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Flashcards in Procedures Deck (59):
1

General Pt.23 Interim Application (e.g. sanctions)

Must file (and pay fee):
- Application Notice stating what is being sought and why
- Written Evidence in support (w/o notice requires WS with exhibits)
- Draft Order
- Skeleton Argument
- Application bundle
- Statement of costs

Serve on all parties ASAP and at least 3 days

2

PD(PA)

Detailed Letter before claim (noting alt. funding)
Reasonable period for reply based on complexity
Response must note how far liability is accepted (w. reasons for any denial)
Must consider ADR
Make a realistic Part 36 offer
Documents disclosed not to be used for other purposes
Consider ways to minimise costs such as joint expert

3

PI Protocol

(Up to £25k but not RTA or EL/PL)
- Informal letter to D or D's insurer intimating the claim (do not start timeline)
- Begins with formal letter before cliam (2 copies, 1 for insurer) - summarising facts, injuries, financial loss
- D must reply within 21 days naming insurer (no reply justifies immediate issuance)
- D insurer investigates
- Documents disclosed along with denial letter
- C must respond to CN allegations
- C should invite D to appoint solicitor within 7-14 days of issue of claim

Consider: ADR / Early rehabilitative treatment

Injuries must be proved by an expert and joint-expert encouraged
C must send schedule of damages with supporting docs

(Departure permitted but must explain to court why)

4

Issuing Pt.7 claim

Claim form brought
(limitation stops)
Pay issue fee
Form stamped/issued
Claim number allocated
Court opens file
Must contain a statement of truth
Response pack enclosed (AS, Admission, D&CC forms)

5

Claims commenced in:

CC Money in Count Court Money Claims Centre in Salford
<£100k money through Money Claims Online
CC non-money - any civil hearing centre
HC - QBD/ChD or any District Registry

6

Issuing Pt.8 claim

States that Part 8 applies
Question that court to decide
Remedy sought (w. legal basis)
Detail of enactment if claiming an entilement
Written evidence at same time as claim form
PoC not required

7

Service Heirarchy

Personal service required by legal provision OR court order?
Solicitor instructed that authorised to accept?
Contract/Specified address?
C's choice...

8

Place of Service (individual)

Usual or last known address

9

Place of Service (sole trader)

Usual or last known address of individual OR of business

10

Place of Service (partnership)

Last known residence of the individual OR
last known place of business of the partnership OR
Principal office of the Partnership OR
any place of business of the partnership within the jurisdiction which has a real connection with the claim

11

Place of Service (LLP)

Principal Office OR
any place of business within jurisdiction which has a real connection with the claim

12

Place of Service (EW non-company Corporation)

Principal office of the corporation OR
any place within the jurisdiction where the corporation carries out its activities and which has a real connection with the claim

13

Place of Service (Company EW regd.)

Principal Office of the Company OR
any place of business within the jurisdiction which has a real connection with the claim

14

Place of Service (Any other company)

Any place within the jurisdiction where the corporation carries out its activities OR
Any place of business of the company within the jurisdiction

15

Companies Act service

2nd class ok
Only rebuttable presumption of service
Deemed date 'in ordinary course of posting'

16

Last Known Address

Where reason to believe that no longer resides:
- reasonable steps to ascertain new address
- if find then must use
- if find better, but not D's, then must apply to court for alt service
- if not then can serve at last known

17

Personal service

Individual - to D
Company - to person in Senior Position
Partnership - to partner or manager

18

DX service

Only where details specified in address for service OR
Writing paper of party sets out DX
AND not been told unwilling

19

Electronic Service

Only where previously indicated in writing that willing AND
provided details (email on headed paper not enough unless specifically stated to be used)

For email must check size and format limits

20

Service on a child

Through parents/guardian/adult with whom resides OR attorney appointed by court of protection if also a protected party

21

Approval of settlements agreed with litigation friend (no proceedings)

