Principles, procedures and processes Flashcards
(289 cards)
1
Q
What are the 4 different options for dispute resolution?
A
Litigation
Arbitration
Mediation
Negotiation
2
Q
What are the key points and characteristics of arbitration?
A
Semi-formal where a neutral third party (the arbitrator) hears evidence and resolves the parties’ dispute through a final award.
Strict rules of evidence don’t apply.
The arbitrator’s decision (the final award) is legally binding on both sides.
An arbitral award is enforceable if the court gives judgement in terms of the award.
3
Q
What are the key points and characteristics of mediation?
A
Informal process where a neutral party (the mediator) assists disputing parties to reach a solution.
Mediation is confidential and without prejudice.
Rules of evidence generally do not apply, and parties can bring up anything e.g. hurt feelings.
Mediation is not binding until the parties sign an agreement.
The mediator doesn’t rule on merits but facilitates discussion.
Costs are borne by both parties.
4
Q
What are the key points and characteristics of negotiation?
A
Informal discussions between the parties. Can take place at any time.
Can take place ‘without prejudice’ so cannot be relied on by the other party or referred to in court.
Includes round-table discussions where parties and their representatives meet to try to settle, usually after disclosure of witness statements and evidence.
5
Q
What is the broad label used for methods of resolving disputes other than through litigation?
A
Alternative dispute resolution (ADR)
6
Q
The Court of Appeal has directed legal professionals to encourage clients to attempt ADR. Name 3 practical considerations related to this?
A
- Courts have a duty to ensure cases are resolved in a proportionate, expeditious and fair manner. ADR may help with this goal.
- Solicitors should make clients aware of ADR and its possibility considered throughout a proceeding.
- Failing to consider ADR or participate in it may impact a party’s ability to recover costs of the proceeding.
7
Q
What can defendant do if a claimant commences an action after the applicable limitation period expires
A
Use the limitation period passing as a defence
8
Q
What is the limitation period for tort (general)?
A
6 years from the time the act occurred.
Or if the tort was not apparent when it occurred is 6 years from when the claimant gained knowledge of the tort.
9
Q
What is the limitation period for personal injury – tort?
A
3 years from event or knowledge.
If the victim dies then 3 years from date of death or 3 years from the deceased’s personal representatives gaining knowledge of the tort.
10
Q
What is the limitation period for negligence claim for latent defects in property – tort? And what is the long stop?
A
6 years from accrual and 3 years from earliest date the potential claimant knew or reasonably ought to have known material facts necessary to bring an action alleging negligence.
Longstop so no action can be brought more than 15 years after the act or omission alleged to have caused the damage.
11
Q
What is the limitation period for contract?
A
6 years from when the breech occurs.
Note: a construction contract with a make good clause does not prevent a simple contract action within the limitation period.
12
Q
When does time stop running for limitation period purposes?
A
When the claimant delivers the properly completed claim form to the court with a request to issue proceedings and the correct fee
13
Q
Effect of mistakenly naming defendant on limitation period?
A
If the defendant has been correctly identified but mistakenly named, it may be possible to alter the name of the defendant in the claim.
14
Q
Effect of under 18 on limitation period?
A
If the claimant is a minor the limitation begins to run on their 18th birthday.
15
Q
Effect of mental capacity on limitation period?
A
If the claimant lacks mental capacity at accrual of the cause of action the limitation clock doesn’t start running until certification that the claimant is of sound mind. BUT if they had capacity and lose capacity during the limitation period the clock doesn’t stop running.
16
Q
Effect of fraud/concealment on limitation period?
A
The limitation period begins when the claimant discovers the fraud or concealment or could have with reasonable diligence.
17
Q
What do pre-action protocols set out?
A
The steps that each party should take before commencing a legal action. There are a number of dispute-specific protocols.
Personal Injury protocol is one example.
18
Q
What are 3 examples of when it’s justifiable to issue proceedings without following the relevant protocols?
A
- Limitation period is almost over
- Court order is required to preserve evidence or assets
- Concern that the defendant may seek to issue proceedings in another country to avoid UK courts.
19
Q
When can a party make a pre-action application for disclosure of documents?
A
If the documents requested would be disclosed under standard disclosure and could assist in disposing of a claim without needing to issue proceedings
20
Q
When can a party make a pre-action application to inspect property?
A
If property is/may become the subject matter of the proceedings; or is relevant to the issues that will arise in relation to the proceedings.
21
Q
What is the purpose of the Practice Direction?
A
Courts expect litigants to follow the guidelines in the Practice Direction when no specific protocol applies.
22
Q
What is the first step of the Practice Direction?
A
Claimant is to write to the defendant with concise details of the claim. Suggested timeline for the defendant to reply is within 14 days for a straightforward claim; up to three months for a complex claim.
23
Q
What is provided for in the Practice Direction?
A
Parties should disclose key documents, consider using a single, joint expert and consider ADR.
24
Q
If party fails to follow the relevant protocol or the Practice Direction then what are three likely consequences?
A
- Stay of proceedings – to allow the Practice Direction or the step in the specific protocol to be complied with
- Ordering the non-compliant party to pay the costs or part of the costs of the other party
- Restricting interest on the claim (when non-compliant party is the claimant)
25
When must claims start in the County Court?
All unless the total value of the claim exceeds £50,000 for personal injury or £100,000 for other claims
26
When does the County Court Money Claims Centre (CCMCC) issue claims? (Not value)
Issue all claims for debt where the sum sought is certain, known as specified claims. These are commenced by completing a money claim form.
Most other claims (unspecified claims for damages) also start in the CCMCC.
27
What do CCMCC typically do following receipt of a defence or admission and the where to?
Transfer the claim to the hearing centre local to:
* The defendant’s home address (if the defendant is an individual)
* The claimant’s preferred hearing centre (if the defendant is a company)
28
When may High Court issue claims?
Claims exceeding £50,000 for personal injury claims and £100,000 for other claims.
Although they may be filed in County Court instead e.g. if a simple case of breach of contract.
29
When is it appropriate for High Court to issue claims?
* The financial value of the claim is high;
* The issues, remedies or procedures will be complex; and/or
* The outcome of the claim would be important to the public in general.
