Procedure Flashcards

Question

Disputing the court’s jurisdiction, CPR Part 11

Answer 1

Must be done ias part of the acknowledgement of service (to be served within 14 days of receiving the PoC). Then D has 14 days since filing the AoS to submit their reasons for challenging the jurisdiction. If accepted by the court – court has no jurisdiction —> the case comes to an end. If not accepted by the court – D has another 14 days to file an acknowledgement of service + potentially defence after that.

Answer 2

Claimant bears the costs unless otherwise agreed "save as to costs". Claimant needs to serve a notice of discontinuation to Defendant.

Answer 3

Pre-action – not possible for Claimant to recover their legal cost (unless agreed - "save as to costs"). Post-action – preferable that the settlement agreement is recorded in a court order or judgment; two types: -Consent orders – by consent by both parties, signed on behalf of their lawyers; is publicly available; enforceable as a court order. Disposes of part of whole proceedings or stays the proceedings. -Tomlin orders – confidential matters usually put in a separate document/schedule. Proceedings are stayed – paused. The scheduled terms of the Tomlin order are not part of the court order, so cannot be directly enforced by the court. Can sue for breach of contract. No new proceedings need to be initiated if any party doesn’t adhere to the agreed terms. Tomlin orders are preferred if the terms are complex and confidential.

Answer 4

-only if C applies for it Three ways to claim interest on damages or debt due: -Interest % specified in the contract -Commercial debts – the Late Payment of Commercial Debts (Interest) Act 1998 – 8% on top of Bank of England’s base rate on date of payment -All other cases – the court has discretion via s. 35A Sr Courts Act for High Court cases and via s. 69 County Courts Act for County Court cases.

Answer 5

Narrow down the issues in dispute, do not miss to address an allegation by C; address C’s allegations one by one and itemise it with reference to the PoC. If D misses to address an allegation by C, D is deemed to have admitted it. If D denies a claim, they need to address it and offer their version of events. If D does not admit or deny a claim, D must state that D has no knowledge of the statement. then the C has to prove it. Response to defence is not mandatory for Claimant. They usually only do it when something has been missed in their own PoC.

Answer 6

Counterclaim is filed only if the D has suffered a loss as a result of C’s conduct. If no loss is suffered, but there is a good reason for D not to perform, then only file a defence. It forms one document with the defence, with defence going first. Permission to file a counterclaim is not required if filed with the defence. If not, court permission is required.

Answer 7

Firstly, parties should try to resolve this amongst themselves via a written request and allow reasonable time for response. Only concise and specific information if reasonably necessary for them to build their case or assess the case to answer. Secondly, if the party does not respond - reach out to court and make an interim application under CPR 23, Form 244 and attach a witness statement.

Answer 8

Before serving the statement of case – at any time If you want to change anything on any statement of case after being served (within the limitation period): -Only with written consent from all parties, OR -Only with leave of court If it is done outside of the limitation period, the court may grant leave only if: -The name of the party is included by mistake -The capacity in which a party claims has changed -Add or substitute a new claim resulting/arising from arguably the same facts as the initial claim

Answer 9

Parties are applicant and respondent. Application notice is Form 244 and attach a witness statement. Also, a draft of the order requested. Application notice must be sent at least 3 clear days before the scheduled hearing to the respondent. Applications without notice - documents should be sent to respondent as soon as practicable after they were granted an order. Applications without notce: freezing injunctions or search orders.

Answer 10

The court will serve the parties with a notice of the proposed allocation, asking them to file and serve a completed directions questionnaire by a specific date. Once received, the court will confirm the allocated track based on the answers. Failure to file a directions questionnaire on time: the court will make an order as it deems appropriate, e.g. order for directions, strike out a statement of case. Essentially, the court will impose sanctions for non-compliance.