Part 8 application inc.
- Details of settlement
- Opinion of counsel
- Details of admission of liability
- Age and occupation of Child/PP
- Litigation Friend's approval
- Copy of financial advice obtained
PLUS for PI:
- Details of injury
- Medical and Quantum reports
- Schedule of past/future loss
- Evidence of reports in criminal proceedings
- Details of any prosecution

22

Approval of settlements agreed with litigation friend (extant proceedings)

Interim app for court approval w.
- Details of settlement
- Draft consent order
- Opinion on merits of settlement by counsel/solicitor for C
- Financial advice
- Documentary evidence

23

Service on Bankrupt

Trustee in Bankruptcy UNLESS PI or defamation
Proceedings only w. court permission
Bankrupt cannot make applications

24

Service on Deceased

Claim treated as against estate
Personal Rep should be named as a party in any litigation

25

Form and Contents of a Statement of Case

Form:
- bound, typed, legible
- durable A4 paper
- Not more than 25 pages, 1 sided

Content;
- concise statement of the nature of claim
- remedy sought
- address
- any required statement (fraud, illegality, misrep, breach of trust, notice of knowledge of fault, unsoundness of mind, wilful default, mitigation of loss)
- noting any non standard damages (aggravated / exemplary / provisional)
- interest
- Pre-action commentary
- statement of truth

26

PI Statement of Case extras

PI SoC require:
- C's DoB
- Injury details
- Schedule of past and future loss
- Medical Report
- Details of C's condition that may worsen

27

General Damages

Identify nature of injury
Find relevant category in Judicial College Guidelines
Find comparator cases and compare
Apply RPI inflation
Heil v Rankin uplify (post March 2000)
Jackston/ Simmons v Castle 10% uplift (post April 2013)

28

Future Loss

Find multiplicand (net annual monetary figure)
Find appropriate table based on sex and duration (end of life or retirement) in Ogden main tables
Find multiplier based on age and 2.5% rate or return column
Adjust multiplier in Ogden non-death congingencies tables (based on sex and disability status)
Multiply multiplicand and multiplier

29

Future loss working again

Work through future loss process for loss and then work through again with new work
Subtract

30

Social Security Recovery

Compensation Recovery Unit will issue statement of recoverable benefits
D cannot pay until receives that and must pay full amount to DWP when paying compensation
Pays net sum to C

PSLA damages ring-fenced
CN ignored
Interest does not account for CRU

31

PI Interest

- 2% on general (PSLA)
- 1/2 special account rate on past special damages and continuing losses accrued over period
- Special account rate on past special one-off from point of expense

32

W/O Interim injunction

Duty of Full and frank disclosure:
- Must disclose all material facts
- known to the applicant actually or constructively
- continuing duty
Breach = discarge w/o reference to merits

33

Allocation procedure

- Provisional allocation when D files D (for multi-D: when last D files last D, or time expires)
- Notice of provisional allocation sent by court
- DQs completed
- Court allocates track (potentially outside value based on - complexity/importance/value)

34

Case Management Conferences

Ensure case dealt with efficiently
In FT/MT deal with filed:
- proposed directions
- costs budgets
- disclosure reports
Judge will:
- consider SoCs
- allocate to track
- check on progress
- may require ADR consideration
- give directions having regard to OO and costs budgets

35

Typical Directions (SCT)

- Disclosure (file and serve copies of documents relied on 14 days before hearing) (originals at hearing)
- WS (as necessary with regard to amount in dispute, representation, further information would bring clarity)
- Experts (none w/o permission)
- Clarification of case if necessary

36

Typical Directions (FT)

- Standard disclosure (list within 4 weeks, requests for inspection within 7 days of list)
- WS (simultaenous, mutual exchange) within 4 weeks)
- Experts (1 per issue, max 2 - specifying fields and issues, names if poss., estimate of costs and joint instruction)
- Pre Trial checklists
- Trial date/window
- Length estimate