30
What are the three divisions of the High Court?
1. Chancery
2. Family
3. King’s Bench
31
What does Chancery court deal with and two specialist courts?
Equity and trusts, commercial fraud, taxes, IP, contentious probate, business disputes, professional negligence.
o Bankruptcy Court – specialist court
o The Companies Court – specialist court
32
What does Queen's Bench court deal with and two specialist courts?
Defamation, breach of contract, negligence/personal injury, land possession, non-payment of debt.
o Technology and Construction Court specialist court for claims against engineers, architects, surveyors etc.
o Commercial Court specialist court for complex business disputes especially international trade claims.
33
For High Court cases claims will be issued out of the Royal Courts of Justice (High Court in London) unless the claimant does what?
Indicates on the claim form, they wish to claim out of a District Registry and which Division.
34
What does issuing a claim form do?
Commences a proceeding
35
Who serves the claim form on the defendant?
The claimant decides whether the court or they will
36
Process if the court is to serve proceedings on the defendant?
Must include one copy of claim form for each defendant named plus one copy for the court.
The court will send a Notice of Issue to the claimant confirming the date the court issued the claim.
37
What is included on a claim form?
* Claimant and defendant’s full names and addresses
* Brief details so the court can see what the claim is about in general terms
* Value of the claim (amount sought as remedy)
o If for a specified sum (a debt claim) state the amount
o If court will have to assess damages state what claimant expects to recover, this will determine which track case if likely to be allocated to. In estimating value the claimant should disregard interest, costs, contributory negligence and any counterclaim.
* Specify the court that the claimant would prefer to hear the claim
* Signed statement of truth (usually signed by the claimant but the solicitor may sign)
38
What must accompany a claim form?
The appropriate court fee
39
What is the court fee?
If the claim is £10,000-£200,000 this is 5% of the value of the claim. For claims above £200,000 the fee is capped at £10,000.
40
When must witness evidence be served?
With the claim form. Any evidence in support must contain a statement of truth.
41
When is a Part 8 Claim used?
when the claim doesn’t involve a substantial dispute of fact and has a different process for issuing the claim
42
What does claim form for a Part 8 Claim state?
The questions the claimant wants the court to decide, the details of the claim being made, and (if the claim is being made in a representative capacity) the capacity of the representative.
43
How much information should the claimant’s Particulars of Claim provide?
Enough information to identify the issues and parties so that the judge may give directions. Ensures the trial can proceed promptly, fairly and proportionately.
44
What should Particulars of Claim for a contract claim include?
* Parties to the agreement
* Nature of the agreement
* Terms that may have been breached
* Facts showing the breach and losses
* Remedy sought
* Statement of truth
45
What should Particulars of Claim for road accident claims/ personal injury claims include?
* Brief description of the collision/event (including date, time and place)
* Allegations of negligence
* Details of any relevant conviction
* Details of injuries
* Schedule of past and future losses
* Remedy sought
* Statement of truth
46
What should Particulars of Claim for a employer liability tort claim include?
* Facts establishing an employer to employee relationship
* Description of the circumstances of the injury
* Allegations of breach
* Details of any relevant conviction
* Details of injuries
* Schedule of past and future losses
* Remedy sought
* Statement of truth
47
What other specific points if applicable should be to included in a Particulars of Claim?
* If claiming interest the basis, the percentage applicable, the date the claim for interest ends and the total amount claimed
* Allegations of fraud
* Any illegality
* Any misrepresentation
* Any breach of trust
* Notices of knowledge of a fact
* Details of unsoundness of mind or undue influence
* Details of wilful default
* Facts concerning the defendants failure to mitigate loss or damage.
48
Who’s permission is required to remove, add or substitute a party?
The court’s permission - unless the claim form has not been served.
49
Who can make an application to remove, add or substitute a party?
By an existing party; or a person who wishes to become a party
50
What must an application to remove, add or substitute a party include?
Must be supported by evidence; and made under Part 23
51
What is required to add or substitute someone as a claimant?
Their consent in writing; and that consent, and the proposed amended claim form and particulars of claim, have been filed with the court
52
Who must an order for the removal, addition or substitution of a party be served on?
All parties to the proceedings; and any other person affected by the order
53
Who will be responsible for the costs of applying to add a new party by amendment unless the court decides otherwise?
The party applying
53
When the court makes an order for the removal, addition or substitution of a party what can it give?
Consequential directions
54
How will court normally serve a claim form within the jurisdiction
Court will usually serve by first class post and claimant may also serve by first class post.
55
What will accompany service of claim form?
1. The claim form
2. Notice of funding
3. The defendant’s response pack
56
What is the result of defendant nominating solicitors to accept service?
The proceedings must usually be served on the nominee
57
If the defendant is a company where can claim be served?
Delivery or posting to the registered office is okay
58
How long until claim form is deemed to be served?
Indisputable presumption that the claim form is deemed to be served on the second business day after it has been mailed, personally delivered, faxed, emailed, or sent by DX.
59
What must claimant’s solicitor do after serving claim form if they choose to serve?
Need to file a certificate of service within 21 days of service.
60
What classes as serving the defendant in person for individual, company and partnership (only if not nominated solicitors)?
* Individual – leaving proceedings with individual being served
* Company - leaving proceedings with person holding senior position eg company director
* Partnership - leaving proceedings with a partner or a person who has control or management of the partnership at its principal place of business
61
When can serve by fax?
Only if party or their legal representative has indicated in writing that they are willing to accept service by fax, the party has given the fax number (note inclusion on firm’s writing paper would be considered express notice unless indicated to the contrary), and fax number is within jurisdiction.
62
When can serve by Document Exchange DX?
Only if party’s address for service includes a DX, DX is on the party’s writing paper, and no explicit indication that service will not be accepted by this method.
63
When can serve by email?
Only if express consent to service by email and the party has provided the email address for service.
64
What should do for serving if defendant’s whereabouts are unknown?
Send proceedings to defendant’s last known address, if claimant has made reasonable enquiries to ascertain the defendant’s address.
65
What affect does serving a claim form outside the jurisdiction have on time limits?