Answer 11

-Consult with the court if following the CPR rules is difficult, impossible or the rules and their application is unclear. -Apply for a Buffer Order (CPR 3.8(4) ) - try to agree to an extension of a deadline with the opponent directly. Then notify the court if such an agreement is made. It must be in advance and in writing. -Apply for time extension with court and before the deadline - then the court will assess the application against the overriding objective under CPR 1.1 - Apply for time extension with court and after the deadline - the court will then assess the application against the relief from sanctions test (CPR 3.8 and Denton v White 3-stage test)

Answer 12

It is listed to take place as soon as a claim is allocated to the Multi-Track. It is meant to list all live issues, discuss any steps taken to resolve them, any future steps to be taken for the claim to be handled in accordance with the overriding objective, check the compliance of both parties with court directions. Case summary is often prepared for the judge to assist in determining the direction of the case at trial. It is a summary of all chronological events to date, any filings/applications/outcomes, agreed issues of fact, issues in dispute, evidence required and by whom. The claimant + their solicitor are responsible for drafting the summary.

Answer 13

-Costs budget states all costs already incurred and those that are anticipated within the proceedings. -The costs budget must be filed either with the directions questionnaire or at least 21 days before the CMC. -If no costs budget is filed or filed late - the party will be assumed to have claimed only court fees as costs. -A budget discussion report (agreed and disagreed costs amongst parties) is filed at least 7 days before the CMC. -Parties discuss costs at the CMC. Court reviews costs. -If costs are unreasonably high, the court can issue a cost management order. -If after filing a costs budget, the party wishes to revise their costs, they need to have a compelling reason, e.g. a significant and unexpected development.

Answer 14

Each witness called to give oral evidence must submit a witness statement in advance served on the court and the opposing party. The court will specify a deadline for witness evidence statement submission. If you didn't serve the WS on time, the witness cannot give oral evidence in court unless the court grants permission (CPR 32.10). Evidence must be relevant. No evidence of opinion allowed - only evidence on facts and in the witness's own words.

Answer 15

What is it? - A relevant fact or an admissible opinion that is said outside of court but used in court to prove the truth of the stated matter - s. 1 Civil Evidence Act. Not necessarily inadmissible in civil proceedings, but notice must be given in advance - s. 2 Civil Evidence Act. -if the witness who gave the statement cannot attend the hearing to be cross-examined, a hearsay notice + witness statement must be submitted to the other party at the same time -If no notice is sent – hearsay evidence is still admissible but it might not carry the same weight

Answer 16

-Opponent might attack the maker of the hearsay evidence in their absence: giving notice of the intention to attack hearsay witness within 14 days of receiving the hearsay notice (CPR 33.5) -Opponent might wish to cross-examine the hearsay witness – give notice within 14 days of receiving the hearsay notice (CPR 33.4) -Request further information about the hearsay evidence from opposing counsel

Answer 17

It is opinion evidence – admissible as they are experts in that specific field. Expert evidence prepared for the purposes of proceedings. Duties of experts - to assist the court in providing an objective and unbiased opinion on the matter at hand The 3 I's of experts = Independence, Integrity, Impartiality Expert evidence may be admitted only with court's permission.

Answer 18

-Expert is not qualified -Expert is biased towards the prosecution -Expert report is not reasonably necessary to resolve the proceedings -Cost of obtaining it outweighs the benefits of admitting it -Is it genuine evidence or is it controversial?

Answer 19

-Court's power to exclude admissible evidence if it doesn't align with the overriding objective under CPR 1.1 -Evidence is irrelevant -Unreliable maker -Evience is privileged - litigation or legal advice privileged -Opinion evidence rather than evidence on the facts -Overriding objective under CPR 1.1

Answer 20

Compel a witness to give evidence in court or produce a document for court proceedings. Send a request to attend at least 7 days before a hearing. If earlier than that, court permission is required. Always consider if the witness will help your case or damage it. Binding on the witness. Might be fined (in County Court) or found in contempt of court (in High Court) if they refuse to attend court.

Answer 21

Documents exist or have existed. In the party's control = they have physical possession of them, they have the right to inspect or the right to possess. Standard disclosure for Intermedia/Fast Track/Multi-Track (PI) cases. Standard disclosure - Rule 31.6 documents: -Documents on which the party will rely; -Documents which they will not rely on – adversely affect their case or the other party’s case, or support the other party’s case. -Documents that are required to be shared by a practice direction There is a continuing duty to disclose documents that are relevant until the case is over.

