DR Flashcards

Question

How does the Precedent H have implication for when ADR should be considered?

Answer 1

(Cost budget ) Requires the inclusion of some elements relating to negotiation and advising settlement

Answer 2

- Various Pre-action protocol and the practice direction on pre-action conduct. - Precedent H (Cost Budget) -Direction Questionaries -Case management conference

Answer 3

Requires legal representatives to confirm that they have explained to clients the need to try to settle, the settlement options and possible cost sanctions.

Answer 4

The court is likely to want to know what steps the parties have taken to explore alternative dispute resolution. The court can give direction that are aimed at encouraging and facilitating ADR, if appropriate.

Answer 5

a) Provide info about ADR b) Courts discretion on cost c) Court can order a stay in order for the parties to explore ADR d) Court can direct the parties to consider ADR and require an explanation of the parties' thinking in that regard c) The court can reinforce the direction (for the parties to consider ADR) by requiring to produce a witness statement to make a record of the situation for the courts to consider (for example)

Answer 6

The conduct of the parties and compliance with pre-action protocol.

Answer 7

Conduct before, as well as during proceedings

Answer 8

It's a type of privilege (without prejudice communication) = Cannot be inspected

Answer 9

If the refusal was reasonable by looking at all the circumstances of the case.

Answer 10

It will impose a cost penalty

Answer 11

1) The nature of the dispute (How suitable it is for ADR) 2) The merits of the case (A refusal to engage in ADR may be more justifiable if the party justifiably believes it to be strong). 3) The extent to which other settlement methods have been attempted 4) Whether the cost of ADR would be disproportionately high (Note: that free fixed-fee mediation are potentially available in relation to low value claims which might make the costs proportionate even for such claims) 5) Whether any delay in setting up and attending the ADR would have been prejudicial (example: close to trial) 6) Whether ADR has reasonable prospect of success *The court does NOT take the same approach when considering what the consequences should be for a party who has simply failed to suggest ADR.

Answer 12

This is most likely to be considered unreasonable and to be sanctioned in costs (unless the parties are already engaged in a form of ADR)

Answer 13

1) Consider with their legal advisor the merits of the offer 2) Respond promptly, in writing, setting out reasons for its decision, and noting the principles 3) if they do not wish to engage in ADR, explain in what different circumstance it would agree to ADR. 4) Make that letter with 'open' or 'without prejudice save as to costs' and 5) Consider making a separate not of any reasons for refusal that is unwilling to express to the opponent at that time, in a form which can be later shown to the court if necessary.

Answer 14

Whether English/Wales courts will decide a dispute or is it a dispute that should not be resolved in some other court/tribunal

Answer 15

Which laws in English and Wales will apply to decide the dispute, assuming they have jurisdiction

Answer 16

Because: 1) If you commence proceedings in a court which does not have jurisdiction, the court might refuse to decide the dispute, and this can lead to time and money being wasted and 2) It is possible that more than one court has jurisdiction to determine a dispute. You might then be able to choose whichever is preferable.

Answer 17

No, You need to consider whether there are additional criteria that must be satisfied to establish that the courts of England and Wales have jurisdiction.

Answer 18

1) Is the matter a civil or commercial matter? 2) Is it an excluded matter? 3) Does the clause give jurisdiction to a Contracting State? 4) Is jurisdiction given exclusively? 5) Is the agreement concluded/documented/ evidenced in writing? 6) Is the agreement an 'asymmetric' one?

Answer 19

Civil and commercial matter

Answer 20

Public law and criminal disputes

Answer 21

Consumer and Employment matters

Answer 22

Yes The Hague Convention applies

Answer 23

No, the Hague convention only applies to clauses which gives exclusive jurisdiction to a particular country

Answer 24

Only applies if the jurisdiction agreement is in writing or evidenced/ documented in writing

Answer 25

Is an agreement that provides that one party can commence proceedings only in a specific named country, but other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules. (Same rights are not given to each party)

Answer 26

Due to the way the Hague Convention is worded, it is unclear whether such a clause would fall within the Hague Convention or not.

Answer 27

1) The court indicated as having jurisdiction will have jurisdiction, and cannot decline it on the basis that the dispute should be decided in another country and 2) Any other court must refuse to hear the proceedings

Answer 28

If: 1) It is possible to serve the proceedings on the defendant in the jurisdiction (in England and Wales) - D is 'present' in jurisdiction or 2) The Court gives permission to serve the proceeding on D outside of the jurisdiction or 3) The Courts of England and Wales are given jurisdiction by a clause in a contract

Answer 29

Yes A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.

Answer 30

Yes A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.

Answer 31

1) C needs to establish one of the grounds in 6B PD 3.1 2) The claim must have reasonable prospect of success 3) England and Wales must be the proper place in which bring the claim *If these matters are established, then the court may grant permission for service outside of the jurisdiction

Answer 32

Yes, if the courts grants permission for this and proceedings are duly served outside of the jurisdiction, then this gives the courts of England and Wales (in principle) the jurisdiction to determine the claim.

Answer 33

Yes (in principle)

Answer 34

6B PD 3.1: A claim is made for a remedy against a person domiciled within the jurisdiction (1). A claim is made in respect of a contract where the contract (6) – (a) was made within the jurisdiction; (c) is governed by English law; or (d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract. A claim is made in respect of a breach of contract committed within the jurisdiction (7). A claim is made in tort where (9) (a) damage was sustained, or will be sustained, within the jurisdiction; or (b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.

Answer 35

This is a relatively low threshold and has been equated to the prospect of success needed to resist an application for summary judgment: De Molestina v Ponton [2002] 1 Lloyd's Rep 271. Summary Judgement: no real prospect means: the position is fanciful, imaginary or false.

Answer 36

If it is the natural place to bring the proceedings. Examples: - Evidential matter (witnesses are based there) - English law applies and/or - D is normally resident in England/Wales

Answer 37

Yes If justice nonetheless requires the claim be tired in England Example: - There is a risk of improper government interference in a different jurisdiction.

Answer 38

Yes, The claimant can serve the claim form on a defendant outside the jurisdiction without the court's permission where a contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)). This provides protection in the same area as the Hague Convention (addressed in a different element). However, the Hague Convention only applies to exclusive choice of court agreements concluded on or after 1 October 2015. If the agreement was concluded before this date, or does not give jurisdiction to the courts of England and Wales exclusively, then the Hague Convention does not apply, and this rule provides an alternative route to establishing jurisdiction (CPR 6.33(2B)).

Answer 39

- UK - All EU members states -Mexico -Singapore and -Montenegro

Answer 40

No As the USA is not a contracting state

Answer 41

6 months of the date of issue

Answer 42

No because: a) The Hague Convention gives the court jurisdiction or b) a contract contains a term to the effect that the Courts of England and/or Wales have jurisdiction to determine the claim

Answer 43

1) Whether permission from the court to do so is needed and 2) Which methods of service are possible

Answer 44

C must file: - Form N510 when it issues and files its claim form

Answer 45

Confirms to the court the basis upon which it has jurisdiction over a foreign -domiciled D in circumstances where the courts permission has not been sought to serve the claim form abroad.

Answer 46

C will have to make an interim application to court (usual rules applies), by filing an application notice in Form N244, to ask the court to allow it to serve the claim form on D.

Answer 47

- Service in accordance with an agreed regulation, convention or treaty. Any regulation, convention or treaty in relation to service referred to in this element will only apply to whichever countries have contracted into it, along with the UK. - Service through the government of the destination country (if that government is willing to do this). - Service by any method permitted by the law of the destination country. In practice, it is often preferred to take local advice in the destination country and engage a local agent to effect service by a method which is permitted there.

Answer 48

The amount of 'extra time' allowed will vary depending on which country is involved

Answer 49

The amount of 'extra time' allowed will vary depending on which country is involved

Answer 50

By a variety of methods Including personal service (actually leaving the proceedings with an individual defendant)

Answer 51

An application to the court for an order: 1. An order for alternative service or 2. an order dispensing with service

Answer 52

If there is good reason to do so i.e where the other available methods of service would be ineffective or impossible

Answer 53

- An application must be made to the court - Setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these method have been unsuccessful + State the alternative method proposed.

Answer 54

1) Serving on solicitors acting for a party where the solicitor has not been authorised to accept service and 2) placing an advert in a newspaper notifying D that the proceedings have commenced..

Answer 55

1) retrospectively and 2) to remedy irregular service

Answer 56

When the other side is already aware of the document. * Courts discretions applies

Answer 57

Yes If the court agreed to the amendment being made, it might dispense with service. i.e: order that C does not have to serve the document on D, bec D is already aware.

Answer 58

The parties are free to choose which country's law will apply

Answer 59

1) Having a choice of law clause or 2) demonstrated by the circumstances of the case.

Answer 60

A clause expressly stating which country's law will apply in the contract

Answer 61

The choice can be made at any time (before and after the dispute has arisen)

Answer 62

The chosen law that the parties chose.

Answer 63

In the absence of choice, you should consider Article 4 (1) (a) to (h), which set out various types of contact and laws that will apply

Answer 64

- Sales of goods: Seller's habitual residence - Provisions of Service: Service provider's habitual residence - Contract relating to land: where the land is situated -Distribution Contract: Distributor's habitual residence

Answer 65

Seller's habitual residence

Answer 66

Service provider's habitual residence

Answer 67

Where the land is situated

Answer 68

Distributor's habitual residence

Answer 69

Is where its central admission is

Answer 70

It is where that person's principal place of business is.

Answer 71

Article 4 (2): The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence. (Where the characteristic performer has its habitual service = party doing somethings residence)

Answer 72

Yes, If the contract is manifestly more closely connected with that other country

Answer 73

Step 1: Does Rome I apply? Yes Step 2: Have the parties chosen which law should apply? Step 2(a): Yes = the country's law will apply Step 2(b): No = Step 3 Step 3: Does the contract relate to one of the case specified in Article 4(1) (a) to (h)? Step 3 (a): Yes = those articles apply Step 3 (b): No = the country where the 'characteristic performer' has its habitual residence Step 4: Is the contract manifestly more closely connected with another country?

Answer 74

Yes If the contract is manifestly more closely connected with another country

Answer 75

No Contract needs to be entered by 17 of December 2009

Answer 76

1) Contracts of carriage 2) Consumer Contracts 3) Employment Contracts 4)Insurance Contracts

Answer 77

No Only applies to events giving rise to damage which occurred on or after 10th of January 2009

Answer 78

1) Product liability 2) Unfair Competition 3) Environmental damage 4) Infringement of intellectual property and 5) Industrial action

Answer 79

The parties are free to choose which country's law will apply

Answer 80

1) Having an express contractual term between parties or 2) demonstrated by the circumstances of the case.

Answer 81

The choice of law will be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law

Answer 82

The chosen law of the country will apply.

Answer 83

In the absence of choice, if the claimant and defendant both reside in the same country then that country's law will apply, even if the dame happened in a different country

Answer 84

The country both parties reside in

Answer 85

The applicable law is: the law of the country where the damages occurs

Answer 86

Yes, The court can apply a different law if the tort is manifestly more closely connected with that other country

Answer 87

Yes, The court can apply a different law if the tort is manifestly more closely connected with that other country

Answer 88

Step 1: Does Rome II apply? Yes Step 2: Have the parties validly chosen which law should apply? Step 2 (a): Yes = The country's law will apply Step 2 (b): No = Step 3 Step 3: Do the claimant and defendant habitually reside in the same country? Step 3 (a): Yes = That country's law apply Step 3 (b): No = apply the law of the country in which damages occurs Step 4: Is the claim manifestly more closely connected with another country?

Answer 89

Yes Whether English or Scottish courts or Northern Irish have jurisdiction or Whether English/Welsh or Scottish law or Northern Irish law applies

Answer 90

Rome I: Contractual disputes Rome II: Tortious Disputes

Answer 91

The Civil Jurisdiction and Judgments Act 1982: In relation to some particular types of disputes, one part of the UK, and only that part can have jurisdiction

Answer 92

Disputes about land *Land must be heard in the part of the UK where the land is.

Answer 93

Where parties agree that a particular part of the UK will have jurisdiction, then that part will have jurisdiction

Answer 94

If a party submits to the jurisdiction of a court in the UK. For example: By filing a defence rather than contesting jurisdiction, then that court will have jurisdiction

Answer 95

Basic Rule: A person domiciled in a part of the UK should be sued in the courts of that part. (Sue where D is domiciled)

Answer 96

1) If they are residents there and 2) the nature and circumstance of their residences indicate they have a substantial connection with that part.

Answer 97

A company is domiciled: 1) Where its 'seat' is. a A company will generally have its seat where it has its registered office or 2) If none, where it was incorporated

Answer 98

1) In matters relating to a contract, in the courts for the place of performance of the obligation in question 2) In matters relating to tort, in the courts for the place where the harmful event occurred or may occur 3) As regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated 4) where he is one of the numbers of defendants, in the courts for the place where any of them is domiciled, provided the claims are so closely connected that is expedient to hear and determine them together 5) on a counter-claim arising from the same contract or facts on which the original claim was based, on the court which the original claim is pending

Answer 99

1) C alleges that the court has jurisdiction pursuant to a convention such as the Hague Convention on Choice of Court Agreements but D disputes this 2) C has obtained permission to serve proceedings out of the jurisdiction but D considers that none of the gateways for obtaining such permission are satisfied and/or the Courts of England and Wales are not the proper place for the claim to be heard. 3)The proceedings have been served effectively on D within the jurisdiction, but there is another more appropriate forum.

Answer 100

Yes The fact that the court has determined that England and Wales is the proper place for the claim to be heard when granting permission does not prevent the defendant from, upon receipt of proceedings, seeking to argue that to argue that England and Wales is not the proper place for the claim to be heard.

Answer 101

1. The defendant must file an acknowledgment of service (there is a box on the acknowledgement of service to indicate that the defendant intends to consent jurisdiction. 2. The defendant must then apply within 14 days after filing the acknowledgment of service, disputing the court's jurisdiction. That application must be supported by evidence.

Answer 102

Within 14 days after filing the acknowledgement of service

Answer 103

They can NOT

Answer 104

The court's jurisdiction is established

Answer 105

By engaging with the proceeding beyond filing an acknowledgment of service.

Answer 106

A defendant served with proceeding must: 1) Not take any steps to engage with the proceedings beyond filing an acknowledgment of service and then 2) apply to the court to challenging its jurisdiction (within 14 days of filing an acknowledgment of service).

Answer 107

- Presence in the jurisdiction – permission is not needed to serve out of the jurisdiction (claim is not being served out of the jurisdiction), service is via usual rules that apply to 'domestic' disputes  E.g. could have a registered office - Hague Convention on Choice of Court Agreements - permission is not needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country - Contractual provision giving jurisdiction - permission is not needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country

Answer 108

- Common law – permission is needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country  Would be a default, interim, without notice application * As soon as practicable but no less than 3 days  There would be an interim application for costs after this

Answer 109

- To avoid submitting to the court's jurisdiction, a defendant served with proceedings must not take any steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction, as set out earlier in this element. The party must not, for example, file a defence.

