DR 1 Flashcards
(214 cards)
1
Q
What is civil dispute resolution?
A
2 private parties, claimant seeks remedy (money) from defendant
anything which isn’t criminal litigation: dispute between the state (Crown) and D
2
Q
Main Civil Courts
A
Supreme Court
Court of Appeal
High Court - court of first instance
County Court - court of first instance
(Tribunals -> Appeal Tribunals heard in Court of Appeal)
3
Q
Should proceedings commence in County Court or High Court
A
specific enactment for either?
PI claim £50k or less / non PI £100k or less- County Court
High Court justified by financial value of claim/complexity of facts/remedies/law/proceedings/importance to the public
4
Q
County Court
A
One national court with 170 hearing centres in England and Wales , no separate divisions
Deputy District Judges/ District Judges/ Recorders or Circuit Judges
5
Q
Rights of audience
A
Solicitors can advocate in Magistrate’s Cort/ County/ Tribunal/ Upper Tribunal
cannot go to higher courts without assessments to gain Higher Rights of Audience
6
Q
High Court
A
The Strand
3 divisions with specialist courts within them - King’s Bench, Chancery, Family
High Court Masters/ Judges
7
Q
Overriding objective rule of CPR
A
OO is to enable the court to deal with cases justly and at proportionate cost.
Must be considered at all stages of litigation.
8
Q
Civil Procedure Rules 1998
A
CPR governs the procedure of litigation. Rules are supplemented by Practice Directions - both are binding.
9
Q
White Book
A
along with CPR, Sweet and Maxwell’s Book used by practitioners and judges.
10
Q
Who gives effect to the overriding objective?
A
The court (CPR 1.4) actively manages the case to do so through encouraging co-operation, identifying key issues, using tech), parties are required to help the court to further OO
court has broad powers (deadlines/sanctions/directing conduct)
Courts ensure all cases process even if parties don’t seek their involvement
11
Q
Overriding Objective requires CPR 1.1 :
A
a) ensuring parties on equal foot
b) saving expense
c) dealing with cases in ways prop. to £ involved/importance/complexity/£ of each party
d) expeditiously + fairly
e) fair allotment between cases
f) enforcing compliance with rule/PDs/orders
12
Q
Provisions for vulnerable parties/witness
A
factor adversely impacting participation/ giving evidence - age/language/disability
Court identifies them then facilitates their participation- extra time/support
13
Q
PD Welsh Language
A
English and Welsh treated on basis of equality in cases in civil courts in Wales or that have a connection to Wales
Welsh must be used with notice, ensure Welsh speaking judge/translation facilities
if party fails to comply Costs Order can be made
14
Q
Costs of litigation
A
Solicitors fees
Disbursements- court fees/counsel’s fees (specialist)/expert’s fees/other costs
15
Q
Court has broad discretion of if 1 party should pay other party’s costs in full/part CPR 44.2(1)
A
General rule- unsuccessful party pays costs of the successful party CPR 44.2(2)
but court has discretion- range of factors incl. conduct/if whole claim succeeded
generally only a reasonable and proportionate sum will be recovered (can be all but unlikely 60% more likely)
16
Q
What is case analysis?
A
Done by both D and C, establishes the merits of the case on the basis of duty/breach(contract or tortious or both)/causation/loss at the outset of the client’s instruction and regularly throughout the case
also parties/limitation
17
Q
Every fact in dispute must be proved by the party asserting it
A
C- duty/breach/causation/loss- negligence and same + (duty) existence and terms of contract for contract
D- contributory negligence/why D’s facts are correct and so C is wrong
18
Q
Standard of proof is on the balance of probabilities
A
more likely than not to have happened
19
Q
All facts in issue need to be proved (as set out in statements of case)
A
Exception- some may be treated as established without evidence (formal admissions, res ipsa loquitur - facts speak for themselves- self-evident, inferences of fact)
20
Q
Limitation
A
If claim not commenced within the limitation period, C barred from recovering damages, the defendant will have a full defence
Limitation Act 1980
21
Q
Personal Injury Claims s11 LA 1980
A
C must bring claim within 3 years of the latest of:
1) the date when the cause of action accrued or
2) the date of knowledge of injured person (s14)
22
Q
Date of Knowledge s14 LA 1980
A
knowing that
the injury was significant
and attributable (at least in part) to alleged wrongdoing
the identity of the defendant / who caused the wrongdoing and additional facts supporting claim against defendant
(applies to dependent in case of Fatal Accident)
knowledge of facts important not knowledge of potential claim
includes knowledge C might reasonably be expected to acquire from expert/observation/ascertainability
23
Q
Fatal Accidents s12 LA 1980
A
Fatal Accidents Act 1976- dependents of employee (dead from negligence) can claim compensation from employer
Claim cannot be brought if person injured could no longer bring a claim (PI rule)
Claim cannot be brought after 3 years from the later of the date of death/ date of knowledge of the dependent
24
Q
s33 LA 1980 extending limitation
A
courts have discretion for PI/fatal accident claims to extend if equitable- depending on conduct/reasons for delay/ effect of late claim on the evidence
25
Claim for contribution s10 LA 1980
D liable for damage can claim contribution from another person (e.g. shop can from manufacturer - 2 years from date on which the right to recover contribution arose (date of judgment imposing liability was made/payment admitting liability made)
26
LA 1980- Negligence actions where facts relevant to action not known at date of accrual ss14A and 14B (not applicable to PI)
negligence causes damage far in future - foundation of house built wrong
limitation period extended to 6 years from when cause of action accrued or 3 years from requisite knowledge/right to bring claim
but subject to long-stop limitation date of 15 years from date of latest negligence act/omission causing all or part of damage
knowledge here same as PI but instead of significance, material facts about the damage need to be known
27
LA 1980- Judgments s24
action to enforce a judgement cannot be brought after 6 years from when the judgment became enforceable nor can interest be recovered after that period
28
LA 1980 extension due to disability
if C under disability at time cause of action accrued, limitation period starts to run from when disability ends -
2 years for contribution
3 years for PI/fatal accident
6 years in most other
minors are under disability and those lacking mental capacity to conduct proceedings (Mental Capacity Act 2005) s38
29
General limitation rule of tort and contract LA 1980
limitation expires 6 years after the date on which the cause of the action accrued s2- tort- date of actionable damage, s5- contract- date of breach
30
Limitation can be extended where claim is based on fraud/ concealment/mistake
s32 LA 1980
limitation doesn't start until C discovers fraud/concealment/mistake or could with reasonable diligence have discovered it
31
Parties- claim form requires full name of each party - Partnerships
CPR7.2A and 7A PD 5A- claims must be brought against the name under which the partnership carried on business at the time the cause of action accrued unless inappropriate (name changes/mergers)
personal assets at risk- also set out individual names of partners
32
Parties- claims against sole traders
list both the individual and trading name
33
Parties - LLPs
members can't be sued personally, use registered name
34
Parties - companies
full registered name including suffix (e.g. plc)
company may be represented at trial by an employee if the employee has been authorised to do so by the company and the court gives permission
35
Parties- trusts and deceased
Trusts- by/against trustees, executors, administrators (not beneficiaries- orders binding on them anyway)
Dead- C personal representative for claimant or appointment by court/ claim proceeds in absence CPR 19.8(1)
Dead Defendant- claim brought against their personal representatives if grant of probable/administration made, if not against estate/ C must apply to court for a representative of the dead's estate to be named
36
Parties - children and protected parties
do not have the capacity to pursue claims on their own behalf and must be represented by a litigation friend, both named in the title to the proceedings on documents
person above 18 presumed to have capacity - burden of proving the contrary rests on whomever asserts incapacity
37
Parties- determining incapacity
legal advisors must determine - can the person recognise the problem they encounter/ explain the problem clearly/ understand and evaluate advice given/ understand the effects of choosing one course of action over another and give effect to this
38
Litigation friend
represents children and protected parties
must fairly and competently conduct proceedings + has no adverse interest + if Claimant undertakes to pay any costs required (subject to being repaid)
often relative/ordered by court
not always needed by child
documents must be served to them
appointed at the time claim is made if C /1st step of the proceedings if D
claim can't be made without this
39
Pre-action conduct practice directions
set out the court's expectation for steps taken before issuing proceedings
-should take stock of positions not just issue proceedings mechanically (para 12)
- proceedings can be avoided where possible (negotiation/ADR better?- para 8 PD, silence to opponent suggesting ADR is hostile)
- conducted more efficiently (limit issues/admit liability quicker)
40
Consequences of non compliance with pre-action PD
- increasing £ of costs/interest to be paid/decreasing £ received
- court stays the proceedings until missing steps taken
When imposing sanction consider overall effect of non-compliance on other party (unlikely for minor infringements)
Court asks for explanation of non-compliance
Discontinuing proceedings (claimant £ D's costs unless D uncooperative in pre-action)
41
Pre- conduct PD non- compliance justified
- limitation period about to expire (necessary to issue proceedings ASAP), issue stay of proceedings after to ensure pre-action PD followed
- another reason for urgent proceedings/element of surprise (search order (fear of document destruction))
42
CPR 7- Rules governing commencement
HC and CC have concurrent jurisdiction.