37

Typical Directions (MT)

- Disclosure (menu option)
- Clarification (SoC amendment and/or RFI)
- WS exchange (simultaneous, sequential, mixed)
- Expert report (exchange and provision for oral evidence, hot-tubbing etc.), info as above + questions to be put and answered
- Filing pre-trial checklists and Scheduling pre-trial review if necessary to settle statement of issues and timetable
- Case summary
- Costs estimate

38

Pre-agreed directions

- Timetable by reference to calendar dates
- Provision for disclosure
- Provision for factual and expert evidence
- Proposed trial date or period

39

Disclosure Form contains

Information about search
Disclosure statement
- recognising duty
- confirming done properly
- signed by party
Disclosure list
- docs prepared to allow inspection of
- docs withheld on grounds of privilege
- documents no longer available
(Where docs not disclosed should explain why disproportionate)

40

Inspection can be by

- person attendance
- photocopy request
- in electronic format
(making reasonable opportunity to access using tech if only available to one side)

41

Menu Disclosure

After D filed
Stage 1: Disclosure Reports set out types of docs held and suspected cost
Stage 2: Discussion to agree Disclosure directions
Stage 3: court agrees or CMC

Menu options;
Dispense with disclosure
Docs on which party relies
Issue by issue basis
Train of inquiry
Standard Disclosure
Any other order

42

Discontinue

File a notice of discontinuance
Serve on all parties
D may apply to set aside within 28 days
C pays all costs of all parties up until date of service of notice of discontinuance UNLESS effectively obtained relief being sought

43

Part 36 Variation

Not during relevant period w/o court permission
Must file notice of withdrawal
Cannot if notice of acceptance served

44

Part 36 bonus for C

- Damages on indemnity basis from date of end of relevant period
- Interest on damages at rate of up to 10% above base rate
- 10% on damages (up to £75k)
UNLESS unjust with regard to all circs, terms of offer, stage of proceedings, information available, conduct of parties

45

Application for specific disclosure

Part 23
Specifying docs or classes
Search to be carried out
Docs located as a result to be disclosed
Specific inspection if required

46

Drawing up orders, formalities

Name
Judicial title
Date
Seal

AND, if appeal requested:
- whether order final
- whether appeal lies and, if so, where to
- whether court gives permission to appeal or, if not, where to make any further application

47

Orders drawn up by

Parties unless ordered
Except in QBD where presumption reverses

48

Court can enter consent order where:

- judgment/order is for money/delivery up of goods
- none of the parties is a LiP
- approval of the court is not required by rules/PD/enactment

ELSE: for equitable relief, or where LiP, court may deal, without hearing

49

Consent Order formalities

- Dated
- Sealed
- Drawn up in the terms agreed
- Expressed to be 'by consent'
- Signed by legal rep for each party

50

Tomlin Order

Consent order contents on front of order (not in schedule):
- payment of money out of court OR
- payment and assessment of costs
AND the phrase:
"The C and D having agreed to the terms set out in the schedule to this order, it is ordered that all further proceedings in this claim be stayed, except for the purpose of carrying such terms into effect."

51

Enforcement Options

HC or CC:
- Goods - writ (HC)/warrant(CC) of control, request for writ/warrant and then enforcement by officer/agents (N.B. £600 down / £5k up thresholds)
N.B. 'exempt goods' - tools of employment or trade up to £1,350
- Money in bank - 3rd Party Debt order, interim order w/o notice to freeze and then final order w.
(not against joint bank accounts)
- Shares, house, funds in court - Charging Order - interim order w/o notice and then final order w. (need new proceedings to force sale: balancing Art.8 w.A1P1)

CC only:
- Income - Attachment of Earnings Order, filing a request
(inc. attachment to occupational, but not state, pension MUST NOT reduce earnings below Debtor's protected earnings rate)
- After death from Debtor's Estate, - Administration Order, apply for order

