LG3 Flashcards Preview

Civsy > LG3 > Flashcards

Flashcards in LG3 Deck (81):
1

What does the overriding objective include?

Dealing with cases justly and at proportionate cost includes:

r. 1.1(2)(c), dealing with cases proportionately r. 1.1(2)(d), expedition and fairness

r. 1.4(a), co-operation between the parties

2

Complying with the overriding objective means that conduct aimed at achieving an advantage to the client will be penalised if it results in:

 unnecessary expense
 delay
 inefficient case management
 adverse impact on other cases
 prejudice to another party through what is seen as underhand tactics

3

CPR, Part 1 (WB pp 7 to 9):

CPR, r. 1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing; (b) saving expense;
(c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

4

CPR, r. 1.2

The court must seek to give effect to the overriding objective when it – (a) exercises any power given to it by the Rules; or (b) interprets any rule, subject to rules 76.2, 79.2, 80.2, 82.2 and 88.2.

5

CPR, r. 1.3

The parties are required to help the court to further the overriding objective.

6

CPR, r. 1.4(1) The court must further the overriding objective by actively managing cases. (2) Active case management includes –

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

7

When is a case defended?

A claim becomes “defended” once the defendant files and serves a Defence (or a Defence and Counterclaim, as here).

8

Provisional allocation as defended - APA Civil para 15.09

 This normally happens when D files its Defence
 Where there are 2 or more defendants, it is either when the last of them files its defence, or when the period for filing the last defence has expired (CPR, r 26.3(2))
 A court officer (not a judge) provisionally allocates defended claims to one of the case management tracks
 Based largely on the value of the claim
 Court sends the parties Notice of Provisional Allocation (form)

9

Basic track allocation rules CPR r. 26.6

 Small claims track: value not more than £10,000
 Fast track: value between £10,000 and £25,000
 Multi-track: value over £25,000

10

Financial value for track allocation
CPR r 26.8

The court will disregard
(r 26.8(2)):
(a) any amount not in dispute (b) interest
(c) costs
(d) contributory negligence

11

CPR, r. 26.8(1)

sets out various matters the court will have regard to in considering financial value. These include complexity and importance. They also include the value of any counterclaim (r. 26.8(1)(e))

12

Personal injuries claims and landlord & tenant disrepair cases: CPR r 26.6(1)(b) Low value PI and L&T claims will be allocated to the fast track rather than the small claims track if:

(a) It is a PI claim with damages for PSLA at least £1,000
(b) It is a L&T claim with cost of repairs or damages at least £1,000

13

Janet Samuels has brought County Court proceedings, which have been defended by Daniel Greene, claiming damages for personal injuries sustained in a road accident. You have advised that general damages for pain, suffering and loss of amenity are likely to be about £1,500. The special damages claim comes to £875.

PSLA over £1000 - fast track

14

Gordon Engineering Ltd have brought a claim for breach of contract in the County Court, which has been defended by Better Imports Ltd, seeking damages which you have advised are likely to be about £45,000.

Multi-track - more than £25,000

15

Michael Storey has brought proceedings in the High Court seeking damages for professional negligence against a firm of surveyors, Otway & Hills. You have advised that on full liability damages could amount to £150,000. No Defence was filed, and default judgment has been entered for damages to be decided by the court

No track allocation - no defence was filed. Track allocation only where defence is entered.

16

Directions Questionnaires APA to Civil Procedure, pp 163-168

 The notice of provisional allocation will specify a date for compliance
 In small claims cases the date must be at least 14 days after deemed service of the notice
 In fast track and multi-tracks it is no less than 28 days after deemed service of the notice (r 26.3(6))

17

Failure to file Directions Questionnaire APA para 15.13

Distinctions are drawn between:

 County Court money claims
 High Court claims for a specified sum of money
 All other cases (High Court damages claims; High Court and County Court non-money claims)

18

1 County Court money claims CPR, r. 26.3(7A) !

 The court will send a reminder (APA para 15.14) warning that compliance is required in a further 7 days
 Further non-compliance results in the claim being automatically struck out (C in default) or the Defence being automatically struck out (D in default)

19

2 High Court money claims for a specified amount CPR, r. 26.3(8)

APA para 15.15: The court will make such order as it considers appropriate, including-
 order for directions
 order striking out the claim  order striking out the defence and entering judgment
 listing a case management conference

20

3 Other claims

Failure to file Directions Questionnaire

No prescribed sanction.