Answer 110

to enable the court to dispose of claims or issues without the need for a full trial

Answer 111

* The court can strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (CPR 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (CPR 3.4(2)(b))(there are also other grounds for strike out). The court may give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on their claim or defence (CPR 24.2).

Answer 112

- A: * The claimant has no real prospect of succeeding on the claim or issue; o OR * The defendant has no real prospect of successfully defending the claim or issue. - And B: * There is no other compelling reason why the case or issue should be disposed of at trial.

Answer 113

It means the position is fanciful, imaginary or false. * To defeat the application, the respondent does not have to show that its case will probably succeed; just some chance even if it is improbable. The word real means more than merely arguable.

Answer 114

* Claimant- After the defendant has filed an acknowledgement of service or defence (or earlier with the court's permission)(CPR 24.4) * If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will not normally be considered before the defence has been filed or time for doing so has expired (24 PD 2(6)). * Defendant - Can apply anytime after proceedings have commenced. * Court - Can fix hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3). * Ideally, the claimant or defendant should apply for summary judgment either before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs (26 PD 5.3(1)). If the application is made on filing Directions Questionnaires, the court will delay allocating the matter to a track until after the summary judgment hearing.

Answer 115

create a pause in the proceedings while the application is being decided so that: - - If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)). - - If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.

Answer 116

* Issue: - - Application notice (form N244) - - Supporting evidence - - Draft order - - Fee * Service (at least 14 days before the hearing): - - Application notice (form N244) - - Supporting evidence - - Draft order - - Notice of hearing date * Further evidence: - - Respondent files at court and serves on the applicant evidence at least 7 days before hearing - - Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing * Both parties file and exchange statements of costs not less than 24 hours before hearing.

Answer 117

Include a statement that it is an application for summary judgment under Part 24; and - - Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least seven days before the summary judgment hearing (24PD 2)

Answer 118

* Dismissal of the application - The application fails. The issues must continue to trial. The court will give directions to take the claim forward. * Dismissal of the claim - If the defendant applies for summary judgment and succeeds, the claim is dismissed. The defendant has 'won'. * Judgment on the claim - If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant: the claimant has 'won'. * Conditional order - The judge has decided that the respondent may succeed but it is improbable that it will do so: the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court, such as paying a sum of money into court.

Answer 119

* Defendant needs more time to investigate * Expert evidence is required * Multi-party litigation * Scrutiny of key documents is required * Defendant has a right to trial by jury eg fraud

Answer 120

An interim payment is a payment on account of damages, debt or other sum which a defendant may be held liable to pay to a claimant.

Answer 121

* The court will only make an order where any of the following conditions (requirements) are satisfied: - - The defendant has admitted liability to pay damages (or some other sum of money) to the claimant. - - The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed. - - It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.

Answer 122

* The evidence supporting an application for summary judgment must address the grounds set out above. * The application notice or supporting evidence (usually a witness statement) must also: - - Identify concisely any point of law or provision in a document on which the applicant relies; and - - State the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim / issue should be disposed of at trial.

Answer 123

* The applicant must provide evidence alongside its application. The evidence must deal with the following (25B PD 2.1): - - The reasons for believing that the conditions for making an interim payment are satisfied; - - The sum of money for which final judgment is likely to be given; - - The sum of money sought by way of an interim payment; - - The items or matters in respect of which the interim payment is sought; - - Any other relevant matters; - - In claims for personal injuries, details of special damages and past and future loss; and - - In claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim. * Any documents in support of the application should be exhibited, including, in personal injuries claims, the medical report (25B PD 2.1).

Answer 124

* A claimant seeking an interim payment would make a request for a voluntary payment from the defendant first. If the defendant does not agree, for example if it is defending the claim, the claimant would make an application to the court for an interim payment (CPR 25.7). * Although the claimant can make a request to the defendant for a voluntary interim payment at any stage in the proceedings (including pre-action), the claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgment of service (CPR 25.6(1)). * The claimant can make more than one application for an interim payment order. * If the claimant applies for an interim payment, then the normal rules relating to interim applications apply (see the element relating to interim applications) subject to modifications / additional requirements set out on the following pages. On the following page the text struck through, in red, shows the 'normal' rules. * The court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgment, taking into account any contributory negligence, set-off or counterclaim – (CPR 25.7). It may order payment in instalments.

Answer 125

* Issue: - - Application notice (form N244) - - Supporting evidence - - Draft order - - Fee * Service (at least 14 days before the hearing): - - Application notice (form N244) - - Supporting evidence - - Draft order - - Notice of hearing date * Further evidence: - - Respondent files at court and serves on the applicant evidence at least 7 days before hearing - - Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing * Both parties file and exchange statements of costs not less than 24 hours before hearing. * Hearing

Answer 126

* Unless the defendant agrees, an interim payment made by a defendant in the course of the proceedings (whether voluntarily or by court order) will not be disclosed to the trial judge until all questions of liability and quantum have been decided (CPR 25.9).

Answer 127

An interim injunction requires a party to do (mandatory) or to refrain from (prohibitory) an act on a temporary basis, usually until trial. - An interim injunction is a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute. It is usually made in circumstances of urgency and lasts until trial or further order.

Answer 128

equitable and a discretionary remedy

Answer 129

Step 1: is there a serious question to be tried? - - Step 2: would damages be an adequate remedy for the applicant and can the respondent afford to pay? If not, would damages be an adequate remedy for the respondent if it later transpires the injunction was wrongly granted and can the applicant afford to pay? - - Step 3: where does the balance of convenience lie?

Answer 130

final injunction (usually made at trial) that continues with no limitation of time

Answer 131

Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Answer 132

where it is just and convenient

Answer 133

- - An injunction will not be obtained when it would serve no practical purpose; - - The court might refuse to grant an injunction if the applicant has not come to court with 'clean hands' - - Excessive delay may lead to a refusal of the application.

Answer 134

by written evidence setting out the facts to justify the relief sought if the application is made without notice, the evidence must state the reason why notice has not been given

Answer 135

Cross undertaking in damages * - Without notice safeguards * - Applications before a claim is issued

Answer 136

* A court will often decide to grant an interim injunction only if the applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction

Answer 137

If the application is made without notice and the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the 'return date'. The respondent will be given notice of that hearing and the opportunity to attend it to make representations, and at that second hearing, the court can make the following orders: - - Maintain order (to keep the injunction in place until the trial of the substantive matter). - - Discharge the injunction vary the terms of the injunction. - - Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted. - - Accept an undertaking by the respondent not to do the acts in question, in place of the injunction. * In the case of a without notice application, the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant * The applicant’s legal representatives must prepare a full note of the hearing as soon as possible and this should also be served on the respondent (and any other party affected by the order) without delay. The full note of the hearing ensures the respondent knows what case they have to meet at the next, with notice, hearing.

Answer 138

* In cases of exceptional urgency, not only can a party apply for an interim injunction without notice but a party can apply before a claim form has even been issued.

Answer 139

if the matter is (CPR 25.2(2)(b)): - - Urgent; or - - It is otherwise desirable to do so in the interests of justice. * In these circumstances, the applicant must undertake to the court to issue a claim form immediately.

Answer 140

* Interim applications can be made by any party.

Answer 141

as soon as it becomes apparent that it is necessary or desirable to make an application, the party should apply

Answer 142

* Parties are under a specific obligation to ‘bunch’ their interim applications

Answer 143

* The process of making an application begins by the applicant filing an application notice (Form N244) at court. The application notice states (CPR 23.6): - Who is making the application - What order the applicant wants - Why the applicant is asking for that order - What information the applicant relies on in support of the application. * A court fee is payable to issue the application notice. * The application should be made to the court in which the main claim is presently being dealt with or, in the case of pre-action applications, is likely to be dealt with (CPR 23.2).

Answer 144

- In the application notice itself (Part C, in which case the statement of truth must also be completed (23A PD 9.7)) - By referring to the existing statements of case - In a witness statement (or, if required, affidavit).

Answer 145

* The application notice, note from the court indicating the date and time of the hearing, evidence and draft order must be served on the other party after the application has been issued by the court * Service must be effected **as soon as practicable after the application is filed and not less than three clear days before** the application is to be heard

Answer 146

* Issue: - Application notice (form N244) - Supporting evidence - Draft order - Fee * Service (as soon as practicable but not less than 3 clear days before the hearing): - Application notice (form N244) - Supporting evidence - Draft order - Notice of hearing date * Further evidence: - Respondent files at court and serves on the applicant evidence as soon as possible - Applicant files at court and serves on the respondent evidence in reply as soon as possible * Both parties file and exchange statements of costs not less than 24 hours before hearing. * Hearing

Answer 147

- there is exceptional urgency (for example, a remedy is needed immediately); - the overriding objective is best furthered by doing so; - all parties consent; - the court gives permission; - a court order, rule or practice direction permits; or - a date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. In this case, the party should still inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it.

Answer 148

- The application must explain why no notice is given; - The applicant must draw to the court's attention arguments and evidence in support of the (absent) respondent's position. - The applicant must serve the respondent a**s soon as possible after the hearing**, whether or not the court has granted the relief sought. - The documents the applicant must serve on the respondent are: * The application notice * The evidence in support * The order (CPR 23.9). - The court order must contain a statement of the respondent's right to make an application to set aside or vary the order. **Any application to set aside must by made within 7 days of the order being served on the other party** (CPR 23.10).

Answer 149

Disclosure is stating to another party that a document exists or has existed

Answer 150

The obligation comes from a court order. There is NO automatic obligation to give disclosure of anything.

Answer 151

On allocation OR case management conference OR on parties allocation .

Answer 152

Standard Disclosure OR An Alternative Disclosure OR No order

Answer 153

Direction given on allocation.

Answer 154

At least 14 days before the date fixed for the final hearing. Each party must file and server on every other party copies of all docs on which they intend to rely on.

Answer 155

Directions on Allocation and is usually directions is for each party to give 'standard disclosure'

Answer 156

At the CMC (Case Management Conference), the court will consider carefully what form of disclosure is most appropriate.

Answer 157

1. what relevant doc exist or may exist 2. where, and with whom, they are 3. how any electronic doc are stored 4. estimate the broad range of the cost that could be involved in giving standard disclosure in the case 5. States which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought

Answer 158

only if: a) they contain a modification, obliteration or other marking or feature which itself satisfies the test for standard discourse. b) the party has never had the original or no longer has the original in its control.

Answer 159

Any duty of disclosure continues until proceedings are concluded. A party must disclose docs which come within its control or were created after the date it originally gave the disclosure if they fall within the disclosure obligations.

Answer 160

1. the document on which he relies and 2. the document which - adversely affects his own case -adversely affects another party's case or - supports another party's case and 3. the docs which they are required to disclose by a relevant practice direction.

Answer 161

1. is it a document ? 2. is/was it in the party's control? 3. Does it fall within standard disclosure?

Answer 162

Is anything which records information (very broad). it includes: a. digital recordings b. emails c. photography d. text messages e. voicemails f. metadata (data about data eg the time of creation or modification of a file or its author)

Answer 163

The duty of disclosure is limited to documents which are or have been within the party's control.

Answer 164

A) Doc is (or was) in the physical possession of the party. B) The party has (or has had) a right to possession of the doc. (Eg doc held by party's agent) c)The party has (or has had) a right to inspect or take copies of the doc (eg a party has a right to inspect their own medical records)

Answer 165

It helps to clarify the issues in dispute * - to enable parties to evaluate the strength of the claim against them * - to encourage settlement - And to ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case

Answer 166

Inspection is the party to whom a document has been disclosed looking at a document. Where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection.

Answer 167

They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or The party has never had the original or no longer has the original in its control.

Answer 168

The general rule is that if a party has to disclose a document, it also must allow the other party to inspect the document

Answer 169

A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose eg in other proceedings

Answer 170

Complete the -Disclosure Report (Filed and Served) and - Draft Direction (Proposal)

Answer 171

Not less than 14 days before CMC (Case Management Conference)

Answer 172

At least 7 days before any CMC (Case Management Conference).

Answer 173

Complete the -Disclosure Report (Filed and Served) and - Draft Direction (Proposal)

Answer 174

▪ The document has been read to or referred to by the court at a hearing held in public ('read' includes pre-read and referred to in skeleton arguments); * ▪ The court gives permission; or * ▪ The party who disclosed the document and the person to whom the document belongs agree.

Answer 175

- A party has a right to inspect a document that has been disclosed except where: ▪ The document is no longer in the disclosing party's control. ▪ Allowing inspection would be disproportionate. ▪ The disclosing party has a right or duty to withhold inspection (most likely because the document is privileged).

Answer 176

a party can redact parts which are irrelevant or which are privileged. A party cannot redact something simply because it is confidential.

Answer 177

A party wishing to inspect documents must send a written notice, and inspection must then be allowed within 7 days. A party can also / alternatively ask for copies, if it undertakes to pay reasonable copying charges, and the copies must then be provided within 7 days of the request.

Answer 178

It requires a party to disclose documents which are in their control, and which they rely on, or which are adverse to their case, adverse to another party's case, support another party's case, or which a practice direction requires them to disclose. Procedurally speaking, standard disclosure is given by drawing up a list of documents which are being disclosed. The list has three parts: a) in control, inspection permitted; b) in control, inspection not permitted; c) no longer in control.

Answer 179

reasonable

Answer 180

▪ The number of documents involved ▪ The nature and complexity of the proceedings ▪ How difficult/expensive it is to retrieve any document ▪ The significance of any document likely to be found

Answer 181

* - Standard disclosure is performed by each party making a list of the required documents and serving it on the other party (CPR 31.10). The normal direction is for lists to be exchanged simultaneously. - The list falls into three parts: 1. ▪ 'I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.' 2. * ▪ 'I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].' 3. * ▪ 'I have had the documents numbered and listed below, but they are no longer in my control.'

Answer 182

sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date); ▪ certifies the party understands its duty to disclose the documents; and ▪ certifies that, to the best of the party's knowledge, it has carried out that duty. * - The disclosure statement must include details of any documents the inspection of which the party considers disproportionate (CPR 31.3(2)). * - The disclosure statement must be made (signed) by the disclosing party. * - If the 'person' making the statement is a company, the statement should be made by an appropriate officer, who must identify him/herself and state why they are the appropriate person to make the statement (CPR 31.10(7)).

Answer 183

A solicitor is required to 'endeavour to ensure' that the person making the disclosure statement understands the duty of disclosure (31A PD 4.4). A solicitor should therefore advise its client of the disclosure obligations at the outset of the case.

Answer 184

A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice'

Answer 185

'A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect'

Answer 186

'A document whose purpose is a genuine attempt to settle a dispute

Answer 187

Firstly, if there is a clear and distinct part of a document which does attract privilege, but the remainder does not, then the privileged part can and indeed should be redacted, to avoid waiving privilege Secondly, if the information is totally irrelevant to the dispute, it can be redacted. So information which is confidential / commercially sensitive and irrelevant is generally redacted.

