Dispute Resolution Flashcards

Question

how should the statement of value section of a claim form be filled in for an unspecified claim? is this different for the HC and CC? what should be disregarded in this section?

Answer 1

HC = ‘The Claimant expects to recover more than £100,000’ or for PI more than 50k However, in the County Court, the claimant must state: * whether they expect to recover: ∘ not more than £10,000; or ∘ more than £10,000 but not more than £25,000; or ∘ more than £25,000 but not more than £100,000; or ∘ more than £100,000; * they cannot say how much they expect to recover. When calculating this figure, the following should be disregarded: * possible awards of interest or costs; * contributory negligence; and * counterclaims. PI (not RTAs) > include how much the claimant seeks to recover for damages for pain, suffering and loss of amenity, either: - is not more than £1,500 or - more than £1,500

Answer 2

FOR PARTNERSHIP: * any of the partners or a person having the CONTROL OR MANAGEMENT of the business may sign for a partnership FOR COMPANY: * a person holding a SENIOR POSITION such as a director, secretary, chief executive or the treasurer may sign on behalf of a company.

Answer 3

the court may strike out the document and, even if not, the claimant is precluded from relying upon its contents.

Answer 4

- once a claim form has been issued, it must be served on the other parties within 4 months - a claim form should only be sent to D's sols where D has nominated them in writing - once nominated all docs go to the sol unless the doc is one which has to be served personally on the party e.g. an injunction

Answer 5

(a) personal service; - handed to an individual (if they refuse, you can leave it near them) - partner or someone who has the control or management of a partnership at its principal place of business - company = person in senior position such as a director, treasurer, secretary or chief executive (b) first class post or document exchange - where a DX number is on a letter head = can be used (c) leaving the claim form at a specified place; (d) fax or other means of electronic communication; or - the party/their sol must have expressly provided they are willing to accept service in this manner - a fax number on the party's letterhead = not enough but if fax number on sol's letterhead = indication they are willing to accept service via fax (e) any other method authorised by the court e.g. text message or voicemail to allocated number

Answer 6

4 month window from issue * personal service was effected or delivery was made at the relevant place; or * the letter was posted or left with the DX provider; or * the transmission of the fax was completed or the email was sent. once this has been done the claimant has completed the 'step required' for service of the claim form

Answer 7

claim form deemed to have been served on the second business day after the step required has occurred e.g. the claim form has been put in the post a ‘business day’ is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.

Answer 8

if served together with the claim form those rules will apply e.g. they will be deemed to have been served on the second business day after the step required if they are served separately from the claim form the rules of deemed service to docs other than the claim form will apply

Answer 9

either at the same time as the claim form OR within 14 days after service of the claim form (but no later than four months after the date of issue of the claim form) (note > 14 days is not 14 business days)

Answer 10

- mus be served within 6 months of issue - in all other EU countries other than Scotland and NI, you need PERMISSION TO SERVE the proceedings - EXCEPTION of where the contract has an English law jurisdiction clause - the CLAIM FORM MUST BE ACCOMPANIED BY NOTICE SETTING OUT THE GROUNDS on which the claimant is entitled to serve it outside the jurisdiction together with evidence that England and Wales is the proper forum - if the claim form is properly served, the time for a REPSONSE will also be EXTENDED

Answer 11

Specified claims: - admit entire claim > D make offer of payment in full / part > C enters judgment - admit part > D make offer > C has 14 days to consider > accept in full satisfaction, dont accept payment plan (court decides without hearing), reject offer Unspecified - D makes offer - court serves notice on D - if dont accept > disposal hearing

Answer 12

instead of having 14 days from the date of service of the poc to file their defence, they now have 28 days

Answer 13

28 days the parties can agree to another 28 days on top = 56 days from the date of service of the poc anything more will require the courts approval

Answer 14

the court, unless the sol has indicated otherwise

Answer 15

SPECIFIED CLAIM - the C must include the following in their application: * indicate the date payment was due; * calculate an up- to- date total for the interest claimed; and * state a daily rate at which interest accrues. UNSPECIFIED CLAIM: the case will need to come back before the court to decide the amount of damages payable (a disposal hearing)

Answer 16

1. MANDATORY ground - obliged - judgment wrongly entered - e.g. filed too early or the claim has already been paid in full 2. DISCRETIONARY ground * has a REAL PROSPECT OF SUCCESFULLY DEFENDING the claim; or * there is SOME OTHER GOOD REASON why the defendant should be allowed to defend the claim e.g. the D was ill or away on holiday *court take into account the promptness of the application to set aside*