21

A strict reading of rr. 26.3(8) and 26.2 would indicate that a claim will only fall into the 2nd category if 6 conditions are satisfied (as set out in r. 26.2(1) and (2)):- (

(i) the proceedings are in the High Court;
(ii) the claim is for a specified amount of money;
(iii) the claim was not commenced in D's home court; (iv) the claim has not been transferred to another defendant's home court;
(v) the defendant is an individual; and
(vi) the claim is not in a specialist list.

Not many cases will meet all 6 conditions. This means that the 3rd category, "other claims", covers almost all High Court claims whether for money or not, as well as County Court non-money claims.

22

Transfer and "sending" See APA paras 12.19; 12.20; 15.38-15.41

Lewis v Russell

 Claimant lives in Rochdale = claimant's "preferred hearing centre", see p 5
 Defendant lives in Leeds = defendant's "home court"

23

Automatic Transfer: Money Claims There is a system for automatically:

(a) sending County Court money claims to the claimant’s preferred hearing centre where the claim is undefended and the court needs to either assess the amount payable or the rate of payment (CPR, rr. 3.5A, 12.5A, 13.4(1A), 14.7A, 14.12(2A), 14.13(3A), and 26.2A(4));

(b) sending County Court claims for specified sums of money to the defendant’s home court where the defendant is an individual. This happens at the ‘relevant time’, which is when (rr. 13.4, 26.2A(3), (6)):  all parties have filed their directions questionnaires, or  a stay to attempt mediation has expired, or  an application is made to set aside a default judgment.
Where there is more than one defendant, the case is sent to the home court of the defendant who first files a defence; and

(c) transferring High Court claims for specified sums of money to the defendant’s home court where the defendant is an individual. These claims are transferred to the defendant’s home court if a defence is filed or if an application is made to set aside a default judgment (rr. 13.4, 26.2).

24

Discretionary Transfer

General discretion to transfer to and from

 the High Court / County Court
 different Divisions of the High Court
 different County Court hearing centres
 specialist Lists

25

Case Management Hearings

CPR Parts 3 and 29.
 There are 4 main types
o Case management conferences (“CMC”);
o Costs management conferences (LGS 11);
o “Hearings under rule 28.5(4)” (or 29.6(4)) (called “listing hearings”); and
o Pre-trial reviews (“PTR”)

26

Case Management Hearings:
Usually...

 Hearings take place before a “procedural judge”  Usually a District Judge or Master, but sometimes a Circuit or HC Judge
 Multi-track cases may be "docketed", which means all interim applications will be heard by the same judge, and often the trial too (APA Civil para 15.06)

27

Case Management Conference

This is a formal hearing before a procedural judge, often lasting 30 mins or 1 hour. Basically designed to ensure the case is dealt with efficiently.

Must submit each sides cost budget 7 days before.

28

Multi-track: documents required before CMC

Multi-track claims are typically going to be subject to:
 Costs management (CPR, r 3.12(1)); and
 Menu option disclosure (r 31.5(2)).

29

In advance of a CMC the parties must file and serve:-

(a) Draft proposed directions using the standard forms found on the Ministry of Justice website (rr 29.1 and 29.4). See APA Civil pages 169-170 for an example;
(b) Costs budgets. See APA Civil page 183; for 10 stages of lit and
(c) Disclosure reports (APA Civil para 15.10). See APA Civil page 343

30

Case management bundle

In advance of a case management hearing, the Claimant’s solicitor may prepare a case management bundle for use in the case management hearing.

31

Who should attend CMC? CPR, r. 29.3(2):

A representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend. PD 29, para 5.2
If an inadequate lawyer attends, the court will usually make a wasted costs order.

32

Business on a CMC The judge:

 considers the statements of case
 allocates to a track (if not yet allocated)
 checks on progress in preparing the case for trial
 may require the parties to consider ADR
 gives directions

33

Directions are...