Time limit for serving the claim form is extended to 6 months.
66
When is the court’s permission not required to serve outside of jurisdiction?
If the defendant resides in Scotland or Northern Ireland.
67
What is the time limit for serving proceedings once claim form issued?
Before midnight four months after its date of issue
68
Under what circumstances can an application be made for the time limit for serving proceedings once claim form issued be extended?
An application can be made to extend the period of validity by the claimant but only during the original period of validity and the court will grant this only in exceptional circumstances.
69
When will service by an alternative method or at an alternative place be possible?
The court may permit if the party can show a good reason for the order.
70
What are the options for defendant responding to a claim?
Admitting the claim
Acknowledging service and filing a defence and/or counterclaim
Disputing the court’s jurisdiction
Discontinuance or
Settlement
71
What amount can a defendant admit a claim?
May admit parts or all of the claim
72
If a defendant admits a claim what can they still deny?
The amount of the loss
73
What happens if a defendant only admits part of the claim?
Can file a defence to the other parts.
74
What happens if defendant admits damages subject to liability ie admit the amount of damages but deny liability?
If the claimant can prove liability they will then recover the agreed damages.
75
Can admitting a claim be withdrawn?
May be withdrawn with permission of the court
76
If defendant proposing to argue that service was not valid when should they raise this?
Need to indicate this on the acknowledgement of service and make an application to set service aside within 14 days
77
What does filing an acknowledgement of service give the defendant?
An additional 14 days to admit or file a defence
78
How long can parties agree to extend the time for filling a defence?
For an additional 28 days (a maximum of 56 days from the deemed date of service of the particulars).
79
If filing a defence how must defendant respond to each paragraph of the Particulars of Claim in one of three ways?
1. Admit the truth of the paragraph (claimant won’t have to prove this)
2. Deny the truth of the paragraph – state reasons or set out an alternate version of events (claimant must prove their facts)
3. Make a non-admission neither admit nor deny the paragraph because fact(s) alleged are outside the defendant’s knowledge (claimant must prove their facts)
80
If personal injury claim what response is required with medical report if filing a defence?
Respond if admits, deny or non-admission as a whole not per paragraph
81
If defendant may disputes the claimant’s statement of value what should they do?
Say why and if possible provide their value.
82
If defendant wants to use limitation as a defence what should they do?
State the date that the defendant alleges that the limitation period expired with reasons why.
83
What is a counterclaim?
A defendant’s claim against the claimant for losses arising from the same set of circumstances involved in the claimant’s claim
84
Conditions for a counterclaim?
* Must be brought within the same set of proceedings
* Is brought by an existing defendant against the claimant
* Is a monetary claim in its own right
85
How can defendant dispute a court’s jurisdiction after receiving the claim form and particulars of claim?
By checking a box in the acknowledgment of service
86
If defendant disputes a court’s jurisdiction what must they do after informing the court via acknowledgement of service?
Defendant must then make an application to challenge the court’s jurisdiction supported by written evidence within 14 days after filing the acknowledgement of service.
87
When can the court enter a default judgement?
If the defendant fails to file a defence within the time limits
88
A defendant can make an application to set aside a default judgement if they can show what three things?
* They acted promptly
* They have a real prospect of successfully defending; and
* There is some other good reason why the judgement should be set aside.
89
When must the court set aside a default judgement?
* The judgement was entered into before the expiry of the time to respond
* The claim has already been paid or settled
* The judgement was entered whilst the defendant’s application to strike out or obtain summary judgement was pending; or
* The judgement was entered whilst the defendant’s request for time to pay was pending.
90
If party decides they want to discontinue a claim before trial what must they do?
File and serve a notice of discontinuance.
91
What are the cost implications if claimant discontinues a claim?
They are liable to pay the costs of the defendant in defending the action. Subject to the application of qualified one-way costs shifting applicable to personal injury claims.
92
If the parties settle before trial what must they do?
Record their agreement in a consent order which then will issue, this makes the agreement enforceable
93
What is a Tomlin order?
Type of consent order which confirms the parties have agreed a stay because they have reached a settlement, along with a schedule confirming amounts to be paid and by who. This includes a stay of proceedings so if a party defaults on the terms proceedings can pick up where they left off without need to file new proceedings.
94
What are the time limit for defendant to respond to particulars of claim?
Defendant has 14 clear days from the date the particulars of claim are deemed to have been served
95
What happens if defendant fails to respond to particulars of claim in time?
The claimant can obtain judgement.
Defendant cannot take part in the hearing unless the court gives permission.
96
What name does claimants response to defendant have?
Statement of Case
97
When is a reply prepared?
Is optional so usually only prepared if something has been raised in the defence that requires a response.
98
What is a Part 20 Claim?
A defendant’s claim against third parties who might be liable to the claimant or defendant, and counterclaims against the claimant.
99
What is a third-party claim?
A claim that a person not party to the action has caused the claimant’s losses
100
What happens if third-party claim found liable to the claimant?
Then another party to the claim should be liable to repay the whole amount (indemnity) or some (contribution) to the defendant.
101
What is a counterclaim against another third party?
A defendant’s monetary claim against a third person who isn’t part of the proceeding arising out of the same facts as the main action.
Note: this can only be made by order of the court.
102
When does a Part 20 claim need court permission and when doesn't it?
If the defendant files a Part 20 claim with their defence they do not need court permission, if filed at another time they do.
103
When must a defence to a part 20 claim be served?
Within 14 days of the deemed date of service of the Part 20 Claim
104
Who may make a request for further information from an other party?
Any party
105
Why would a party make a request for further information from another party?
To clarify a matter in dispute or for additional information related to a matter
106
Process for making a request for further information from another party?
Should first request from the other party but if the other party doesn’t respond within a reasonable time can then make an application to the court.
107
Under what 5 grounds can a party object to a request for further information about statements of case?
* Request is unnecessary, irrelevant, or improper
* Responding party is unable to provide information or clarification
* Party requesting the information did not give sufficient time to reply
* The expense of complying with the request would either be disproportionate to the claim or contrary to the overriding objective of the CPR
* Responding party is protected from answering by existing privilege.