Answer 17

if D succeeds on: 1. mandatory ground > C pays 2. discretionary - D has real prospect of success > D pays 3. discretionary ground - good reason to proceed to trial > costs in the case * If the application fails > D pays Cs costs in the application

Answer 18

- no - permission must be obtained in certain circumstances e.g court has granted an interim injunction - C may not discontinue unless every other party consents in writing or the court gives permission - C can discontinue their claim against any and all Ds - must file and serve notice of discontinuance + any relevant consents on all parties

Answer 19

the C will be liable for the costs unless the courts state otherwise

Answer 20

(a) drawn up in the TERMS AGREED (b) must be EXPRESSED AS BEING 'BY CONSENT' and (c) SIGNED by both side's legal reps note a consent order will only usually be referred to a judge if it appears incorrect or unclear. otherwise it will be sealed by a court officer

Answer 21

- terms of consent orders are public - if any of the terms of consent go beyond the powers of the court - both can be kept in separate doc

Answer 22

- must be stated in the AOS - D has 14 days after he AOS to make app to court - if they dont > deemed to accept court's jurisdiction - app must have supporting evidence - if app successful > service of claim form set aside - if app refused > original AOS = no effect - further AOS must be filed within 14 days

Answer 23

- a factor may adversely affect their participation in proceedings or the giving of evidence - factors which may cause vulnerability in a party/witness: (a) Age, immaturity or lack of understanding; (b) Communication or language difficulties (including literacy); (c) Physical disability or impairment, or health condition; (d) Mental health condition (e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case); (f) Their relationship with a party or witness (g) Social, domestic or cultural circumstances.

Answer 24

specified = fixed amount of money unspecified = court has to investigate the amount of money payable

Answer 25

Civil National Business Centre

Answer 26

concise statement of the nature of the claim and specify the remedy that the claimant is seeking

Answer 27

statements of case

Answer 28

1. claim form 2. particulars of claim 3. defence *can include:* - reply - counterclaim - part 18 requests

Answer 29

clear using plain English where possible

Answer 30

the firm (in the name of the firm)

Answer 31

1. the solicitor should advise the client to amend the statement of case 2. if the client refuses to do so, should cease to act 3. In order to keep client confidentiality, the solicitor should not inform the court or any other party of the reasons why they are no longer representing their client.

Answer 32

(a) A concise statement of the facts on which the claimant relies - all the facts giving rise to the dispute - elements of the cause of action (b) If the claimant is seeking interest, a statement to that effect and the details.

Answer 33

a) the status of the parties - e.g. confirming the Defendant's business when there has been a breach of SoG - chronological events explaining what has occurred - may include pre-contractual matters e.g request for sample b) existence of a contract - date, type (written or oral), parties, subject matter and consideration - written contracts = a copy of must be attached to or served with the particulars of claim - oral = the words used, to who and when c) terms in the contract - express terms usually included + found in the contract itself - implied terms should be state specifically d) breach alleged and particularised - terms breached and how have they been breached e) factual consequences - what happened as a result of D's breach (f) Damage and loss alleged and particularised - damage must be alleged generally e.g. claiming damages - then itemised (calculations of what is being claimed for) g) interest - if the remedy sought is damages or repayment of a debt, the court may award interest but only if claimed - if an unspecified claim = C must set out the basis of its entitlement to interest e.g which legislation - for specified claims, interest must be calculated precisely from the day of breach to the date of issue + a daily rate so it can be updated - breach of contract (3 other ways of claiming interest) h) summary of relief i) statement of truth

Answer 34

1. rate specified in contract 2. Late Payment of Commercial Debts (Interest) Act 1998 - statutory right to interest on commercial debts that are paid late. - only specified damages - does not apply to consumers - The relevant rate of interest is 8% per annum above the Bank of England’s base rate on the date the debt became due for payment. - C is also entitled to a small, prescribed amount of statutory compensation for the inconvenience of having to recover the debt. 3. In all other cases, the court has a discretion to award interest either under i) Senior Courts Act 1981 for High Court cases (35) ii) County Courts Act 1984 for County Court cases (69)

Answer 35

- the court has a general discretion to award interest on damages in any negligence claim in accordance with: - Senior Courts Act for High Court - County Court Act for County Court interest is normally awarded from when the loss was sustained

Answer 36

1. deny 2. not admit (made where the defendant has no knowledge of the particular matter alleged) 3. admit

Answer 37

Where a defendant denies an allegation, they must state: * their reasons for doing so; and * their own version of events if different from that given by the claimant.