Directions are a timetable for steps to be taken to prepare the case. Deadlines must be given for each step, usually expressed as “no later than 4 pm on Friday [16 October 2015]”.

34

Agreed directions

To avoid having an actual directions hearing, the parties will often attempt to agree directions. This will be achieved if the court considers the directions suitable (CPR, r. 29.4). This will only be possible (PD 29, para 4.7) if the agreed directions:

 set out a timetable by reference to calendar dates
 include provision for disclosure of documents
 include provision for factual and expert evidence
 include a proposed trial date, or trial period

35

Directions; overriding objective; and costs budgets APA para 15.35

In making directions the court must:
Apply the overriding objective of dealing with cases justly and at proportionate cost
Have regard to any available costs budgets (r. 3.17(1))

36

Typical Directions in Fast Track Claims

Annex PD 28

1

2

3

4

5

1. Lists of documents within 4 weeks Requests for inspection of documents: 7 days
2. Exchange witness statements (for use at trial) within next 4 weeks
3. Experts
 Fields of the experts, and the issues the evidence will address
 If practicable, their names
 Need an estimate of the cost of the expert evidence
 In fast track claims, typically a single jointly instructed expert
4. Dates for sending pre-trial checklists to parties and for the parties to return checklists to court
5. Trial date or window (Fast track claims: 30 weeks from allocation to trial). Estimate for length of trial

37

Other common directions (and where they fit in), typical in multi-track claims

 Amendment of statements of case
 Requests for Further Information and answers
 Lists of documents
 Inspection of documents
 Exchange of witness statements
 Exchange of experts’ reports  Questions to be put to and answered by experts
 Filing Pre-trial Checklists
 Case summary
 Estimates of costs

38

Purpose of Directions

- to ensure workable timetable for litigation towards trial
- aimed at just resolution of dispute, keeping costs in proportion
- The extent of the directions made, and the likely cost of complying with them, depends on which track applies, and overall considerations of how important the case is, how necessary the directions are

39

The court applies the general principle of “cards on the table”. This means both sides must:

o Show the other side their evidence before the trial
o (Generally) disclose their evidence at (or about) the same time

40

ADR and active case management APA Civil para 10.12; 46.11-46.12

WB Supplement 2013, p xii "The aim is that, in general, no case should come to trial without the parties having undertaken some form of ADR to seek to settle the case. To assist in this process an ADR handbook will be published in April 2013." (Sir Rupert Jackson)

Halsey v Milton Keynes General NHS Trust 2004

Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002
 Recognised the value of mediation, and that it can achieve excellent results
 Rejected there is any presumption that mediation must be used
 Parties must ‘consider’ ADR
 Set out 7 factors that are used by the courts in deciding whether any refusal to use ADR was reasonable (set out in APA Civil, para 10.15).

41

Duty to consider ADR
ECHR?

Both sides may be required to provide the court with evidence that ADR was considered. Litigation is regarded as a last resort, and proceedings should not be issued while settlement is being actively explored. It is expressly recognised that the parties cannot be forced to mediate or enter into any form of, but a failure to comply may be taken into account on costs.

This is consistent with the ECHR, art. 6 (APA Civil para 4.37). This says everyone is "entitled to a fair and public hearing .... by an independent and impartial tribunal established by law".

Going further and requiring ADR would breach art. 6(1).

42

7 key principals of ADR:

- Nature of the case
- Merits of the case
- Other settlement methods have been attempted
-Costs of mediation disproportionately high
- Mediation might delay trial date
- Mediation has no reasonable prospect of success

and another...
-

43

Directions Questionnaire APA Civil at p. 163

After proceedings are issued there is a continuing duty to consider the use of ADR. This is supported by the question on settlement in the directions questionnaire.

44

Stay for negotiation

Where all parties request a stay in their directions questionnaires, or if the court otherwise considers this would be appropriate, the proceedings will be stayed for a month while the parties try to settle using ADR (CPR, r. 26.4).