108
After a Statement of Case has been served a party can amend it only with what?
The written consent of all parties or the permission of the court.
109
When will amendment to add a new party be allowed by the court?
If it can be shown that adding them will allow the court to resolve all the matters in dispute or to resolve a connected matter
110
When will amendment to order a person to cease to be a party be allowed?
If not desirable for them to be a party in the proceedings
111
When will amendment to substitute a new party for an existing party be allowed?
If the existing party’s interest or liability has passed to the new party; and it’s desirable to substitute so that the court can resolve the matter in dispute.
112
When should interim application be made?
As soon as it’s apparent that an interim application is necessary or desirable.
113
On how much notice should an interim application be made?
On at least three clear days’ notice
114
When is normal notice period for interim application not required?
If there’s a good reason to not give it such as it will give the other party an opportunity to dispose of evidence or assets
115
If notice isn’t given for interim application what can party the order is issued against do?
Has seven days after the order is served on them to make an application to have it set aside. If an application is made without notice by error the court is likely to dismiss it and order the solicitor who made the application to pay the other side’s legal costs associated with the application.
116
What are the evidence requirements for interim application?
All evidence relied on in support of the application should be in writing and filed at the court with the notice.
117
What is required to be filed and served no later than two days before the interim application hearing?
A case summary and proposed draft order
118
What is the purpose of summary judgment application?
Application asks the court to enter judgement for the applicant without proceeding to trial.
119
What must applicant show in summary judgment application?
1. the other party has no real prospect of success; and
2. there is no compelling reason why the case should proceed to trial
120
When in proceedings can a party apply for summary judgement?
During proceedings.
Cannot be made before the defendant has received the particulars of claim and served an acknowledgement of service or defence.
121
What happens if the claimant applies for summary judgement before the defendant has filed a defence?
The defendant doesn’t need to file a defence until after the summary judgement hearing although they may wish to append a defence to a witness statement opposing the application to help defeat it.
122
What are the typical evidence for application for summary judgement?
Applicant usually includes written evidence to support the application which must be served on the other party at least 14 days before the hearing. The opposing party must serve evidence in response at least 7 days before the hearing.
123
What is the purpose of interim payment application?
Application for the court to order some payment before the court gives a final determination on the claim.
124
What are the grounds for an interim payment application?
* defendant has admitted liability
* claimant has obtained judgement but the sum to be paid has not been assessed
* court is satisfied that if the action proceeded to trial the claimant would obtain judgement for a substantial sum
125
When in proceedings can a party apply for interim payment application?
The claimant cannot make an application until the time for filing an acknowledgement of claim has passed.
126
What are the typical evidence for application for interim payment application?
The application must be supported by evidence served with the application at least 14 days before the hearing.
127
What should applicant do before making interim payment application?
Invite the other party to make an interim payment before making an application.
128
What should an application for interim payment application include?
Sum sought, matters it is sought for, an estimate of the expected judgement and if a personal injury claim a schedule of loss detailing both past and future loss.
Note: isn’t necessary to show financial need.
129
What are the outcomes for interim payment application?
Court can award a reasonable proportion of the likely amount of the final judgement.
Court must take contributory negligence into account (if relevant).
130
What is the purpose of interim injunctions?
Ask the court for an order requiring a party do something (mandatory) or prohibiting the party from doing something (prohibitory)
131
How are interim injunctions enforceable?
Through contempt proceedings. Which could lead to two years imprisonment or assets removed.
132
What happens if notice not given to other party for interim injunction?
Can obtain interim injunction without notice of hearing to the other party. But if notice not provided then another hearing will be set within a few days of first hearing to give the enjoined party the opportunity to explain why shouldn’t have been granted
133
What is the level of jurisdiction for high court and county court interim injunctions?
High court can grant any type of injunction.
County court has limited jurisdiction
134
What are the 6 grounds to seek to discharge an interim injunction?
* applicant failed to provide all relevant information
* applicant failed to comply with terms of the injunction
* facts do not support the injunction
* injunction is oppressive
* a material change in circumstance since the injunction was granted; or
* claimant has failed to prosecute the claim with speed after obtaining the injunction.
135
What is the purpose of a freezing injunction?
Prohibits person from disposing of specified assets.
136
What must be shown for a freezing injunction?
* justifiable cause of action
* claimant has a good, arguable case
* defendant has assets in the jurisdiction; and
* real risk that the defendant may dispose of those assets before judgement can be enforced
137
What court can freezing injunction be made at?
Only be made to the High Court.
138
What undertaking usually needed in freezing injunction?
Usually requires the party who sought it to make an undertaking to pay damages if the injunction was improvidently granted and to notify the enjoined party and third parties (such as banks) of a right to seek a variation from the order.
139
What is the limit for freezing injunction?
Should be for no more than the underlying claim.
140
How can enjoined party seek a discharge?
By offering security for the claim or showing the injunction was obtained on the basis of material non-disclosure.
141
What is the purpose of a search order?
If it’s clear the defendant will not obey the disclosure rules and may seek to destroy incriminating documents or property. Search order would allow the other party to search for and potentially seize evidence that the party might otherwise destroy.
142
What is the purpose of an independent supervising solicitor search order?
Is usually appointed to explain the order to the enjoined party and to explain their rights
143
What are the grounds of a search order?
* strong prima facie case on the merits of the case
* reasons for claiming the enjoined party might hide or destroy the evidence
* clear evidence that the property/documents are in the enjoined party’s possession
144
What court can freezing injunction be made at?
Applications can only be made to the High Court.
145
What undertaking usually needed in search order?
Claimant’s solicitor will have to give an undertaking to return the original documents within two days and to secure the property taken.
146
What notice is given for search order?
By nature sought without pre-hearing notice to the enjoined party.
147
Under Civil Procedure Rules what is the overriding objective?
Enabling the court to deal with cases justly and at a proportionate cost.
148
When deciding which track to allocate a case what do court do with sums not in dispute?
The court ignores them
149
What are the values of dispute for small claims track?
Up to £10,000 in dispute (or up to £1,000 in dispute in a personal injury case).
150
When may court allocate claims with higher value to the small claims track?
If the parties agree.