Answer 38

it is omitted through omission

Answer 39

If the defendant alleges that the relevant limitation period for the claim has expired, the details of this must be given in the defence, for example, when it began and expired, and whether it ran under the terms of a contract or under the Limitation Act 1980. The burden of proof is then normally transferred to the claimant to show the claim is not time- barred.

Answer 40

1. contributory negligence 2. a failure by the claimant to mitigate its loss

Answer 41

- the additional claim is made in Defendant's defence 1. indemnity - contractual relationship between D + 3rd party - 3rd party indemnifies D if they are found liable for the claim. 2. contribution - joint wrong- doers - D argues the 3rd party is partly responsible for the harm the claimant has suffered *is the additional D already a party to proceedings?* - if yes > court permission not required > but still need to file + service notice - if not already party to proceedings > court permission *when is the part 20 Claim issued?* - D must serve Part 20 Claim Form, POC + additional statements of case on the 3rd party - if Part 20 claim is issued before or at the same time as defence is issue > no need for court permission - if adding after > court permission

Answer 42

1. BEFORE EXPIRY OF LIMITATION PERIOD - after filing but before serving > amendments made at any time - after filing + service > amendments only made with written consent of all parties or permission of the court *app notice + copy of statements of case with proposed amendments* - court will then decide whether or not to use their disrection (overriding objective) 2. AFTER THE EXPIRY OF THE LIMITATION PERIOD - the court MAY ALLOW an amendment ONLY in the following circumstances: a) to ADD OR SUBSTITUTE a new claim, if this arises out of the SAME OR SUBSTANTIALLY THE SAME FACTS as an existing claim; b) to correct a (GENUINE) MISTAKE as to the name of a party; c) to ALTER THE CAPACITY in which a party claims.

Answer 43

C must file a defence to the counterclaim within 14 days (unless an extension of up to 28 days has been agreed with the defendant). If they fail to do so, the defendant may enter judgment in default on the counterclaim

Answer 44

1. clarify any matter that is in dispute 2. provide more information

Answer 45

1. (first) serve a WRITTEN REQUEST on the other party, allowing a REASONABLE TIME for the response 2. A request should be CONSCISE AND STRICTLY CONFINED to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer. 3. Requests must be made as far as possible in a SINGLE COMPREHENSIVE DOCUMENT and not piecemeal. If brief, this may be by letter; if not, the request should be made in a separate document, which must be sent to the other party. 4. Any request must be headed with the name of the COURT, the TITLE and NUMBER of the claim and identify that it is a Part 18 request. The requests should be set out in separate numbered paragraphs, and STATE A DATE FOR RESPONSE

Answer 46

- must be in writing, dated and signed by the party or their solicitor + verified with statement of truth * The response must be: ∘ served on all the parties; ∘ filed with the court; and

Answer 47

- APPLICATION TO THE COURT under part 18 - court will grant an order if it is satisfied that the request is confined to matters that are REASONABLY NECESSARY AND PROPROTIONATE to enable the applicant to prepare their case or to understand the case against them

Answer 48

no there is no need to include facts that have already been set out in the defence and the first paragraph will simply state that the relevant paragraphs are repeated

Answer 49

failed to resolve matters between themselves through correspondence

Answer 50

the court where the claim was started or (if relevant) to the court it has been transferred to

Answer 51

- what is being sought and why - supported by evidence > WS - draft order

Answer 52

- the person best able to address the relevant points from personal knowledge - if the application is a more technical one e.g. for the amendment of a statement of case, the person best able might be the solicitor the application itself should include: (a) include the factual information and the evidence in support of the application; and (b) anticipate the opponent’s case, where appropriate.

Answer 53

- no oral evidence will be heard at the hearing - although the judge will make submissions, the judge will decide the issue primarily on the basis of the written evidence

Answer 54

a draft order

Answer 55

- app notice must be served AT LEAST 3 CLEAR DAYS BEFORE COURT HEARING - clear days = date of service and of the hearing are excluded, as well as weekends and bank holidays. - gives them time to respond + object (if they feel is necessary)

Answer 56

- they can apply to the court for an order to be made by consent without the need for attendance at the hearing

Answer 57

* there is exceptional urgency; or * the overriding objective of the CPR would be best achieved by making an order without notice.

Answer 58

- the evidence must explain why notice has not been given - duty of full + frank disclosure (anticipate arguments respondent would make) - the following documents should also be served on the respondent as soon AS IS PRACTICABLE TO DO SO: (a) the court order; (b) the application notice; and (c) any supporting evidence. - The respondent may then apply to SET ASIDE OR VARY THE ORDER WIHTIN 7 DAYS OF SERVICE of the order upon them.