Non PI- claim's £ financial worth over £100k either HC or CC
Non PI - under £100k, County Court
PI - £50k or more, either HC or CC
PI - under £50k County Court
7A PD 2.4 If either consider financial value/complexity of facts, law, remedies, procedure/ importance to public, C chooses HC judge
43
Practice direction for pre-action (applies to all cases, except where specific protocol applies overriding conflicting parts of PD)
1. C writes Letter of Claim to D
2. Within a reasonable period (depending on claim's complexity 14days - 3months ), D sends response letter which should
- accept the claim
- reject the claim (in whole/part w/ reasons)
3. Parties disclose key docs, appropriate negotiations, settlement proposals
44
Pre-Action Protocol for PI claims
(don't fall under other pre-action protocol, likely to be fast-track (up to £25k but spirit of protocol should be followed in higher)
1. Claimant writes Letter of Notification to potential D (brief details, D contacts insurer)
2. Parties consider rehab needs (ongoing medical/care)
3. Claimant writes Letter of Claim to D w/ full details of claim
4. D acknowledges Letter of Claim within 21 days
5. D investigates + sends Letter of Response within 3 months of their acknowledgement. If D denies liability/quantum/both then
5. Parties disclose key docs, appropriate negotiations, settlement proposals. C sends schedule of losses (with details.)
6. Joint selection of quantum(medical) expert or claimant discloses report-> D sends written qs.
45
How to issue claim at court
Claim Form N1 sent to court, D and C on file and court issue fee
date of issue on claim form stops limitation time and starts time for which claim form must be served (for HC and CC)
46
Transfer between courts - Courts disagree with claimant's choice
7A PD 2.4 + facilities of court for disabled/availability of specialist judge
Consequences- C pays cost of transfer, if matter transferred from HC to CC- costs awarded in claim can be deducted by up to 25% (at courts discretion)
47
Serving the claim form- Who sends?
done by court (1st posts, claimant sent notice of issue- deemed date of service, if unable then C does) /claimant or their solicitor (must notify court who sends them the forms, certificate of service filed at court within 21 days w/method, date, address unless D filed acknowledgement of service)
48
Service of Claim Form- How- take relevant step?
Court- 1st post
C - personally (wherever in jurisdiction they are found- current/last known reside/business/given to court as address for proceedings - unless solicitor's address given then must be there) permitted address, 1st post, doc exchange, fax/ electronic- only if D said they would allow , other authorised by court CPR 6.3
if not invalid + so is judgment
if LLP- principal office in that jurisdiction w/ real connection to claim
post must be 1st class
49
Issuing County Court claims
money claims + bulk claims issued centrally in Civil National Business Centre (send N1 here) then -> local county court hearing centre or Money Claim Online (up to £100k, 2 or less Ds )
not money-only - send N1 + fee to any centre
50
Service of claim form- when?
before midnight on calendar date 4 months after the date of issue on claim form (posting/leaving with DX counts not arrival)
if not issue new claim/another fee
extension- CPR 7.6- v strict- within 4 month validity + good reason (not further evidence from D), if after deadline, only if C failed to serve/C taken all reasonable steps to comply/app made prompt (not solicitors/insurers instead of serving D where needed)
51
Particulars of claim can be in claim form or separate doc later
if w/ claim form, must also send respond pack form F9 (form for admission + defending + acknowledging service) or within 14 days of service of claim form within validity of claim form (4 months)
C must file copy at court within 7 days of service to D unless already filed.