151
What are the costs restriction for small claims track?
Recoverable costs are restricted to fixed costs and reasonable expenses in attending. Expert fees are restricted to a total sum of £750.
152
What are the values of dispute for fast track?
Cases with between £10,000 and £25,000 in dispute (or personal injury cases above £1,000).
153
What timeframe must trial take place within for fast track cases?
Within 30 weeks of allocation
154
What evidence method is typically used for fast track?
Most evidence is written. Witness evidence via statements that is given to the judge without need to testify in court.
155
What expert method is typically used for fast track?
Use of single joint experts is encouraged if experts needed.
156
What are the costs restriction for fast track?
Trial judge will usually summarily assess costs at the conclusion of the trial, the parties are required to submit costs schedules ahead of the hearing.
157
What are the values of dispute/characteristics for multi-track?
Cases with at least £25,000 in dispute or cases with less but where the trial will last more than one day.
158
What timelines do fast track directions normally provide?
1. Disclosure is to take place within 4 weeks
2. Witness statements are to be exchanged within 14 weeks
3. Pre-trial checklists are to be sent out at 20 weeks and returned at 22 weeks
4. Trial at 30 weeks
159
Multi track directions are usually given at the Case Management Conference and will usually require parties to file what three things and when?
1. Disclosure reports at least 14 days before the conference
2. Costs budgets 7 days before the conference; and
3. A case summary setting out the main issues in the case
160
What do multi-track directions normally include?
* Encouragement for the parties to consider ADR
* Disclosure requirements
* Number of witnesses the parties may call and provision for exchange of witness statements, and
* Cost budgeting provisions which will either approve or amend the parties submitted costs budgets
161
Under case management system what are sanctions for not following them?
* Striking out the claim, defence or counterclaim of the party who failed if an ‘unless order’ was issued by the court on application of the party seeking compliance.
* Imposing costs or increased interest on defaulting party
* Requiring a defaulting party to pay money into court
* Debar the defaulting party from relying on evidence.
162
Under case management system when can a party apply for relief from sanctions?
If they had good reason for non-compliance (such as serious illness).
163
A Costs and Case Management Conference is a procedural hearing where the Court will do what?
* Check that previous deadlines and directions have been complied with by the parties;
* Ensure that the issues are identified and understood between the parties;
* Consider if any issues between the parties can be narrowed before trial;
* Order case management directions up to trial; and
* Consider estimated costs of the dispute and consider how proportionate the costs are to the value of the dispute.
164
What is direct evidence?
Oral evidence from a witness who perceived the facts
165
What is circumstantial evidence?
Evidence that does not directly establish a fact but allows the court to decide whether a particular fact existed.
166
What is hearsay evidence?
A statement made out of court offered in evidence to prove the truth of what is being said in the statement. Hearsay can be oral or written.
167
If hearsay evidence used what must trial judge indicate?
The weight they attached to hearsay
168
What is multiple hearsay?
Out of court statement saying something someone else has said
169
How much weight does court put on hearsay evidence?
Court puts less weight on hearsay evidence, which will vary on circumstances including if multiple hearsay
170
What affect does witness affirming statement in court have on weight given?
Witness statement is hearsay but a witness affirming it in court makes it treated as if it was spoken in court and will serve as in court evidence
171
What happens if a witness unable to attend court but the party wishes their statement to be considered?
It will be treated as hearsay.
172
What must side putting forward hearsay do?
Serve notice on the opponent of their intention to rely on the hearsay
173
What classes as notice of hearsay for witness attending the trial?
Service of the witness statement itself constitutes notice
174
What classes as notice of hearsay for witness not attending the trial?
The party must serve a formal document giving notice
175
If party served with a hearsay notice seeks to attack the witness’s credibility at trial what must they do?
Must serve notice of intent to do so within 14 days of receiving the hearsay notice.
176
What happens if party who have called a witness then chooses not to call the witness at trial?
The opponent may still refer to the witness’s statement, the court will treat this as hearsay
177
If party believes a document produced by the opponent is not authentic what should they do?
The party can serve a notice to prove the document at trial.
178
Can a party rely on previous incidents or conduct as evidence of similar conduct in the case in question?
Yes
179
What is the burden on claimant?
To prove their claim on the balance of probabilities
180
What can an expert do that others witnesses can't?
Give opinion evidence all others can only testify to facts they perceived
181
What type of opinion evidence can expert give?
Evidence derived from special knowledge, skill or training that is not within the ordinary experience of the judge.
182
Who may qualify as an expert witness?
Anyone with knowledge or experience in the particular field, formal degree not necessary.
183
What duty do expert witnesses owe the court?
To exercise independence, integrity and impartiality. This overrides any duty owed to the person who instructed them or who is paying their fee.
184
What must expert witnesses be able to demonstrate?
The basis of their opinion and conclusions.
185
What's the general rule for giving expert evidence?
Is given in a written report addressed to the court and they do not attend court.
186
When can expert witness give oral evidence?
If likely to impact the outcome, it will assist the judge, there is a risk of injustice if the evidence is not tested and the costs of the experts attending are not disproportionate
187
What are the courts powers to remove, add or substitute parties in existing proceedings?
May do so on its own initiative.
188
What should parties try to agree on for experts?
A single joint expert unless there is a good reason not to
189
What will court do if parties can't agree a single joint expert and no good reason?
The judge will choose from a list provided by the parties
190
Who pays for the single joint experts?
The parties share the fee of the expert until conclusion and allocation of costs to the losing party.
191
How do the single joint experts inform the parties of their findings?
Sends their report to both parties.
192
What is a discussion between experts?
A without prejudice meeting of the experts to identify the issues they agree and disagree
193
When is a discussion between experts used?
If parties each have their own expert the court may order one
194
When in proceedings can a discussion between experts take place and procedure?
Meeting can take place at any time and can take place over the phone. Legal representatives shouldn’t be present.
195
What is the procedure for witness evidence?
Generally evidence at trial should be from witnesses who have provided a signed statement setting out their evidence.
Statement must have been endorsed with a statement of truth and served on the opponent in accordance with the directions order
Witness will then attend court to give evidence and can be questioned by the other side on contents of their statement (cross-examination).
