General

Question 1

If whereabouts of D are unknown, where should C serve claim form?

Answer 1

Take reasonable steps to ascertain current address. Otherwise at last known address

Question 2

In what circumstances can D withdraw admission in a personal injury claim?

Answer 2

When admission came after letter of claim, person can withdraw pre-action admission with consent of the person to whom it was made.

BUT if after commencement of proceedings, will require Court permission.

Question 3

What is the time limit for an application to set aside a default judgment?

Answer 3

Promptly, 14 days.

Question 4

When can Claimant discontinue the claim?

Answer 4

At any time

by filing Notice of Discontinuance.

Question 5

What are 4 valid grounds for objecting to a Part 18 request?

Answer 5

1. Request is UNNECESSARY, irrelevant, or improper
2. Party is UNABLE to provide the info
3. Party given INSUFFICIENT TIME to provide
4. Compliance would be DISPROPORTIONATEb and contrary to overriding objective

Question 6

What is the process for amending a statement of case?

Answer 6

IF parties AGREE - then court will determine on papers

IF parties DISAGREE - then hearing will be held

Question 7

When should evidence in support of interim payment application be provided?

Answer 7

Within 14 days of the hearing.

Question 8

What three categories of evidence are listed in the Disclosure List?

Answer 8

1. Evidence to which party does not object inspection
2. Evidence to which party objects to inpection
3. Evidence no longer in party’s control

Question 9

When does a party have control of evidence for the purposes of disclosure?

Answer 9

1. When it is in their physical possession
2. When they have the right to possess the item
3. When it used to be party’s possession

Question 10

What are grounds to challenge the automatic right to inspection?

Answer 10

Disclosure of docs gives rise to automatic right to inspection. Can be challenged:

1. Privilege
2. No longer in party’s control
3. Inspection would be disproportionate

Question 11

When would a court make an application for specific disclosure?

Answer 11

IF Court has reason to believe document may contain info which will assist applicant’s case or damage respondent’s case.

OR

If the Court has reason to believe it will lead to a train of enquiry which has either consequence listed above.

Question 12

Before making an application for disclosure, what should a party do?

Answer 12

Make a written request to the otherside for the relevant document.

Question 13

When will a document with multiple purposes between client and a third party trigger litigation privilege?

Answer 13

IF it’s DOMINANT purpose is to prepare litigation

Question 14

When is a document protected from inspection due to public interest immunity?

Answer 14

If disclosure would harm the nation or the administration of justice.

Question 15

What happens following mistaken disclosure?

Answer 15

If a party accidentally/inadvertently allows a privileged doc to be inspected, the other party may only rely on it with the permission of the court.

Court will consider interest of justice and overriding objective

Question 16

What is the effect of a failure to file a witness statement at court?

Answer 16

It means that that witness cannot be called to give evidence in the proceedings.

Question 17

What is the difference between an affidavit and a witness statement?

Answer 17

Witness statemetn contains a statement of trusth

Affidavit contains an oath - it is sworn before solicitor (or other) who will endorse the statement

**Affidavit usually necessary for things like freezing orders.

Question 18

What is hearsay evidence?

Answer 18

Eidence (oral or in writing) made out of court with the purpose of proving truth of what is being stated

Question 19

What is the process of relying on hearsay evidence?

Answer 19

Must give notice to the other party.

The other party can then seek to call the witness to trial (by summons) and must make application 14 days following hearsay notice.

OR party can make appliation within 14 adys to attack the credibility of the hearsay evidence.

Question 20

What 4 conditions must experts meet?

Answer 20

1. Have knowledge not in ordinary experience of the judge
2. demonstrate they are regarded as expert in field
3. give evidence with a reasonable degree of certainty
4. demonstrate the basis of their opinion

Question 21

What is a Tomlin Order?

Answer 21

• An order which confirms that the parties have agreed settlemetn and that they have agreed to stay the case pending terms of settlements
• Schedule confirming monies owed and date paymetn due

Question 22

What is a pre-trial hearing? When does it take place? And what are the parties required to provide?

Answer 22

Pre-trial hearings consider extent to which parties have complied with the orders, number of witnesses who will speak during trial etc.

Takes place 10 weeks before trial

Ahead of hearing parties should produce case summary with list of issues (max 500 words)

Should set out which facts are agreed and which are not.

Question 23

How many trial bundles should claimant’s sols produce?

Answer 23

At least 6

AND must be filed between 3 and 7 days before trial

Question 24

What is the limitation period for an appeal?