Answer 22

-Order for specific disclosure - TEST - ICU EAR -Non-party disclosure - TEST - SAD -Pre-action disclosure - served on the other party likely to be part of the proceedings, the document is likely to be part of stardard disclosure and disclosure is desirable to resolve/clarify/dispose of the mattter timely and save costs.

Answer 23

-Advice privilege (the purpose is to seek legal advice; it is between the client and the client’s solicitor) -Litigation privilege (any advice or document/evidence produced for the purposes of litigation; it is between the client’s solicitor and a third party) -Without prejudice correspondence: no privilege claimed on it; the point of this – the trial judge is unaware of the contents.

Answer 24

Usually prepared by the claimant’s lawyer (as much possible in agreement with the other party) Will include all key documents needed by the judge to decide on the case Need to be filed with court between 7 and 3 days before the trial date

Answer 25

Circuit Judge – Your Honour District Judge – Judge CoA/Supreme Court – My Lord

Answer 26

-On liability -On quantum (amount of money legally payable in damages) -On interest -On costs

Answer 27

At the end of the interim application the judge will decide how to award costs for this specific stage.

Answer 28

-On the standard basis - reasonably incurred, reasonable in amount and proportionate to the matters/issue at hand. In case of doubt, the court will favour the paying party. -On the indemnity basis - reasonably incurred and reasonable in amount. In case of doubt, the court will favour the receiving party. In both cases: if the costs are reasonably incurred but not reasonable in amount, the amount may be reduced or disallowed.

Answer 29

The court has full discretion - only if the 3P was the reason for the proceedings and had an interest in the outcome. How to do it? -Add the 3P as a party to the proceedings before the order; they can join the hearing to discuss costs.

Answer 30

Offer for settlement with strict conditions and strict penalties for non-compliance

Answer 31

-In writing -Clear it is a Part 36 offer -Allow for a period not less than 21 days for acceptance by the other party (“the relevant period”)

Answer 32

Depends on whether the claimant wins at trial and beats their own offer, or not. -Claimant equals/beats their offer - Claimant is awarded damages + 10% of the first 500,000 GBP of damages and 5% on any additional up to 1mil with a maximum of 75,000 GBP. -up to Day 21 - C receives costs on the standard basis + interest on damages as specified in the PoC -from Day 22 on - C receives interest on damages (at max 10% over the base rate), costs on the indemnity basis and interest on costs (at max 10% over the base rate).

Answer 33

C is awarded damages and interest as per PoC. -up to Day 21 - D pays C's costs on the standard basis -from Day 22 on - C pays C's costs on the standard basis + interest on those costs

Answer 34

No AUTOMATIC right to appeal in civil proceedings. Two ways to apply for a permission for an appeal: -At the end of the trial by the trial judge -Request permission from the appeal court itself Grounds: -The case has a real prospect of success (realistic) -There is any other compelling reason to allow the appeal (e.g. important matter of law, the matter is of general importance to the public)

Answer 35

After a decision before any other court – 21 days To appeal a Court of Appeal decision to the Supreme Court – 28 days

Answer 36

From High Court to Court of Appeal and from High Court to Supreme Court Leapfrog certificate from trial judge + Permission from Court of Appeal/Supreme Court judge Grounds: Very important matters of practice/law and importance general question/there is some urgency.

Answer 37

The verdict was wrong (as to law) The verdict was unjust (as to procedural irregularity)

Answer 38

The winning party files an application with court for an order to obtain additional information about the losing party’s finances + attach judgment/specify how much money they owe. Order is served on the debtor who has to attend a local County Court hearing centre and be examined by an officer of the court. Debtor can request reimbursement of travel expenses from / to court within 7 days of receiving the order. Debtor to answer questions under oath, read and sign the statement. If they don’t show up in court, the judge can make a committal order against them.

Answer 39

Taking control of goods – as part of business premises = Cannot break in in a home and cannot take personal chattel Charging orders = on land – registered in the Land Registry (registered land) or at the Land Charges Department (unregistered land) OR Property is over 5,000 GBP Third party debt orders – a third party who owes money to the debtor to pay it into the creditor directly Attachment of earnings – an order into court that compels the debtor’s employer to deduct some amount and send it directly to the creditor.