Answer 188

party to deliberately allow inspection of a privileged document

Answer 189

* - Firstly, waiver of privilege in part of a wholly privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter: a party cannot 'cherry pick' certain parts of a privileged document to reveal to the other side/the court (Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529). * - Secondly, by way of expansion of the previous point, waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court / opponent too (for example, if they all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood).

Answer 190

If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings (The Aegis Blaze [1986] 1 Lloyd's Rep 203) unless something takes place to cause the privilege to be lost, such as waiver (see above).

Answer 191

Where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it.

Answer 192

a party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and (subject to certain restrictions) an expert's report

Answer 193

A party wishing to inspect documents must send a written notice of its wish to do so to the other side and the other side must allow inspection within seven days of receipt of the notice (CPR 31.15(a) and (b)). The court directions may vary these time limits. It is possible to ask for copies instead or as well, with an undertaking to pay reasonable photocopying charges (CPR 31.15(c)). Copies must provided within 7 days of receipt of the request.

Answer 194

whether what a client passes on is a repetition of his lawyer's legal advice (which is covered by privilege) or his own opinion (which is not covered by privilege) is often debateable. It is therefore important to advise clients to be very careful about how legal advice gets disseminated to the board of a company for fear of losing legal advice privilege in relation to the advice.

Answer 195

documents which are brought into existence for the purpose prosecuting or defending the claim. or Communication between lawyer and third party

Answer 196

Dominant purpose: If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose – the test, therefore, is one of dominance and not exclusivity.

Answer 197

This means litigation must be a real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient.

Answer 198

The document need not be marked 'without prejudice' for the privilege to apply. Conversely, a document marked 'without prejudice' may not be a genuine attempt to settle and would therefore fall to be inspected

Answer 199

This means that the court will not see the document's contents unless it is considering the costs of the action or a particular issue. If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding (for example) the parties' conduct and which party is liable for costs/the amount of costs payable.

Answer 200

an order that party must carry out a specified search for documents and/or disclose certain documents. An order for specific inspection is an order that a party permits inspection of a document which the disclosing party alleges it would be disproportionate to allow inspection of. - An order for specific disclosure is an order that a party must do one or more of the following things (CPR 31.12(2)): ▪ Disclose documents / classes of documents specified in the order; ▪ Carry out a search to the extent stated in the order; ▪ Disclose any documents located as a result of that search.

Answer 201

When deciding whether to grant such an order, the court will consider all the circumstances, the overriding objective, and If the court decides that the party against whom specific disclosure is sought has 'failed adequately to comply with the obligations imposed by an order for disclosure', the court 'will usually make such order as is necessary to ensure that those obligations are properly complied with'.

Answer 202

An order for pre-action disclosure allows disclosure to obtained from a likely opponent before proceedings have been issued.

Answer 203

The court has the jurisdiction to make an order for specific disclosure and / or inspection at any time after proceedings have been issued. * - In practice, an application for specific disclosure is generally made after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party (or parties).

Answer 204

- The application must: ▪ specify the order sought, including listing the documents sought in a schedule to the order. The more specific the list, the more likely the application is to succeed; and ▪ be supported by evidence (CPR 31A PD 5.2 and 5.3).

Answer 205

The respondent is likely to be a party to subsequent proceedings; and * ▪ The applicant is also likely to be a party to those proceedings; and * ▪ If proceedings had started, the respondent's duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks (so The scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order); and ▪ Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. | If all the prescribed conditions mentioned above are satisfied (CPR 31.1

Answer 206

the application must: ▪ specify the order sought, including listing the documents sought ▪ be supported by evidence may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection

Answer 207

In relation to costs, the general rule for pre-action disclosure applications is that the party against whom an order for pre-action disclosure is sought will as a general rule be awarded the costs of the application and of complying with it. Accordingly, the applicant for pre-action disclosure will generally have to pay the respondent’s costs.

Answer 208

The court has the power to order a person who is not a party to the proceedings to give disclosure of documents The court may order a person who is not a party to the proceedings to give disclosure of documents where: ▪ The documents are likely to support the applicant's case or adversely affect the case of one of the other parties to the proceedings; and ▪ Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Answer 209

A Norwich Pharmacal order orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant – usually the identity of the defendant

Answer 210

Before a court will make such an order, it must be satisfied that: ▪ A wrong has been carried out by an ultimate wrongdoer (not the respondent); ▪ The order is needed to bring a claim against the wrongdoer; and ▪ The respondent is (i) more than a 'mere witness' to the wrongdoing, and (ii) is likely to be able to provide the necessary information.

Answer 211

The requirements that must be fulfilled before the court will consider making an order for disclosure by a person who is not a party to the relevant proceedings are that an order can be made where: ▪ The documents are likely to support the applicant's case or adversely affect the case of one of the other parties to the proceedings (this is similar to the test for standard disclosure); and ▪ Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Answer 212

the application must: * ▪ specify the order sought, including listing the documents sought * ▪ be supported by evidence * ▪ require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.17(4)).

Answer 213

The presumption is that the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence. * - This presumption may be rebutted and a different costs order made (CPR 46.1(3)). For example, if the non-party respondent has acted unreasonably in opposing the application and any previous request for disclosure.

Answer 214

'Necessary' and 'proportionate'

Answer 215

he CPR require the parties to manage electronic documents to minimise the cost incurred in disclosure and to use technology to ensure that the search is undertaken efficiently and effectively. To keep the work involved to a sensible level, the parties must discuss and (if possible) agree such matters as the categories of electronic documents to be disclosed, how data will be exchanged, the format for inspection and any limitations, for example, what keywords will be used. This must be done before directions are given for the conduct of the case and the parties may, if they wish, use an electronic disclosure questionnaire for this purpose.

Answer 216

The lower court decision was 1) wrong or 2) unjust because of serious procedural or other irregularity

Answer 217

Is a review of the lower court’s decision based on the evidence and representation the lower court heard.

Answer 218

No only the form of review

Answer 219

1) an error of law or 2) an error of fact or 3) an error in the exercise of the court’s discretion

Answer 220

The irregularity must be 'serious' and it must have caused the lower court's decision to be unjust.

Answer 221

1) A party being no chance to make submissions 2) A party's submission or too much of their skeleton argument being incorporated into the judgement 3) The lower court judge having been involved in pervious proceedings. 4) The manner in which the judge handled the evidence.

Answer 222

They have a choice: 1) Apply for permission from the lower court at the time when the decision to be appealed is made. and / or 2) Make the application to the appeal court later (within 21 days of the date of the lower court decision) Done in writing, using Form N161, and usually no hearing. More time to prepare the application, Can pursue even if applied unsuccessfully to lower court.

Answer 223

Obtaining permission to appeal

Answer 224

1) At the time when the decision to be appealed is made 2) Done orally (parties are already before the judge)

Answer 225

1) Save time for the court and parties 2) save on costs 3) does not prevent later application to the appeal court

Answer 226

1) Writing (form N161), within 21 days of the date of the lowers court's decision (no hearing)

Answer 227

On papers alone UNLESS: The judge considers that the matter should be delt with orally , in which case they can exercise their discretion to summon the parties for an oral hearing

Answer 228

Appeals of the decision made on the first appeal of a lower court's decision.

Answer 229

Court of Appeal

Answer 230

1) Appeal would have a real prospect of success AND raise an important point of principle or practice or 2) There is some other compelling reason for the Court of Appeal to hear it

Answer 231

The appeal can proceed: 1) The appellant's notice, which is used to request permission if necessary, doubles as the document which initiates the appeal itself 2) In it, the appellant also gives details of the grounds of their appeal and other information, evidence and supporting documents 3) The appeal court uses the contents of the appellant's notice to progress the appeal to its final determination

Answer 232

The appellant notice

Answer 233

Yes The general rule: An appeal does not operate as a stay of execution on the order of the lower court

Answer 234

The High Court and the Court of Appeal A stay pending appeal will generally not be ordered but in certain circumstances it will be justified and the application should be made.

Answer 235

Carrying out a lower court's order to demolish a building would defeat the benefit of a successful appeal. It may therefore serve justice to stay the order to demolish pending the appeal being heard

Answer 236

Appeal lies to the next level of judge in hierarchy

Answer 237

High Court

Answer 238

- Generally – to County Court Circuit Judge. - Non-insolvency Companies Act matters – to High Court Judge. - exceptional circumstances – to Court of Appeal

Answer 239

- To High Court Judge - exceptional circumstances – to Court of Appeal

Answer 240

- To High Court Judge (if first appeal) - To Court of Appeal (if second appeal) - exceptional circumstances – to Court of Appeal

Answer 241

- To Court of Appeal (could be first or second appeal) - To Supreme Court – but exceptional circumstances only, not covered in this element.

Answer 242

The appeal court has power to: 1) Affirm, set aside or vary any order or judgment made or given by the lower court 2) Refer any claim or issue for determination by the Lower Court 3) Order new trail or hearing 4) Make orders for the payment of interest 5) Make a costs order 6) Dismiss the appeal

Answer 243

general rule is that permission from either the lower court or appeal court will be required before an appeal can proceed.

Answer 244

within 21 days of the lower court’s decision.

Answer 245

- Permission will only be granted where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

Answer 246

if that appeal court refuses the paper application for permission, the appellant may normally request (within 7 days after service of the notice refusing permission) that the decision be reconsidered at an oral hearing (CPR 52.4). · If permission is refused at that oral hearing, no appeal against that decision is possible.

Answer 247

- The general rule is that an appeal (including the application for permission if this has not already been granted) must be made within 21 days of the date of the lower court’s decision and using Form N161 – the 'Appellant's notice’ (CPR 52.12(2)(b)). - The court may order differently (CPR 52.12(2)(a)). If a party has a good reason for seeking a longer period in which to appeal it can apply to the lower court for an extension of time (52BPD 3). - Judgments and orders take effect from the date they are given or made or such later date as the court may specify (CPR 40.7(1)). A delay in formally drawing up a judgment or order will not delay time running for the purpose of making an appeal.

Answer 248

- The Court of Appeal will not give permission for a second appeal to go ahead unless it considers that (CPR 52.7): · the appeal would have a real prospect of success **and** raise an important point of principle or practice; or · there is some other compelling reason for the Court of Appeal to hear it.

Answer 249

is used to request permission if necessary, doubles as the document which initiates the appeal itself. - In it, the appellant also gives details of the grounds of their appeal and other information, evidence and supporting documentation. - The appeal court uses the contents of the appellant’s notice to progress the appeal to its final determination

Answer 250

an appeal does not operate as a stay of execution on the order of the lower court

Answer 251

- To Supreme Court (would be a second appeal)

Answer 252

Any issues which remain unsettled between the parties

Answer 253

Steps that the parties will need to take to ensure that the case is fully prepared for trial, which may include some or all of the following: 1) Pre-trial checklist/listing questionnaire 2) Brief to Counsel 3) Reading list 4) Pre-trial review 5) Skeleton arguments 6) Witness summons 7) Case summary 8) Authorities 9) Trial bundle 10) Notice to admit facts

Answer 254

In cases allocated to the fast track and multi-track

Answer 255

Provides the court with another opportunity to: 1) Check that the case management directions previously given have been complied with and that the case is ready for trial 2) give any further necessary directions & 3) Fix a date for trial (or confirm a date that has already been fixed)

Answer 256

1) To confirm whether they have complied with the directions given (and of not which directions are outstanding and by what date they will be complied with) 2) To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions 3)To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not such an order should now be sought by way of application (Step 2) 4) To give details of experts, whether they have met to discuss their reports and whether their reports have been agreed 5) To give dates within the trial period when experts will not be available 6) To give details of who will present the case at trial and their availability and any special facilities they require 7) To give details of who will present the case at trial and their availability within the trial period 8) To estimate the trial length, including cross-examination and closing arguments and to attach a proposed timetable for trial (preferably agreed between the parties).

Answer 257

14 days before the due date for filing. The due date will be at least 8 weeks prior to the trial date or the start of the trial

Answer 258

Parties are encouraged to exchange copies of the pre-trial checklists before filing.

Answer 259

The court will give any further directions that are needed to get the matter listed for trial.

Answer 260

These directions may given with or without a hearing as appropriate

Answer 261

The hearing will usually be the pre-trail review

Answer 262

Provisions about: 1) evidence (in particular that of experts or other special arrangements) 2) a trail timetable 3) Preparations of trial bundles & 4) Any other matters required to prepare the case for trial

Answer 263

- The purpose of the PTR is to check that the parties have complied with all previous orders and directions, and to give directions for conduct of the trial.

Answer 264

To ensure that all relevant material is before the court at trial so that the trial proceeds smoothy and expeditiously. *It also assists advocates to prepare for and present their cases effectively and the judge to identify any pre-trial reading.

Answer 265

Into paginated and indexed files

Answer 266

The claimant

Answer 267

no more than seven days and no less than 3 days less than 3 days before the trail begins.

Answer 268

If there are any areas of disagreement, a summary of the points in dispute should be included.

Answer 269

- May be penalised in costs. - slows proceedings, - wastes courts time

Answer 270

- The court - each parties to the proceedings -and a further set for use by the witnesses while giving evidence.

Answer 271

Unless the court orders otherwise a trial bundle should include a copy of: 1) Claim form and all statements of case 2) Case summary and/or chronology where appropriate 3) requests for further information and responses to these. 4) all witness statements to be relied on as evidence 5) any witness summaries 6) any hearsay notices 7) any notices of intention to rely on evidence which is not: a) contained in a witness statement, affidavit or expert report b) being given orally at trial c) hearsay evidence 8) any medical report with responses to them 9) any experts reports, with responses to them 10) any order giving directions for the conduct of the trial and 11) any other necessary doc.

Answer 272

For High Court trials

Answer 273

- concisely summarising the submissions to be made and - citing the authorities to be relied on.

Answer 274

The counsel.

Answer 275

Counsel clerk will ensure the skeletons are lodged at court and exchanged with the other side.

Answer 276

The claimant

Answer 277

Cost penalties are likely to be imposed.

Answer 278

Counsel will likely be briefed to appear at trial in which case his or her instructions to appear on your client's behalf (the brief need to be sent to counsel with a full set of trial documents in good time.

Answer 279

Counsel will usually be involved throughout the case and will not need a detailed brief as such.

Answer 280

Counsel will usually be involved throughout the case and will not need a detailed brief as such.

Answer 281

Both the preparation for and first day of trial.

Answer 282

It is usual to have a staged payments in larger cases and written agreement as to what precisely is included in the brief.

Answer 283

May be compelled to attend trial by issuing and serving the witness a witness summons in from N20.

