Disputes - Post claim Flashcards
(27 cards)
When does allocation happen?
Once the defence is filed the court will make a proposed allocation and send a notice of proposed allocation to all parties. Court will confirm allocation once directions q has been reviewed
What is the directions questionnaire?
a questionairre sent with the allocation that must be filed within 14 days for small claims and 28 for all other tracks.
What is the set of Directions issued by the court?
Procedural timetable for management of claim to trial
Who bears the burden of truth & what is the standard of truth?
The claimant and balance of probabilities.
Which elements are exceptions to rule re burden of proof (ie it shifts to D)? 3
a) Alleged contributory negligence - D is alleging so must prove
b) use of criminal convictions/ May be admissible if relevant, if D wants to exclude must prove they are not
c)D has raised a counterclaim- they will be claimant for that element
What are the two types of evidence?
a) Factual eg witness statement (including hearsay). Witnesses can only present facts as they seem them not give opinions but they can present perceived facts so things not proven but believed by the witness to be true eg the claimant was high when he crashed the car….
b) Expert from a qualified party
Judge reviews evidence and determines if claim proved or not on balance of probability.
What is hearsay?
A written or oral statement, made outside of court which is repeated to court as evidence. So a witness reporting in court on something someone else said. It must be a fact stated not opinion so John told me the D had stolen the keys not John thinks the D is prone to theft
What happens if party wants to use hearsay evidence?
1) if witness who has cited hearsay is called to trial their statement must be served on other side
2) if witness not available their statement must be served with a hearsay notice stating they will not be called and why. Statement then becomes hearsay.
Other party can cross x witness
Judge decides how much weight to put on hearsay
Business docs eligible as hearsay do not have to be orally presented to court
What is a ‘notice to Attach credibility’
Opposing party may serve within 14 days or receiving hearsay notice. it outlines why hearsay witness is unreliable, discredits them (in scenarios where they are not due to appear in court)
What are some of the factors that are taken into account when looking at credibility of hearsay?
1) Is it multiple (diluted down a chain of overheard by…)
2) Availability of witness/why not available
3) Circumstances around making statement, spontaneous? voie dire?
4) Credibility of statement maker
5) Any motive to edit or conceal a fact?
How is a witness statement served and used at trial?
- Exchanged in accordance with directions or CMC
- Part of trial bundle
- must be admissable (relevant and not opinion)
-Witness does not read in court but confirms contents are true to judge and is then cross-X
What is an affadavit?
Sworn statement of evidence. Author confirms in front of solicitor or notary that contents are true. Used in support of applications eg freezing injunctions
what are the rules around expert evidence (4)?
Experts are appointed as directed by court eg shared, one each etc
Their evidence is allowed if: a) costs of engaging are proportionate to claim
b) Opinion is provided in a written report
c) Expert is appropriately qualified
d) expert’s opinion is necessary to assist judge in resolving an issue that falls out of their ordinary expertise.
what needs to be in the expert report and what is the expert’s overriding duty?
addressed to court, qualification, evidence and investigation relied on, statement that they understand duty to court & have complied, material description of instructions given by party(s), statement of truth
Overriding - duty to court only, honest, impartial
If separate experts being used how does one side interact with the expert opinion of the other?
Report must be served on other side if want to use in court. Party can then submit a one of set of written questions to the expert within 28 days.
If 2 experts disagree court may instruct they meet for a WIP discussion to narrow issues in disagreement and prep a statement to court to confirm what is being taken forward to court
When is a single joint expert used?
Fast track to keep costs proportionate
If it would speed up process
area of expertise is established with little dispute
what expert is being used for (quantum or liability)
If one can deal with all issues
Parties issue joint instructions and share costs
How are costs awarded in the fast and IM track?
Can only be given what is specified in the CPR PD 45 for the track and complexity banding given at allocation. More complex cases have higher banding and costs. Each action eg application for an SJ that was successful is also capped eg £750
IF court believes one party behaved unreasonably they can order that costs are reduced or increased by up to 50% of the fixed costs
If legal bill exceeds fixed costs winner makes up deficit
How do costs work for multi-track cases?
3 factors to consider
General: Loser pays Winners costs, winner cannot profit.
Court has ultimate discretion and can use costs decision to punish poor
1) Conduct of both parties, behavior, pre-action conduct eg attitude to ADR
2) DId the winner win on all points or were some elements won by overall loser
3) was an offer to settle made
Costs unreasonably incurred or unreasonable in amount are non-recoverable
What is the standard basis?
- Applies in most instances
loser pays costs reasonably incurred, proportionately incurred (around 60-70% of total) in relation to sum being claimed, complexity, conduct and costs due to it, - If any doubt the query goes in favour of paying party
what is the indemnity basis?
- loser pays more costs to winner. Penalty imposed due to poor conduct.
- still reasonable costs reasonably incurred
- proportionality not considered
- any issue in doubt goes in favour of non payer
Determined by loser’s conduct
other than the basis what other factors does court consider when assessing costs in a multi T case? (8)
- conduct of all parties especially pre proceedings
- value of claim
- importance of matter
- complexity
skill, effort and specialist knowledge of those involved - time spent
location of work - last agreed budget
Therefore poor behavior by the winner can also impact on the costs awarded
How are costs negotiated in a multi case?
- Parties can agree between themselves OR
- separate hearing resided over by costs officer
- winner serves loser cost details including bill and counsel fees within 3 months of judgement
- loser has 21 days to dispute bill, no dispute then it is awarded
- winner has 21 days to reply
if bill cannot be resolved the receiving party must file a request for a detailed assessment hearing within 3 months (so within 6 months in total of judgement). costs judge reviews each item on the bill and issues final costs certificate
What is a CMO?
Costs management order.
Controls the costs of the parties to ensure they stay within budget. If standard basis costs awarded then the amount in the order is payable and can’t be deviated from. If indemnity basis is awarded court can disregard CMO
What happens if there is no CMO?
- Court still considers cost budget and any deviation of more than 20% will need party to provide a statement explaining the difference.
- Payer can challenge costs if exceed budge as unreasonable court can limit award