45

Steps in Civil Claims

1. Pre-action Protocol
2. Issue claim form
3. Service of claim form and Particulars of Claim
4. Acknowledgment of service (optional)
5. Defence
6. Reply (optional)
7. Provisional track allocation
8. Directions questionnaires
9. Track allocation and directions
10. Disclosure report and electronic documents questionnaires (multi-track)
11. Case management conference (optional)
12. Lists of documents
13. Inspection of documents
14. Witness statements
15. Experts’ reports
16. Without prejudice meeting of experts
17. Pre-trial checklists
18. Listing for trial
19. Pre-trial review (optional)
20. Briefing of counsel
21. Preparation of trial bundles and skeleton arguments
22. Trial

46

Parties

Put down title, DOB see APA Civil chapter 19.

47

Partnerships - definition

Partnership is the relation which subsists between persons carrying on a business in common with a view of profit: Partnership Act 1890, s 1.
Note: "firm" is the legal shorthand of "partnership".

48

Partnerships - Power to bind the firm

Every partner is an agent of the firm and the other partners for the purpose of the business of the partnership: Partnership Act 1890, s 5.

49

Liability of partners

Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner: PA 1890, s 9.

50

Civil Procedure APA Civil paras 19.27-19.32 PD 7A para 5A.3

Claims by and against partnerships within the jurisdiction

Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.

51

EG claims by and against partnerships within the jurisdiction

Name in Proceedings

HUNT & MURRAY (a firm) Claimant

Also possible if the firm uses a trading name:

BOISTEROUS & Co (a firm) Claimant

52

Partnership membership statements PD 7A para 5B

5B 1/2/3


5B.1 In this paragraph a ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3.

5B.2 If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request.

5B.3 In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.

53

Sole traders rule
CPR 6.9 - service of claim forms, pg 233 item 2.

You need at least two persons to be a partnership. A person trading on their own cannot be a partnership, even if they use a trading name. They are a "sole trader". Any trading name is just a pseudonym for the person in question.

54

Civil Procedure PD 7A para 5C

5C.1 This paragraph applies where –
(1) a claim is brought against an individual;
(2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and
(3) that business is carried on in a name other than that individual’s own name (‘the business name’).

5C.2 The claim may be brought against the business name as if it were the name of a partnership

55

EG Sole trader

Name in Proceedings
Mr JOHN HUNT (trading as
BOISTEROUS & Co) Claimant

Also possible given PD 7A, para 5C.2:
BOISTEROUS & Co (a firm) Claimant

56

Companies:

Separate Legal Person

A key company law concept is that a registered company is a separate legal person, different from its owners (the shareholders) and also different from its managers (the directors). Salomon v Salomon & Co Ltd [1897] AC 22

Therefore a company must sue and be sued in its own name.

57

Company EG

Name in Proceedings BOISTEROUS LIMITED Claimant

58

Types of company Companies registered under the Companies Act 2006 may be either:

 private companies. Name ends with "Limited" or "Ltd"
 public companies. Name ends with "PLC" or "plc"

59

Limited Liability

Another key company law concept is that most companies have "limited liability". This means that if the company becomes insolvent the shareholders are only liable to pay money to the liquidator up to the amount unpaid on the value of their shares. Most companies issue fully paid up shares. In that event shareholders have no liability if the company becomes insolvent.

60

Service on Companies - companies may be served

 At the registered office. This takes place under the Companies Act 2006, and is not governed by the CPR.
 At the principal office of the company or the place where the company carried on activities having a real connection with the claim. This is in the table in CPR, r. 6.9(2), so this is governed by the CPR.

61

Registered office

Companies Act 2006, s. 1139, allows service at a limited company’s registered office.

Must say at place of business otherwise is under CA which is less secure.

62

Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441

Companies

This case recognised the following differences between service under the Companies Act at the registered office as compared with service under the CPR:
 2nd class post can be used under Companies Acts
 Under Companies Acts there is a rebuttable presumption of due service (“unless the contrary is proved”), so service at the registered office does not have the certainty given by the irrebuttable presumption under the CPR.

Deemed date of service if served at the registered office
 Interpretation Act 1978, s. 7: Service by post under CA 2006, s. 1139, is deemed to take effect in the ordinary course of posting. Again, this is not as certain as the rules in the CPR.