Answer 284

May require a witness to attend to give: 1) oral evidence or 2) to produce specified documents or 3) Both

Answer 285

During trial or ANY court hearing

Answer 286

1) Legal representative (and generally parties ) should dress formally 2) In some contexts, a legal representative should stand when speaking and sit when not speaking. 3) Legal representatives should addresses the court indirectly and in the correct title. 4) An opponent's representative is referred to as 'my learned friend ' if a barrister or 'my friend if a solicitor 5) When the judge either enters or leaves the courtroom, everybody must stand, and wait for the judge to sit/leave the room before sitting down, and bow to the judge when the judge bows (which will be on entering and before leaving) 6) if speaking first in court, legal representative should introduce their opponent(s), by name and state the party they represent. They should introduce themselves by identifying the party they represent without stating their own name. 7) an advocate should never indicate what they 'think' -submissions should be advanced using 'it is submitted...' or 'I submit..' instead. 8) A legal representative should not approach the bench (where the judge sits) without permission

Answer 287

The order made at trial which ends the claim

Answer 288

1) Claimant's opening speech 2) Claimant's case: Evidence in chief, cross examination, re examination 3) Defendants case: evidence in chief, cross examination, re-examination 4) Defendant's closing speech 5) Claimant's closing speech *The following is a possible order of events, SUBJECT to time limits and other directions made by the court.

Answer 289

Counsel for the claimant will usually: - describe the nature of the claim and -will identify the issues to be tried by reference to the statements of case, statement of issues and key documents. *The judge will generally have read the key doc in the trial bundle, and in smaller cases the judge might dispense with the need for opening speeches

Answer 290

In smaller cases

Answer 291

Evidence called on behalf of the claimant.

Answer 292

The witness statement of a witness will stand as the evidence in chief of that witness (unless the court orders otherwise). The witness will take the stand and confirm that it is their evidence.

Answer 293

After the evidence in chief, defendants counsel may then cross -examine the witness. Cross-examination may (and usually will) be conducted using leading questions and non-leading questions

Answer 294

To challenge any weakness in the evidence or the credibility of the witness

Answer 295

After the cross-examination. Counsel for the Claimant may re-examine the witness on matters covered in the cross-examination Non-leading questions are used.

Answer 296

Evidence in chief Cross examination Re-examination

Answer 297

Evidence in chief Cross examination Re-examination

Answer 298

The witness statement of a witness will stand as the evidence in chief of that witness (unless the court orders otherwise). The witness will take the stand and confirm that it is their evidence.

Answer 299

After the evidence in chief, Claimants' counsel may then cross -examine the witness. Cross-examination may (and usually will) be conducted using leading questions and non-leading questions

Answer 300

After the cross-examination. Counsel for the Defendants may re-examine the witness on matters covered in the cross-examination Non-leading questions are used.

Answer 301

In larger cases the defendants case may be preceded by a defendants opening speech

Answer 302

After the defendant's case Counsel for defendant will generally refer to evidence adduced, highlight any inferences to be drawn from that evidence and how this supports the defence

Answer 303

After defendant's closing speech Claimant's counsel will then refer to the claimant's evidence, inferences to be drawn from this and how this supports the claimant's case.

Answer 304

A judgement/final order will make provisions for : - costs and interest

Answer 305

After trial or final hearing of a matter or in accordance with provisions made in CPR for earlier judgments (defaults judgments and summary judgements)

Answer 306

No, if the matter is complicated, it is likely that judgment will be reserved for a later date.

Answer 307

That the judge will deliver the judgement at a later date.

Answer 308

- Invite the parties' legal representative to give their views on how the judgment should be handed down. or - through emailing the parties representative The judge will : 1) Circulate judgement in draft to the parties in advance of formally handing it down (by 4pm on the second working day before handing it down) 2) Parties will prepare costs submissions and provide the judge with details of obvious errors 3) Judgement is handed down 4) the parties will make appropriate costs submissions 5) judge will make cost order

Answer 309

No, it is not a public document until it is handed down

Answer 310

- When the court decides to firstly hold a trial to decide who is to blame and then, -assuming the defendant is found liable, some time later there will be a further trial or hearing to assess the level of damages.

Answer 311

In cases where the evidence on liability is different to the evidence on quantum and it will further the overriding objective to hold two separate hearings.

Answer 312

Means setting the order out in the formal document to be sealed by the court

Answer 313

By the court *Unless: - the court orders a party to draw it up - or a party (with the permission of the court) agrees to draw it up - or the court dispense with the need to draw it up - or it is a consent order.

Answer 314

Unless: - the court orders a party to draw it up - or a party (with the permission of the court) agrees to draw it up - or the court dispense with the need to draw it up - or it is a consent order.

Answer 315

From the date it is given or made, not served

Answer 316

14 days, unless otherwise specified by the court. * This means that payment of the judgment debt will be due within 14 days from the date of order, plus interest which will have been running during that time post judgment.

Answer 317

Interest starts to run on the amount of the judgment debt from the date on which the judgment is given

Answer 318

Set at 8% per annum under section 17 Judgements Act 1838

Answer 319

Drawing up’ an order means setting the order out in the formal document to be sealed by the court.

Answer 320

provide temporary protection from a judgment / order for some judgment debtors (people who owe money pursuant to a judgment). The Scheme allows an individual debtor (not a company) to approach a debt advice provider (which might be a local authority) to ask for 'breathing space' of 60 days on the basis that they are unlikely to be able to repay their debts. If the debt advice provider considers it appropriate then they can start a breathing space via the insolvency service, which then notifies the debtor's creditors. - During the breathing space period the judgment creditor (the person with the benefit of the judgment) must stop all enforcement action to recover the debt, stop any interest, fees, penalties or charges for the debt, and not contact the debtor requesting payment (unless the court gives permission). Unless the court gives a creditor permission to continue, the court must also make sure any action to enforce a court order or judgment about a breathing space debt stops during the breathing space. - Any judgment for damages for death or personal injury caused to someone else is excluded from the scheme.

Answer 321

This is a document issued by the court requiring a witness to: *attend court to give evidence; and/ or *produce documents to the court.

Answer 322

A witness summons should be served at least seven days before the date on which the witness is required to attend court; otherwise, the court’s permission is required.

Answer 323

The summons will normally be served by the court and, to be effective, the witness must be offered or paid: (a) a sum reasonably sufficient to cover their expenses in travelling to and from the court; and (b) compensation for loss of time as specified in Part 34.

Answer 324

It is binding and if they fail to appear, the witness may be fined or even, in High Court proceedings, imprisoned for contempt

Answer 325

- The court can make an order for strike out of its own initiative or upon an interim application by one of the parties.

Answer 326

- (a) The statement of case discloses no reasonable ground for bringing or defending the claim  A statement of case may be struck out if it discloses no claim or defence as a matter of law. It is therefore important that the party’s statement of case is properly set out. - (b) The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings.  Abuse of process is a misuse of procedure. It is not defined in the CPR, but Lord Bingham said it is “using that process for a purpose or in a way significantly different from it ordinary and proper use” (Attorney General v Barker [2000] 1 FLR 759).  Obstructing just disposal includes claims that are vexatious or obviously ill-founded (3A PD 1.5) and the court will look at all the circumstances of the case. - A statement of case which discloses no reasonable ground may also be an abuse of the court’s process; there is no exact dividing line between ground (a) and ground (b). - (c) There has been a failure to comply with a rule, practice direction or court order.  Ground (c) covers cases where the abuse is not in the statement of case itself, but is in the way the claim or defence has been conducted. - If a fair hearing will still be possible it is unlikely that the court will strike out a statement of case on this ground as it would not be carrying out justice to bar a litigant from proceedings due to a technical breach of the rules. Instead, the court would be more likely to make an order imposing a lesser sanction for non-compliance

Answer 327

- Where the court makes an order which includes a term that the statement of case of a party will be struck out if the party does not comply with the order (for example, "If the claimant does not provide a copy of the contract referred to in the particulars of claim, the particulars claim will be struck out"), and the party does not comply and so the statement of case is struck out, the other party can generally obtain judgment with costs by filing a simple request at court (on rare occasions, an application to court will be required).

Answer 328

specific conditions or specific consequences of a failure to comply with the order.

Answer 329

the sanction takes effect (CPR 3.8) unless the party applies for relief from it (CPR 3.9).

Answer 330

 Interest - (eg reducing the interest payable to the claimant as a sanction imposed on the claimant)  Costs - (eg ordering the defendant to pay costs on the indemnity rather than standard basis, as a sanction imposed on the defendant)  Striking out a statement of case - (striking out a statement of case is considered in more detail in the element 'Case management powers and striking out').  Other measures adverse to a party could also be considered sanctions: there is no definitive list of sanctions in the CPR

Answer 331

 Impose a sanction immediately; or  Make an unless order. An unless order is an order which provides for an automatic sanction in the event of non-compliance with the order. The unless order must specify the date and time within which the act must be done (CPR 2.9).

Answer 332

failure to disclose an expert report prevents a party from using that report at trial (CPR 35.13) and where failure to file a costs budget will be treated as only filing a costs budget of applicable fees (CPR 3.14).

Answer 333

- The general rule is that the time specified by a CPR or court order for a party to do any act may be varied by the written agreement of the parties, unless a rule or practice direction provides otherwise or the court orders otherwise

Answer 334

- However, by way of exception to this rule, where a rule, practice direction or court order –  Requires a party to do something within a specified time, and  Specifies the consequence for failure to comply, * the time for doing the act may not be extended by agreement between the parties except that the parties can agree an extension of time by prior written agreement (ie before the deadline is reached) for a maximum of 28 days provided that this does not put at risk any hearing date. This is unless the court orders otherwise.

Answer 335

- If a party fails to comply with a rule, practice direction or court order imposing a sanction, the sanction takes effect unless the party applies for and obtains relief from that sanction (CPR 3.8(1) and 3.9).

Answer 336

1. Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted. 2. If the breach is serious or significant, consider why the default occurred. 3. Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly, but with particular weight to be given to the requirements under CPR 3.9 that (1)(a) litigation must be conducted efficiently and at proportionate cost and (1)(b) the court must enforce compliance with rules, practice directions and orders.

Answer 337

- The rules about relief from sanctions apply when a deadline has passed and the application is made after the deadline This must be contrasted with the position where a deadline is looming and a party realises that it is not going to be able to comply with that deadline. This is known as an in-time application and should not be confused with relief from sanctions.

Answer 338

- An application to set aside default judgment is treated as an application for relief from sanctions when the defendant is relying on the discretionary ground to set aside judgment in default

Answer 339

- Allocation is about allocating a claim to the small claims track, the fast track or the multi-track.

Answer 340

- Once the defence has been filed, the court provisionally allocates a claim, based primarily on its value, and directs the parties to file and serve directions questionnaires. - - The directions questionnaires give information about documents, witnesses, experts and trial that the court needs to determine the steps that should be taken to prepare the claim for trial, and when those steps should be taken. - After receiving the directions questionnaires, the court will allocate the claim to the small claims track, the fast track or multi-track.

Answer 341

1. small claims track, 2. the fast track 3. and the multi-track

Answer 342

* value of not more than £10,000 * and also claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than £1,000 the small claims track is the normal track for a personal injury claim if the value of the claim is not more than £10,000 (as with other claims); AND IN ADDITION - in relation to road traffic claims where the accident occurred before 31 May 2021, or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages for the personal injuries (pain, suffering and loss of amenity) are valued at not more than £1,000; - in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5,000; - in any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500.

Answer 343

up to £25,000, provided that:  the trial is likely to last no longer than one day (five hours); and  there will only be oral expert evidence from one expert per party in each of no more than two expert fields (CPR 26.6(4) and (5)).

Answer 344

 VERY LIMITED COSTS RECOVERY - The court will rarely order one party to pay any costs to the other party, other than very limited fixed costs (and court fees and witness expenses).  FEWER 'FORMALITIES' - Certain CPR rules do not apply to cases allocated to the small claims track and hearings on the small claims track are informal with parties generally representing themselves.

Answer 345

- In fast track cases, the court will usually give directions on the basis of the directions questionnaire but occasionally can hold a hearing (28PD2). Standard directions exist for the fast track (although the standard directions can be modified) which include the following:  **Within how many weeks of notice of allocation for each direction? (**Directions/steps allowed will be proportionate to the value/complexity of the claim)  Disclosure (the direction will generally be for either no disclosure, standard disclosure, or disclosure of particular documents) - 4  Exchange of witness statements – 10  Exchange of experts' reports (with associated directions for questions etc) – 14 (Limits on amount of experts. SJE preferred)  Filing pre-trial checklists at court – 22  Trial date / period fixed or trial – 30 (Trial lasts no longer than 1 day. Fixed costs apply to trial)  Fast track trials will usually be held in the County Court, and should last no longer than one day, so there may be no opening speeches and limited oral evidence.

Answer 346

 Parties to file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing (this in place of more detailed directions for disclosure, witness and expert evidence that you might expect on other tracks);  Original documents to be brought to the hearing;  Notice of the hearing date (at least 21 days' notice will usually be given) and time allowed for the hearing (CPR 27.4(2)); and  That the court must be informed if, by agreement between the parties, the case settles.

Answer 347

. It is intended to ensure that the real issues between the parties are identified and understood by the parties and the court, and to see if they can be narrowed before trial

Answer 348

- At a CMC, the court is likely to consider:  Whether the claim is clear;  Whether any statements of case need to be amended;  What disclosure is required, if any;  What expert evidence is required, and how and when it should be obtained;  What factual evidence (eg witness statements) should be provided for;  Whether any further information is required; and  Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Answer 349

- ANY LEGAL REPRESENTATIVE ATTENDING A CMC MUST  Be familiar with the case  Have sufficient authority to deal with any issues likely to arise (like discussing directions / identifying issues) - If such a representative does not attend and the CMC is postponed as a consequence, it is likely to result in a wasted costs order (a costs order payable by the solicitor as opposed to by the client). The court can also order the client to attend the CMC.

Answer 350

- - Unless the claim is a personal injury claim not less than 14 days before first CMC – Disclosure report +electronic documents questionnaire? - - At least 7 days before any CMC – file draft directions - Also before CMC: bundle and/or case summary? Applications? - Case management conference - Product of CMC: directions

Answer 351

- In multi-track cases, parties are under an express obligation to try to agree directions before any CMC This satisfies the overriding objective by saving time and money and is reinforced by the requirement that agreed directions (or proposed directions if agreement is not reached) have to be submitted to court at least seven days before any CMC (CPR 29.4). * Parties are required to consider whether a case summary will be useful at the CMC

Answer 352

- If the parties have agreed all the directions required for the future management of the case and the court is satisfied of the appropriateness of the directions it may 'vacate' the CMC – cancel it.

Answer 353

- However, where the parties have been unable to agree directions then the CMC will be used for the court to give directions. The court will likely hear submissions from the representatives at the CMC before deciding what directions to make.

Answer 354

- Unlikely to deal with this in small claims - In multi-track cases, both parties must produce a disclosure report in readiness for the CMC (CPR 31.5(3) - (8))(Disclosure Report), unless the claim includes a claim for personal injury. Under these provisions, not less than 14 days before the first CMC, each party must file and serve a report verified by a statement of truth that:  Briefly describes what documents exist, or may exist, that are, or may be, relevant to the matters in issue in the case;  Describes where, and with whom, those documents are, or may be, located;  Describes how any electronic documents are stored;  Estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and  States which of the disclosure directions are to be sought.

Answer 355

- The case summary should contain:  A chronology of the claim;  Factual issues agreed and in dispute; and  The nature of the evidence needed to decide them.