196
What happens if it's not possible to obtain a witness statement before the exchange date specified in the directions order?
A party may seek court permission to serve a witness summary which identifies the witness and summarises the factual issues the witness will cover
197
What happens if witness statement not served?
Person wishing to call them cannot call them unless can show a good reason for the failure.
198
What is an affidavit?
A witness statement signed with more formality as must be sworn normally in front of a solicitor, can be used as evidence.
199
Under standard directions parties are required to provide disclosure at what stage in the proceedings?
Before exchange of witness statements.
200
What duty is there under disclosure?
Duty to inform the opposing side of the existence of all documents (physical or electronic) relevant to the litigation. The duty continues throughout the litigation.
201
Duty of disclosure extends to any document within the party’s control, control is what?
* Physical possession of the document;
* Right to possession, right to inspect or right to take copies; or
* Had the document in their possession but no longer have it.
202
What is the court's expectation over search for documents in disclosure?
For each party to make a reasonable and proportionate search for documents. The level of this depends on the nature of the case, its value and its importance.
203
What are a solicitors professional conduct issues regarding disclosure?
Under a duty to advise clients of disclosure obligations, if client will not comply the solicitor must cease to act.
If a document is removed or destroyed the solicitor is required to inform the court and the other party of its existence along with the reason for its destruction, note: the court is entitled to draw an adverse inference from this.
204
What does a disclosure statement include?
Details the extent of the search made.
Person signing certifies that they understand the duty to give disclosure and have carried this out to the best of their knowledge.
Must declare that they believe the extent of the search made is reasonable and explain why any particular search may not have been carried out.
205
Who must make a disclosure statement ?
Each party
206
If a party is not content with opponents disclosure how can they challenge it (4 ways)?
* Apply for specific disclosure
* Serve a Notice to Admit Facts
* Apply for an unless order (if opponent continues to disregard their obligations under the CPR)
* A Request for Information
207
Disclosure gives automatic right to inspect unless the party with the documents claims what three things?
* Privilege;
* Document no longer in their control; or
* Would be disproportionate to allow inspection
Note: documents can be redacted to remove irrelevant or confidential information.
208
For fast track and personal injury multi track cases, standard disclosure requires each party to identify and inform the other side of the existence of what documents?
* Documents which the party intends to rely
* Documents that adversely affect the party’s case
* Documents that adversely affect the other party’s case
* Documents that support the other party’s case
209
Parties are required to file and serve a disclosure list divided into what three sections?
1. List of documents in its control that they do not object to the other party inspecting
2. List of documents in its control that they object to the other party inspecting, including reasons for objecting
3. List of documents no longer in their control, stating when they were last in their control and where they are now.
210
What is the difference in disclosure in non-personal injury multi-track claim?
Court requires each party to prepare a disclosure report which must be filed at least 14 days before the first Case Management Conference or otherwise with the Directions Questionnaire.
Parties are encouraged to try to agree the scope of disclosure but otherwise disclosure is similar to that outlined above.
211
How flexible is disclosure for the court?
Court may alter the standard disclosure order as it sees fit, including dispensing with disclosure altogether.
212
Standard directions usually allow how many days from directions order to serve list of documents and how many days for inspection to take place?
28 days from the date of the directions order for the parties to serve their list of documents.
Order will routinely require that inspection takes place within seven days.
213
What is specific disclosure?
Require another party to disclose specific documents if they have reason to believe the party didn’t make adequate disclosure.
214
How is specific disclosure requested?
Party can make an interim application for specific disclosure
Application should include evidence in support.
215
Before specific disclosure requested party should make written request for information first including what?
* Description of documents sought and why they are relevant;
* Why it’s reasonable and proportionate for the documents to be disclosed;
* Grounds for believing they exist; and
* Safeguards that can be provided (e.g. to protect trade secrets)
216
Against who is pre-action disclosure available?
Prior to issue of proceedings an application for disclosure is usually only available against a person who is likely to become a party to the proceedings.
217
What does Electronic disclosure include?
emails, electronically stored documents, information in databases etc. and deleted electronic documents.
218
What is the purpose of an electronic disclosure questionnaire?
To enable the parties to investigate, categorise and agree the nature of documents held electronically
219
At what point is an electronic disclosure questionnaire completed?
When appropriate parties will complete electronic disclosure questionnaire at the same time as the disclosure list
220
What should parties do if disagree about electronic disclosure?
Parties should discuss and agree the extent of the search and only refer to judge at first Case Management Conference if they can’t agree.
221
What does privilege entitle a party to do?
Withhold evidence from production to a third party, opponent or the court.
222
What does party holding privileged document still have to do?
If privileged document is in existence must still be disclosed but the party holding it has the right to withhold it from inspection
223
What are the four types of privilege?
1. Legal advice privilege
2. Litigation privilege
3. Common interest privilege
4. Without prejudice privilege
224
What does legal advice privilege protect?
Communication between a client and their solicitor.
225
What does litigation privilege protect?
Communication with third parties (such as experts and barristers) relating to pending or contemplated litigation.
226
When does common interest privilege occur?
When there are multiple defendants or group actions. The parties may send privileged documents to each other and claim still privileged from inspection by other parties.
227
What does without prejudice privilege protect?
Discussions regarding potential settlement that the parties agreed were not to be referred to in court.
228
What does public interest immunity protect against?
Disclosure of documents on the basis that disclosure might harm the nation or the administration of justice
229
Who does waiver of privilege belong to and what does this mean (disclosure)?
Privilege belongs to the client and can be waived only by the client.
If a solicitor accidentally sends a privileged document to the other side the opponent may only use the information with the permission of the court.
230
How may party compel someone to give evidence?
Serving a witness summons on a person
231
What is the process for summoning witnesses?
Party wishing to call the witness must request the court issue the summons at least seven days before the hearing. A separate summons is required for each witness.
232
What payment procedures are there when summoning witnesses?
Witness entitled to conduct money for travel and lost time which must be sent along with the summons request.
This must be sufficient to cover the cost of the witness getting to and from court and amount of income will lose (maximum £67).
Additional sums are payable for subsidence or overnight stay.