valid methods are same as claim form
52
Deemed date of service- claim forms
date received irrelevant
Claim forms- 2 business days
after relevant step (taking whatever method)
C- time limit for particulars of claim starts
D- deadline for serving a response (if particulars included- consider earliest possible DDS for particulars) starts
53
Deemed date of service - other docs
Instant methods- before 4:30pm on business day- same day or if otherwise, next business day
Non-instant methods (post/DX) - second day after posting/giving to DX provider if business day, otherwise next business day (never non-business day)
54
Statements of case
Key docs setting out position (claim, particulars, defence, part 20, reply )
must comply with CPR/be correct format - otherwise requires a formal amendment w/ input of court giving permission, impacting other statements of case and amendments from opponent- wastes time -> costs consequences + tactical disadvantages
55
Statements of case format
Case heading must include court + division, claim number, full name of party, party's status (C/D)
Numbered paras and pages, numbers in figures, ref to docs filed at court, name of doc drafter, statement of truth
Statement of truth (22.1)- allows SoC to be used as evidence, ref. to contempt of court if not true
56
Claim Form
1st SoC
Form N1
Parties (individuals/position/business) + addresses
Concise statement of nature of the claim + Remedy sought by claimant (not incl. costs)
Statement of the amount claimed C16.3 (exact £, region, unsure)(court not limited to this)(not cost/interests/counter/CI/benefits)
PI- pain suffering loss of amenity under/over £1.5k
If either CC/HC and HC chosen- jurisdictional enforcement needed
Money claim HC- £100k or over, enactment showing it should be HC
PI HC- £50k or more, specifiy specialist High Court list
Non PI £100k or more- state exact amount + that C expects to recover over £100k
Particulars included where concise
57
Particulars of claim
C's main SoC
Concise statement of the facts on which the claimant relies (duty, breach, causation, loss) (evidence + law done later)
Closes with prayer- summary of remedies sought by C
if applicable:
Claim + grounds for aggravated/exemplary/provisional damages
PI - C D.O.B, injury details, schedule of past/future expenses losses + expert medical reports relied on
Land claim- identify land and clarify if residential premises included
If based on written/oral/conduct agreement that should be attached/set out (by whom, to whom, when, where)
Past convictions/fraud/illegality/unsoundness of mind/human rights arguments
58
Particulars of claim- set out if interest sought by C
If C seeks interest on £ claimed (statutory s35A SCA tort/in their contract) Specified claim- debt/specificied damages exact calc. incl % rate/dates/total £/ daily rate of interest or generally (loss of goodwill/rep/future earning/profits/ where remoteness is issue)
if hybrid- choice- separate or together as unspecified
Statutory interest - s35A SCA in HC and s69 CCA - courts have discretion on if + how much
PI where damages over £200, some interest must be awarded unless special reasons, in debt- if D pays whole debt during proceedings, some interest must be awarded
59
D's response to claim
- file or serve an admission
- file a defence
- file an acknowledgement of service (if D unable to file defence within time limit of 14 days/ wants to dispute court's jurisdiction)
- response of money paid (debt claim)
60
Defendant files defence
- sets out why the claim is disputed
- must be filed within 14 days of deemed date of service of the particulars of the claim if not acknowledging service (then 28 days from DDS of particulars)
- filed at court and served on all parties
61
Defendant acknowledges service (Form N9)
- need longer than 14 days to prepare their defence / wish to dispute the court's jurisdiction
- must be filed within 14 days of DDS of claim form or 14 days of DDS of particulars (if claim form says particulars are to follow)
- filing an acknowledgement of service extends the time for filing defence to 28 days from DDS of particulars of claim (can be done earlier)
- court notifies claimant in writing that service acknowledges (C can apply for judgment in default if deadline expires and no defence filed)
62
Longer time limit for filing for defence
- Claim form served out of the jurisdiction (time depends on country)
- D makes application disputing court's jurisdiction (don't need to file defence before that hearing)
- Where claimant applies for summary judgment (don't need to file defence before this hearing)
- Court makes an order for service for a claim form on an overseas agent/principal -> court specifies time period
- Defendant and claimant agree to an extension of time up to 28 days -> notify court in writing (up to 56 days from DDS of particulars without applying to court for permission to extend)
63
Applications to court for extension of time to serve defence
C & D can't agree to longer than 28 days
Claimant can refuse to agree to extension
-> Defendant must apply to court with reasons and impact of extra time on conduct of claim
Court ensures overriding objective upheld in their decision (justly + proportionate cost)
64
Response of money paid
Defendant served with claim for specified amount of money but already paid claimant before receiving the claim
Defence that debt already paid
Court asks claimant for confirmation -> must reply to court + defendant within 28 days or stayed -> claimant can end case or continue (do not agree that full debt paid/wish to recover interest + costs) as defended claim
65
Defendant admitting the claim
No defence/doesn't wish to dispute
Completing (filing/serving) appropriate admission form, part of response pack within 14 days of service of particulars of claim
Form N9A- specified amount
Form N9C- unspecified, non-money, return of goods
66
Admitting specified claims
Form N9A
In full- judgement entered for the debt, interest, court fees, fixed costs -> claim ends
Except where one party is child/protected, C can enter judgment against D for admitted sum including interest
In part- judgment can be entered in part (admitted part of debt + interest on that part) but defendant must file a defence for the unadmitted part which will continue to trial
67
Admitting unspecified claims
Form N9C
Judgment for liability only and there will be hearing to determine quantum (£ + interest)
D can admit liability in full and offer to pay a sum in satisfaction of claim (offer in relation to quantum) -> if accepted by C then claim ends
68
D can request time to pay after admitting to a specified amount of money (whole/part of specified or satisfaction of unspecified)
Can be done at same time as admission, D supplies personal financial information
Claimant can decide not to accept D's payment proposal -> court determines rate of payment considering D's circumstances and C's objections
69
Judgment after claim admitted (final order disposing claim)
C notified of any admission + has option to enter judgment against D (no judicial involvement - complete request for judgment within 14 days of notice of admission noting amount)
Judgment payable within 14 days of being entered (sent to parties by court) unless otherwise agreed upon
Indicates C is successful party
D doesn't want judgment - enforcement proceedings/public searchable register for 6 years (credit rating)
Instead of judgment- Tomlin Order or C withdraws claim
Admitted specified claim paid in full (incl. interest/court fee/costs) within 14 days of responding to claim, unlikely that judgment entered
70
Amount of judgment
Specified claims:
- amount of claim including interest to date of issue of claim
- interest since date of issue (daily rate in particulars)
- court fees (issue fee on claim form)
- fixed costs (extra on judgment)
Credit given for any D paid -> net balance due
Unspecified claims- > judgment on quantum hearing with amount due (interest + costs)
Court has power to award simple interest on debts due where no other provision relevant
71
Defence: Defendant's main statement of case
- responds to every point of allegation in Claimant's particulars of claim (admit/deny/require proof)
- states full details of defendant's own case
- limitation defence (state date of expiry)
- D can dispute C's valuation of claim (reasons + their estimate)
- mitigation/reduction of damages : set off (amount owed by C), any other defences/issues of fact not in claim, human rights arguments
- counterclaim incl. in defence
- PI claims: D must state if they agree/dispute/have no knowledge of matters/past + future expenses & losses/any medical report, with reasons + own counter schedule/medical evidence
72
Counting time
1. Day on which period begins is never included (day 0)
2. If end of period defined by reference to event (hearing/trial), day on which that event occurs not included
3. Where specified period 5 days or less, Saturdays, Sundays, Bank Holidays, Christmas Day, Good Friday in period doesn't count
4. Where deadline is doing act at court office and deadline falls on day court office is closed-> can be done on next day court office open
73
Defendant admits to allegation
C doesn't need to provide further evidence
- should admit everything non-disputed, uncontroversial (costs consequences of not admitting when you should have)
74
Defendant denies allegation
Where if it had occurred, D would know
-> must give reasons (state their version)
-> C must prove allegation
75
D requires proof
D unable to admit/deny as they don't have direct knowledge of it)
-> C must prove allegation
76
Omission of C's allegation in D's defence
D deemed to have admitted to it unless set out own case of it
Money claim- amount claimed not admitted unless D specifically admits it
77
Reply : optional statement of case
Claimant alleges facts in answer to defence which were not included in claim- answers new points raised in defence
No particular structure
Filed at same time as directions questionnaire (case management doc filed after claim defended (14 days notice given))
Reply is last statement of case in claim, court's permission needed for any more
78
Default judgment
Applying for judgment to be granted in claimant's favour without trial if
- D hadn't responded to the claim through acknowledgement of service/defence within time limits and
- claim not admitted by defendant and
- D hasn't applied for summary judgment/strike out
NOT FOR: delivery of goods claims (Consumer Credit Act 1974, Part 8 claims, claims where PD excludes default judgment)
79
Default judgment procedure
Claimant must show that
- time expired for acknowledgement of service (D hasn't submitted AoS or defence)/ time expired for defence (D submitted AoS not defence)
- claim hasn't been admitted/satisfied by D
- D hasn't made application for summary judgment/strike out
Money claims- specified sum: C files request for judgment -> court makes judgment for amount sought + fixed costs + interest
Money claims -unspecified sum: C files request-> court enters judgment for sum to be decided at hearing
Non-money claims: not on paper - C applies for default judgment hearing -> claimant explains reasons for default judgment and what judgment will be given -> court has discretion
80
Strike out statements of case
No legally recognisable claim or defence
Default judgment doesn't look at content of statements
81
Summary judgment
Cases with weak facts (dispose parts/whole of case without trial)
82
C can obtain default judgment against more than 1 D
If it can be dealt separately from others (not where one of several liable not all)
83
Default judgment set aside by
Application by D or by court to avoid injustice
Determined at hearing unless C consents to setting aside
Court may set aside with conditions attached (D pays C's cost of hearing)
Court must set aside where:
Judgment wrongly entered (time limit hadn't expired, AoS/Defence had been filed on time, summary judgment/strike out had been applied for/ D had satisfied whole claim before or required time to pay)
84
Court may set aside default judgment where it was correctly entered
D has real chance of successfully defending the claim (arguable chance not enough)
or there's another good reason judgment should be set aside/D should be allowed to defend (C didn't serve response pack/public interest demands full + fair hearing/C made D believe their claim wasn't forthcoming)
Consider how prompt D's application to set aside was + overriding objective
Court has full discretion
Where courts may set aside- Denton- applications for relief from any sanction
Can be set aside with conditions attached
85
Other possible statements of case served when responding to claim
- counterclaim
-> C serves defence to counterclaim
or C serves response to first defence - reply
86
Counterclaim (D against C) CPR 20.4
Made at same time as defence- both in single doc
'particulars of counter claim',filed/served together
If made after defence filed, permission of court required.