Answer 356

parties should consider also using the Electronic Documents Questionnaire (EDQ) which is in Form N264 (schedule to PD 31B). If used, the EDQ needs to be filed with the Disclosure Report even where it has already been exchanged (CPR 31.5(4)).

Answer 357

ideally be made so that it can be considered at any other hearing already fixed, which includes a CMC.

Answer 358

It is also possible to have a CMC later in the case, to assess how the case is progressing and perhaps to give further directions. In very complex cases the CMC may be reconvened on several different occasions. The court can also ask for a hearing to decide what directions to give in a claim outside the multi-track (for example, on the fast track), but this would be much less common.

Answer 359

* The overriding objective is that claims should be dealt with 'justly and at proportionate cost' (CPR 1.1(1)).

Answer 360

the usual rule is that the court will only order a party to pay costs which were reasonably and proportionately incurred and reasonable and proportionate in amount.

Answer 361

* Limitation 1 - Limited information when making case management decisions * Limitation 2 -Uncertainty about what a court would consider to be 'disproportionate' costs

Answer 362

- In most multi-track cases, budgets need to be filed and exchanged not later than 21 days before the first CMC | Failure to file a budget on time leads to automatic and serious sanction

Answer 363

- The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.

Answer 364

- A budget is an estimate of the reasonable and proportionate costs which a party intends to incur. - The budget relates to what a party might hope to recover from the other side (party/party costs) as opposed to the amount a solicitor can charge a client for acting on its behalf

Answer 365

- In most multi-track cases, parties must discuss budgets before the CMC, and file and exchange a budget discussion report indicating the state of their agreement at least 7 days before the CMC.

Answer 366

When it comes to assessment, the court will not depart from approved / agreed budgets unless satisfied that there is good reason to do so.

Answer 367

 Small claims track or fast track claims.  Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more.  Claims commenced on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more.  Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18.  Claims that are the subject of fixed costs or scale costs.

Answer 368

a provisional indication of what should be considered reasonable and proportionate costs in any later assessment proceedings.

Answer 369

- Stated value of the claim is less than £50,000: With the parties' directions questionnaires - Any other case: 21 days before the first CMC

Answer 370

- There is a prescribed form for the costs budget, Precedent H (3D PD 4). It requires practitioners to set out any assumptions on which the budget is based and any possible contingencies (things which are anticipated but which may not be necessary, for example, an application for specific disclosure). Note that it must be signed with its own form of statement of truth. - A blank copy is presented on the following page. Where the monetary value of the claim is less than £50,000 or if the party's budgeted costs do not exceed £25,000, the parties must only use the first page of Precedent H (3D PD 4(b)). - It should be noted that budgeting is all about future costs. Incurred costs (costs incurred pre-budget) are included on the Precedent H, but they cannot be altered by the court and the rule that a party will only recover budgeted costs unless there is good reason (see later in this element) does not apply to costs incurred prior to the production of the costs budget (CPR 3.18(b)).

Answer 371

The parties must file and exchange budget discussion reports (Precedent R) no later than seven days before the first CMC (CPR 3.13 (2)). - By the budget discussion report, the parties indicate:  The figures which are agreed and not agreed for each phase of the litigation; and  A brief summary of the grounds of dispute. - Completing the budget discussion report enables the court to focus on those parts of the costs budget where there is disagreement between the parties.

Answer 372

This generally takes place at the first case management conference (CPR 3.16). Alternatively, the court can convene a hearing solely for the purpose of costs management, in which case the hearing is called a costs management conference.

Answer 373

 Record the extent to which the costs budgets are agreed between the parties. Agreed figures cannot be changed by the court.  Where the figures are not agreed, “record the court's approval of a costs budget, after making appropriate revisions”.

Answer 374

If there is a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in a budget filed by that party, the receiving party must provide a statement of the reasons for the difference with the bill of costs, and the court may reduce the recoverable sum if the paying party reasonably relied on the budget.

Answer 375

 An amended budget should be submitted to the other parties for agreement if possible (using a form prescribed specifically for variations – 'Precedent T', annexed to 3D PD); and  The amended budget then needs to be submitted to court for consideration. * This process is for addressing 'significant developments' in the litigation, not for correcting inadequacies or mistakes in the preparation of a costs budget in the first place, which is not generally allowed.

Answer 376

- Any party that fails to file a costs budget, when required to do so, will be automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court otherwise orders

Answer 377

* If a specific enactment says to issue the claim in the High Court * If it is a personal injury claim worth more than £50,000 * If it is a non-personal injury claim, is the claim worth more than £100,000? * Is issuing in the High Court justified on the grounds of: a) finacial value of the claim/amount in dispute b) complexity of facts/ legal issues/ remedies/ procedures or c) importance to the public Otherwise issue in County Court

Answer 378

Chancery Division; * King's Bench Division; and * Family Division.

Answer 379

- Administrative Court - Planning Court - Commercial Court - Circuit Commercial Courts - Technology and Construction Court - Admiralty Court

Answer 380

- Insolvency and Companies List - Revenue List - Competition List - Business List - Property, Trusts and Probate List - Intellectual Property List

Answer 381

This list is part of both the KBD and Chancery Division, and hears financial disputes of £50million or more in value, and which require particular judicial knowledge of financial markets

Answer 382

court has the power to determine who should pay the cost of and the costs incidental to litigation proceedings.

Answer 383

- The general rule on costs recovery is that the loser pays the winners costs

Answer 384

- Solicitor-client costs are the costs payable by the client to the solicitor under the contract of retainer. The client is primarily responsible for their solicitor's costs. - - The indemnity principle provides that a party will not be able to recover a sum in excess of their liability to their own solicitor.

Answer 385

actual figure for costs awarded by the court which one party has to pay the other party.

Answer 386

- The court has jurisdiction to award costs against a non-party (ie to require a person who is not a party to the proceedings to pay something towards the costs). - The most likely circumstances in which the court will order non-party costs is where there is a 'funder', who is not a party, who is funding the litigation. The principles to be applied by the court when considering whether to make an award of costs against a non-party are as follows:  Costs orders against non-parties are 'exceptional' but the ultimate question the court will ask is whether it is just to make the order;  Where the non-party both funds but also substantially controls or at any rate is to benefit from proceedings, justice will ordinarily require that if the proceedings fail the non-party will pay the successful party's costs.

Answer 387

 Whether costs are payable by one party to another;  The amount of those costs; and  When they are to be paid.

Answer 388

- The general rule governing whether costs are payable by one party to another is that ‘costs follow the event’. This means that the unsuccessful party (i.e. the loser) pays the costs of the successful party (ie the winner) (CPR 44.2(2)(a)). - However, while costs will normally follow the event, the court has complete discretion in this area.

Answer 389

 The parties' conduct (including in relation to ADR / offers to settle)  Whether a party has succeeded on only some issues / part of the claim

Answer 390

 Standard basis  Indemnity basis

Answer 391

 The court will allow costs which: * have been proportionately and reasonably incurred; and * are proportionate and reasonable in amount. o Any doubt is resolved in favour of the paying party. It is not uncommon for only 60% of costs to be recovered from the paying party.

Answer 392

* The court will allow costs which: o have been reasonably incurred; and o are reasonable in amount.  Any doubt is resolved in favour of the receiving party. It is not uncommon that the receiving party will receive 70 – 80% of its legal costs from the paying party.

Answer 393

- In general, indemnity costs would be awarded where there is some element of a party's conduct of a case which deserves some mark of disapproval.

Answer 394

- Costs will be proportionate if they bear a reasonable relationship to the following specified criteria (CPR 44.3(5)):  The sums in issue in the proceedings;  The value of any non-monetary relief in issue in the proceedings;  The complexity of the litigation;  Any additional work generated by the conduct of the paying party; and  Any wider factors involved in the proceedings, such as reputation or public importance.

Answer 395

- Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of:  the date of the judgment or order if it states the amount of costs;  if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount

Answer 396

regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury (CPR 44.13). It restricts the defendant’s ability to enforce a costs order against the claimant.

Answer 397

Fixed costs are specific amounts that are recoverable by one party from another in certain circumstances in litigation - if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.

Answer 398

where the court will need to be involved with the decision as to the amount payable (unless the parties agree the amount - Where costs do not fall under the fixed costs regime the court will need to be involved with the decision and calculation of the amount payable by way of costs from one party to another. - - Assessed costs requires there to be either a summary assessment or detailed assessment carried out by the court prior to a costs order being made. OR indemnity or standard basis

Answer 399

used in fast track proceedings and in other cases where a hearing has lasted no more than a day. - This involves the court determining the amount payable by way of costs immediately at the end of a hearing

Answer 400

If the court cannot make a summary assessment of costs – usually because there is insufficient time – an order will be made for the detailed assessment of those costs. In the multi- track, costs will generally be dealt with in this way. Within three months of the date of the judgment or order, the receiving party must serve on the paying party a Notice of Commencement of detailed assessment proceedings together with their bill of costs and evidence in support, such as receipts. If the paying party wishes to challenge the bill, the following steps occur: (a) The paying party has 21 days to serve points of dispute. (b) The receiving party has 21 days to file a reply. (c) The receiving party must then file a request for an assessment hearing within three months of the expiry of the period for commencing detailed assessment proceedings. (d) If the costs claimed are less than £75,000, the court undertakes a provisional assessment where the judge decides what costs are allowable in the absence of the parties. (e) If either party is unhappy with the provisional assessment, they may request an oral hearing within 21 days; but if the party fails to achieve an adjustment in their favour by at least 20% they will be ordered to pay the costs of the hearing. This is to discourage parties from trying their luck at reducing the costs without being confident of success. Given the robust attitude taken by judges in determining what costs are appropriate, it is preferable to avoid this procedure by agreeing costs.

Answer 401

- Fixed costs generally apply to the following type of situations: uncontested disputes, enforcement proceedings and small claims.

Answer 402

- To enable the court to carry out a summary assessment, the **parties *must* prepare statements of costs**, preferably on the standard form N260 (44 PD 1.2)) and **file and serve them on each party not less than 24 hours before the time fixed for the hearing** (44 PD 9.5(4)(b)). - The court will review these (in a relatively broad brush way) and hear the parties' short submissions in relation to them, and then make a decision as to how much should be paid.

Answer 403

- Unless there is good reason not to do so the court should use this summary assessment procedure:  - In fast track cases at the end of the trial. In this situation, the costs of the whole case will be assessed; and  - At the end of a hearing of an interim application or matter which has not lasted more than a day. In this case, usually only the costs of the interim application will be assessed.

Answer 404

 - The court, on deciding that one party should pay the other party's costs, orders that they be subject to detailed assessment (if not agreed). At that point, the court makes no attempt to set a figure on them.  - To commence the detailed assessment proceedings, the receiving party serves a notice of commencement and a copy of its bill of costs (a more detailed statement of costs than used in summary assessment) on the paying party.  - Points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party within 21 days of service of the notice of commencement.  - If the parties cannot reach agreement, the receiving party should then file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.

Answer 405

- Any consideration of costs orders made by the court must include, where relevant, the role played by the parties' respective budgets and the costs management procedure. The budgets can have an impact on the assessment of costs, even if a costs management order was not made

Answer 406

* Costs in any event * Costs in the case * Costs reserved

Answer 407

the party in whose favour this order is made is awarded his costs of the interim hearing.

Answer 408

* Following a ‘costs in any event’ order at a hearing which has lasted less than one day the court will go on to summarily assess the claimant’s costs before deciding on an amount. The defendant must then pay these costs within 14 days of the costs order being made (CPR 44.7). It is the judge that will summarily assess the costs and not an authorised court officer. When summarily assessing costs the court will be primarily concerned with each party’s statement of costs and their respective submissions. The influence of the budget at this interim hearing will be less important than when the judge is deciding costs of the whole proceedings following the final hearing of the dispute.

Answer 409

- the party who eventually gets its costs at trial (usually the winner) will recover its costs of the interim hearing from the other party

Answer 410

the decision about who pays the costs of the interim hearing is put off to a later occasion.

Answer 411

- If a judgment or order is set aside, the party in whose favour this costs order is made is entitled to the costs incurred as a result of the judgment or order being set aside. This potentially includes the hearing (including preparation and attendance) at which the original order is made, as well as the hearing at which the order is set aside. The rationale is that the judgment or order should never have been made so the party at fault should be punished by having to pay the costs of it being made and set aside.

Answer 412

- A party must pay the costs resulting from something that party has done; for example costs incurred by the defendant resulting from a claimant amending its particulars of claim.

Answer 413

- The party in whose favour the costs order is made is entitled not only to that party's costs in respect of the proceedings in which the court makes the order but also to that party's costs of the proceedings in any lower court. In the case of an appeal from a Divisional Court the party is not entitled to any costs incurred in any court below the Divisional Court.

Answer 414

- Each party will bear its own costs of this hearing.

Answer 415

* should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than 3 clear days before the hearing

Answer 416

* - By a defendant against a claimant (which is the usual case) * - By a claimant against a defendant in respect of a counterclaim * - By a third party against a defendant in respect of an additional claim (CPR 20)

Answer 417

* - Security for costs is the appropriate application where the defendant has concerns that if it successfully defends the claim and the claimant is ordered to pay the defendant’s costs, the claimant will not be willing / able to do so.

Answer 418

The defendant must satisfy the court that, having regard to all the circumstances of the case, it is **just** to make an order.

Answer 419

* The defendant must satisfy the court of two matters before an order for security for costs can be made: - Having regard to all the circumstances of the case, it is just to make an order (CPR 25.13(1)(a)) * and - One or more of the prescribed conditions in the rules are satisfied (CPR 25.13(1)(b) and (2)) * Prescribed conditions for security for costs * The **claimant is resident out of the jurisdiction** (but is not resident in a State bound by the 2005 Hague Convention) (CPR 25.13(2)(a)) * The **cl****aimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so** (CPR 25.13(2)(c)) * The **c****laimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult** (CPR 25.13(2)(g)) * Other grounds: * - The claimant has **changed address since claim was commenced with a view to evading the consequences of the litigation** (CPR 25.13(2)(d)). * - The **claimant failed to give an address in the claim form** (CPR 25.13(2)(e)). * - **Claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so** (CPR 25.13(2)(f)).

Answer 420

* Meaning of resident: - For an individual this is their habitual or normal residence. - For a company this is where the company’s central management and control is exercised and it is usually, but not necessarily, where it is incorporated. * Meaning of out of the jurisdiction: - Essentially, this means not in England and Wales. - Security for costs is not available under this ground if the claimant is resident in a state bound by the 2005 Hague Convention, which at the time of writing includes the UK, all EU members states, Mexico, Singapore and Montenegro.

Answer 421

* The c****laimant is a company and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(c)) * The **claimant must be an impecunious company**; not an impecunious individual. * The defendant **must show**: a) The c**ompany’s inability to pay costs**; and b) t**he amount of the likely costs**. * The defendant **must show the company ‘will be unable’** (as opposed to ‘may be unable’) to pay its debts when the order is made against it. How****ever, the defendant does not have to show on a balance of probabilities that the claimant company is unable to pay – t**he defendant may be able to show that there is ‘reason to believe’ **that the claimant company will be unable to pay even if the claimant company can adduce substantial evidence to the contrary (Jirehouse Capital v Beller [2008] EWCA Civ 908). This makes security for costs more available for defendants. - **Only need ‘reason to believe’ to prove this**

Answer 422

* Even if one of the prescribed conditions is made out, the court is not obliged to give security; security will only be granted by the court if: - **it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.**

Answer 423

Delay also makes the application less likely to succeed – the application should be made promptly, as soon as the facts underpinning the application are known.