If the conduct money is not included and tendered to the witness the witness summons is not effective.
233
What happens if a summoned witness fails to attend?
They will be held in contempt of court.
234
In a multi-track case the trial court will typically set a pre-trial review hearing 10 weeks before trial is anticipated. What will Judge set?
* Timetable for the trial
* Number of experts who may give evidence; and
* Number of witnesses who may give evidence.
235
What must parties file and serve before the pre-trial review hearing?
An agreed (when possible) case summary and list of issues. Can’t be over 500 words, should clearly specify the issues of fact agreed, what’s in dispute and provide a synopsis of the evidence that the parties believe is required at the trial.
236
How many trial bundles are required?
Claimant’s solicitor must prepare at least 6 trial bundles for all trials.
237
When must trial bundles be filed?
Must be filed 3-7 days before trial
238
What must trial bundle include information about?
the parties, the case summary, a schedule of issues, witness statements, expert reports and similar.
239
What is the usual trial format?
1. Opening submissions for the claimant (by claimant’s advocate)
2. Opening submissions for the defendant (by defendant’s advocate)
3. Consideration of any preliminary issues
4. Claimant’s witnesses give their evidence
5. Claimant’s experts give their evidence
6. Defendant’s witnesses give their evidence
7. Defendant’s experts give their evidence
8. Claimant’s counsel makes closing submissions on behalf of the claimant
9. Defendant’s counsel makes closing submissions.
240
What is the process for witnesses giving evidence and being questioned?
After a witness gives their evidence in chief (usually by affirming their witness statement) they may be cross examined by the opposing party and leading questions are permitted. After cross-examination the party who originally called the witness may re-examine the witness to try to restore credibility, leading questions are not permitted.
241
When does judge give judgement?
May give judgement immediately or reserve judgement for a later date.
242
After judgement handed down the parties may make submissions in relation to what?
Interests, costs, time to pay, stays of execution or for permission to appeal.
243
In a multi-track case how will the parties file a costs budget depending on amounts?
* If claimant seeks less than £50,000 this will be with the Directions Questionnaire
* If claimant seeks more than £50,000 this will be filed at least 21 days before the Case Management Conference.
244
When may a judge make a Costs Management Order (CMO)?
At the Case Management Conference
245
When should new Costs Management Order (CMO) be sought?
Costs cannot unreasonably exceed the CMO so if it looks like they will a new CMO should be sought.
246
What happens if a party fails to file a costs budget?
They will be unable to recover costs
247
Who decides costs?
Costs are at the discretion of the court.
Judge usually makes an order for inter-partes costs (order for loser to pay winner’s costs) when the case concludes.
248
What is the general rule for costs?
The loser in litigation pays the winner’s costs (solicitors’ fees) and disbursements (expenses incurred on behalf of the client).
249
What does indemnity principle mean in costs?
A party cannot recover more from an opponent than they are liable for so cannot recover the solicitors usual fee if they were given a discount fee
250
How does costs assessment work on standard basis?
court allows only proportionate costs and exercises any doubt in favour of the paying party
251
How does costs assessment work on indemnity basis?
Court doesn’t consider proportionality so difficult for the paying party to object to costs unless can say that it was unreasonable for the solicitor to do the work at all. This is usually only used as a type of sanction against a party for incurring unnecessary costs by their conduct.
252
For lower value cases and interim applications how are costs filed and assessed?
A statement of costs must be filed by the parties 24 hours before a hearing or two days before a trial. The judge will make a summary assessment of the costs payable when the hearing concludes.
253
For larger value claims how are costs filed and assessed?
Court is likely to order a details assessment. The winning party prepares a details bill of costs within three months of the judgement or order. If the bill is over 20% the figures in the costs budget the claimant must file a statement with reasons. The paying party then has 21 days to file points of dispute.
Alternatively, the judge may enter a provisional assessment based on the bill indicating an amount the court is willing to approve. If the receiving party is not happy with the amount they can challenge it and ask for a detailed assessment hearing.
254
When is a final costs certificate issued and how long do then have to pay costs?
Once the parties agree on costs or following assessment.
Costs must be paid within 14 days of issuance of the costs certificate by the court.
255
In personal injury claims the claimant cannot be ordered to pay the defendant’s costs unless what?
* The claim was fundamentally dishonest;
* The claimant failed to beat a defendant’s Part 36 offer to settle; or
* The claim was struck out for disclosing no cause of action or abuse.
256
What is a wasted costs order and when may it be used?
Court may require a solicitor or party to pay the costs of the other party if the solicitor acted improperly, unreasonably or negligently.
257
How does non-party costs work?
Court has jurisdiction to award costs in cases involving a non-party. Possible where the non-party funds the proceedings and controls or benefits from them. E.g. promotes and funds proceedings by an insolvent company for own non-party’s benefit will be liable for costs if claim, defence or appeal fails.
Non-party must be added as a party for the purposes of costs only and be given the opportunity to attend a hearing at which the court will consider the matter further.
258
What is a Part 36 offer?
A formal offer to settle a claim.
259
What formalities are there for a Part 36 offer?
Must be in writing and explicitly state that it’s a Part 36 offer. It must specify a period during which it cannot be withdrawn without court permission (minimum of 21 days).
It’s without prejudice (so can’t be referred to in court)
260
What happens if a Part 36 offer is unclear?
The offeree can request a clarification within seven days. If the offeror doesn’t clarify within seven days then the offeree can apply to the court for an order requiring the offeror to clarify.
261
Until when can a Part 36 offer be withdrawn?
Until the offeree has served a notice of acceptance
262
What happens if notice of withdrawal is served before the relevant period expires?
It takes effect when the relevant period expires. If the offeree accepts before the expiry, then the acceptance is valid unless the offeror receives permission to change or withdraw the offer based on changed circumstances or the interests of justice.
263
General rules for accepting a Part 36 offer?
Can only be accepted in writing.
Can be accepted after the relevant period has expired if the offeror has not withdrawn it.
Can be accepted during trial if the judge gives permission.
264
What happens if a Part 36 offer accepted within the relevant period?
* Defendant will pay the costs of the claim to the point of acceptance; and
* The costs will be assessed on the standard basis if the parties cannot agree them.
