those terms in the new contract.
10
Q
Describe the effect of an exclusion clause under UCTA 1977, including which liabilities cannot be excluded.
A
Exclusion/limitation clauses must pass the reasonableness test; UCTA prohibits exclusion of liability for death or personal injury caused by negligence; other losses may be excluded if reasonable.
11
Q
Outline the four stages of a negligence claim and explain the test for remoteness of damage.
A
Stages: 1. Duty of care; 2. Breach of duty (reasonable person standard); 3. Causation (factual ‘but for’ and legal causation); 4. Remoteness – damage must be a reasonably foreseeable type of harm.
12
Q
Explain when an employer will be vicariously liable for the torts of its employees.
A
An employer is liable if the employee commits a tort in the course of employment, including unauthorised ways of doing authorised acts.
13
Q
Summarise an occupier’s duty under the Occupiers’ Liability Act 1984 towards trespassers if aware of a hazard.
A
An occupier must take reasonable steps to warn trespassers of known dangers and must avoid intentionally harming them.
14
Q
Describe the basis of strict liability for defective products under the Consumer Protection Act 1987.
A
Producers and suppliers are strictly liable for damage caused by defects in products, regardless of fault or negligence.
15
Q
Explain the tort of Rylands v Fletcher, listing its key elements.
A
Liability arises when: 1. Defendant brings onto land something likely to cause mischief if it escapes; 2. Non-natural use of land; 3. Escape; 4. Resulting damage.
16
Q
List three sanctions a court may impose for unreasonable refusal to engage in ADR.
A
- Adverse costs order; 2. Higher rate of interest on costs; 3. Deprivation of interest on costs.
17
Q
Compare two advantages and two disadvantages of mediation.
A
Advantages: Confidential; flexible/creative solutions; cheaper than arbitration; preserves relationships. Disadvantages: Only binding if written; parties can withdraw; may increase costs if uncooperative; no guaranteed disclosure.
18
Q
Explain when a mediation settlement becomes legally enforceable.
A
When the settlement terms are recorded in a signed, written agreement between the parties.
19
Q
Identify two grounds on which an arbitration award can be challenged in the High Court.
A
- Serious irregularity affecting tribunal, proceedings or award; 2. Error of law on the face of the award. (Applications within 28 days, with permission.)
20
Q
Contrast two advantages of litigation with two advantages of arbitration.
A
Litigation: strict procedural rules; right of appeal; full disclosure; predictability via precedent. Arbitration: faster timetable; confidentiality; arbitrator expertise; procedural flexibility.
21
Q
Describe the steps a claimant must take under a Pre-Action Protocol before issuing proceedings.
A
- Send letter of claim; 2. Allow reasonable time to respond; 3. Exchange key documents; 4. Consider ADR and instruct experts (ideally joint expert); 5. Treat litigation as last resort.
22
Q
Explain how governing law is determined for contracts and torts within the EU.
A
Contracts: law of seller’s habitual residence (or where property located for property contracts). Torts: law of country where damage occurred or was likely to occur.
23
Q
Identify four bases on which an English court may assume jurisdiction in a contractual dispute.
A
- Defendant’s domicile in England & Wales; 2. Place of performance; 3. Place where damages occurred; 4. Service on defendant physically present in England & Wales (outside EU).
24
Q
State the limitation periods for breach of contract, personal injury, other torts, and latent damage claims (including the long-stop).
A
Breach of contract: 6 years from breach. Personal injury: 3 years from damage or date of knowledge. Other torts: 6 years from damage. Latent damage: 6 years from occurrence or 3 years from knowledge, subject to 15-year long-stop.
25
Explain how the limitation period is suspended or extended for minors, those of unsound mind, and in cases of fraud or mistake.
Minors: runs from their 18ᵗʰ birthday. Mentally incapacitated: runs from end of incapacity. Fraud/mistake: runs from date of discovery or when claimant ought to have known.
26
Set out the permissible methods and timing for serving a claim form within England & Wales and outside it.
Within E&W (4 months): personal service; 1st-class post; DX; specified place; fax/email (with consent). Outside (6 months): same plus local-law compliance and court permission.
27
Explain the rules for deemed service when using first-class post or DX.
Service is deemed to occur on the second business day after posting or DX, provided posting was on a business day.
28
Compare one advantage and one disadvantage of court service versus solicitor service of claim forms.