Dealt under same claim number and proceedings as Claimant's claim
Based on case analysis (duty, breach, causation, loss)
Parties must be the same even if substantive cause of claim different.
Court can strike it out or hear it separately.
Requires fees
87
Facts of counterclaim can amount to defence of set off to main claim
Partial or complete defence
Extinguishes claim up to same amount as defendant (if both win)
Must have legal basis for set off
Mutual debts (not damages)
s.53 Sale of Goods Act 1979- seller sues for price of goods, buyer sets off claim for breach of implied terms as to quality
Defective services - claim made for services, D can sett off claim for damages for poor service
Equitable set off - close connection so manifestly unjust to allow enforcement of one claim without taking into account the cross claim.
88
Form of set off
in the last paragraph of the defence of Defence and Counterclaim
89
Defence to counterclaim
Claimant needs to respond to any counterclaim.
Can be admitted or defended.
No requirement for acknowledgement of service but defence must be filed within 14 days after service of the counterclaim- if not done in time, default judgment in favour of defendant
Must comply with normal rules for defences
90
Reply
Optional statement of case served by Claimant alleging facts in answer to the defence not included in the claim.
Should be filed with directions questionnaire (case management doc filed after claim defended - 14 days notice of deadline given)
Must include statement of truth
Last statement of case in a claim - permission of court needed to file any after
91
Additional claim
Any claim other than the claim by the C against the D
Counterclaim is one type.
Never made by original claimant
Treated as a claim, must serve defence or deemed to admit
Can arise from completely different set of facts from main claim
92
Contribution
A right of someone to recover from a third person all or part of the amount which he himself is liable to pay
Arise in tort, contract, Civil Liability Contribution Act 1978 (driver sued for crash can get contribution from other drivers involved)
93
Indemnity
A right of someone to recover from a third person the whole amount (100%) which he himself is liable to pay
Often arises from a contract/statutory (insurance)
94
Defendant has counterclaim against claimant and some other party (jointly liable)
Other party needs to be joined onto main claim so counterclaim can proceed
Must be some connection between claimant and other party (otherwise would be separate action against other party)
95
Claims for contribution/indemnity from existing party (more than 1 defendant already)
D after acknowledging service/defence, make addition claim for contribution/indemnity against co-Defendant by filing contribution notice with court and serving it on other party
needs a legal basis (case analysis)
Serve notice (no set form)
96
additional claims (where 3rd party not directly sued by C) - must have legal basis- N211 claim form (14 days of issue if no court permission, court direction otherwise)
- claim by D against co-defendant claiming remedy other than contribution/indemnity
- claim by D against any person not a party to proceeding claiming contribution/indemnity/other remedy
- claim by party which has been joined to main proceedings (3rd party)
97
Permission for additional claim (interim application procedure- application notice + draft order + evidence)
Classic counter claim/other additional claims- Not if filled with defence, needed for other time
Counterclaim against co-D/3rd party- permission always required
Claims for contribution/indemnity from existing party- not if filed/served with defence (or if added to main claim within 28 days after that defence) , yes for any other time
98
A party upon which additional claim served becomes party to proceedings if not already party
Additional claim served with a response pack and a copy of every statement of case/other docs that the court directs
Copy of the additional claim form must be served on every existing party
99
Case management by court
Same case or separate action (if no substantial connection between original action and proposed additional claim)
Where D to additional case files defence- court arranges hearing - summary judgment hearing, dismiss/accept claim, give directions on handling
100
Title of proceedings with additional claims
Claimant and defendant of original claim, then each additional party following them 'Third Party' (even if 2 defendants already) 'Fourth Party"
101
No defence filed to additional claim
- D applies for default judgment
- if existing party doesn't reply to notice of contribution/indemnity - no default judgment
- additional claim form (N211), response pack on new party, if doesn't reply in time, deemed to admit claim and bound by judgment of trial of main claim if relevant to their claim (no default judgment)
102
Amending statements of case (adding party - CPR 19 adding claim, change in knowledge, error- CPR 17)
Amendments must be verified by statement of truth
Party amending responsible for costs arising from it - court makes costs order
103
A party may amend a statement of case at any time before it is served
Court retains power to disallow these amendments
If claim form served, amending particulars of claim to alter parties may require consent/permission
104
Any statement of case can be amended at any time with written consent of all other parties
Amending party bears any costs
When amended statement filed without need for court permission - 'amended ... under CPR rule 17... dated' but can still be disallowed by court
105
Amending with the court's permission (written consent of all parties not given)
Amending party files application notice with court with proposed amended statement of case - hearing where all parties consent or without hearing on written submissions
If permission given -> court gives directions on service -> filed within 14 days of order granting amendment -> copy of amended statement and order served on every party
' amended by order of ...'
If substance changed -> statement of truth
106
When will court give permission to amend?
No specific guidance- discretion. Parties should inform each other promptly of proposed amendments.
Consider overriding objective (justly + proportionate cost)
balance between injustice to applicant if refused and injustice to others if accepted
Amending defence refused if amendment has no prospect of success - or implausible/not supported by evidence/ self-contradictory as statement of truth cannot be given
107
Late amendments - Court less willing to allow
Cause injustice to other parties/put hearing date at risk.
heavy onus to justify late amendment + delay (new evidence), must have proper pleading ready
May be allowed with heavy costs penalty
108
Amendments changing parties CPR 19
except where limitation expired, test is that the amendment is desirable - enable parties to be heard if affected and overriding objective
increases complexity/ case management - add to cost +time
109
No one can be added as claimant without their consent, if no consent, can be added as defendant. Court's permission always needed for this after claim form served.
Avoids claims being defeated on basis that another party should/ should not have been added
Amending party responsible for any costs of amendment.
110
Amendments after limitation period expired
Amendment for new cause of action/party is separate action commenced on same date as original action.
Addition of new party takes effect on date amended claim form served but now limitation act determines when new claim is commenced.