Answer 424

A claim which appears not to be genuine, or which has little prospects of success, will make the defendant's application more likely to succeed.

Answer 425

If the defendant has itself been responsible for the claimant’s financial difficulties, this will make the application less likely to succeed

Answer 426

- admission of liability by the defendant - substantial open offers - Delay also makes the application less likely to succeed – the application should be made promptly, as soon as the facts underpinning the application are known - not to be genuine, or which has little prospects of success - If the defendant has itself been responsible for the claimant’s financial difficulties, this will make the application less likely to succeed - Whether the claimant’s claim is bona fide and not a sham - Whether the defendant is using the application oppressively, e.g. to stifle a genuine claim

Answer 427

normal rules relating to interim applications apply * In addition, note that: - - The application notice should state which ground(s) or enactment applies - - The application must be supported by written evidence (CPR 25.12(2)). Evidence will normally be given by way of witness statement which should cover: * a. The ground eg for the impecunious company ground, the witness statement is likely to exhibit the accounts to show the claimant is unable to pay * b. The factors in the exercise of the court’s discretion * c. The likely costs to trial eg the witness statement is likely to exhibit a statement of costs or to refer to an approved costs budget * d. The amount of security requested.

Answer 428

The amount is entirely within the court’s discretion and the court will fix a sum it thinks just taking into account: - - The amount of the defendant’s likely costs * What cost could be should be in the application - - The security can be for the whole action or up to a point in time eg up to disclosure - - The amount can cover costs incurred (including pre-action) and future costs - - A deduction can be made for the likely reduction upon assessment of costs or the possibility of settling - - Other factors eg delay may mean that security is not given for costs already incurred but is given for future costs.

Answer 429

A payment into court * Most frequent order you see in practice - - A payment to the defendant’s solicitor - - A bank guarantee - - An undertaking to pay costs - The most frequent order is for a sum to be paid into court by a required date.

Answer 430

* Issue - Application notice (form N244) * An application notice must state what order the applicant is seeking and why * The application notice should state which ground(s) or enactment applies * The application must be supported by written evidence (CPR 25.12(2)) - normally by way of a witness statement - Supporting evidence * Normally witness statement - Draft order - Fee * Service - Application notice (form N244) - Supporting evidence - Draft order - Notice of hearing date - as soon as practicable but not less than 3 clear days * Further evidence - Respondent files at court and serves on the applicant evidence as soon as possible - Applicant files at court and serves on the respondent evidence in reply as soon as possible. * Both parties file and exchange statements of costs not less than 24 hours before hearing. * Hearing

Answer 431

usually paid immediately or by a specified date.

Answer 432

o Describes a kind of offer that a party can make. o Sets out consequences if an offer of that kind is made and accepted. o Sets out different consequences if an offer of that kind is made and not accepted and the matter proceeds to trial (and those consequences depend on the outcome at trial).

Answer 433

financial incentives contained within it are more certain than the court's general discretion and go beyond what the court can generally order

Answer 434

- Part 36 offers can be made at any stage of proceedings, including before proceedings are issued.

Answer 435

- A Part 36 offer can be made by either party.

Answer 436

An offer, usually communicated in writing, and written 'without prejudice save as to costs', such that it cannot be referred to the judge until costs are considered after trial, but at that point can be relied upon. Such an offer does not need to comply with Part 36. o Although the specific consequences of Part 36 do not apply the court will have regard to a Calderbank offer when it exercises its discretion on costs

Answer 437

* - Part 36 offers must be marked as such, * be in writing, * state whether they apply to the whole / part of claim / any counterclaim and * state a period of at least 21 days when the defendant will be liable for the claimant's costs if accepted.

Answer 438

* - A Part 36 offer cannot be withdrawn after it is accepted, and there are limits on withdrawing it within the relevant period. * - After the end of the relevant period, a Part 36 can be withdrawn or its terms amended. The offer can also be withdrawn automatically if its terms state so. This allows the offeror to make an offer that is time limited o If the offer has already been accepted… it cannot be withdrawn, or its terms changed (CPR 36.9(1)). o If the trial has already started…the court’s permission is required to withdraw the offer.

Answer 439

- If a Part 36 offer is accepted, the claim is stayed and the settlement sum must usually be paid within 14 days.

Answer 440

- If a Part 36 offer is accepted, the claim is stayed and the settlement sum must usually be paid within 14 days.

Answer 441

- If the Part 36 offer was accepted after the relevant period, then the court will determine costs (unless the parties agree) but unless unjust the court must award the claimant its costs up to the expiry of the relevant period and the offeror its costs from that point onwards.

Answer 442

There are two further rules that apply to defendants' offers only (CPR 36.6): - With limited exceptions, a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money. - A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Answer 443

A period of not less than 21 days, specified in a Part 36 offer, within which the defendant will be liable for the claimant's costs if the offer is accepted.

Answer 444

Wide defintion of writing means that a party could make a Part 36 offer in a letter, and this is usually what takes place. * If a letter is used, then somewhere in the letter it should state that it is made pursuant to Part 36. Alternatively, there is a prescribed form, N242A, which if completed properly would mean that the Part 36 offer would comply with the rules.

Answer 445

o When it is served on the offeree (CPR 36.7(2)). o The rules of service (CPR 6) apply.  A party need not wait until proceedings are issued to make a Part 36 offer as they can be made before proceedings have been commenced. This means that pre-issue Part 36 offers have the usual Part 36 consequences (including recoverable pre-action costs) upon acceptance after issue of proceedings or upon judgment being given. Where a Part 36 offer is both made and accepted before proceedings are commenced, the Part 36 consequences of acceptance (CPR 36.13 and 36.14) considered in this element have no effect since the consequences are dependent upon there being extant proceedings. The consequences of a Part 36 offer later in this element assume proceedings have been issued.

Answer 446

o The offeree can seek clarification of the terms of the offer, for example a breakdown of the components of the offer, within 7 days of service (CPR 36.).

Answer 447

Any notice of withdrawal / change during the relevant period (CPR 36.10) will take effect at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period. If they do serve notice of acceptance during the relevant period (despite the notice of withdrawal / change) then the offeror can either allow the acceptance or apply to the court for permission to withdraw the offer or to change its terms. This must be done within 7 days of the notice of acceptance or if earlier before the first day of the trial. The court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

Answer 448

o It is accepted – you then need to know the consequences of the acceptance; o It is not accepted – you then need to know whether the court will impose a 'penalty' after trial because the offeree did not accept the offer, and if so, what that penalty will / might be.

Answer 449

o Serve written notice of acceptance on the offeror (CPR 36.11(1)). o If the case is issued the acceptance also needs to be filed at court. o There is no prescribed form for this - a letter will be sufficient.  Important: An offer remains open for acceptance unless it has been withdrawn (CPR 36.11(2)). This remains the case even after the relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.

Answer 450

o **Stay** - The claim will be stayed and will not continue to trial – CPR 36.14(1)). o **Settlement sum** - For any Part 36 offer which is, or includes, an offer to pay / accept a single sum of money, the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing (36.14(6)), failing which the claimant can enter judgment against the defendant (CPR 36.14(7)). o If the Part 36 offer does not include an offer to pay / accept a single sum of money, then in the event that a party fails to comply with whatever was agreed, the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings (CPR 36.14(8)). o **Costs** - The cost consequences of acceptance depend on when the offer was accepted.

Answer 451

o If accepted before the expiry of the relevant period, the claimant is entitled to its costs of the proceedings up to the date the notice of acceptance was served on the offeror

Answer 452

o The court will determine liability for costs unless the parties agree them; BUT o The court must, unless it considers it unjust to do so, order that—  the claimant be awarded costs up to the date the relevant period expired; and  the offeree do pay the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance.

Answer 453

In this situation, if the parties do not agree liability for costs the court must determine liability

Answer 454

o If, at the time of acceptance, the claimant abandons the remainder of the claim… the claimant will only be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders otherwise (CPR 36.13(2)). o If, at the time of acceptance, the claimant does not abandon the remainder of the claim… the liability for costs will be determined by the court, unless the parties can reach an agreement about the liability (CPR 36.13(4)).

Answer 455

If the claimant fails to beat a defendant's offer, the penalty is the claimant being ordered to pay the defendant's costs from the date the relevant period expired, and interest on those costs. o D’s Part 36 offer only ‘bites’ if C wins the same or less than D’s offer

Answer 456

- If the claimant does the same or better than its own offer, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum. o The Claimant’s Part 36 offer only ‘bites’ if the Claimant wins and receives the same or more than its offer.

Answer 457

- All these consequences are 'unless the court considers it unjust' to impose them

Answer 458

"A claimant fails to obtain a judgment more advantageous than a defendant's part 36 offer".

Answer 459

o The penalty imposed on the claimant in these circumstances is that **unless it considers it unjust to do so**, the court must order that: o The **claimant pays the defendant's costs from the date the relevant period expired**; and o **Interest** on those costs (CPR 36.17(3)).

Answer 460

Judgment against the defendant is a**t least as advantageous** to the claimant as the proposals contained in a claimant's Part 36 offer".

Answer 461

o The penalty imposed on the defendant in these circumstances is that **unless it considers it unjust to do so**, the court must order : o I**nterest on the award at a rate not exceeding 10% above base rate for some or all of the period from the expiry of the relevant period**. This is a penalty because the award of interest is at a higher rate than the usual rate. o The **costs from the end of the relevant period are to be assessed on the indemnity basis** (in contrast to the usual basis - the standard basis). Any assessment on the indemnity basis can result in significantly more costs being awarded to the claimant. o **Interest on those costs at a rate not exceeding 10% above base rate**. Again this rate of interest is in excess of the usual rate. o An additional amount based on a percentage of the award. **The percentage being 10% up to £500,000 and 5% above £500,000. The total amount is capped at £75,000** (CPR 36.17(4)). o Where the claim does not have any money-claim within it (eg it is a claim for possession of property, without any damages claim) then the penalty in (d) above is calculated with the total amount of costs awarded to the claimant used as the figure in place of the award. If the 'trigger' is not met, for example because the claimant does worse at trial than it offered to accept, then the claimant's Part 36 offer has no effect.

Answer 462

o The terms of any Part 36 offer; o The stage in the proceedings when the offer was made; o The information available to the parties; o The conduct of the parties in relation to giving / refusing information for the purposing of enabling the offer to be made / evaluated; and o Whether the offer was a genuine attempt to settle. **The court's discretion under this provision is more limited than the court's general discretion under the normal costs rules**

Answer 463

o If a party wants to get the full costs protection of Part 36 then it needs to: o Make the offer more than 21 days before trial. Indeed, the earlier the offer is made, the greater the potential benefits to the offeror; and o Leave the offer open (not withdraw it).

Answer 464

o The Part 36 consequences also do not apply if: o The Part 36 offer was withdrawn; or o The Part 36 offer was changed so that its terms are less advantageous to the offeree and the offeree has beaten the less advantageous offer. o Where an offer was made within 21 days of the trial, then even if the applicable 'trigger' set out above is satisfied, there will be no Part 36 consequences unless the court abridges the relevant period ie shortens it. This is fair because the relevant period (which is always at least 21 days) had not expired before trial. The offeree did not have a fair opportunity to accept the offer.

Answer 465

You just need to consider each offer in turn. If both triggers are met there are not cost consequences.

Answer 466

1- Duty 2- Breach 3- Causation 4- Loss

Answer 467

The balance of probabilities.

Answer 468

A fact will be established is more likely then not to have happened.

Answer 469

- Solicitor fees and Disbursements

Answer 470

Fees other than the solicitors fees.

Answer 471

-Court fees -Expert fees -Council fees - Other Costs

Answer 472

1- The costs that a party might incur in pursing litigation 2- Why a party is at risk of being ordered to pay an opponent's cost (Inter partes)

Answer 473

Court's power allow a broad discretion to determine: a) whether one party should pay the other party's costs b) if so, how much should be paid (Court can make a different order from the general rule)

Answer 474

- the conduct of the parties and - whether a party has succeeded on all of its case or only part

Answer 475

Every fact in dispute must be proved. Thus, The burden of proving any issue of fact or law generally falls on the party who asserts it. Example: C must prove: - Duty, breach, causation, and loss for negligence. -Duty (existence and terms of contract), breach, causation, and loss for contract . D must prove: - Contributory negligence (if any) -Why the D's version of the facts is correct (and that, therefore, the C's version must be wrong).

Answer 476

If proceedings are not commenced within the relevant period, C will be barred from recovering damages and on this basis, D will have a full defence.

Answer 477

3 years from: -date of death or -dependents date of knowledge. *Claim cannot be brought if the person injured could no longer bring a claim...

Answer 478

Means Knowing: a) That the injury was significant b) that it was attributable (at least in part) to the alleged wrongdoing c) The identity of D d) if it is alleged that the wrongdoing was by someone other than D, the identity of that person and the additional facts supporting brining the claim against D

Answer 479

If that would be equitable, balancing the prejudice to C caused by the limitation period with any prejudice to D which allowing the claim would cause. The court will look at: -The conduct of the parties; -The reason for the delay; and - The effect of such a late claim on the evidence.

Answer 480

3 years of the latest of: a) the date when the cause of action accrued; or b) the date of knowledge of the person injured

Answer 481

2 years from the date on which the right to recover arose. This is Calculated by: a) The date when the judgement was given imposing liability on the first party; or b) in cases where the first party agreed to make the payment (rather than having a judgement imposed on them), the date on which the amount to be paid was first agreed.

Answer 482

Negligence actions where facts relevant to the cause of action are not known at the date of accrual.

Answer 483

S.14 A a) 6 years from when the cause of action accrued or b) 3 years from when the requisite: i) knowledge and ii) right to bring a claim S.14 B *But this is subject to a long-stop limitation date of 15 years from the date of the latest negligent act/ omission which caused all or part of the damage.

Answer 484

C needs to know 'the material facts about the damage in respect of which damages are claimed (knowledge of the foundation is damaged) *knowledge of fact = permits the limitation period to start.

Answer 485

An 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.

Answer 486

6 years after the date on which the cause of the action accrued.

Answer 487

The limitation period starts to run from when the disability ends, and is: a) 2 years in relation to contribution claims; b) 3 years in relation to personal in relation to personal injury or fatal accident claims and c) 6 years in most other case.

Answer 488

The limitation does not start to run until C discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).

Answer 489

The claim form must include the full name of each party and therefore proper consideration will need to be made about who the parties are and how they should be referred to in the claim.

Answer 490

Claims are brought against a partnership where there are two or more people who: * Were partners (claiming to be entitled as partners or alleged to be partners); and * Carried on the partnership business at the time when the cause of action accrued.