Court service advantage: court manages dispatch and address accuracy. Disadvantage: solicitor loses control and cannot amend post-service. Solicitor service advantage: retains control and can amend before service. Disadvantage: higher risk of human error.
29
Detail the requirements for serving documents by fax or e-mail.
Recipient must expressly agree in advance. Service is complete upon successful transmission.
30
Describe the deadlines for filing an acknowledgment of service and a defence.
Acknowledgment of Service: within 14 days of service. Defence: within 14 days of service, or within 28 days if an Acknowledgment of Service is filed.
31
Outline the various types of additional claims under CPR Part 20 and state when permission is required for each.
20.4 (counterclaim vs original claimant): no permission if with defence. 20.5 (counterclaim vs claimant + third party): permission always required. 20.6 (contribution/indemnity): no permission if with defence. 20.7 (other claims): no permission if issued at/before defence.
32
Under CPR 20.5, when must permission be obtained to pursue a counterclaim?
Permission must be obtained before pursuing a counterclaim against the claimant and a third party.
33
Explain the purpose and key procedural requirements of a Part 18 request for further information.
Purpose: to clarify unclear, vague or incomplete pleadings. Procedure: voluntary written request first; specify response date (usually 14 days); response signed, verified and filed; if refused, reasons must be given.
34
Under what circumstances will a court grant an application to order further information?
Only if necessary to resolve the case or save costs, and when pleadings are unclear or incomplete.
35
Summarise the form, service and notice requirements for launching an interim application via Form N244.
File N244 with evidence (witness statement), draft order and fee; serve on respondent at least 3 clear days before hearing; serve respondent’s evidence and applicant’s reply ASAP; serve statement of costs at least 24 hours before hearing.
36
State the two conditions a claimant must satisfy to obtain summary judgment.
1. No real prospect of succeeding (or defending) the claim; 2. No other reason why the matter should proceed to trial.
37
Describe both the discretionary and mandatory grounds for setting aside a default judgment.
Discretionary: arguable defence and good reason to set aside. Mandatory: defendant filed AOS or defence before the deadline, or settled and paid before default judgment.
38
List the five requirements for securing an interim prohibitory injunction without notice.
1. Cross-undertaking in damages; 2. Serious issue to be tried; 3. Inadequacy of damages as remedy; 4. Balance of convenience in favour of injunction; 5. Urgency (risk of frustration if notice given).
39
Identify the conditions that must be met to obtain a freezing (Mareva) order.
1. Good arguable cause of action; 2. Real risk of dissipation of assets; 3. Assets within the court’s jurisdiction.
40
Explain three grounds on which a court may order security for costs.
1. Claimant is outside the jurisdiction; 2. Claimant changed address to evade litigation or gave incorrect address; 3. Claimant appears unable to pay defendant’s costs (e.g. company unlikely to pay).
41
Name the three statutory bases for an interim payment under the Practice Direction.
1. Defendant has admitted liability for some sum; 2. Judgment already obtained for some sum; 3. Court satisfied claimant will obtain a substantial judgment at trial.
42
Describe the test for relief from sanctions and what the court will consider.
Court considers whether the breach was trivial or significant, the reason for breach, all circumstances of the case, and the overriding objective.
43
Define hearsay in civil proceedings and set out the procedural steps required before it can be admitted.
Hearsay: statement made out of court, repeated in court to prove the truth of its contents. Procedure: give notice to other party; serve witness statement; if not calling the maker, serve additional notice; opposing party may challenge and cross-examine source.
44
List six factors a court will weigh when deciding what weight to give to hearsay evidence.
1. Why the witness cannot attend; 2. Time of original statement relative to event; 3. Who was involved in making it; 4. Motive to conceal or misrepresent; 5. Whether it was edited or collaborative; 6. Whether proper notice was given.
45
Enumerate the mandatory contents of an expert’s report under the Civil Procedure Rules.
1. Expert’s qualifications; 2. Literature/material relied on; 3. Facts/instructions received; 4. Clear distinction between facts and opinion; 5. Anyone who assisted, their qualifications and supervision; 6. Range of opinions and reasons; 7. Summary of conclusions; 8. Statement of compliance with duty; 9. Statement of truth.
46
Explain the process a party must follow if unhappy with a joint expert’s report.
They may instruct another expert with the court’s permission; cross-examine the joint expert; or commission a second report to be sent to the joint expert for comment.
47
State the time limit and purpose for questioning an opposing expert report.
Within 28 days of service, solely to obtain clarification of points in the report.
