SQE2 Disputes Resolution Trial and Appeal

Question 1

Process for settlement before trial

Answer 1

Either as:

1. Part 36 Offer
   - acceptance automatically stays proceedings
   - terms can’t be confidential
2. Consent Order
   - issued by court
   - this will stay proceedings pending carrying out
   - Eg. Tomlin Order which includes schedule of payments (from whom and when)
   - schedule can be kept confidential

Question 1

When is a Pre-Trial Hearing used, what is it and when does it happen?

Answer 1

Multi-track: 10 weeks before trial date.

Considers:
1. event of compliance with directions
2. trial timetable
3. set number of experts and witnesses that can give evidence at trial

Question 2

What is a case summary?

Answer 2

To be prepared and served before hearing by parties (together when possible) together with list of issues.
- should not be more than 500 words

Should include
- agreed facts
- what is in dispute
- synopsis of evidence that is believed to be required at trial

Question 3

Rules for Conduct Money for witnesses

Answer 3

Must be sufficient to cover the travel cost and loss of income

Max amount of £67
- additional may be required subsidence or overnight stay

Question 4

Modes of Address for different judges

Answer 4

District (DJ) - Judge

Circuit (HHJ) - Your honour

Master - Judge

High Court (J) - My Lord/Lady

Court of Appeal (LJ) - My Lord / Lady

Question 5

Who prepares Trial Bundle Rules and contents

Answer 5

Claimants solicitor to prepare copies for each party and one for witnesses and bear expenses

Must be filed 3-7 days pre trial

To include:
- info about parties
- case summary
- schedule of issues
- witness statements
- expert reports

Question 6

Trial Format Rules and General Process

Answer 6

Timetable to set how process will go, judge can depart from this

• opening submission (claimant then defendant)
• consideration of preliminary issues
• C’s witness evidence (evidence in chief)
• cross examination
  -re examination
• C’s experts evidence
• cross examination
  -re examination
• D’s witness evidence
• cross examination
  -re examination
• D’s experts evidence
• cross examination
  -re examination

Question 7

When / how can party discontinue claim? What effect does this have?

Answer 7

Generally must file and serve notice of discontinuance

May need to obtain permission if:
- active interim injunction
- active interim payment

Effect
- generally have to pay other sides cost for defending (subject to application of qualified oneway cost shifting)

Question 8

Grounds for Appeal

Answer 8

1. The decision is wrong in fact, law or the exercise of court’s direction
   - eg. judge records key witness evidence incorrectly (fact)
   - applies law incorrectly (law)
2. the decision is unjust because of serious procedural or other irregularity in the proceedings

Question 9

Time limit for appeal

Answer 9

Orally must be done immediately after judgment or order

In writing must be in 21 days of judgement is handed down (can ask for extension)

Question 10

What does the CoA consider for retrospective appeals (relief of sanctions)

Answer 10

Must be pursuaded it is reasonbale considering:

• The seriousness and significance of failure to comply with the rules
• why the default occurred, and
• Evaluation of the circumstances of the case (to deal with it in just manner)

Question 11

What is the process of the court considering an appeal?

Answer 11

normally considers notice and application without hearing.

• If granted matter listed for hearing for appeal to be heard.
• if not granted party can request oral hearing within 7 days of service of court order refusing permission (court need not approve this).

Question 12

What is looked at in the Appeal Hearing?

Answer 12

Limited to the review of the decision of lower court (not a full rehearing)

Cannot rely on new evidence (unless given permission)

Question 13

What is a ‘rolled up’ hearing in Appeals?

Answer 13

Where a court determines the application for permission and then considers apple in same hearing.

Question 14

What is included in costs and what is normal rule? Why might court depart from rule?

Answer 14

Cost include:
- legal fees; and
- disbursements

General Rule
- loser pays winners costs

Can Depart if:
- didn’t comply with pre action protocol
- refusal of ADR
- failure to negotiate
- rejection of part 36
- exaggeration
- didn’t succeed on whole claim

Question 15

Limit on recoverable costs?

Answer 15

Indemnity Principle

Question 16

How might costs be assessed?(standard vs indemnity)

Answer 16

Standard Basis
- proportionate costs
- exercises doubt in paying parties favour

Indemnity Basis
- does not consider proportionality
- can only object to costs if work should not have been done if first place

Question 17

When is cost management used? What if you exceed?

Answer 17

Typically for multi track cases
- court makes CMO
- Cannot exceed by over 20%

If you exceed:
- during proceeding then apply for new CMO
- Afterwards then must give reason why when giving Costs Statement (court may allow if good reason)

Question 18

When should parties send cost budgets ahead of CCMC?

Answer 18

Claim under £50k
- file with directions questionnaire

Claim of £50k +
- 21 days before CCMC

Question 19

What happens if a party does not file a budget when there is cost management?

Answer 19

Risk they will not be able to recover costs

Other than court fees

Question 20

What are the ways costs may be assessed and when are they each used?

Answer 20

Summary Assessment
- lower value cases
- interim applications

Detailed Assessment
- larger value cases

Question 21

What must be done by parties for summary assessment?

Answer 21

Parties file statement of cost
- 24 hours before hearing for applications
- 2 days before trail

Question 22

What is a detailed assessment process?

Answer 22

Used on larger value claims unless parties can agree on costs

1. bill of costs served on opponent within 3 months
2. opponent files points of dispute within 21 days
3. provisional assessment by DJ (if up to £75k)
4. Receiving party can challenge within 21 days and ask for detailed assessment hearing
5. either parties agree or detailed assessment is held

6 cost certificate issued

7 payment in 14 days of certificate

Question 23

What costs are fixed?

Answer 23

• Small Claims
• Fast Track
• Intermeadiate Track

Question 24

What is security for costs and what are requirements?

Answer 24

D can make interim application for this, meaning C will have to pay money into court or provide bond

Only available if:
- C is resident outside jurisdiction
- C is a company or other body and there is reason to believe that it will be unable to pay costs (if ordered to)
- C has changed address since claim started with view to evading consequences of litigation
- C failed to provide an address or gave incorrect address on claim form,
C is action as a nominal claimant (ie. suing for benefit of another), or
- C has moved assets outside England and Wales to make it difficult to enforce order for costs

Question 25

When can courts make cost orders against non-parties, and how

Answer 25

Yes, but it is very rare. for example, in situations where the non party funds the proceedings and controls or benefits from them.

Procedure
- non-party must be added as a party and given opportunity to attend hearing at which court will consider matter further

Question 26

What is Qualified One-Way Costs Shifting and when is it used?

Answer 26

PI claims, the claimant cannot be ordered to pay D’s costs unless:

• the claim was fundamentally dishonest,
• the claim was made for the benefit of another, or
• the claim was struck out for disclosing no cause of action or abuse

Question 27

What is a Wasted Costs Order and when can it be used?

Answer 27

Means that the solicitor or party has to pay for legal cost resulting from improper, unreasonable or negligent action from their solicitor.

Court must be satisfied that:
- solicitor acted improperly, unreasonably or negligently,
- the conduct caused unnecessary costs, and
- it is ‘just to make the order