Answer 491

claims must be brought against the name under which a partnership carried on business at the time the cause of action accrued unless it is inappropriate to do so The full name for a partnership (other than an LLP) will be the full name by which the partnership is known where partners are being sued in the name of the partnership, or the full unabbreviated names of each partner where the partners are being sued as individuals (although see note above about suing in the partnership name) e.g. Flagstones (a firm) The partnership name must be the name at the time the cause of action accrued; if the partnership dissolves before proceedings are issued, the claim is made against the former partners in the name of the dissolved firm. A claim can also be brought against a business name as if it were the name of a partnership if a claim is brought against an individual who carries on business within the jurisdiction in a name other than that individual’s own name

Answer 492

For sole traders, commonly both the individual and trading name will be used when describing a party to the claim. For example: John Flagstone (trading as John's Café)

Answer 493

he claim would be brought against the full registered name, including the suffix LLP, for example: Flagstones LLP

Answer 494

As the claim form must include the full name of each party, for a company registered in England and Wales this is the full registered name, including the suffix (such as plc or limited), if any. For example, Rockstone Limited A 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

Answer 495

Trusts A claim can be brought by or against trustees, executors or administrators. It is not necessary to add the beneficiaries of the trust or estate as parties to the claim (CPR 19.12(3)). Any order made in the claim is binding on the beneficiaries (unless the court orders otherwise). Deceased persons Under CPR 19.12(1), where a person who had an interest in a claim has died and that person has no personal representative the court may order: * The claim to proceed in the absence of a person representing the estate of the deceased; or * A person to be appointed to represent the estate of the deceased. Under CPR 19.12(2), where a defendant against whom a claim could have been brought has died: * If a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased. * If a grant of probate or administration has not been made: * the claim must be brought against ‘the estate of’ the deceased; and * the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

Answer 496

Claimants are legally incapable of pursuing claims on their own behalf if they are a child or a protected party. Therefore, CPR 21 contains special provisions which apply in relation to children and protected parties. A child means any person under the age of 18 years (CPR 21.1(2)) A protected party means any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005. This means that by reason of impairment or disturbance of the brain or mind, the party is unable to make the decision in question at the time it needs to be made (CPR 21.2(1)). A person of adult age is presumed to have ‘capacity’ until the contrary is proved. The burden of proving the contrary rests with whoever asserts incapacity. The legal advisors must be satisfied that a party is capable of understanding, with the assistance of such proper explanation from legal advisers (and experts if required), the issues on which the party’s content or decision is likely to be necessary during the proceedings. In determining the issue of incapacity, the legal advisers should ask (Martin Masterman-Lister v (1) Brutton & Co (2) Jewell & Home Counties Dairies [2002] EWCA Civ 1889): * Can the person recognise the problem they encounter? * Can the person explain with sufficient clarity the problem to those from whom they seek appropriate advice? * Can the person understand and evaluate the advice received from an appropriate source? * Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction? In practice, the legal advisors must satisfy themselves that the party has the requisite capacity to bring or defend proceedings. Quite often this may involve an assessment and report by the party’s GP. If there are legitimate concerns that a client does not have legal capacity to deal with the case, advice may have to be sought from a psychologist or psychiatrist. The court may also require the personal evidence of the solicitor or family and friends. **Children and protected parties do not have capacity to pursue claims on their own behalf and therefore they must be represented by a litigation friend.** * Any step taken before a child or protected party has a litigation friend has no effect. * The approval of the court is required for any settlement made on behalf of a child or protected party. * The court will make directions about money recovered by a child or protected party.

Answer 497

A person may act as a litigation friend if they can fairly and competently conduct proceedings on behalf of the child or protected party, have no adverse interest to that of the child or protected party and where the child or protected party is a claimant, undertake to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings.

Answer 498

A cause of action is the legal basis of a claim, such as breach of contract or negligence.

Answer 499

Claimant sends letter before claim including: * * concise details of the claim * *a summary of the facts * *what C wants from D (if money, how this is calculated) * *key documents Defendant sends a letter of response: * within a reasonable time ( a reasonable response is required within a reasonable period, which could be between 14 days and 3 months depending on the complexity of the claim) *must confirm if the claim is accepted *if not, explain the reasons *indicate if there is a counterclaim *include key documents Claimant replies and the parties consider: * negotiation *ADR *appointment of expert(s) Stocktake: before issuing proceedings the parties should: * review their positions *consider whether proceedings can be avoided *if not, narrow the issues in dispute Sanctions for non-compliance: * party at fault pays some or all of opponent’s costs (perhaps on an indemnity basis) *C is deprived of some or all of the interest on damages *D is required to pay a higher rate of interest on damages at a rate of up to 10% per annum above the base rate.

Answer 500

* Claimant should write Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer. * Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them. * Claimant should write to defendant to give full details of the claim (Letter of Claim). * Defendant to acknowledge Letter of Claim within 21 days. * Defendant to investigate and send full Letter of Response within 3 months of letter acknowledging claim. If the defendant denies liability or quantum (or both) then… * The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses. * Joint selection of quantum expert (i.e. medical expert), or claimant discloses report and defendant sends written questions.

Answer 501

This applies to any business including sole traders and public bodies (the creditor) that brings a claim against a debtor who is either an individual or a sole trader (the debtor). * It does not apply to business to business debts (unless the debtor is a sole trader). The potential claimant must give full information on the debt owed, including an up- to- date statement of account with details of interest and charges, and how the debt can be paid. The standard Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol should also be included. This is to encourage settlement, perhaps by way of agreeing repayment plans. Recognising that most debtors will be individuals, they are given a little longer to respond – 30 days – and court proceedings cannot be issued before this deadline. The creditor should also allow extra time if necessary for the debtor to seek legal or debt advice or in order to pay.

Answer 502

The first additional requirement is that a party is encouraged to notify the professional in writing of any intended claim. This letter (the Preliminary Notice) contains information about the claimant, a brief outline of the claimant’s grievance against the professional and, if possible, a general indication of the financial value of the potential claim. The professional should be instructed to inform their insurers immediately and to acknowledge the notice in writing within 21 days of receipt. Next, the claimant should write a Letter of Claim giving full details of the issues and attaching key documents. The professional must acknowledge this in writing within 21 days of receipt. Thereafter, they have three months to investigate and to respond. The Letter of Response sets out whether the professional admits the allegations and if not why not, with accompanying documents. Alternatively, or as well as the Letter of Response, a Letter of Settlement may be sent if the professional intends to make proposals for settlement of all or part of the claim. If the Letter of Response denies the claim in its entirety and there is no Letter of Settlement, it is open to the claimant to start court proceedings. In any other circumstance, the professional and the claimant should instigate negotiations with the aim of resolving the claim within six months of the date of the Letter of Acknowledgment. If matters cannot be resolved, there must be a final Stocktake in which the parties review their positions, or at least narrow down the issues, before court action is taken. As with all the protocols and the Practice Direction, the parties must consider ADR.

Answer 503

* Enforcement proceedings are the steps taken post judgment by the successful party in order to obtain payment from the unsuccessful party, who can now be described as the judgment debtor.

Answer 504

· Whether the defendant is able to or will pay any judgment given **must always be considered both before an action is commenced and as it progresses**.

Answer 505

- A judgment creditor may apply for an order requiring: * a judgment debtor; or * if a judgment debtor is a company or other corporation, an officer of that body to attend court to provide information about the judgment debtor’s means or any matter about which information is needed to enforce a judgment or order (CPR 71.2(1)). This procedure is known as 'oral examination of a debtor'.

Answer 506

- Taking control of goods is suitable when the debtor owns assets which can be sold and the proceeds used to pay the debt.

Answer 507

enable the judgment creditor to intercept money that is owed to the judgment debtor, such as a credit balance in a bank account, and divert this to the judgment creditor in settlement of the judgment debt.

Answer 508

suitable where the asset in question is land, but this only provides security for the judgment debt and not payment. For payment, an order for sale will be necessary after the charging order has been obtained.

Answer 509

enable the judgment debtor’s salary to be intercepted and diverted to the judgment creditor in settlement of the judgment debt.

Answer 510

The threat of bankruptcy of an individual or winding up of a company can often be enough to prompt payment, should the judgment debtor have assets available to pay

Answer 511

· Taking control of goods · Charging orders · Third party debt orders · Attachment of earnings orders · Insolvency proceedings · Taking Control of Goods

Answer 512

allows an enforcement officer (‘EO’), which includes those who were formerly known as bailiffs and High Court sheriffs, to seize a judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt and expenses It is essential that the goods to be enforced against are owned by the judgment debtor and also that there are no third party claims to the goods from anyone else, for example, co-owners or higher ranking creditors.

Answer 513

· tools of the judgment debtor’s trade which are exempt, but only to an aggregate value of £1,350; and · basic domestic items, such as clothing, bedding, furniture and essential household items.

Answer 514

- Debt sum up to £600 – Must use County Court - Debt sum between £600 and £5000 – Can use either High Court or County Court - Debt sum more than £5000 – Must use High Court

Answer 515

- The judgment creditor commences the process of TCG by requesting the issue of the relevant court document as follows and will also need to pay the applicable fee: · High Court – Writ of control · Country Court – Warrant of control * The writ or warrant of control is addressed to the EO and it is this document that entitles the EO to seize and sell the judgment debtor’s goods to raise funds to satisfy the judgment debt. o The writ or warrant will contain:  The necessary details and amount of the outstanding debt to be recovered.  A fixed amount for the costs of TCG will be added which includes the court fee.  The EO is also able to take their own charges out of the proceeds of the goods sold and seized. It is advisable for the judgment creditor to supply the EO with any available information about the judgment debtor’s goods and their whereabouts to aid the recovery of items as swiftly as possible.

Answer 516

* Stage 1: Giving notice to the judgment debtor of enforcement - Any attempt to take control of goods has to be preceded by the giving of advance notice to the judgment debtor. - The EO will write to the judgment debtor at least 7 clear days before taking control of any goods. - The EO is not required to specify exactly when he will attempt to take the goods. The EO has 12 months from the date of giving notice in which to take control of the judgment debtor’s goods. - The judgment debtor is therefore at risk of TCG happening at any time in this period after notice has been given. * Stage 2: Entering premises and securing the goods - The EO may use reasonable force to enter premises if necessary (this does not include using force against persons) but there are restrictions on the process. - For example, the EO must generally not take control of goods before 6am or after 9pm on any day, nor at any premises when a child or vulnerable person is the only person present. - Once entry has happened, the EO may secure goods on the premises or highway or remove goods from the premises ready for sale. - After entry of premises the EO must provide a notice for the judgment debtor giving details of what is happening. For example, the notice will contain the EO’s details, the address of the property entered, and information will also be given about what goods have been taken in the form of an inventory. * Controlled goods agreement - An alternative to removing goods at this stage is for the EO to enter into a controlled goods agreement with the judgment debtor. - This is an agreement whereby the judgment debtor is permitted to retain custody (and use) of the goods, despite the EO taking control of them, pending payment of the debt. - The agreement will include terms agreed between the EO and the judgment debtor for payment of the debt. It is a ‘last chance’ for the judgment debtor to pay up before losing their goods. - The previous equivalent common law process was known as ‘taking walking possession’. * Stage 3: Sale of the goods - Unless the judgment debtor now makes payment of the debt, the goods must be sold by the EO. - The EO must sell the goods for the best price that can be reasonably obtained, and the sale will usually take place by way of public auction. - The sum specified in the writ or warrant of control will be paid to the judgment creditor out of the proceeds of sale and recovery will be complete. Any surplus funds are paid back to the judgment debtor.

Answer 517

- This procedure is appropriate when there is a ‘debt due or accruing due’ to a judgment debtor by a third party within the jurisdiction. - - Upon the application of a judgment creditor, the court may make an order requiring a third party to pay to the judgment creditor some or all of a debt owing to the judgment debtor by the third party, in satisfaction of the judgment debt and the judgment creditor’s costs of the application (CPR 72.2(1)). - In short, the order intercepts money owed to the debtor by a third party before it reaches the debtor’s hands, requiring the third party to pay the money to the judgment creditor instead. - The procedure requires the third party to search for and disclose information to the court and judgment creditor (CPR 72.6). Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection. - The rules provide first for an interim order to be made without notice to the judgment debtor (CPR 72.4). This will be served on the third party first and prevents the third party from making any payment to the judgment debtor until further order. - The interim order will then be served on the judgment debtor and will be followed by an on notice hearing where the judgment debtor (and third party if they wish) will be heard. The court will decide whether to make a final order requiring the third party to pay the debt to the judgment creditor directly or to discharge the interim order. The application is started by the judgment creditor making the application in Form N349 (72 PD).

Answer 518

- A charging order is a form of charge taken over land (or other specified assets) which secures a judgment debt. It therefore does not, of itself, produce any money. - Once the charging order is made final it will generally remain in place until the property is sold by the debtor, at which point the debt will be paid using the sale proceeds and the charge removed as part of the process of selling the property. It is, of course, also subject to any prior mortgages and charges, and the overriding rights of any co-owners of the property. - Like third party debt orders, applications for charging orders follow a similar two-stage procedure with an interim order followed by a final order. In summary then, to obtain payment using this method the judgment creditor needs to obtain a) an interim charging order; and b) a final charging order (CPR 73). - After obtaining a final charging order, the judgment creditor may want to force the sale process rather than wait for it to happen, in which case a subsequent application needs to be made for an order for sale before any funds can be realised. This process can be somewhat lengthy.

Answer 519

this method of enforcement is **available only in the County Court**, so if the judgment creditor wants to use it, the judgment (ie debt) must be transferred to the County Court. - It is available where the judgment debt or amount outstanding is not less than £50. If the order is obtained: · The judgment debtor’s salary will have deductions made from it by their employer. · These deductions will be paid into court for onward transmission directly to the judgment creditor. - This method of enforcement is most relevant where a debtor does not have substantial assets but does earn a salary from employment.

Answer 520

· The judgment creditor applies by filing an application in a standard form, certifying the amount of the judgment that is outstanding and paying a fee. · The application and a reply form is served on the debtor who should complete and return the reply form to the court. · The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earnings. · That order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor.

Answer 521

· Obviously, a debtor is not obliged to stay in the same job and, by the time the order has been obtained, or while it is enduring, t**he debtor may change jobs**. Where it appears to the County Court that an employer does not have the debtor in their employment, the court may discharge the order and the judgment creditor will need to start again in respect of enforcing any outstanding balance. · There is opportunity for **delay** if the judgment debtor chooses not to return the reply form. The court staff will then issue an order served personally on the judgment debtor compelling the judgment debtor to respond. Eventually this process can lead to the judgment debtor being imprisoned, but further hearings are required.

Answer 522

This includes bankruptcy (for individuals) and winding up (for companies). - A petition for bankruptcy against an individual can be issued when the judgement debt against them is more than £5,000. - A petition to wind up a company can be issued when the judgment debt against it is more than £750.