48
Outline the standard disclosure obligations in multi-track litigation, and contrast them with the small claims and fast-track protocols.
Multi-track: disclose all documents you intend to rely on, that adversely affect your case or another’s, or support another’s, plus PD-required docs, guided by the overriding objective. Small claims: file and serve all relied-on docs ≥14 days before hearing. Fast track: standard disclosure timetable within 4 weeks of Directions Questionnaire.
49
State the three tests for determining whether a document is under a party’s control.
1. It is/was in the party’s physical possession; 2. The party had/has the right to inspect it; 3. The party had/has the right to take a copy.
50
Compare legal advice privilege, litigation privilege and without prejudice privilege, identifying the “dominant purpose” test for each.
Legal advice privilege: dominant purpose = obtaining/giving legal advice between lawyer & client. Litigation privilege: dominant purpose = obtaining info/advice for existing/contemplated litigation (includes third parties). Without prejudice privilege: dominant purpose = genuine settlement negotiations; protects communications regardless of form.
51
How may a party waive privilege over a document?
By writing to the other side stating they will not rely on the privilege and inviting inspection of the document.
52
Describe the steps from carrying out a reasonable search to permitting inspection under Form N265.
1. Conduct a reasonable search; 2. Prepare a numbered list on Form N265; 3. Serve N265 and disclosure statement by deadline; 4. Other party serves notice of documents to inspect; 5. Permit inspection within 7 days.
53
Explain when and how a specific disclosure order may be sought, and what relief it can grant.
After proceedings begin, if standard disclosure is inadequate, write to the other side asking for further disclosure; if unresolved, make an interim application. Court may order specific documents, further searches, or newly-found documents within set timeframes.
54
Describe the scope and purpose of a pre-action disclosure order.
Under the Practice Direction, court may order disclosure before proceedings where necessary to preserve evidence or save costs, despite no general pre-action duty to disclose.
55
What interim remedy is available if you believe an opponent is withholding documents material to settlement before proceedings are issued?
Apply to court for an interim disclosure order under the CPR, on the basis that relevant documents are being withheld even though no claim form has been issued.
56
Define a non-party disclosure order and explain when it is used.
An order compelling a non-party who controls relevant documents to disclose them; used after proceedings have begun and disclosure exchanged if someone other than a party holds needed documents.
57
How can parties agree to limit the scope of electronic disclosure?
By agreeing on specific keywords or date ranges; categories of documents; or manner/format of search and production.
58
List the four formal requirements of a valid Part 36 offer.
1. In writing; 2. State it is made pursuant to Part 36; 3. Specify whole claim, part or counterclaim; 4. State a relevant period (min. 21 days).
59
What does “without prejudice save as to costs” mean?
The offer cannot be disclosed when determining liability, but can be disclosed when assessing costs at the end of the case.
60
Under what conditions may a Part 36 offer be withdrawn or amended?
Only if not accepted; notice of withdrawal/amendment required. If new offer is better, period restarts; if worse, must apply to court and withdrawal takes effect at original expiry.
61
Explain the cost consequences when a claimant’s Part 36 offer is accepted by the defendant within the relevant period.
Proceedings stay; defendant pays the claimed sum plus claimant’s costs on the standard basis up to acceptance, within 14 days.
62
A claimant rejects the defendant’s Part 36 offer, goes to trial, and fails to beat the offer. What costs order follows?
Claimant pays defendant’s costs on the standard basis from expiry of the relevant period; court may award interest as a penalty for declining a better offer.
63
If both parties make unaccepted Part 36 offers, and at trial the claimant recovers more than the defendant’s offer but less than their own, what happens?
Neither offer takes effect; costs are assessed in the usual way.
64
What interest may the court award on damages in relation to Part 36 offers?
Discretionary interest up to expiry of the relevant period (standard or indemnity); on indemnity basis, interest from expiry to judgment.
65
What test applies on the standard basis when assessing costs?
Costs must be proportionately and reasonably incurred and reasonable in amount; unreasonable items are reduced; doubts resolved in the payer’s favour.
66
How does the indemnity basis differ?
Costs reasonably incurred and reasonable in amount; unreasonable items reduced; doubts resolved in the receiver’s favour.
67
Name five factors the court considers when making an inter-partes costs order.
1. Conduct and settlement efforts; 2. Value involved; 3. Importance to parties; 4. Complexity and specialist knowledge; 5. Time spent (plus place/circumstances and last approved budget).
68
When can a defendant apply for a security for costs order?