63

Personal Service on a Company

A company obviously is an artificial person. CPR service on a company can be effected personally (CPR, r. 6.5(3)(b)) by leaving the documents:

 with a person in a "senior position"
 which means a director, treasurer, secretary, chief executive, manager or other officer (PD 6A, para 6.2)
APA Civil para 6.24

64

Limited Liability Partnerships

These are partnerships that have been incorporated under the Limited Liability Partnerships Act 2000.

 An LLP has "llp" or "LLP" at the end of its name
 Members each have authority to bind the LLP, LLPA 2000, s 6
 But the LLP also has a separate legal personality (s 1(2))
 Sue and are sued in the name of the LLP

65

Trusts

See APA Civil para 19.22

 Trustees, executors, administrators should act jointly, so all should be named
 There is no need to name the beneficiaries (CPR, r 19.7A(1))
 Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings (r 19.7A(2)).

66

Deceased Persons
See APA Civil para 19.25- 19.26 CPR, r 19.8:

(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order –
(a) the claim to proceed in the absence of a person representing the estate of the deceased; or
(b) a person to be appointed to represent the estate of the deceased.

(2) Where a defendant against whom a claim could have been brought has died and -
(a) 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;
(b) a grant of probate or administration has not been made – (i) the claim must be brought against ‘the estate of’ the deceased; and (ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

67

If someone dies

Example?

Claim survives for the benefit of the state

Name in Proceedings
Mr JOHN HUNT (administrator of the estate of
Mrs ELSIE SMITHERS deceased) Claimant

68

Any person under 18 years of age (CPR, r. 21.1(2)(a)).

Name in Proceedings
Miss ANN HUNT (a child, by Mrs MARGARET
HUNT her litigation friend) Claimant

69

Litigation Friend

CPR, r. 21.2 (2): A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).

CPR, r. 21.4(3):... a person may act as a litigation friend if he –
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) 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.

Only children can be exempted.

70

Statement of Truth in Claim with Litigation Friend CPR, r. 22.1(5),(6)

Can be signed by the lawyer or the litigation friend. It states the litigation friend believes the facts stated are true.

71

Certificate of Suitability
APA Civil p 203 - re litigation friend

Must be filed and served by the litigation friend (CPR, r. 21.5).

72

Approval of Settlements for Children APA Civil paras 19.16-19.21

Read CPR rr 21.10 and 21.11 in full !

 Note the difference between settlements made before (optional, see r. 21.10(2)) and after (mandatory, see r. 21.10(1)) proceedings are started
 Procedure on settlements before proceedings: PD 21, paras 5.1-5.6
 Procedure on settlements after proceedings: PD 21, paras 6.1-6.5  Note the documents required (paras 5.2 and 6.4)
 Periodical payments (mentioned in PD 21): see APA Civil para 41.32

73

Default Judgment against children requires an application CPR, r. 12.10

Normally by request in money claims. But children need to be protected.

74

Persons suffering from mental incapacity

A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: Mental Capacity Act 2005, s 2(1). In the CPR such a person is called a "protected person" (CPR r. 21.1(2)(d)).

75

Safeguarding a person lacking capactiy

Mental Capacity Act 2005, s 16(2): Where a person lacks capacity, the Court of Protection may—
(a) by making an order, make the decision or decisions on that person's behalf in relation to the matter or matters, or
(b) appoint a person (a “deputy”) to make decisions on that person's behalf in relation to the matter or matters.

76

Litigation Friend CPR, r. 21.5(2): is often the deputy appointed by the Court of Protection, but not always.

Name in Proceedings
Mr JOHN HUNT by Mrs MARGARET HUNT
his litigation friend
Claimant

77

Approval of Settlements for Protected Persons

More or less the same as for children APA Civil paras 19.16-19.21

78

Default judgment against protected person CPR r. 12.10

Same as children. Court application is always required for default judgment against protected persons.

79

8 Multiple Causes of Action
CPR, r. 19.1 Joinder of parties

Any number of claimants or defendants may be joined as parties to a claim.

80

CPR, r. 19.4(4) Adding claimants

Nobody may be added or substituted as a claimant unless- (a) He has given his consent in writing; and (b) That consent has been filed with the court.
An essential claimant who refuses to consent has to be added as a defendant.

81

CPR, r. 7.3 Joinder of causes of action

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.