111
s 35 Limitation act 1980- general rule that amendments not allowed
Exceptions (allowed after expiry)
1. Personal injury claims
2. General amendments
3. Adding/substituting party
112
Adding causes of action after limitation period
- court directs that it doesn't apply for PI action ( 3 year limitation not always enough)
- new cause is original set-off or counterclaim
- new cause arises out of same facts/ substantially same facts already in original claim- already claimed a remedy but new duty/obligation of D found (if just clarified, further instance of original breach/new remedy - no new cause of action)
113
Adding/substituting parties post limitation period
- correcting name
- changing capacity
- changing identity of D (entirely new identity rarely allowed)
1. limitation period was current when proceedings started
2. change is necessary (og party genuine mistake/ died/ bankruptcy order- capacity to new party, claim can't be properly carried out without change)
Test- has the intended defendant been identified in statements of case by reference to a description more of less specific to the case? (yes- mistake, no- no amendment allowed)
114
Format of amended statement of case
Don't show original text (unless court says)
Amendments coloured (red, green, violet, yellow) or coded
Appropriate endorsement + statement of truth
Consider knock on effect on other statements- need to amend them too
115
Requests for further information CPR 18
Obtain from other party to clarify/ask for info on matter in dispute (not limited to statement of case)- reasonably necessary and proportionate to prepare/understand case
- obtain admissions, info revealing weaknesses, advance details of witnesses , clarification, narrow issues to save time + £
Multi track claims have time period for this
116
Procedure - Request for information
Voluntary (application to court only if unresolved)
Written request on other party stating a reasonable date for response, must be concise and reasonably necessary +proportionate
Response must be written, dated, signed by party/lawyer + include statement of truth (sent to other party + filed at court)
Give reasons if declining to give information
117
Court order for information
Order to clarify matters not contained in statement of case
Where party doesn't respond/ declines
Interim application - no response from other party in 14 days then court decides without a hearing
If court orders, must follow specified time limit + have statement of truth
Court can direct that info given voluntarily/due to order is limited to use in the current proceedings
118
Interim application
Applications for orders/directions made to court in the interim period between commencement of proceedings and trial - some can be made before commencement
Made by any party as soon as necessary (OO- try co-operate outside of court first)
Case management conference/pre-trial review
Requirement to bunch applications so dealt at single hearing
119
Types of interim application
- extending time period for a step
- applying to amend a statement of case
- requiring the other party to provide further info
- requesting specific disclosure of a doc
- permission to rely on expert evidence
120
Procedure for making an interim application
Party making application = applicant
Issue -> Service -> Further evidence -> Hearing
121
Interim application: Issue
Application notice (Form N244) + fee
1. Who is making the application
2. What order the applicant wants
3. Why the applicant wants that order
4. Supporting information applicant is relying on
Sent to court of main court/likely court if pre-action
Evidence in application notice/ referring to existing SoCs/witness statements or affidavits
Applicant files draft order of terms sought
Application notice + evidence + draft order sent to court + other party -> court issues the application + provides notice of date + time of hearing
122
Interim application : Service
Application notice + note from court of date/time of hearing + evidence + draft order must be served on the other party.
Applicant usually serves but court can.
Must serve as soon as practicable after application is filed, no less than 3 clear days before application is to be heard (some applications have special time limits)
123
Interim application : Further evidence
Witness statement/affidavit
Must be filed + served ASAP in accordance with specific timings stated by court on issue of application notice
Both applicant/respondent
Statement of costs of application should be filed + exchanged not less than 24 hours before the hearing
124
Interim application: Hearing
Most have a hearing.
OO: can be held remotely/partially remotely
If hearing 2 hours or less then may be done remotely
Can be done without a hearing if:
- parties agree to terms of order (consent order signed by each party)
- parties agree to no hearing
- court doesn't consider hearings appropriate
Court makes decision -> Order drawn up/sealed/served by court
125
Alternative interim application procedure (v rare)
No service of application notice on respondent permitted only:
- exceptional urgency (immediate remedy needed)
- OO best furthered
- all parties consent
- court gives permission
- court order/rule/PD permits
- date for hearing fixed, party wants to make application at that hearing but doesn't have enough time to serve notice -> should still inform the other party + court preferably in writing of application's nature + reasoning
Must follow procedural safeguards
126
Alternative interim application (no application notice) procedural safeguards to mitigate unfairness
1. explain why no notice given
2. draw court's attention to arguments/evidence for absent respondent's position
3. applicant must serve the respondent ASAP after hearing regardless of court granting relief - application notice, evidence, order
4. Court order must contain statement of respondent's right to make an application to set aside/vary order - within 7 days of the order being served on respondent
127
Summary judgment CPR 24
Enables court to dispose of claims or issues without the need for a full trial
- saves costs
- furthers OO
Either party can apply for SJ if considers other party's position on claim/issue weak
128
Overlap between summary judgment and strike out
Often combined applications
Strike out- whole/part of statement of case
- with no reasonable grounds for bringing/defending a claim
- which is an abuse of process of court or
- likely to obstruct just disposal of proceedings
Summary judgement: against C/D where party has no real prospect of succeeding on their claim/defence
129
Difference between summary judgement and default judgment
Default judgment: D failing to respond to claim (AoS or defence within time limits) - procedural , C obtains by request/application (depends on nature of claim), court doesn't consider the merits of the claim (unlike SJ)
130
Grounds for summary judgment
C has no real prospect of claim succeeding or D has no real prospect of defence succeeding
AND
no other compelling reason why the case/issue should be disposed of at trial
- no real prospect : more than merely arguable that it's a fanciful/imaginary/false position -> defeated by respondent showing some chance (even if improbable) that they might succeed
Compelling reasons for trial e.g.:
- more time for D to investigate
- expert evidence needed
- multi-party litigation
- scrutiny of key docs required
- D has right to trial by jury (fraud)
131
Procedure of application for summary judgment
Application notice + evidence (usually witness statement) + draft order
Evidence must set out grounds +
- concisely identify points of law/provision of doc relied on
- state the application is made because the applicant believes that on evidence the respondent has no real prospect of success + no other compelling reason for trial
132
Who can apply for summary judgment?
Claimant : after D filed AoS/defence or earlier w/ court's permission
- If C fails to comply with pre-action protocol, SJ application by C not considered until after defence filed/time expires for defence
Defendant : anytime after proceedings commenced
Court: can fix hearing on its own initiative
C/D should do before/at same time as Directions Questionnaire to avoid costs - if done, court delays allocating track until after SJ hearing
SJ application pauses the proceedings:
- if C applies for SJ before D serves defence, time for D to serve defence extended until after the SJ hearing
- if D applies for SJ, D doesn't have to file AoS/defence until after SJ hearing
133
Timeline of summary judgment application
Issue : Application Notice (N244) + Supporting evidence + Draft order + Fee
Service : above + notice of hearing date (at least 14 days before hearing)
Further evidence :
- Respondent on court + applicant at least 7 days before hearing
- Applicant on court + respondent at least 3 days before hearing
Both parties file + exchange statements of costs no less than 24 hours before hearing
Hearing
134
Application notice for summary judgment
Must include
- statement that application is for SJ under Part 24
- direct respondent to CPR requiring them to file+ serve evidence at least 7 days before SJ hearing
These make it clear what's at stake + how to oppose
135
Potential orders at the summary judgment hearing
- Dismissal of application
Application fails, issues continue to trial, court gives directions on continuing claim
- Dismissal of claim
D applies for SJ + succeeds - D wins
- Judgment on claim
C applies for SJ + succeeds- judgment entered for C- C wins
- Conditional order
Judge decided that respondent may succeed but its improbable they will -> court refuses SJ + respondent continues subject to conditions of court (court fees etc.)