Answer 523

- The petition is issued and presented to the judgment debtor’s local court. - Once the petition is issued, it is served on the judgment debtor. - The court fixes a time for the hearing of the petition and the debtor will therefore be notified of a date to attend a court hearing to decide whether a bankruptcy order or winding-up order should be made against them. - If they do not attend to oppose the petition at the hearing, the bankruptcy or winding up order will very likely be made. - The debtor’s assets will be distributed to their creditors according to very specific rules setting out the order of preference of particular types of creditor (eg employees, secured creditors, unsecured creditors and so on.) - It is important to know what other debts the judgment debtor has as your client will not be ‘preferred’ to any other of the judgment debtor’s creditors and may end up at the end of the queue sharing in assets pari passu (ie in proportion to the amount owed to each non-preferential creditor) on a bankruptcy/winding up.

Answer 524

- A statutory demand might be served on the debtor prior to the petition being issued. This precursor to insolvency proceedings being commenced is a demand in a simple standard form. So long as the debt remains unpaid for a period of 21 days after service of the demand, the debtor is at risk of the court presuming that he/it is unable to pay its debts and is therefore insolvent. This makes the bankruptcy or winding-up petition much more difficult for the judgment debtor to resist.

Answer 525

the court does have the power to stay, so to pause, the enforcement of a judgment / order However, there are only limited circumstances in which the court will do this – the exception, rather than the rule.

Answer 526

requires a creditor to: (a) obtain a certificate confirming the date of the judgment, the sum awarded and details of interest and costs; and (b) make an application to the court in Scotland or Northern Ireland, supported by evidence, to register the judgment within six months. If the application is successful, the judgment will be registered and may be enforced using local methods.

Answer 527

A company may have dealings with a variety of Commonwealth states including Australia, Pakistan and Jersey. Enforcement is possible under the Administration of Justice Act 1920 for High Court judgments and the Foreign Judgments (Reciprocal Enforcement) Act 1933 for judgments of the County Court. The judgment must be final and registered within 12 months for the 1920 Act but the creditor has six years for matters that fall within the 1933 Act. Failure to do so means the creditor loses their right to enforce outside of the jurisdiction.

Answer 528

For all other countries, including Member States of the EU where proceedings commenced on or after 1 January 2021, the issue of enforcement is dealt with in two ways. If the 2005 Hague Convention applies (where the parties have an exclusive choice of court agreement), the judgment will be enforced and recognised in that country. Alternatively, the common law rules will apply. The effect is that the creditor’s ability to enforce an English judgment will be determined by the national law of the particular country where enforcement is sought. The creditor will usually have to issue fresh proceedings and instruct local lawyers to pursue their claims with the consequential increase in time and cost. This process can cause difficulties in many countries including important trading partners such as the USA, Japan and China.

Answer 529

Where a claim involves a foreign element, the claimant should consider carefully how realistic their chances of enforcing the judgment are before commencing proceedings. If enforcement is likely to require new proceedings to be issued, it may be sensible to start the claim in that country rather than in the English courts.

Answer 530

To determine the best method of enforcing the judgment, it may be necessary to obtain more information about the judgment debtor’s financial circumstances.

Answer 531

There are two possibilities: (a) instruct an enquiry agent; and (b) apply to the court for an order to obtain information from the debtor.

Answer 532

order to obtain information An order to obtain information from a judgment debtor is a court order requiring the debtor to attend before an officer of the court to be questioned on oath about their finances or those of a company of which they are an officer.

Answer 533

- A judgment creditor may apply for an order requiring: * a judgment debtor; or * if a judgment debtor is a company or other corporation, an officer of that body to attend court to provide information about the judgment debtor’s means or any matter about which information is needed to enforce a judgment or order (CPR 71.2(1)). This procedure is known as 'oral examination of a debtor'. * Procedure - There are separate forms depending on if the application is to question an individual judgment debtor (Practice Form N316), or if the application is to question an officer of a company or other corporation (Form N316A). - This application may be made without notice to the judgment debtor (CPR 71.2(2)). - The order must contain a ‘penal notice’, stating: · ‘If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized’ (CPR 71.2(7)). - Unless the court orders otherwise, the order to attend court must be served personally on the person ordered to attend court not less than 14 days before the hearing (CPR 71.3(1)). - The judgment debtor must then attend court and produce any documents referred to in the order, and answer any questions asked of them on oath (CPR 71.2(6)). Standard questions are contained in questionnaires (available in the online version of the CPR) for use at such hearings. - The questioning will be carried out by a court officer or a judge if deemed necessary. There are standard procedures and questionnaires that will be used (PD 71, forms EX140 and EX141). - If the judgment debtor fails to attend the hearing or attends but refuses to comply eg refuses to answer questions, the matter will be referred to a judge who may make an order for the judgment debtor’s committal, as set out in the penal notice.

Answer 534

- For enforcement in foreign countries of a High Court or County Court judgment, firstly, **the judgment creditor must apply for a certified copy of the judgment **(CPR 74.12). The application may be made without notice. The application **must be supported by written evidence** (CPR 74.13) exhibiting the claim form, statements of case and the evidence that was served on the defendant. · The evidence must: * Identify the grounds on which the judgment was obtained * State whether the defendant objected to the jurisdiction * Show that the judgment has been served * State appeal details eg the date on which the time for appealing expired * State whether interest is recoverable on the judgment. o Once a certificate of judgment has been obtained, the judgment creditor should follow the procedure in the applicable regime or common law to enforce the judgment abroad.

Answer 535

· If the judgment debtor has assets which are abroad it may be necessary or desirable to take steps to enforce a judgment of the English court (obtained against the debtor in English proceedings) in a foreign jurisdiction. · If the judgment creditor has a judgment from a foreign court to enforce against assets here it will be necessary to use the English courts to facilitate this.

Answer 536

- If enforcing an English judgment abroad under the common law, this will be governed by the common law of the country in which you are seeking to enforce the judgment. You would need to seek advice from a local lawyer in the foreign country. - If enforcing a foreign judgment in England & Wales under the common law, it will be necessary to obtain a judgment from an English or Welsh court. Usually this is done by treating the foreign judgment as a debt, issuing proceedings for non-payment of that debt and then applying for summary judgment (CPR 24). This can only be done if the judgment is a final one and there is no appeal in the foreign court.

Answer 537

owes the money

Answer 538

wants the money

Answer 539

The court or claimant/claimant's solicitor

Answer 540

* Service is usually by first class post * Once the court has effected service it will send the claimant a **notice of issue** stating the deemed date of service. * If the court is unable to serve the claim form C will be sent a notice of non-service and must serve the claim form themselves

Answer 541

* They must notify the court when issuing the claim form that they do not wish the court to serve it. The court will give or send the claimant / claimant's solicitor the issued claim form with sealed copies for service on the defendant(s). * The claimant effects service * The claimant's solicitor must then file a certificate of service at court within 21 days of service, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used (CPR 6.17). It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.

Answer 542

- If the court disagrees with the claimant’s choice once the claim has been issued, the court may consider whether it should remain in the court of issue. The court may transfer cases between the High Court and the County Court (CPR 30). - The criteria the court will use in deciding where the case should be tried are similar to the factors to be considered where to issue (set out above) but with some additional factors (eg whether a specialist judge will be available and the facilities at court for disabled witnesses or parties) which will be considered as appropriate to the case in question. - What are the consequences of getting this wrong?  The court may transfer the case and order the claimant to pay the costs of the transfer.  If the matter continues in the High Court, there is a separate sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be deducted by up to 25%, but this is at the court's discretion (section 51 SCA).

Answer 543

- To issue a claim at court, the claimant’s solicitors must take or send the following to court:  Copies of the claim form (Form N1) to be issued and sealed: * One copy of the completed claim form to be kept on the court file; o YOU FILE A DOC AT COURT * One copy for every defendant; and * One copy for the claimant to keep on its own file.  Court issue fee (varies depending on value of claim - check amount online). * £10,000 IN THE HIGH COURT – THIS CHANGES  There are other documents which the claimant's solicitors may need to file at court and serve on the defendant (such as the particulars of claim) but those set out above are the minimum required to commence proceedings.

Answer 544

- The date of issue of the claim form is important. It stops time running for limitation purposes and starts the clock for the time in which the claim form must be served. - If the documents are sent to the High Court, the court will stamp the covering letter with the date of receipt. This is sufficient to stop time running for limitation purposes. - The documents can also be taken in in person and issued on the same day. - The court issues the claim form by entering a date of issue on the claim form, giving the case a claim number and sealing (stamping with the court seal) all copies of the claim form. - The court creates a case management file and places its own sealed copy of the claim form on that file.

Answer 545

- The date of issue of County Court claims has the same significance as in High Court claims. - County Court money claims are issued centrally. - Most claims in the county court for money should be issued in the County Court Money Claims Centre – a central centre that manages the claims until a hearing is required, at which point they are transferred to a particular local county court hearing centre. This is done by sending the claim form (Form N1) to the County Court Money Claims Centre and paying the appropriate issue fee. - Claims which are not money-only claims can generally be issued at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee. - The claimant will also specify its preferred County Court hearing centre on the form, and the claim may later be transferred to that County Court hearing centre, if a hearing is required (although the court might transfer it to a different hearing centre).

Answer 546

- As an alternative to the procedure set out on the previous page, some County Court money claims can be issued using ‘Money Claim Online’, an online service provided by HMCTS. The money claim online procedure is designed to provide a very quick and cost-effective resolution for simple claims. The claimant (or its solicitor) registers with the money claim online service and completes the online claim form. - This service can only be used for money claims with a value of up to £100,000 which are against no more than two defendants. - The claim form is served in the usual way, but the defendant may then respond through the online service. - If the claim is defended, it will be transferred to the appropriate local county court hearing centre.

Answer 547

users who are going to issue many claims (eg utility companies) can become registered users at the Northampton County Court Business Centre, which provides a particular service for such ‘bulk users’.

Answer 548

 - Personally on the defendant  - Leaving the document at a permitted address  - First class post  - Document exchange (DX)  - Fax  - Other electronic method (eg email)  - Any other method authorised by the court

Answer 549

o Personal service means physically leaving the claim form with a defendant who is an individual, or an appropriate person in the case of a company or similar legal entity (CPR 6.5). the defendant can be personally served wherever they are found within the jurisdiction. This method of service does not rely upon an address for service for the defendant

Answer 550

o This means depositing the claim form at a permitted address (whether or not there is someone present to receive it). o If the defendant gives in writing a solicitor's address in the jurisdiction for service, or their solicitor does the same, service must be to the solicitor’s address (CPR 6.7). o Otherwise, the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings (CPR 6.8)

Answer 551

o This means posting the document to a permitted address using first class post, or using 'DX' (which stands for Document Exchange) – a system used by legal professionals which provides for delivery on the next business day.

Answer 552

o Service by fax is only permitted if the defendant / its solicitor has indicated it will accept service by fax. Where fax is used, the defendant will indicate the fax number for service.

Answer 553

o Individual: Usual or last residence. o Individual being sued in the name of a business: Usual or last known residence of the individual; or principal or last known place of business. o Individual being sued in the business name of a partnership: Usual or last known residence of the individual; or principal or last known place of business of the partnership. o Limited liability partnership / company registered in England and Wales: Principal office of the partnership / company; or any place of business of the partnership/ company within the jurisdiction which has a real connection with the claim.

Answer 554

o Service by email is only permitted if the defendant / its solicitor has indicated it will accept service by email. Where email is used, the defendant will indicate email address for service.

Answer 555

o Claim forms do not remain ‘valid’ indefinitely after they are issued. Where the claim form is being served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed before 12.00 midnight on the calendar day **four months after the date of issue of the claim form**. o If the claim form is not served within this time, then the claim will fail automatically. If the claimant still wishes to pursue the claim, it will need to issue a new claim and pay the court fee again (and for limitation purposes, the date the new claim is issued will be the relevant date).

Answer 556

claimant will need to show **g****ood reasons** for the extension o - If the application is made after the deadline for service of the claim form has already passed, then the court will grant an extension only if:  a. it is the court that failed to serve the claim form; or  b. the claimant has taken all reasonable steps to comply; and  c. either way, the application has been made promptly.

Answer 557

where the claimant sets out its claim in detail. The claimant can choose to include these within the claim form itself, or can serve the particulars of claim in the form of a separate document either with the claim form, or to follow later.

Answer 558

the claimant must also serve the response pack along with the claim form and particulars of claim (CPR 7.8(1)). The response pack (Form N9) contains:  a. form for admission;  b. form for defending; and  c. form for acknowledging service.

Answer 559

they must be served within 14 days of service of the claim form, and also within the period of validity of the claim form, ie within 4 months of issue, assuming service within the jurisdiction (CPR 7.4(2)). Where the particulars of claim are to follow, the claimant should serve only the claim form: the response pack will be served later, with the particulars of claim.

Answer 560

the claimant must file a copy at court within 7 days of service, unless they have already been filed

Answer 561

ie when they are treated as having been received by the defendant

Answer 562

 If done before 4.30pm on a business day: deemed served the same day.  Otherwise: deemed served the next business day

Answer 563

o Claim forms are deemed served on the second business day after the relevant service step has been completed (CPR 6.14) whatever method of service is used.

Answer 564

 Deemed served second day after posting / giving to DX provider, if a business day. * 2 business days  Otherwise: deemed served the next business day

Answer 565

court can authorise other methods or places of service, such as sending a text message or leaving a voicemail on a particular telephone number. The court may also sanction service by a contractually agreed method, or on the agent of an overseas principal. Furthermore, where the party to be served is a limited company, s 1139(1) of the Companies Act 2006 provides that documents may be left at or posted to the registered office of the company

Answer 566

any amendment to the particulars of claim that alters the parties involved may require consent or permission if the claim form has been served, as such changes may require consequential amendment to the - already served - claim form. When a statement of case has been served and the written consent of all the parties has not been given, a party will need to apply to the court for permission to make an amendment (CPR 17.1(2)(b)).

Answer 567

The general rule is that the party making the amendment will bear the costs of and arising from the amendment

Answer 568

'Amended [particulars of claim/defence (or as may be) under CPR [rule 1/. 1(1) or 1%. (2)(a)] dated …'

Answer 569

the amendment is 'desirable'

Answer 570

the court's permission is always required to add, remove or substitute a party, unless the claim form has not yet been served

Answer 571

No one can be added as a claimant without his or her consent, with the consent being filed at court (CPR 19.4(4)). If someone refuses to be added as a claimant, they can instead be added as a defendant (CPR 19.3(2)).

Answer 572

The addition or substitution is deemed to be **'necessary'** only if the court is satisfied that (CPR 19.6(3)): * the new party is to be substituted for one that was named in the claim form in mistake for the new party; * or the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted; * or the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

Answer 573

The court will distinguish between mistakes in name only, and those which actually result in an entirely different person or entity becoming a party ie mistakes as to identity. the mistake is more fundamental and the situation can only be made right by the new party being substituted (CPR 19.6(3)(a)). So here, a new person will be joining the action, however their identity will have been known already. **Has the intended defendant been identified in the statements of case 'by reference to a description more or less specific to the particular case?** If yes, it is a mistake of the type covered by CPR 196(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment.