full deck Flashcards
what is the overriding objective?
to enable the court to deal with cases justly and at proportionate cost
what must the claimant prove
- duty, breach, causation and loss for negligence
- duty (existence and terms of contract), breach, causation and loss for contract
what must the defendant prove
- contributory negligence (if any)
- why D’s version of the facts is correct (and that C’s version must therefore be wrong)
when may the court treat matters as established without evidence being brought
into court?
- Formal admissions: In the statements of case; or in response to a notice to admit facts.
- Presumptions: For example: res ipsa loquitur (‘the facts speak for themselves’).
This means that where the thing is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management have proper care, it affords reasonable evidence that the accident arose from want of care. In other words, it signifies that further details are unnecessary; the facts of the case are self-evident. - Inferences of fact: Common sense conclusions drawn from primary facts.
what costs might parties incur during litigation?
- solicitor’s fees
- disbursements
what are disbursements?
fees other than the solicitor’s fees
- Court fees
- Counsel’s fees
- Expert’s fees
- Other costs
what is the general rule in relation to costs?
the unsuccessful party will pay the successful party’s costs
can the court make a different order / depart from the general rule on costs?
yes, taking into account:
- conduct of the parties (incl ADR and offers to settle)
- has the party succeeded on all its case, or only part?
as a general rule, how much can be recovered in costs?
only a reasonable and proportionate sum
what happens if a judge does not make an order as to costs?
each party will simply pay its own costs
what happens if a judge gives ‘no order as to costs’?
each party will simply pay its own costs
what does the indemnity principle provide?
party will not be able to recover a sum in excess of their liability to their own solicitor
what are ‘inter-party costs’?
the actual figure for costs awarded by the court which one party has to pay the other party
what are ‘non-party costs’?
the court can award costs against a non-party to the proceedings
when do non-party costs usually arise?
where there is a litigation ‘funder’
what do the courts consider before ordering non-party costs?
- non-party costs are exceptional
- is it just to make the order?
- if the non-party funds and also substantially controls / benefits from proceedings, the non-party will pay the successful party’s costs
what does ‘costs follow the event’ mean?
the unsuccessful party pays the successful party’s costs (i.e., general rule)
can a successful party be refused costs if it failed to engage in ADR?
However, the burden is
on the unsuccessful party to show why there should be a departure from the general rule for this particular reason.
unreasonable refusal does not automatically result in a costs penalty, but is considered as part of the parties’ conduct
what is the standard basis?
The court will allow costs which: The court will allow costs which:
* have been proportionately and reasonably
incurred; and
- are proportionate and reasonable in
amount. - any doubt is resolved in favour of the
paying party. - not uncommon for only 60% of costs to be
recovered from the paying party.
what is the indemnity basis?
- have been reasonably incurred; and
- are reasonable in amount.
- any doubt is resolved in favour of the
receiving party. - not uncommon that the receiving party
will receive 70 – 80% of its legal costs from the
paying party.
in either case, will costs unreasonably incurred or unreasonable in amount be allowed?
no
what is meant by proportionate? (standard basis)
Costs will be proportionate if they bear a reasonable relationship to:
(a) The sums in issue in the proceedings;
(b) The value of any non-monetary relief in issue in the proceedings;
(c) The complexity of the litigation;
(d) Any additional work generated by the conduct of the paying party; and
(e) Any wider factors involved in the proceedings, such as reputation or public importance.
how long does a party have to comply with a costs order?
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; or
- in either case, such other date as the court may specify.
fixed costs generally apply to which situations?
unless the court orders otherwise:
- uncontested disputes;
- enforcement
proceedings; - small claims;
- specialist areas (Sections II to VII of CPR 45 - beyond scope)
when are assessed costs needed?
only when the parties are unable to agree the amount of costs one should pay to the other.
what are the two types of assessed costs?
- summary assessment
- detailed assessment
what is summary assessment, and when is it used?
the court determines the amount payable by way of costs immediately at the end of
a hearing.
The parties must prepare statements of costs, preferably on the N260, and file and serve them on each party not less than 24h before the hearing.
The court will review these (broad brush).
The court will hear the parties’ short submissions in relation to them.
The court will then make a decision as to how much should be paid.
Unless there is good reason not to do so, the court should use the 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.
what is the detailed assessment procedure?
(a) 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.
(b) 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.
(c) 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.
(d) 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.
what is a bill of costs?
a more detailed statement of costs than used in summary assessment
what are the various types of interim costs orders?
- Costs in any event (and summary
assessment of costs) - Costs in the case
- Costs reserved
- Claimant or defendant’s costs in the
case - Costs thrown away
- Costs of and caused by
- Costs here and below
- No order for costs / no order was made
- Costs in any event (and summary
assessment of costs)
The party in whose favour this order is made is awarded its costs of the interim hearing from the other party regardless of who eventually wins at trial.
- Costs in the case
The party who eventually gets its costs at trial
(usually the winner) will recover its costs of the
interim hearing from the other party ie usually
the party that wins at trial will recover the costs of this application.
- Costs reserved
The decision about who pays the costs of the
interim hearing is put off to a later occasion. If
no decision is later made then the costs will be
in the case (see above).
- Claimant or defendant’s costs in the
case
CHECK THIS!!
In the case of the claimant’s costs in the case,
if the claimant is successful and receives an
order that it should be entitled to its costs at
the end of trial, it can include the costs of the
interim application. If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of the interim application.
In the case of the defendant’s costs in the
case, the same principles apply but in reverse.
- Costs thrown away
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.
- Costs of and caused by
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.
- Costs here and below
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.
** BUT** 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.
- No order for costs / no order was made
Each party will bear its own costs
what are the most common interim costs orders?
- costs in any event
- costs in the case
- costs reserved
when is non-compliance with the Pre-Action Protocols justified?
including but not limited to:
(a) Limitation period is about to expire, in which case it may be necessary to issue proceedings (the crucial act that must be completed before the limitation date) before there is time to comply with the pre-action requirements.
In those circumstances, the parties must comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed.
(b) urgent proceedings or for the element of surprise (e.g., search orders)
Consequences of non-compliance: are sanctions always imposed?
it is unlikely that sanctions will be imposed for minor infringements
what constitutes a ‘reasonable response within a reasonable period’?
between 14 days and 3 months
Summary of the Limitation Act 1980
limitation period for personal injury claims s11
the claimant must bring the
claim within 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.
how is the ‘date of knowledge’ defined?
Date of knowledge 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 the defendant; and
(d) If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant.
the date of knowledge of the what permits the limitation period to start running?
the facts
regardless of whether the claimant does or does not realise that, given those facts, they have a claim in negligence
what knowledge does the ‘date of knowledge’ include?
knowledge which the claimant might reasonably have been expected to acquire from an expert / facts observable / ascertainable by them.
limitation period for fatal accidents s12
(a) The claim cannot be brought if the person injured (the employee in our example) could no longer bring a claim. In most cases, you will need to apply the personal injury rules to ascertain this, from the injured person’s perspective.
(b) The claim cannot be brought after 3 years from the later of:
(i) Date of death;
(ii) The date of knowledge of the dependent.
who might claim under the Fatal Accidents Act 1976?
people who were depending on that employee (perhaps the employee’s children) can claim
compensation from the employer.
in what circumstances can the court extend the limitation period?
- PI claims or FAA claims
- if it would be equitable (balance prejudice to claimant and defendant)
looking at:
- the conduct of the parties;
- the reasons for the delay; and
- the effect of such a late claim on the evidence.
limitation period for recovering contribution s10
2 years from the date on which the right to recover the contribution arose:
(a) The date when the judgment was given imposing liability on the first party;
(b) In cases where the first party agreed to make the payment (rather than having a judgment imposed on them), the date on which the amount to be paid was first agreed.
which types of claims are excluded from latent damage s14A and s14B?
PI and FAA claims
what is latent damage?
damage or a Product defect that exists as at the Delivery Date but is not discoverable by a reasonable inspection
e.g., problems with the foundations of building work of a house
limitation period for latent damage s14A and s14B
negligence (excluding PI) - the later of:
(a) Six years from when the cause of action accrued; or
(b) Three years from when he had the requisite:
(i) knowledge; and
(ii) right to bring a claim. (s14A)
and subject to a long stop of 15 years from the date of the latest negligent act or omission which caused all or part of the damage
is the definition of ‘date of knowledge’ different for latent damage?
it is same as for PI cases, but rather than needing to know that ‘the injury was significant’, the claimant needs to know ‘the
material facts about the damage in respect of which damages are claimed’
until when can an action to enforce a judgment, or recover interest, be brought?
six years from when the judgment became enforceable
limitation period for tort and contract claims (outside the above categories) - s2 and s5
6 years from the date the cause of action accrued
what happens to the limitation period if the claimant is under a disability at the time the cause of action accrued?
(a) 2 years in relation to contribution claims;
(b) 3 years in relation to personal injury or fatal accident claims; and
(c) 6 years in most other cases.
what is considered a disability?
- minor (under 18); or
- lacks mental capacity in line with the MCA 2005
what happens to limitation if a claim is based on fraud / concealment / mistake?
limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).
when can claims be brought against a partnership?
two or more people who:
- were partners; and
- carried on the partnership business at the time the cause of action accrued
what is the full name for a partnership in whose name/against which a claim may be brought?
other than for an LLP:
- full name of the partnership (e.g., Flagstones (a firm)) and/or
- full unabbreviated names of partners e.g., (1) John Flagstone (2) Nisha Katon.
- must be the name at the time the cause of action accrued
what is the full name for a sole trader in whose name/against which a claim may be brought?
commonly both the individual and trading name
e.g., John Flagstone (trading as John’s Café)
what is the full name for a LLP in whose name/against which a claim may be brought?
full registered name of the LLP
e.g., Flagstones LLP
what is the full name for a company in whose name/against which a claim may be brought?
the full registered name, including the suffix (such as plc or limited)
e.g., Rockstone Limited
who can represent a company at trial?
by an employee if:
* The employee has been authorised to do so by the company and
* The court gives permission
in a trusts context, by and against who can claims be brought?
- by or against trustees, executors or administrators.
- not necessary to add the beneficiaries of the trust or estate as parties to the claim
are court orders binding on trust beneficiaries?
yes, unless the court orders otherwise
who can claim on behalf of a deceased person if they have no PRs?
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.
how can one claim against a defendant who has died?
- If a grant of probate or administration has been made, the claim must be brought against the PRs.
- 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 for a court order appointing a person to represent the
estate of the deceased in the claim.
which categories of claimants are legally incapable of pursuing claims on their own behalf?
- children (under 18)
- protected parties
what is a ‘protected party’?
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)).
until the contrary is proved, which persons have capacity until proved otherwise?
adults
who has the burden of proof of incapacity?
whoever asserts incapacity
In determining the issue of incapacity, what questions should the legal advisers ask?
- 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?
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.
who represents children and protected parties?
litigation friend
when may a person act as a litigation friend (with or without a court order)?
- 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, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.
who is normally a litigation friend?
often a relative or court-appointed person
process for appointing a litigation friend without a court order
by filing and serving of a certificate of suitability demonstrating that the litigation friend satisfies the three above criteria either:
- at the time the claim is made (C or PP is claimant) or
- when the child takes the first step in the proceedings (if the C or PP is defendant).
if a court order is required
a specific procedure must be followed (CPR 21.6).
for a protected party, who else can appoint someone to conduct proceedings on their behalf?
the Court of Protection
what else can the court order?
permit the child to conduct proceedings without a litigation friend
what are the special rules for service on children and protected parties?
- Any document due to be served on a child or a protected party must be served on the litigation friend.
- Children and protected parties should be referred to in the title to proceedings on documents like so: Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
- A protected party is also referred to in the claim form as being represented by his/her litigation friend, like so: Adam Black (a protected party by Clara Dunn his litigation friend)
the value of a claim is what?
its financial worth
if the value of a claim is its financial worth, what should you disregard?
- interest
- costs
- any counterclaim
- any contributory negligence; and
- any deduction of social security benefits.
what should the claim form state if it is to be issued in the High Court?
that the claimant expects to recover more than £100,000
If the court disagrees with the claimant’s choice once the claim has been issued, can anything be done?
yes. the court may transfer cases between the
High Court and the County Court
what are the consequences of issuing in the wrong court?
- The court may transfer the case and order the claimant to pay the costs of 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).
process for issuing 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;
- 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).
why is the date of issue of the claim form important? (2 reasons)
- it stops time running for limitation purposes
- starts the clock for the time in which the claim form must be served (within 4 months / 6 months of issue)
how does a court actually issue a claim form?
- 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.
where should most claims in the county court for money be issued?
the County Court Money Claims
Centre
how can you issue at the County Court Money Claims Centre?
- send the claim form (Form N1) to the County Court Money Claims Centre; and
- pay the appropriate issue fee
how can non-money only claims be issued?
at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee.
what are the limitations on Money Claims Online?
- value of up to £100,000
- against no more than 2 defendants.
Money Claims Online: what happens if defendant wants to defend a claim?
it will be transferred to the appropriate local county court hearing centre
who can use the County Court Business Centre (CCBC)?
In addition to the County Court Money Claims Centre (and Money Claim Online), 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’.
who can effect service of the CF?
may be served either:
(a) by the court; or
(b) by the claimant / claimant’s solicitor.
if the court serves the claim form, what is the process?
- service will usually be by first class post.
- will send the claimant a notice of issue stating the deemed date of service.
- If the court is unable to serve CF, claimant will be sent a notice of
non-service. Is then up to the claimant to try to serve CF on the defendant.
If the claimant / claimant’s solicitor wishes to serve the claim form, what do they need to do?
- notify the court when issuing the claim form that they do not wish the court to serve it
- 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. It is not
necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.
when does the claimant’s solicitor not need to file a certificate of service at court within 21 days of service of the claim form on the defendant?
It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.
what are the various methods of serving the claim form:
- 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
what does personal service mean for companies?
an appropriate person - senior employee (CHECK THIS)
what does leaving the document at a permitted address mean?
depositing the claim form at a permitted address (whether or not there is someone
present to receive it)
what does ‘service by first class post or DX’ mean?
posting the document to a permitted address using:
- first class post, or
- using ‘DX’ which provides for
delivery on the next business day
when is service by fax or email/other e-method permitted?
only if the defendant / its solicitor has indicated that it will accept service by fax or email/other e-method
which method of service does not rely on a ‘permitted address;?
personal service
the defendant can be personally served wherever they are found within the jurisdiction
when must the permitted address be of the defendant’s solicitor?
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
if the solicitor’s address is not given, where should service be addressed?
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
what if no address is given?
- individual: usual or last residence
- 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
- individual being sued in the business name of a partnership:
-
Limited liability partnership / company
registered in E&W: 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.
time limit for service of the claim form
the ‘relevant step’ must be completed before midnight on the calendar day 4 months after the date of issue of the claim form
what is the ‘relevant step’?
- personal service / leaving the doc at a relevant place: leaving the CF with the defendant
- first class post: posting the CF
- DX: leaving it with DX
- e-method: sending the email/other method
can claimant obtain an extension?
yes, provided it is:
- within the 4 month period
- good reasons for extension
- court failed to serve the CF; or
- claimant took all reasonable steps to comply; and
- either way, the application has been made promptly
Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension
what should the claimant do if it fails to serve the claim form in time?
it will need to issue again, then serve
what can be found in the response pack (Form N9)?
- form for admission;
- form for defending; and
- form for acknowledging service.
what are the 3 ways to serve the particulars of claim?
- contained within the claim form;
- served in a separate document, but still with the claim form; or
- following the claim form
when must claimant serve the response pack along with the claim form and particulars?
if particulars are:
- contained in claim form; or
- served separately but with the claim form
if the particulars are served following the claim form, what are the timing requirements?
must be served within:
- 14 days of service of the claim form, and
- within 4 months of issue
when should the response pack be served if the particulars are to follow?
when the particulars are served
when and by who must a copy of the particulars be filed?
when: within 7 days of service, unless already filed
by who: claimant
when is the claim form deemed served?
2BD after the relevant step
what does ‘business day’ mean?
any day except:
- Saturdays,
- Sundays,
- bank holidays,
- Good Friday or
- Christmas day
what is the deemed date of service of all documents other than the claim form?
Instant methods (personal service, fax, email, delivering/leaving at a permitted address. If done before 4.30pm on a business day:
* deemed served the same day.
* Otherwise: deemed served the next business day
Not-instant methods (Post / DX)
* Deemed served second day after posting / giving to DX provider, if a business day.
* Otherwise: deemed served the next business day
what are the ways a defendant might respond to a claim?
- File or serve an admission (CPR 14)
- File a defence (CPR 15)
- File or serve an admission and file a defence, if it admits only part of the claim
- file an acknowledgment of service (CPR 10). This is the step to be taken if the defendant is
unable to file a defence within the period initially allowed, or if it wishes to dispute the court’s jurisdiction (CPR 10.1).
what are the two reasons to acknowledge service?
- D is unable to file the defence in time and needs longer than 14 days from the deemed date
of service of the particulars of claim in which to serve a defence; or - if it wishes to dispute that the court has jurisdiction to hear the claim.
time limits for filing an acknowledgement of service?
- if particulars are to follow the claim form, 14 days after service of the particulars of claim; and
- in any other case, 14 days after service of the claim form
is it mandatory to file an acknowledgement of service?
no, it is optional (but may be different in specialist courts)
what can be found in the acknowledgement of service form (Form N9)?
- defendant confirms their name is correct on the claim form
- gives their address for service
- does D intend to defend all or part of the claim?
- does D intend to contest jurisdiction of the court?
If the defendant does not file an acknowledgment of service, when must it file and serve its defence?
within 14 days of the deemed date of service of the particulars of claim
what happens once the defendant has filed an acknowledgment of service
- the court will notify the claimant in
writing that this has been done (CPR 10.4), and - the defendant’s solicitors will often notify the
claimant / claimant’s solicitors directly as well.
the defendant need not file a defence before the hearing of which applications?
- disputing the court’s jurisdiction
- where, before the defence is filed, the claimant applies for summary judgment
when will the court specify a period for filing the defence?
where the court makes an order for service of a claim form on an agent of a principal who is
overseas
the defendant has up to how long from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission to extend the time for service?
56 days
14 days standard
+
14 days after AoS
+
up to 28 days agreed between C + D
to what extent is the court involved in the up to 28 days extension between C + D?
court must be notified in writing (but no application to court is required).
when might a party choose to involve the court to gain an extension?
if a claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the
defendant will need to apply to the court for an order allowing an extension of time (does this apply vice versa too?)
what is the ‘money paid’ defence response to a claim?
- When the court receives this type of defence, it sends a notice to the claimant which, in effect, asks the claimant whether the defence is correct.
- The claimant must respond within 28 days and the claim is stayed if they do not do so.
- Whatever their response, the claimant must serve a copy of it on the defendant.
- If the claimant does not wish to continue that is the end of the case.
- If the claimant does wish to continue (because they do not agree that the debt has been paid or because, for example, they still wish to recover interest and costs) the claim will proceed as a defended claim.
what is Form N9A?
claim is for a specified amount
what is Form N9C?
claim for an unspecified amount, non-money or return of goods
who should an admission be sent to?
- the court; or
- the claimant if admitting a specified claim in full
time limits for an admission
within 14 days of deemed service of the particulars of claim
what happens when D admits the whole of a specified claim?
the judgment amount is known, so the amount due can be calculated immediately:
- debt
- court fees
- interest
- fixed costs
what happens when D admits only part of a specified claim?
judgment can be given in part:
- admitted part of debt
- interest on admitted part of debt
defence must be filed for the disputed part of debt
what options does D have when admitted unspecified claims?
- admit liability to pay the whole claim for an unspecified amount (CPR 14.6); or
- admit liability and offer a sum in satisfaction of the claim (CPR 14.7).
if a claim for an unspecified sum is admitted, what is and isn’t resolved?
- liability = resolved
- quantum (money) = TBC in subsequent hearing and judgment
- interest = TBC in subsequent hearing and judgment
what happens after the whole claim is admitted?
following a request being made by the claimant, the court will enter judgment for an amount to be decided later by the court and costs
Except where one of the parties is a child or protected party
what does a ‘request for time to pay’ involve?
- pay by a certain date
- pay in instalments
available on both Form N9A and N9C, where D can provide personal financial info, and reasons for the request
what happens if the claimant does not accept D’s request for time to pay?
the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant
what does ‘entering judgment against the defendant’ practically mean?
claimant is, either completely or to some extent, the successful party
why do defendants want to avoid judgment against them?
- avoids the possibility of
enforcement proceedings, and - most money judgments are placed on a public, searchable register (the Register of Judgments, Orders and Fines) for 6 years, which could impact credit rating
aside from having judgment entering against a party, what are some other ways to conclude an admitted claim?
- settlement e.g., Tomlin Order
- claimant agrees to withdraw claim
when it is unlikely that judgment will be entered?
specified claim has been admitted and paid in full (with interest, court fee and costs) within the 14 day period for responding to the claim
what is included in the judgment for specified claims?
- the amount of the claim / debt including interest to the date of issue of the claim;
- interest since the date of issue (using the daily rate from the particulars of claim);
- court fees (ie issue fee as shown on the claim form); and
- fixed costs, the amount of which are set out in the rules (CPR 45) – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering
judgment.
what is included in the judgment for unspecified claims?
liability only
the matter will be listed for a subsequent hearing where evidence will be heard
on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.
How to enter judgment following a claim being admitted
- claimant completes a request for judgment and reply to admission form within 14 days of
receiving notice of the admission. On this form they will indicate the judgment amount, including interest, court fees and fixed costs, as well as the amount of any payments made by the defendant. - On receipt of the request for judgment, the court staff will enter judgment and send this to the parties.
- Once judgment is entered following the admission and the amount payable has been determined, the claim is effectively concluded.
- Unless otherwise agreed or stated on it, the judgment is payable by the defendant within 14 days (CPR 40.11). Enforcement proceedings can be taken against the defendant to secure payment of any sums outstanding after this time.
counting time rules (4)
- day on which a period begins is never counted
- if the end of a period is defined by reference to an event (hearing, trial), the day of the event is not included
- where the period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count
- where a deadline relates to doing any act at the court office (such as filing a document at
court), and (applying the 3 rules above) the deadline that act ends on a day the court office is closed, the act is treated as ‘on time’ if done on the next day the court office is open.
what is default judgment?
an application for judgment to be granted in the claimant’s favour without a trial
if the defendant has not responded to the claim by either serving an acknowledgment of
service or a defence within the prescribed time limits (CPR 12.1)
in which types of claim can default judgment not be obtained?
- claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974
- Part 8 claims
- any other claims where a practice direction provides that the claimant may not obtain default judgment.
what must the claimant show to obtain default judgment?
- At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and the defendant has not filed either an acknowledgment of service or a defence) or
time has expired for filing a defence (where the defendant has filed an acknowledgment of service but not a defence). - The claim has not been admitted or satisfied by the defendant.
- No application for summary judgment or strike out has been made has been made by D.
what is strike out?
the deletion of written material from the whole or part of the claim or defence, as it does not amount to a legally recognisable claim or defence.
how is default judgment different to strike out?
strike out looks at the merits of the case; default judgment is the consequence of the defendant failing to respond on time, and is purely procedural.
what is summary judgment?
cases which are weak on the facts / merits will be decided without trial, if one or other party has:
- no real prospect of succeeding on or successfully defending the claim or issue; and
- there is no other compelling reason why the claim or issue should proceed to a trial.
how to obtain default judgment: money claims - specified sum
claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.
how to obtain default judgment: money claims - unspecified sum
the claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.
how to obtain default judgment: non-money claims
Non-money applications for default judgment (together with a small number of other claims,
which are beyond the scope of this section) cannot be decided on paper. Instead the claimant must apply for a default judgment hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate
how to obtain default judgment: interest
A default judgement on a claim for a specified amount of money may include the amount of
interest claimed to the date of judgment (CPR 12.7) provided:
* The particulars of claim include details of the interest (as required by CPR 16.4);
* Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
* The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment.
In any other case, the amount of interest will be decided by the court.
how to obtain default judgment: claim against more than one defendant
A claimant may obtain a default judgment against one or two or more defendants and proceed with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants (CPR 12.9).
Sometimes the claim cannot be dealt with separately (eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which). The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with separately. So the court will deal with the application for default judgment against one defendant at the same time as it disposes of the claim against the other defendants – quite possibly at trial.
what are the two cases in which default judgment might be set aside?
- if judgment was wrongly entered (must be set aside)
- if judgment was correctly entered (may be set aside)
If judgment was wrongly entered, what reasons must the court consider?
The time limit for acknowledging service or
serving a defence has not, in fact, expired when judgment was entered; or
- An acknowledgment of service or defence had, in fact, been filed on time; or
- Summary judgment or strike out had been
applied for before judgment was entered; or - The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.
and
how promptly the defendant made its application to set the judgment aside
If judgment was correctly entered, what reasons might the court consider?
- The defendant has a real prospect of successfully defending the claim; or
- It appears to the court that there is some other good reason why judgment should be set aside or varied or defendant should be allowed to defend
and
how promptly the defendant made its application to set the judgment aside
what are some examples of ‘some other good reason why judgment should be set aside’?
- the claimant lulled the defendant into believing a claim was not forthcoming,
- the claimant failed to serve a response pack, or
- the claim raises issues which should be given a full and fair hearing in the public interest.
how might a party apply to set aside default judgment?
by applying for relief from sanctions
from which case does the relief from sanctions test come?
Denton
can a court set aside default judgment with conditions attached?
yes
eg that the defendant pays
the claimant’s costs of the hearing.
what does every statement of case need, and why?
a statement of truth
If the document turns out to contain a false statement and the person signing
the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing.
This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases
Statement of truth where the party is an individual
I believe that the facts stated in this claim form are true.
….I understand that proceedings for contempt of court may be brought against anyone who
makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Statement of truth where the party is a company
The defendant believes that the facts stated in this defence are true. I am duly authorised by the defendant to sign this statement….
….I understand that proceedings for contempt of court may be brought against anyone who
makes, or causes to be made, a false statement in a document verified by a
statement of truth without an honest belief in its truth.
who prepares the claim form?
the claimant
how will the value of the claim be stated in the claim form?
- ‘The claimant expects to recover less than £10,000’
- ‘…between £10,000 - £25,000’
- ‘…more than £25,000’
(this information is used to provisionally allocate a claim to a track);
OR
- ‘I cannot say how much I expect to recover’.
how will the value of the claim be stated in the claim form? (PI cases)
the claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,000.
Sometimes the claimant has a choice whether to issue the claim in the County Court or High
Court. If the High Court is chosen in this situation, what additional items does the claimant need to include in the claim form?
a special ‘jurisdictional endorsement’:
- state that the claimant expects to recover more than £100,000;
- state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
- if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
- state that the claim is to be in one of the specialist High Court lists and state which list.
if the particulars of claim are served separately from the claim form, what additional detail must they contain?
the claimant’s address for service
specific requirements for the particulars
- The particulars of claim should set out any claim for aggravated damages, exemplary
damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4). - In personal injury claims, the particulars should include the claimant’s date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4).
- A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises (16 PD 7.1).
- Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated) (16 PD 7.3).
- Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where (16 PD 7.4).
- Where the claim is based on an agreement by conduct, the particulars should set out the
conduct relied on and state by whom, when and where the acts were done (16 PD 7.5). - There are detailed rules on the inclusion of information in relation to past convictions, fraud illegality, unsoundness of mind (16 PD 8).
- Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.
what might be the legal basis of claim for interest (particulars of claim)?
- set out in a contract between the parties or, failing that,
- there is a statutory right to interest (under section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court).
what are the two ways of setting out the paragraph(s) claiming interest?
- Calculating exactly the amount of interest claimed; or
- Claiming (‘pleading’) the interest generally.
when is an exact calculation of interest used?
only in relation to a specified claim (ie a debt or a specified/liquidated damages claim).
for an exact calculation of interest, what needs to be set out?
- the applicable percentage rate,
- the dates from/to which interest is being claimed,
- the total amount claimed up to the issue of the claim form, and
- the daily rate of interest thereafter.
when is interest pleaded generally?
for an unspecified claim (the court must decide the amount, because the parties cannot agree)
Certain types (or ‘heads’) of damage will naturally fall into this category, eg:
- loss of goodwill or damage to reputation (which can usually only be estimated),
- loss of future earnings or profits, and
- any damages where remoteness, foreseeability and/or mitigation is an issue.
from an interest perspective, what happens if the claim is partly specified and partly unspecified?
For such ‘hybrid’ claims, you have a choice:
1. treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim.
2. the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim.
what principles apply to statutory interest claims?
- Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this section.
- In personal injury claims where damages over £200 are awarded, some interest must be
awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion. - In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.
standard wording for introducing each party
At all material times the Claimant was a
professional equities investor and the
Defendant was a firm of solicitors.
standard wording for the relevant duty (or duties), including any necessary background facts
By a contract dated 24 October [year], the
Claimant and the Defendant agreed that the
Claimant would sell to the Defendant
computers for the price of £200,000.
standard wording for specifying the breach(es)
In breach of the express term of the contract
referred to in paragraph 4 above, the
Defendant did not pay.
standard wording for pleading causation (linked to the breach)
As a result of the breach referred to in
paragraph 5 above, the Claimant has
suffered loss.
standard wording for setting out loss (and interest claim).
The Claimant claims the sum of £200,000.
what comes after setting out loss (and interest claim)?
a summary of the remedies sought by the claimant - the ‘prayer’
example of a prayer
AND THE CLAIMANT CLAIMS:
(a) damages under paragraph 13 above; and
(b) interest under paragraph 14 above.
what comes after the prayer?
the name of the firm of solicitors or barrister drafting the particulars of claim and the statement of truth
for claims based on written agreement, what must be included?
must attach the written agreement
for claims based on oral agreement, what must be included?
must set out words spoken, by whom, to whom, when and where
for PI claims, what must be included?
must include claimant’s date of birth, injuries, schedule of past and future expenses / losses and any medical expert report
in a defence, what are three options in relation to each allegation?
- admit;
- deny; or
- require proof
what must a defendant include in its defence if it denies an allegation?
must give reasons
or
if it wishes to put forward a different
version of events, it must state its version in the defence
what effect will the denial have on the claimant?
the claimant will have to prove the allegation
when would a defendant want to require proof of an allegation?
if the defendant does not have any knowledge of the fact alleged
what are the consequences for the defendant’s failing to deal with an allegation?
- If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it (CPR 16.5(3) and (5)).
- In a money claim, however, it will always be understood that the amount claimed is not
admitted unless the defendant specifically admits it (CPR 16.5(4)).
It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.
defence contents
[UPDATE LATER]
what is ‘set-off’?
‘I don’t owe you X, because you owe me X, and the two cancel each other out’.
what is a Reply?
an optional statement of case
who serves a Reply and why?
- served by the claimant
- factual allegations which answer ‘new’ points raised in the defence
when should a Reply be filed?
with the directions questionnaire (DQ)
how much notice are parties given for the deadline for filing the DQ and Reply?
at least 14 days’ notice
(unless specialist proceedings e.g., Commercial Court claims)
does the Reply need a statement of truth?
yes
A Reply should be the last statement of case in a claim. What is needed to file any statement of case after the Reply?
permission of the court
when is a classic counterclaim made?
usually at the same time as the defendant files its defence
If a counterclaim is made after the defence has been filed, what is required?
permission of the court
is a defendant’s counterclaim against the claimant pursued in the same
proceedings as the main claim?
yes. it is usually more convenient to deal with the main claim and counterclaim together rather than separately, as long as the parties are suing/being sued in the same
capacities as in the main claim
what can happen if the court does not think the counterclaim should be heard with the main claim?
it can order that the counterclaim be struck out or heard separately
how is a counterclaim normally filed?
- with the defence (‘Defence and
Counterclaim’) - court fee is payable
what is the defence of set off?
The facts that give rise to a counterclaim may also amount to a partial or complete defence in the main claim
what effect does the defence of set off have on a claim?
extinguishing any claim up to the same amount
example of set off
what are the most important legal bases for set off?
-
S.53(1) Sale of Goods Act 1979: Where the seller sues for the price of goods sold and delivered, the buyer can set off a claim for breach of implied terms as to quality
and fitness for purpose. -
Defective services: Where a claim is made for the price of
services, the defendant can set off a claim for
damages for poor services. - Equitable set-off: This has been developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim.
what does set off apply and not apply to?
applies to: debts
does not apply to: damages
where should the defence of set-off be set out?
the defence part of the Defence and Counterclaim (not the counterclaim part)
example of form of set off (usually be the last paragraph of the defendant’s defence before the start of the counterclaim)
Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant’s claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether.
what are the timing requirements for claimant to acknowledge service of the counterclaim using an acknowledgment of service?
none. a claimant does not have to do this.
what are the timing requirements for claimant to filed and serve a defence to a counterclaim?
must be served within 14 days after service of the counterclaim
if a claimant wishes to defend a counterclaim, what are the consequences for failure to do so?
a judgment in default might be entered by the defendant
how does a claimant file their Reply to a counterclaim?
the ‘Reply and Defence to Counterclaim’ normally form one document with the defence to counterclaim following on from the reply
A Reply should be the last statement of case in a counterclaim. What is needed to file any statement of case after the Reply?
permission of the court
list of additional claims
- A counterclaim by a defendant against the
claimant. - A counterclaim by a defendant against the
claimant and some other person. - An additional claim by a defendant against
any person (already a party to theproceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity. - An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy. - An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
is a claim by the original claimant an additional claim?
no. a claim by the original claimant cannot fall into any of the categories above, even if the claimant is adding a further claim to its existing claim
what is a ‘contribution’?
right of someone to recover from a third person all or part of the amount
which he himself is liable to pay
what is an ‘indemnity’?
right of someone to recover from a third person the whole amount which he
himself is liable to pay.’
- A counterclaim by a defendant against the
claimant. - A counterclaim by a defendant against the
claimant and some other person. - An additional claim by a defendant against
any person (already a party to theproceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity. - An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy. - An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
- A counterclaim by a defendant against the
claimant.
A counterclaim by a defendant against the
claimant and some other person.
permission required
An additional claim by a defendant against
any person (already a party to the proceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity.
- An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy.
- An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
Examples include:
- The defendant’s loss in the additional claim arises solely out of anything the defendant is
ordered to pay to the claimant in the main claim. - There will frequently be related matters of evidence and fact which, once decided in the main claim, resolve the point in the additional claim as well.
for which additional claims is court permission always required?
- counterclaims against a person other than claimant
-
for which additional claims is court permission required if not filed at the same time / with the defence?
- classic counterclaim
- claims for a contribution or indemnity from an existing party
- other additional claims
what procedure must be following to obtain permission?
the ‘normal’ interim application procedure:
- The Application Notice will be accompanied by a draft order and evidence in support which will include details of the stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party
what form do classic counterclaims take?
‘particulars of counterclaim’
what form do counterclaims against a person other than a claimant take?
serve the appropriate notice (???)
If done in circumstances when the court’s permission is not required, the notice is filed and served with the defence.
If the court’s permission is required, the court will give directions as to when the notice should be served.
how are other additional claims started?
by issuing an N211 claim form
If the court’s permission is required, the court will give directions as to when the notice should be served. If an additional claim is made without court permission, when and how should the claim firm be served?
on the person against whom it is made within 14 days of it being issued
A party upon whom an additional claim is served becomes a party to the proceedings
if he was not already a party
If an additional claim is served on someone who is not already a party to the proceedings, it must be accompanied by what?
- a response pack; and
- a copy of every statement of case and any other documents that the court directs.
A copy of the additional claim form must also be served on every existing party
when will the court direct claims to be dealt with separately?
if there is no substantial connection between the original proceedings and the proposed additional claim
what will the court do if a defendant to an additional claim files a defence, other than to a counterclaim?
the court will arrange a hearing to consider case management of the additional claim
summary of permission to amend: general amendments to SoCs / amendments removing, adding or substituting parties
summary in relation to mistake as to ‘parties’ after the limitation period has expired
summary of how to make an interim application - normal procedure
- service as soon as practicable but no less than 3 clear days before the hearing
- respondent files and serves evidence ASAP
- applicant files and serves evidence ASAP
procedure for interim payment applications?
- service of N244, supporting evidence, draft order and notice of hearing date at least 14 days before the hearing
- respondent files at court and serves on the application evidence at least 7 days before the hearing
- applicant files at court and serves on the respondent evidence in reply at least 3 days before the hearing
- both parties file and exchange statements of costs not less than 24h before the hearing
what are the American Cyanamid guidelines?
- Is there a serious question to be tried?
- Would damages be an adequate remedy for a party injured by the court’s grant of (respondent) or failure to grant (applicant) an injunction?
- Where does the balance of convenience lie?
what are the grounds for summary judgment?
the claimant has no real prospect of succeeding on the claim or issue
OR
the defendant has no real prospect of succeeding on the claim or issue
AND
there is no other compelling reason why the case or issue should be disposed of at trial.
overview of allocation process
- defence is filed
- court sends out the notice of proposed allocation, provisionally allocating to small claims/fast track/multi-track
- parties file DQs
- if the claim has been provisionally allocated to the fast track or multi-track, the parties also file proposed directions
- the court will allocate the claim to a track (after a hearing, if necessary) and serve a notice of allocation
if allocated to small claims or fast track: the court will usually give directions
if allocated to multi-track: the court will give directions OR fix a CMC where directions will be considered
how to determine the correct track
what is the court likely to consider at a CMC?
At a CMC, the court is likely to consider:
(a) Whether the claim is clear;
(b) Whether any statements of case need to be amended;
(c) What disclosure is required, if any;
(d) What expert evidence is required, and how and when it should be obtained;
(e) What factual evidence (eg witness statements) should be provided for;
(f) Whether any further information is required; and
(g) Whether it will be just and will save costs to order a split trial or the trial of one or more
preliminary issues.
overview of CMC procedure
- budget filed and exchanged not less than than 21 days before first CMC
- disclosure report filed and exchanged not less than 14 days before first CMC
- agreed or draft directions and budget discussion report (and possibly EDQ) filed and exchanged not less than 7 days before first CMC
overview of the costs mgmt regime
budgets:
- parties prepare budgets: estimates of future costs
- filed and exchanged, usually 21 days before the CMC
- subsequently discussed by the parties
budget discussion reports:
- record the extent to which the parties have agreed budgets
- filed and exchanged, usually 7 days before the first CMC
case / costs mgmt conference:
- budgets and budget discussion reports are considered by the court
directions order and / costs mgmt order:
- directions are determined in light of estimated costs
- court might make a costs mgmt order: a provisional indication of what should be considered reasonable and proportionate costs in any later assessment proceedings
Overview of disclosure and inspection
Summary of usual path to a disclosure order
how to approach standard disclosure (3 questions)
3 questions to ask:
1. is it a document?
2. is or was it in the party’s control?
3. does it fall within standard disclosure?
what constitutes a ‘reasonable search’?
- the numbers of docs involved
- the nature and complexity of the proceedings
- how difficult/expensive it is to retrieve any doc
- the significant of any doc likely to be found
+ overriding objective (proportionality)
A party has a right to inspect a document that has been disclosed except where:
(a) The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
(b) Allowing inspection would be disproportionate (CPR 31.3(2); or
(c) The disclosing party has a right or duty to withhold inspection, ie it is privileged
if the witness will only be asked to confirm the truth of the contents of the statement in the witness box, what is the principal purpose of the witness’ attendance at trial?
- the other party’s counsel will cross-examine the witness
- witness will then be reexamined by their own party
what are the 3 differences between witness statements and affidavit?
- introduction - “state on oath”
- exhibit wording - “there is now shown to me marked”
- ending has a jurat (not a statement of truth) which must:
- be signed by all deponents;
- completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
- contain the full address of the person before whom the affidavit was sworn
- follow immediately on from the text and not be put on a separate page
what are a party’s 4 options following receipt of a notice of intention to rely on hearsay?
- request particulars of hearsay
- call for cross-examination
- challenge the weight of hearsay evidence
- attack credibility of an absent witness
what options does a party have if it receives an unfavourable report from an expert?
- put questions to expert
- seek advice from another expert advisor
- if there is not a direction for the expert to give oral evidence, seek such a direction from the court