Also applies to SJ applications for specific issues not whole claim
136
Interim payment
Payment on account of damages, debt, or other sum (not costs) which defendant may be liable to pay to claimant
Claimant makes application (can make as many as possible)
Assist C financially in interim prior to settlement/trial (PI) - on account of damages
137
Requirements for an interim payment CPR 25.7
Court will only make order where 1 applies:
- D admitted liability to pay damages to C
- C obtained judgment against D for damages to be assessed (or sum of money other than costs to be assessed)
- It's satisfied that if claim went to trial, C would get judgment for substantial amount of money against that D targeted in interim payment application, regardless of if sole/multiple D
138
Interim payment : Evidence
Applicant must provide evidence
- reasons for believing conditions for IP satisfied
- likely sum of money from final judgment
- sum of money sought as IP
- items/matters IP needed for
- other relevant matters
PI claims: details of special damages + past and future loss
Fatal Accidents Act 1976 claim: details of person on whose behalf the claim is made + nature of claim
Any documents in support of application as exhibits - PI: medical reports
139
Interim payments: procedure
C first makes request for voluntary payment from D - then if D refuses -> application for interim payment
C makes request to D for voluntary interim payment at any stage in proceedings (incl. pre-action) - claimant cannot apply to court for IP before end of period for D filing AoS
Court must not make IP of more than a reasonable proportion of the likely amount of final judgment taking into account any contributory negligence, set off, counterclaim- may order payment in instalments
140
Interim payment application timeline
Issue : Application notice + supporting evidence + draft order + fee
Service : all of above + notice of hearing on respondent
Further evidence :
- Respondent files at court + serves
at least 7 days before hearing
- Applicant files + serves evidence on court + respondent at least 3 days before hearing
Both parties file + exchange statements of costs not less than 24 hours before hearing
Hearing
141
Restriction on IP disclosure
Unless D agrees, IP made by D in the course of the proceedings (voluntarily or by court order) will not be disclosed to trial judge until all questions of liability + quantum decided
142
Security for costs
Application from D who is concerned that C will not be willing/able to pay D's costs if claim successfully defended
Various ways- most common requiring payment into court by the claimant so funds are available to meet any costs order later made in D's favour
Solely for costs not damages
By D against C - most common
By C against D for counterclaim
By 3rd party against D for additional claim
143
Grounds for security for costs
1. Considering all circumstances of case, it is just +
Is C unable to pay
Art 6 right to fair trial for C admission of liability by D-prospect of claim succeeding
delay to apply
is D responsible for C's impecuniosity
2. 1 or more of prescribed conditions
a) C is resident out of jurisdiction (but not in Hague Convention State)
habitual residence, company- not where incorporated but where managed/controlled
b) C is a company, reason to believe its might be unable to pay for D's costs if ordered
Impecunious company, D must show it inability to pay (any reason to believe) + amount of likely costs
c) C has dealt with assets in a way that makes costs order enforcement difficult
Dissipation/transfer overseas or 3rd parties
d) C changed address since claim begun to evade litigation
e) C failed to give address in claim form
f) C is just nominal claimant, reason to believe it might be unable to pay D's costs
Also OO
144
Procedure for security of costs
Normal interim application procedures +
Application notice states which ground applies
Written evidence required- witness statement covering ground, factors for court to decide, likely costs of trial, amount of security requested
145
Security of costs order - type/timing/amount
Amount - court's discretion
- D's likely costs
- security for whole action v up to point in time (disclosure)
- covering costs incurred already and future costs
- deduction made for likely reduction due to assessment of costs/ possibility of settling
- delay- future costs not incurred more likely
Type- paid into court by required date
- payment into court
- payment to D's solicitor
- bank guarantee
- undertaking to pay costs
146
Injunction
Court order requiring a party to do/refrain from doing a given act.
Breach is contempt of court -> fine/imprisonment
Perpetual injunction- final injunction with no time limit
147
Interim injunction
Temporary measure at early stage in proceedings (pre-action) before trial + any final decision on merits of either party's case made to restrain respondent from causing irreparable/immeasurable damage to the applicant by continuing/ceasing conduct which led to the dispute.
Made in urgent circs
Lasts until trial/further order
148
Prohibitory injunction
Respondent required to refrain from doing act
149
Mandatory injunction
Respondent required to do specific act
150
Quia timet injunctions
Allows both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed (e.g. threatened closure of bank account is breach of statutory duty- mandatory injunction to keep open)
151
American Cyanamid guidelines - just and convenient for injunction to be granted
Equitable + Discretionary remedy
1. Is there a serious question to be tried?
- pre-existing cause of action
- not frivolous/vexatious - low bar
2. Would damages be an adequate remedy for each party injured by court's grant/lack of injunction?
1st- inadequate for C if harm is irreparable/unquantifiable/serious/likely to continue
2nd- if wrongly granted, could respondent be paid damages if applicant fails at trial- if yes, grant injunction
3. Where does the balance of convenience lie?
Damages inadequate for both ->
- does I serve practical purpose (if not required, no I - equity doesn't act in vain)
- applicant's clean hands
- excessive delay
Always discretionary
152
Procedure for interim injunction
Interim application procedure +interim remedy considerations
Must have written evidence - facts justifying relief sought
- Cross undertaking in damages made to the court by C along with interim injunction - protection for respondent (if case discontinued/I discharged or unnecessary) but court can grant to 3rd party suffering loss from injunction- Court can't force anyone to make an undertaking
153
Interim injunction made without application notice
state the reason notice not given + full frank disclosure of fact/law including those adverse to applicant + send full note of hearing to respondent without delay
-> injunction granted for limited period
-> 2nd hearing "return date", respondent attends to give representations
->
- maintain order until end of trial
- discharge or vary I
- enforce undertaking in damages if I shouldn't have been granted
- accept undertaking by respondent to not do acts instead of injunction
154
Interim application before claim issued
exceptional urgency or desirable for justice
-> undertaking to court to issue claim form
155
Court's jurisdiction to order costs
- can be done at any time
- if no order, each party pays their own
156
Types of litigation costs
1. Solicitor-client costs
2. Inter-party costs
3. Non- party costs
157
Solicitor-client costs
Payable by client under contract of the retainer
Successful client will want to seek court order for legal costs incurred from other part but likely to be shortfall between solicitor's bill and sum recovered (considering inter-party costs)
Indemnity principle: party will not be able to recover a sum in excess of their liability to their own solicitor
158
Non party costs
Require non-party to pay towards costs - funder funding litigation
- exceptional, court considers if just
- if non-party funds and substantially controls/benefits from proceedings -> if proceedings fail, non-party pays successful party's costs
159
Inter party costs
whether payable/ amount/ time of payment
General rule- unsuccessful party pays costs of successful party
But court retains absolute discretion considering :
- parties conduct (unreasonable refusal to alternative DR)
- whether party has succeeded on only some issues/part of the claim
160
Standard basis of assessing costs orders
- proportionately + reasonably incurred
- proportionate + reasonable amount
Doubt is resolved in favour of paying party
Usually 60% of costs recovered
Proportionate considering:
- sums in issue
- value of non-monetary relief
- complexity of case
- additional work incurred by paying party's conduct