If claimant resides outside England & Wales; is a company unlikely to pay costs; or has taken steps frustrating enforcement.
69
What must the defendant do before issuing the security for costs application?
First attempt to agree voluntary payment with claimant; if no agreement, serve Form N244 with witness evidence.
70
In what rare circumstance might a protective costs order be made against a litigation controller?
Where an insolvent claimant’s sole controller (e.g. sole director/shareholder) stands to benefit exclusively and controls the proceedings.
71
To which claims does QOCS apply?
Claims for death and personal injury damages.
72
What happens if a claimant loses in a QOCS-protected claim?
Costs orders can be made but enforced only up to the level of damages and interest awarded to the claimant.
73
Give three exceptions where QOCS protection is lost.
1. No reasonable grounds; 2. Claimant’s conduct was fundamentally dishonest; 3. Abuse of court process or obstruction of just disposal.
74
Describe the procedure for an order to obtain information from a judgment debtor.
Serve notice of application and draft order; court summons debtor to attend on oath to answer questions about employment, income, property, assets and bank accounts.
75
What methods and thresholds apply to taking control of goods?
≤£600: County Court warrant; £600–£5,000: County or High Court enforcement; >£5,000: High Court writ of control; bailiffs may seize and auction goods.
76
What is a third-party debt order?
An order directing a third party (e.g. bank) holding debtor’s funds to pay those funds to the judgment creditor.
77
Outline the three stages of obtaining a charging order against land.
1. Interim charging order (no hearing); serve application & draft, debtor 14 days to object; 2. Final charging order if objection (judge hearing); 3. Order for sale – court may order sale to satisfy debt.
78
What is an attachment of earnings order?
An order requiring the debtor’s employer to deduct sums from wages and pay the court directly; only via County Court, with consideration of job security.
79
How do you enforce a judgment in Scotland or Northern Ireland?
Obtain an English court certificate; register locally within 6 months; enforce by local methods.
80
Under FJ(RE)A 1933, what conditions apply to enforcing a County Court judgment in Commonwealth countries?
Judgment must be final and for a specific sum, and registered within 6 months under FJ(RE)A 1933 to be enforceable abroad.
81
What two grounds may justify an appeal?
1. Lower-court decision was wrong; 2. Decision was unjust due to a serious procedural or other irregularity.
82
On what basis can permission to appeal be granted?
Appeal has a real prospect of success; or there is some other compelling reason to hear the appeal.
83
State the time limits for filing an appeal to the County/High Court and to the Court of Appeal.
County/High Court: within 21 days of decision; Court of Appeal: within 28 days of decision.
84
How does the appeal hierarchy work from a High Court judge?
A decision by a High Court judge may be appealed to the Court of Appeal.
85
Describe the routes of appeal from (i) a District Judge in County Court, and (ii) a Master in the High Court.
(i) DJ in CC → Circuit Judge in CC; (ii) Master in HC → High Court judge in HC.
86
What does a claim for private nuisance involve?
A claim by a person whose enjoyment of their land has been unreasonably interfered with by another person (usually a neighbour).
Can amount to noise, smells, smoke
Should be ongoing/repeated harm for the claim to succeed. A one-off incident usually isn’t enough unless it’s particularly severe.
Unreasonableness:
The court assesses whether the defendant’s use of their land was unreasonable in light of the locality, duration, timing, and impact on the claimant.
Proximity and interest in land:
The claimant must have a legal interest in the land affected (e.g. be an owner or tenant).
The defendant must be in control of the nuisance-causing activity.
Defences may include:
- Statutory authority (e.g. if the activity is authorised by law)
- Prescription (20+ years of uninterrupted nuisance)
- The ‘coming to the nuisance’ defence generally fails—just because the claimant moved near a known nuisance doesn’t excuse it.
Remedies:
- Injunction: to stop the nuisance.
- Damages: for loss suffered.
Occasionally both, depending on the harm and ongoing risk.
87
What does a claim for public nuisance involve?
It involves an act or omission which materially affects the reasonable comfort and convenience of a class of the public.
Affects the public or a section of it:
It must impact a class of people, not just an individual. This could include:
- Blocking a public highway
- Polluting a river used by the public
- Releasing harmful substances into the air affecting nearby residents
Common injury:
- Everyone affected must suffer a similar type of harm (though not necessarily to the same degree). For example, if hundreds of people are affected by smoke from a factory, that may constitute public nuisance
88
What would a letter of claim include?