52

Committal for contempt of court

Precursors:
- Mens rea required to criminal standard
- Injunction order must have contained penal notice
-- prominently on front
-- warning that disobedience will be contempt punishable by imprisonment, fine or sequestration

Procedure:
- Served personally on contemnor
- Part 8 claim or application notice
- Affidavit setting out the facts
- Contemnor has 14 days to acknowledge service and file and serve evidence in reply
- If intending to appear must give 7 days notice in writing to court and parties
- Contempt hearings are before a judge

Penalties:
up to 2 yr imprisonment AND/OR
unlimited fine

53

DBA requirements

• In writing
• Does not relate to proceedings which cannot be subject to an enforceable CFA
• Does not provide for a payment above the prescribed amount:
-- max 50% of award for non-PI,
-- 25% of PSLA and past pecuniary for PI
-- Net of CRU payments
-- Net of any costs of expenses payable to losing party

• T&Cs comply with requirements and specify
- Claim or proceedings to which DBA relates
- Circs in which rep’s payment, expenses, costs, or part of them are payable AND
- Reason for setting the amount of the payment at the level agreed

54

QOCS

Applies in cases of:
- PI
- FAA
- LR(MP)A even if brought by D
Does not apply to pre-April 2013 OR pre-action disclosure apps

Rule:
- C won't have to compensate D for costs in excess of sum recovered in damages
- Interim costs orders not enforceable after 14 days (as would be usual)

Lost if:
- Claim struck out (except for breach of rules/PDs)
- C fundamentally dishonest
- Claim brought to benefit someone other than C
- To extant that non-PI claim combined with PI claim

55

Costs typically recoverable in SCT

Only charges and disbursements:
• Fixed costs attributable to issuing the claim
• Sum not exceeding £260 when applying for an injunction or order for specific performance
• Any court fees
• Reasonably incurred travel expenses to get to hearing (and to stay away during)
• Up to £90/day for loss of earnings/loss of leave
• Up to £750 for expert’s fee
• Fixed costs under RTA protocol
• Costs of approved transcript (in appeal)

56

Summary Assessment used for

• Unreasonable behaviour assessments in small claims track
• Most fast track final costs orders
• Interim hearings lasting no more than 1 day
• Appeals lasting no more than 1 day

57

Cost bases

Standard (usual for costs between parties)
• Reasonable amount for costs reasonably incurred
• Must be proportionate
• Doubts resolved in favour of payer

Indemnity (usual for own solicitor, Part 36 C reward, misconduct)
• Reasonable amount for costs reasonably incurred
• Doubts resolved against payer

58

Interim costs orders

• Costs in any event – this application paid separate to overall
• Costs in the case – application combined with rest
• Costs reserved – decision deferred to a later occasion (but w. default of costs in the case if no further consideration) e.g. after a w/o notice application
• C’s/D’s Costs in case – if party who wins, wins overall then they get their costs, otherwise no party is liable to pay them
• Costs thrown away – cannot recover costs unnecessarily incurred
• Costs of or caused by – including preparation and attendance costs consequential on some other event
• Costs here and below – including proceedings in lower courts
• NO order as to costs – each party bears his own costs

59

Appellant's Notice contents

• Grounds of appeal including the respects in which, but not the reasons why, LC judgment was:
-- Wrong (and show that no reasonable judge using discretion could have reached same decision) OR
-- Unjust because of serious irregularity
• May include application for
-- Variation of time limit if late
-- interim remedies

Materials to be filed with court:
• 3 copies of Appellant’s notice + 1 for each respondent
• Sealed copy of order being appealed
• Where application for permission made to lower court:
-- Copy of order granting or refusing
-- Copy of the reasons, if any, for allowing or refusing
• Grounds of Appeal on separate sheet
• Skeleton arg (in CA appeals, optional in lower courts)
• Transcript (in CA, optional in lower)
• First order (in CA 2nd appeals)