- wider factors (reputation/public importance)
161
Indemnity basis of assessing costs orders
not proportionate
awarded where disapproval of party's conduct
- reasonably incurred
- reasonable amount
Doubt resolved in favour of receiving party
Usually 70-80% recovered
162
General factors for assessing amount of costs orders
Either standard or indemnity then :
- parties conduct
- complexity of matter
- circumstances/place of work
- receiving party's last approved/agreed budget (part of costs management process)
163
Time for complying with costs order
Within 14 days of date of:
- judgment/order if costs stated
- if later, date of certificate showing cost
(unless court states otherwise)
164
Qualified one way costs shifting (QOCS)
Regime for recovery of costs between parties in proceedings of claims for damages for death/ personal injury
Restricts D's ability to enforce costs order against C
165
Fixed costs
Specific amounts recoverable by 1 party from another as set out in CPR (unless court varies)
Applies to all small claims, fast + intermediate track cases
Fast + intermediate track - 4 complexity bands - case assigned to 1, the stage the case is concluded determines amount of fixed costs recoverable
166
Assessed costs
Where costs don't fall under fixed costs regime - court involved with decision + calculation of amount
Where parties unable to agree to amount of costs
Standard, indemnity, summary, detailed assessment
167
Summary assessment of costs
Quantify immediately at the end of hearing
Parties prepare statement of costs (standard form N260) , file and serve on each other min. 24 hours before hearing
Court hears short submissions -> makes decision
Used in:
- fast track cases at end of trial to assess costs of whole case
- hearing of other matters lasting not over 1 day (interim application etc. - just consider that matter's costs)
168
Detailed assessment of costs
1. Court, after deciding 1 party should pay other, orders detailed assessment (if not agreed)
2. Receiving party serves notice of commencement + copy of bill of costs (more detailed than statement of costs) on paying party
3. Within 21 days of service of notice of commencement, serve points of dispute on any item in bill of costs on receiving party
4. If parties cannot agree, receiving party files request for detailed assessment hearing -> costs officer determines costs
169
Types of interim costs orders
1. Costs in any event (regardless of who wins- summary assessment 14 days- poor conduct of C + sympathy for D)
2. Costs in the case (winner recovers at trial, delay for facts)
3. Costs reserved (delayed to later, no decision - winner recovers)
4. C/D costs in case (C wins, includes costs of interim application, C doesn't pay D's interim application costs)
5. Costs thrown away - costs as a result of case being set aside - hearing of OG order -> hearing of set aside
6. Costs of + caused by - party pays costs they've incurred (amendments)
7. Costs here + below- party who receives costs order entitled to costs of that proceeding + proceedings in lower court (appeal) (not below divisional court)
8. No order for costs - each bears costs for hearing
170
Court's general case management powers
- change time for compliance with rule/PD/court order
- adjourn/bring forward hearings
- require party/legal rep to attend court
- stay whole/part of proceedings/judgment generally or until event
- order any party to file + serve costs budget
- take any other step/make other order to manage case + further OO
- make orders of its own initiative (w/o hearing) -> statement that parties have right to set aside/stay/vary order (within 7 days)
- strike out
171
Courts power to strike out
Strike out whole/part of statement of case on its own initiative or on party's application (preferably before allocation), court likely does at allocation/case management
Rarely done - usually require amendments/ sanctions of adverse costs order
172
Strike out v summary judgment v default judgment
Strike out - SoCs
Summary judgment - case weak on facts (no prospect of C/D succeeding)
Default judgment - D fails to respond to claim (no defence filed) - purely procedural not merits
173
Grounds for strike out
a) Statement of case has no reasonable ground for bringing/defending the claim
b) Statement of case is an abuse of process +/ likely to obstruct the disposal of proceedings
- abuse of process = misuse of procedure (issuing claim multiple times)
- obstructing just disposal - vexatious claims/ ill founded
c) Failure to comply with rule, PD, court order (lesser sanction more likely -> order for compliance/adverse costs)
174
Judgment after strike out
If whole of statement of case struck out (after party not complying with order) , court may also give judgment for party
File request at court
175
Sanction types
- Interest - reducing/increasing interest payable
- Costs - indemnity rather than standard
- Striking out statement of case
+ others
176
Power to impose sanctions
Court can impose sanctions immediately or make an unless order - automatic sanction for non-compliance with order (specifies date + time by which act should be done)
CPR imposes sanctions automatically for default -
- failure to disclose expert report prevents its use at trial
- failure to file costs budget treated as only applicable fees
Non- compliance with orders imposing sanctions -> sanction takes effect unless party applies for + gets relief
177
Time limits for sanctions
General - CPR time/court order for party can be varied by written agreement of parties unless rule/PD/court says otherwise
Parties can agree to extension of up to 28 days prior to end of deadline (as long as hearing date not at risk)
178
Relief from sanctions (after deadline passed)
sanctions + application to set aside default judgment
Application for relief requires evidence
Denton test:
- relief granted where breach is not serious/significant (not risked hearing date)
- consider why default occurred
- evaluate all circumstances of case (OO, efficiency, proportionate cost, enforce compliance)
179
In-time applications to extend time
different to sanctions
done when party realised they can't comply with deadline
Must file before deadline -> still in time application when dealt with by court after expiry
180
Application to set aside default judgment
Treated as application for relief from sanctions when D relying on discretionary ground to set aside DJ
Court should apply Denton (breach not serious/significant + why default occurred + circumstances of case)
181
Allocation to track
Small claims /Fast /Intermediate /Multi
Based primarily on value of claim (not including interest, costs, contributory negligence, amount not in dispute)
182
Small claims track
Value of max £10k
Claims by residential tenant against landlord for repairs max £1k
Road traffic claims before June 2021/child party/motorcycle - PI damages max £1k
Other road traffic - max £5k PI
Other PI claims - max £1.5k
183
Fast track
Not suitable for small + max £25k claims as long as:
- trial likely to last over 1 day (5 hours)
- only 1 oral expert evidence per party (no more than 2 expert fields)
184
Intermediate track
Not suitable for small/fast + max £100k as long as :
- trial likely to last no longer than 3 days (managed proportionately) and
- oral expert evidence likely limited to 2 experts per party
185
Multi track claims
All other types of case not fitting in small/fast/intermediate
186
Allocation process
After defence filed
-> court sends notice of proposed provisional allocation
-> parties file directions questionnaire w/ proposed directions
-> court allocates to track (hearing if needed ) + serve notice of allocation
Intermediate/multi track may need case management conference alongside directions
187
Notice of proposed allocation
Court officer provisional decision based on value -> directs parties to file directions questionnaire by date given
Claims under costs management regime (all multi track) must file + serve costs budget and an agreed budget discussion report
188
Directions questionnaire
N180 - small claims
N181 - fast/intermediate/multi track
questions helping court decide appropriate track -
- documents, witnesses, experts, disclosure, trial time estimate so court can determine prep for trial
- Multi- track - costs budget
- Proposed directions agreed between parties (not for small)
Opinions on allocation
Affirm compliance with pre-action protocol - explain why if not -> sanctions
Affirm that settlement has been explained to client - costs consequences if unreasonably refuses to settle
If all parties request stay -> stay for a month (if not settled, continue)
189
Allocation decision
Identify normal track (value) ->
Consider if different track more appropriate (criteria) -> allocate
May require hearing after DQ