1. Title - letter of claim - C v D
2. Intro who you represent.
3. Give a summary of key facts - refer to a contract and the relationship between the parties.
4. Set out the basis for your clients claim, what the duty was and what the breach was - ie note breach of contract or tort.
5. Loss and Compensation sought
6. ADR - Possibility of settlement
7. Pre-Action Disclosure - ask other party to send over any docs.
8. Next Steps - provide acknowledgement of receipt. Please then provide a detailed response within a reasonable time (14 days to three months)
Yours faithfully,
Firm
89
Explain what a particulars of claim covers
1. Explain who the parties are. “At all material times the Claimant was…”
2. Identify the contract and terms/duty of care and circumstances of duty - deal with facts chronologically.
3. Identify the Breach
4. Explain loss suffered.
5. State basis on which C is claiming interest (contractual or statutory) providing a total in amount due
6. Express that the C has complied with relevant pre-action protocol
7. In summary, the claimant claims a total of £x, which is made up of the following items:
- amount in damages
- amount in interest
- costs of the proceedings
- any further awards or relief as the court deems just.
8. Statement of truth - The C believes that the facts stated in these POC are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I am duly authorised by the C to sign this statement.
Signed and dated
Claimant solicitors details for docs to be sent
90
Explain how to draft a defence
with appropriate heading - state the court, claim number and BETWEEN C and D and title it defence
1. The Defendant adopts the definitions used in the Particulars of Claim.
2. Take each paragraph in the particulars of claim and either admit, deny and provide reasons or require proof that you can neither deny nor admit.
EG: The Defendant admits paragraph [x] of the Particulars of Claim. The Defendwnt denies paragraphs [x–x] for the reasons set out below.
[Insert the defence here—e.g. denial of breach of contract, assertion of payment made, etc.]
3. Statement of truth
4. I am duly authorised by the D to sign this statement
5. signed, full name, position, dated, D’s solicitors details
91
How would you draft a Part 20 claim?
Use usual principles in relation to particulars of claim. Remember it is essentially just a new claim, so you just set out all the details as if the defendant is the claimant.
If served in same form as defence then have a separate form and say something like: In the alternative, and by way of counterclaim, the Defendant repeats paragraphs 1–2 above.
On [insert date], the Claimant [set out facts giving rise to the counterclaim – e.g. failed to provide goods of merchantable quality as required under the contract dated [insert date]].
As a result of the Claimant’s breach, the Defendant suffered loss and damage, including:
[Cost of replacing defective goods: £X]
[Loss of profit: £X]
[Wasted expenditure: £X]
92
How would you draft an interim application?
You need to use a draft N244 form.
Complete standard fields:
• Name of court (as shown on claim form)
• Claim number or leave blank if there is not one
Claimant/Defendant name:
• If several put [First Claimant/Defendant] and others
1. Full name of solicitor and firm of solicitors
2. Tick box for claimant, defendant or legal representative
3. Details of order sought:
• Set out terms of order sought and attach draft order where possible
• Set out full order if simple or describe relief sought if complex
• Include any claim for interest and costs
• Sentences on material facts relied on and rule/statutory provision
4. Confirmation of whether order is attached or not
5. Hearing
Most applications will require a hearing
Court will only deal without hearing where:
• All parties agree to terms of the order sought
• All parties agree to no hearing
• The court does not consider a hearing appropriate
6. How long hearing will last for Leave blank if not sure
7. Details of any hearing date or trial period if allocated
8. Level of judge required for hearing
9. Who should be served this application
9a. Details of who should be served the application (except claimant/defendant)
10. Tick box for supporting evidence
11. Vulnerable witness requirements
- Statement of truth
Only to be completed if evidence is provided within the application form itself
Can be signed by legal representative
93
How would you draft a witness statement?
Witness Statement:
a. Top right corner:
i. Claimant/Defendant
ii. Initials and surname of witness
iii. Number of witness statement
iv. Exhibits
v. Date of statement
vi. Date of any translation
b. First line:
i. I, [NAME] of [ADDRESS], will say as follows
c. First paragraph:
i. I am [OCCUPATION] of the Claimant/Defendant and I am duly authorised to make this statement on behalf of the Claimant. The witness statement was prepared following face to face discussions otherwise stated
with the solicitor for the Claimant/Defendant. I make this witness
statement from matters within my own knowledge and belief save where otherwise stated. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of my information appears. is identified
d. Second paragraph:
i. I make this statement in support of the Claimant's/Defendant's application for [APPLICATION].
e. Main body:
i. Facts and dates in chronological order in the witness's own words.
ii. Explain why witness statement supports the application being made (BUT NOTE IT IS NOT FOR THE WITNESS TO ARGUE THE CASE).
f. Statement of truth:
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
94
How would you draft an affidavit?
Written statement of evidence sworn before an authorised person (rather than a statement of truth)
Content is the same as witness statement save for:
i. Reference to 'affidavit' instead of witness statement' in the heading, so it reads " AFFIDAVIT OF [NAME]"
ii. Introduction, with 'state on oath' being specific to affidavits, so it reads " I, [NAME], of [ADDRESS], [POSITION] of the Defendant, state on oath:" etc
iii. Exhibit wording which is specific to affidavits, so it reads "There is now shown to me marked "CH2" the detailed schedule of these faults"
iv. Ends with jurat:
1. be signed by all deponents
2. be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
3. contain the full address of the person before whom the affidavit was sworn
4. follow immediately on from the text and not be put on a separate page
95
How would you draft a a part 36 offer?
It’s a letter so have a subject - C v D: Offer to settle under Part 36 with address in top left
Dear Sirs,
1. Our client is confident it has a strong claim/defence pursuant to POC/Defence filed on ___.
2. Nevertheless, our client would like to settle amicably as they are mindful of CPRs to resolve disputes where possible.
3. We are authorised to make the following offer to settle under Part 36.
4. This offer is made pursuant to Part 36 of the CPR.
5. Accordingly, the relevant period (as defined in Part 36 CPR) is 21 days.
Terms of the Offer
1. Our client is willing to settle the whole of the claim/specify which part on the following terms:
- your client to pay our client within 14 days of accepting this Offer, the sum of £amount by (method of payment)
2.
3. This offer is exclusive of interest until the relevant period expires. Thereafter interest at (specified rate) will be added.
4. We look forward to hearing from you.
Yours faithfully,
Firm
96
What is included in a Tomlin offer?
Remember this is used to formalise settlement of disputes. It allows parties to agree on terms that resolve the case without proceeding to a full trial. The order itself is public but the detailed terms of the settlement are contained in a separate schedule that remains private.
Usual cover page with court, claim number, parties and title.
- UPON [application] [hearing] and upon reading the written evidence filed
- AND UPON the parties having agreed terms of settlement
-BY CONSENT IT IS ORDERED THAT:
All further proceedings in this action be stayed upon the terms set out in the Schedule, except for the purpose of enforcing those terms.
Each party shall have permission to apply to the Court to enforce those terms without the need to bring a new claim.
Costs
- There shall be no order as to costs
- Each party shall bear its own costs
- The Claimant/Defendant shall pay the Claimant/Defendant's costs on the standard/indemnity basis to be subjected to a detailed assessment in default of agreement.
- Dated this day of
Signed by both Claimant and Defendant or their representatives
97
What is involved in a consent order?
Usual cover page with court, claim no., parties and title
- UPON [application] [hearing] and upon reading the written evidence filed
-AND UPON the parties having agreed terms of settlement
BY CONSENT IT IS ORDERED THAT:
• All further proceedings in this action be stayed upon the terms set out in the [annexed settlement agreement between the parties dated OR the confidential settlement agreement between the partes dated, the original of which has been kept by the claimant's solicitors and a copy of which has been kept by the defendant's solicitors], except for the purpose of enforcing those terms without the need to bring a new claim.
• Each party shall have permission to apply to the Court to enforce those terms without the need to bring a new claim.
• Costs
• There shall be no order as to costs
• Each party shall bear its own costs
• The Claimant/Defendant shall pay the Claimant/Defendant's costs on the standard/indemnity basis to be subjected to a detailed assessment in default of agreement.
- Dated this day of
Signed by both Claimant and Defendant or their representatives
98
What does a draft order include?
Usual cover page with court, claim no., parties and title
- UPON the application of the [Claimant/Defendant)
- AND UPON hearing counsel for the Claimant and counsel for the Defendant
-AND UPON reading the evidence recorded in the court file as having been read
- IT IS ORDERED THAT
- Terms of order:
- Strike out of statement of case for failure to comply with court directions and rules.
- Costs orders.
- Unless order.
- Enter default judgment.
- Set aside default judgment.
- Security for costs order.
- Order as to costs:
• Paid by one party to the other
• To be assessed
-DATED [DATE]