Answer 24

21 days

Question 25

What are the grounds for appeal?

Answer 25

1. The decision is wrong in fact, law or exercise of court's discretion 2. Decision is unjust because of serious procedural or other irregularity

Question 26

Are there any remedies if you fail to apply to appeal to CoA within 21 days?

Answer 26

Yes, you can make an application for relief of sanction in lieu of an appeal CoA will consider: * The seriousness and significance of the failure to comply with the rules; * Why the default occurred; and * Evaluate the circs of the case

Question 27

What is the indemnity principle?

Answer 27

Winner cannot obtain more in costs than are payable to their sols.

Question 28

Define standard costs

Answer 28

Court consider proportionality and exercises any doubt in favour of the paying party

Question 29

Define indemnity costs

Answer 29

Court does not consider proportionality and exercises any doubt in favour of the receiving party

Question 30

If the final bill exceeds the costs budget by XX% then the claimant must file a statement of reasons

Answer 30

20% \*The Court will not depart from the costs budget without good reason

Question 31

What is a security for costs order? (what 6 circs render it available?)

Answer 31

An order made by D to ensure that costs are available in case C loses. Not always available - usually only when C is comapny, or other reasons to believe that C not able to pay. 1. C is resident outside jurisdiction; 2. C is company + reasons to believe unable to pay 3. C changed address after issuing to evade consequences litigation 4. C failed to provide address on claim form 5. C is a nominal claimant (suing for benefit of someone else) 6. C moved assets outside E&W to make difficult to enforce costs order

Question 32

What is QOCS and what are the consequences?

Answer 32

Qualified One-Way Costs Shifting In personal injury claims C will not be made to pay costs for D UNLESS * claim was **fundamentally dishonest** * claim was made **for financial benefit of another** * claim was **struck out for disclosing no cause of action OR abuse.**

Question 33

In what circumstances can a Claimant lose the right to QOCS protection?

Answer 33

When D has made a Part 36 which C turned down.

Question 34

What are the formal requirements of a Part 36 offer?

Answer 34

1. In writing 2. Clearly state it's made pursuant to Part 36 CPR 3. Give period when offer can be accepted (the relevant period) no less than 21 days 4. States whether the offer relates to the whole or part of the claim and whether it takes into account any counterclaims

Question 35

In what circumstances can a party withdraw Part 36 offer after acceptance/

Answer 35

Only with Court permission Must apply within 7 days of acceptance. Court will consider: 1. Whether change of circumstances warrant withdrawal, and 2. whether it's in the interest of justice

Question 36

What are the consequences of withdrawing a Part 36 offer after the relevant period?

Answer 36

FIne to withdraw. Don't need permission from teh Court and usually no cost implications.

Question 37

When is interest payable on court judgments?

Answer 37

High court judgments carry interest of 8% CC judgments under £5000 usually don't carry interest. CC judgments over £5000 usually carry interest at the same rate as High Court

Question 38

How can a party enforce a judgment that has not been paid? (5 conditions)

Answer 38

By taking control of goods EITHER Writ of Control (HC) or Warrant of Control (County Court) Creditor can then sell debtor's assets to satisfy the judgment. Conditions (5): 1. must give 7 days notice 2. must enter debtor's stated address only and keep inventory of items seized (cannot seize items necessary for trade or basic domestic needs) 3. must seize within 12 months of notice 4. must sell items within 7 days of seizure.

Question 39

How can a solicitor deal with a problem witness during trial?

Answer 39

If a witness ends up stating something contrary to they WS, then sol can ask judge to declare witness ‘hostile’ so sol can cross-examine them.

Question 40

What are examples of strike out app under 3.4(2)(a)

Answer 40

*DISCRETIONARY POWER OF THE COURT* The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): (1) those which **set out no facts indicating what the claim is about, for example ‘Money owed £5000’** (2) those which are **incoherent and make no sense** (3) those which contain a **coherent** set of facts but those facts, **even if true, do not disclose any legally recognisable claim** against the defendant.

Question 41

What are examples of strike out app under 3.4(2)(b)?

Answer 41

*DISCRETIONARY POWER OF THE COURT* A claim may fall within rule 3.4(2)(b) where it is **vexatious, scurrilous or obviously ill-founded.** 1.4 A defence may fall within rule 3.4(2)(a) where: (1) it consists of a **bare denial or otherwise sets out no coherent statement of facts**, or (2) the facts it sets out, while coherent,** would not amount in law to a defence** to the claim even if true.