265
What happens if a Part 36 offer accepted after the relevant period?
* Defendant accepting claimants: the court will decide liability for costs if the parties cannot agree
* Claimant accepting defendants: the defendant’s liability to pay the claimant’s costs runs only up to the end of the relevant period (21 days after offer made).
266
What happens if Claimant rejects a Part 36 offer and Claimant secures an award greater than the defendant’s offer?
Offer has no effect on the costs awarded
267
What happens if Claimant rejects a Part 36 offer and Claimant secures an award less than the defendant’s offer?
Defendant will usually be ordered to pay the claimant’s costs on the standard basis up to the expiry of the relevant period; and the claimant will likely to be ordered to pay the defendant’s costs on the standard basis incurred after the expiry of the relevant period.
Defendant may also be awarded interest on the costs.
268
What happens if defendant rejects a Part 36 offer and Defendant secures an award greater than the claimant’s offer?
defendant will likely be ordered to pay the interest of the entirety of the claim at an enhanced rate for the period after the time for acceptance expired, costs for this period likely assessed on the indemnity basis, additional damages of up to 10% for the first £500,000 and 5% for amounts above may be available.
269
What happens if defendant rejects a Part 36 offer and Defendant secures an award less than the claimant’s offer?
Offer has no effect on the costs awarded
270
What happens if rejects a Part 36 offer served pre-issue?
If the party wins the case the court may allow the party to recover the cost of pre-action work as well as litigation costs.
271
When may defendant make an interim application for a security for costs order?
If the defendant is concerned that the claimant will not be able to pay the defendant’s costs if the defendant wins
272
If a security for costs order is granted what may claimant be required to do?
Pay money into court or provide a bond.
273
When is a security for costs order available only if?
* Claimant is a resident outside the jurisdiction;
* Claimant is a company or other body and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
* Claimant has changed address since the claim with a view of evading the consequences of litigation;
* Claimant failed to provide an address or gave an incorrect address on the claim form;
* Claimant is acting as a nominal claimant (someone suing for the benefit of another person); or
* Claimant has moved assets outside of England and Wales to make it difficult to enforce an order for costs against them.
274
Why can only a defendant bring a security for costs order?
As the defendant cannot stop the claimant bringing proceedings whereas a claimant will make a judgement as to whether the defendant is worth suing or not.
275
What is general position for order for payment of legal costs on small claims track?
The court will generally make no order for payment of legal costs.
But situations where costs payable to a successful party are fixed:
* Lower value road traffic accident claims
* Small claims cases or money claims
* Employer’s liability claims
276
What are costs position on fast track claims?
Fixed trial costs
277
Where can permission to appeal be sought from?
Either the court where the decision was made or the court the appeal will be taken from.
278
Process for making appeal?
Party has 21 days from time the decision is handed down to request permission to appeal. The application for permission can be made orally immediately after the judge has made the decision or given the order.
Party wishing to appeal must send: an appeal form to the court, copy of the sealed order, subject of the appeal and the application notice.
Can have a rolled-up hearing which considers whether to grant the application for the appeal and if approved also the appeal itself.
279
What happens if permission for appeal not sought within 21 days?
Party can make an application to the Court of Appeal for retrospective permission which is treated as an application for relief from sanctions. Party must show that this is reasonable in the circumstances.
280
What are the grounds for appeals?
1. The decision is wrong in fact, law or the exercise of the court’s direction; and/or
2. The decision is unjust because of a serious procedural or other irregularity in the proceedings
Note: an appeal hearing is limited to a review of the decision, a party cannot rely on evidence that was not available at the original hearing without permission.
281
What is the purpose of oral examination in enforcement of money judgments?
A judgement creditor (the successful party) may apply for an order requiring a judgement debtor (the losing party) to attend an oral examination in court to provide information about their means and assets.
282
What is the process of oral examination in enforcement of money judgments?
Judgement creditor must serve the court order personally on the judgement debtor at least 14 days before the oral examination hearing.
Must also file an affidavit at least 2 days before the hearing providing details of service and stating how much remains unpaid.
283
Methods of enforcement of money judgments?
A writ of control (High Court) or warrant of control (County Court)
Third-party debt order
Interest in land
Attachment of earnings order
284
In enforcement of money judgments what does a writ of control (High Court) or warrant of control (County Court) allow and the process?
Is issued by the court to an enforcement agent, this allows them to take control of a judgement debtor’s property in order to sell it to satisfy the judgement:
* Creditor must give the debtor at least 7 days’ notice of the intention to take control of goods
* Creditor’s control agent can enter only the stated address and must provide an inventory of any goods seized
* Goods must be seized within 12 months of the notice
* The agent must sell the seized goods within 7 days and proceeds used to discharge the debt plus enforcement costs
* Cannot seize equipment used in debtor’s trade or household items necessary for basic domestic needs.
285
In enforcement of money judgments what is a Third-party debt order?
If the judgement debtor has money in a bank the creditor can obtain this so bank pays the money instead of the debtor.
286
In enforcement of money judgments what is interest in land for Method of enforcement?
if a judgement debtor has an interest in land a creditor may obtain a charging order which will give the creditor the right to apply for an order for sale. This can apply even if the land is in joint ownership.
287
In enforcement of money judgments what is attachment of earnings order for Method of enforcement?
if the judgement debtor is an individual in regular employment a creditor may apply to the County Court for an attachment of earnings order to compel the debtor’s employer to make regular deductions from the debtor’s earnings and then pay them into court.
288
Procedure and mechanisms for effecting valid money enforcement in another jurisdiction?
Debt recovery is easier if the debtor is within a country which has a reciprocal agreement with England and Wales, or there is a term in the contract giving courts in England and Wales jurisdiction.
Debtor in an EU country – if a contract gives England and Wales jurisdiction the creditor can issue a claim in the UK.
Debtor outside the EU – if the country has a reciprocal agreement with the UK a creditor is permitted to trace the debtor and enforce the claim in that country with the court’s permission. If country in has no reciprocal agreement and not a party to any of the applicable conventions will be difficult to enforce a judgement debt against a debtor.