Once decided, notice of allocation + copy of DQs sent to each party
Fast/intermediate - assign complexity band
190
Allocation criteria
- financial value
- nature of remedy sought
- likely complexity of facts, law, evidence
- number of parties/ likely parties
- value of counterclaim/part 20 claim (not aggregate, but value of largest claim)
- amount of oral evidence required
- importance of claim to people not party
- parties' opinions
- parties' circumstances
191
Characteristics of small claims track
Parties encouraged to avoid legal representation
- fewer formalities (some CPR doesn't apply)
- very limited ability to recover costs from an opponent (other than limited fixed costs, court fees, witness expenses)
- abbreviated directions
192
Standard directions for small claims
No disclosure/exchange of witness statements
Parties file + serve docs relied upon at least 14 days before main hearing
OG docs brought to hearing
At least 21 days notice of hearing date
Inform court if parties agree to settle
193
Characteristics of fast track
Standard directions given (hearing sometimes)
Standard timetable from notice of allocation :
Disclosure (none/standard/specific)- within 4 weeks
Exchange witness statements - 10 weeks
Exchange experts reports - 14 weeks
File pre-trial checklists at court - 22 weeks
Trial date fixed - 30 weeks
Usually County Court - 1 day - no opening speeches, 1 oral expert per party
194
Fast track complexity bands
Determines level of fixed costs recoverable by Claimant
Band 1 -
- road traffic accident non PI claim
- defended debt claim
Band 2 -
- road traffic accident + PI claims under RTA protocol
- PI claims under Pre action Protocol for Resolution of Package Travel Claims
Band 3-
- Road traffic/PI claims not under RTA
- employers liability (accident) + public liability PI claims
- possession claims
- housing disrepair claims
- other money claims
Band 4-
- employer's liability disease claims (not noise induced hearing loss)
- complex possession + housing disrepair claims
- property + building disputes
- professional negligence claims
- any other complex
195
Characteristics of intermediate track
Not suitable for small/fast up to £100k
No longer than 3 days if managed proportionately + 2 oral experts per party
Witness statements + summaries - max 30 pages
Experts reports - max 20 pages (excluding photos, annexed docs)
Max 3 parties
196
Intermediate track complexity bands
Determines amount of fixed costs recoverable
Band 1:
- 1 issue in dispute + max 1 day +:
- PI where liability OR quantum disputed
- Road traffic accident non PI
- defended debt claim
Band 2 :
- less complex claim with more than 1 issue in dispute (including PI where liability AND quantum disputed)
Band 3:
- more complex claim with more than 1 issue in dispute (noise induced hearing loss + other employer's liability disease)
Band 4:
- more complex unsuitable for 1-3 - PI claim with serious issues of fact or law
197
Intermediate track points
Directions questionnaire- parties state agreed complexity band or if not, their opinion
Case management conference + pre-trial review possible
Parties must try to agree to directions + submit them to court 7 days before CMC -> if court approves/issues own directions -> CMC vacated
Trial within 30 weeks of allocation (like fast track)
Judges have discretion to allocate complex cases under £100k to multi track so not captured by fixed recoverable costs regime
198
Multi track case management
Flexible
- Court gives directions (less complex cases or parties have agreed to directions in DQs)
- Case Management conference (hearing by phone/face to face determining future conduct)
199
Case management conference purpose
Narrows case before trial, ensure real issues identified - not just directions
- suitability of case for settlement
- position parties have reached in litigation
- steps parties have already taken
- compliance with previous directions/orders
- estimated costs of litigation, if they are proportionate
- future steps
200
Issues considered at CMC
- if claim is clear
- do SOCs need amending
- is disclosure required
- what expert evidence required + how and when to obtain
- factual evidence (witness statements) needed
- further info required
- just + save costs to split trial or trial one or more preliminary issues
201
Who should attend CMC?
Legal representative familiar with the case with authority to deal with issues (discussing directions/identifying issues) -> if not, wasted costs order (paid by solicitor)
Court can order client to attend CMC
202
CMC procedure
Consider if any applications (as soon as apparent that necessary/desirable) / bundle or case summary needed before CMC
At least 14 days before -
- disclosure report
- electronic documents questionnaire
At least 7 days before
- file draft directions
CMC
Directions given
203
CMC directions
Parties have express obligation to try to agree to directions before CMC -> must submit agreed or proposed directions 7 days before
If suitable -> vacate CMC
if not / not agreed -> hear submissions
204
Disclosure report required for CMC (unless PI claim)
At least 14 days before
With Statement of Truth
a) describing documents that may be relevant to matters in issue
b) where these documents may be located
c) how any electronic docs are stored
d) estimates broad costs involved for standard disclosure - searching for + disclosing electronic docs too
e) which disclosure directions sought
Must file any Electronic Documents Questionnaire with disclosure report again even if already done
205
Case summaries
Consider if needed
Short document under 500 words prepared by claimant + agreed by other parties if possible, assisting court in understanding issues
- chronology of claim
- factual issues agreed + in dispute
- nature of evidence needed to decide them
206
CMC at other stages in proceedings
can be reconvened in complex cases to give further directions
must file agreed /proposed directions at least 7 days before any CMC
207
Costs management regime doesn't apply to:
Small/fast/intermediate
All multi track have regime except:
Claims started after 22 April 2014 of £10million + on claim form
Claims started after 6 April 2016 made by/on behalf of minor
Claims subject to fixed costs/scale costs
Courts can disapply/apply costs regime whenever
208
Costs management regime overview
1. Budgets (estimate of future costs)
- filed + exchanged 21 days before 1st CMC (less than £50k - with DQ)
2. Budget Discussion Reports
- extent to which parties have agreed budgets
- filed + exchanged 7 days before 1st CMC
3. Case/Costs Management Conference
1 + 2 considered
4. Directions or Costs Management Order (provisional indication of reasonable + proportionate costs )
209
Budget
Estimate of reasonable + proportionate future costs with statement of truth
What party hopes to recover from opponent (not solicitors fees- may be more)
Under £50k - with DQ
Other - 21 days before 1st CMC
Prescribed form - set out assumptions budget based on + contingencies
Includes : Incurred costs, solicitors charges, disbursements, estimated future costs
210
Budget discussion report
Required to discuss costs budgets - file report 7 days before first CMC
- figures which are agreed/not agreed for each litigation stage
- brief summary of grounds for dispute
211
Costs management conference + effects
In case management conference or separately
- Case management decisions made with regard to available costs budgets
- Costs management order
- Assessment without costs management order - difference of 20% + between costs claims on detailed assessment bill of costs and in budget - receiving party must give statement of reasons why - court can reduce recoverable sum if paying party reasonably relied on budget
212
Costs management order
consider if budget reasonable + proportionate then approve it as such->
a) record extent to which parties agreed on costs - agreed figures cannot be changed by court
b) where figures disputed - record court's approval of budget after revisions
Standard assessment - won't depart from agreed costs budget unless good reason
Party cannot recover greater costs than incurred - even if budget greater (its a cap)
Costs incurred before budget discussed separately
213
Revising costs budgets
If significant developments in litigation (not correcting mistakes/inadequacies in OG budget)
1. Submit amended budget to other parties for agreement (specified form for variations)
2. Submit amended budget to court for consideration
214
Failure to file budget
Automatically treated as having filed costs budget of only applicable court fees (unless court says otherwise) - draconian
If court then approves this budget by costs management order, this is the starting point for what's awarded in future assessment proceedings