Answer 59

time estimate of one hour or less will be conducted by telephone if at all possible EXCEPTION - where notice has not been given to the other party

Answer 60

*- judge will decide at end of app hearing - usual rule of loser pays winners cost applies*

Answer 61

both C and D (will be referred to as applicant and respondent)

Answer 62

NEED BOTH (a) it considers that the party has NO REAL PROSPECT of succeeding on the claim, defence or issue; and (b) there is NO OTHER COMPELLING REASON why the case or issue should be disposed of at a trial

Answer 63

to deal with matters justly and at a proportionate cost

Answer 64

the party will need permission where the claimant wishes to apply before the defendant has filed an acknowledgement of service OR a defence (However, given the requirement to convince the judge that the defendant has no real prospect of defending the claim, a claimant will invariably wait until after the defence has been filed)

Answer 65

1. N244 + (usually) a witness statement 2. the respondent must: ∘ be given at least 14 days’ notice of the hearing date; and ∘ file and serve any written evidence at least 7 days before the hearing. - If the applicant wishes to rely on further evidence, this must be filed and served at least 3 days before the hearing.

Answer 66

1. judgment on the claim = this means that the claimant has succeeded in their application for summary judgment and the matter will proceed to enforcement 2. striking out / dismissal of the claim = D has been successful in their application to dispose of C's claim 3. the application is dismissed = the claim now proceeds towards trial 4. a conditional order = the application has not been granted, but equally the respondent has not succeeded in having it dismissed – neither side has won. - defence is possible but not improbable - pay a sum of money to the court or complete a certain step e.g. file a defence in 14 days - shows the party's desire and capability to continue the claim and that they are not just delaying payment of the claim where an order allows for the continuation of the claim, it is usually accompanied by case management directions

Answer 67

*if unspecified claim > costs sumamarily assessed + disposal hearing for calculation of damages*

Answer 68

urgent or it is otherwise desirable in the interests of justice

Answer 69

breach of an injunction = contempt of court

Answer 70

damages are not an adequate remedy for the applicant

Answer 71

American Cyanamid Co (No 1) v Ethicon Ltd [1975] When deciding whether to grant an interim injunction, the court will determine whether: (a) there is a SERIOUS Q TO BE TRIED (b) damages are an adequate remedy for EITHER SIDE (c) the BALANCE OF CONVENIENCE lies in favour of granting or refusing the injunction; and (d) whether there are any SPECIAL FACTORS

Answer 72

- interim injunctions - if granted > applicant provides undertaking it will pay for any damages suffered by the respondent (or other party affected by the order) - only needs to pay where it subsequently transpired the injunction should not have been granted

Answer 73

- application notice and evidence in support

Answer 74

- trial - unless they are set aside earlier

Answer 75

where there is GOOD REASON FOR DOING SO 1. FREEZING injunction (think of 'GR' noise you would make if its cold) - to restrain a party from removing their assets from the jurisdiction - court must be satisfied that : i) the applicant has a GOOD ARGUABLE CLAIM AND ii) there is a REAL RISK the respondent will dispose of their assets so as to defeat the enforcement of an eventual judgment. 2. SEARCH orders (think of 'SSI' CSI) - where the applicant believes the respondent has documents or property belonging to them - court must be satisfied that: i) applicant appears to have a STRONG CASE AND ii) the applicant will suffer SERIOUS HARM IF THE ORDER IS NOT MADE AND iii) the respondent has INCRIMINATING MATERIALS in their possession which cannot be obtained by other means

Answer 76

(a) If the court fixes a date for a HEARING with all parties present > will last until then - respondent will have the chance to argue it should be set aside (b) The injunction may simply tell the D they can apply for an ORDER to have the injunction set aside or varied (if they wish to do so)

Answer 77

a High Court judge affidavit (similar content to a witness statement but sworn or affirmed by the person making it)

Answer 78

- type of interim remedy - an advance payment on account of any damages, debt or other sum (excluding costs) that a defendant may be held liable to pay - enables a claimant who has a strong case on liability to avoid the financial hardship and/ or inconvenience that might otherwise be suffered because of any delay during the period between the start of the claim and its final determination.

Answer 79

negotiate with the defendant or the defendant’s insurance company to obtain a voluntary interim payment

Answer 80

- after the time for filing an AOS has expired - can make more than one app. throughout proceedings

Answer 81

14 days if the respondent wishes to rely on evidence to counter the application, this must served at least 7 days before the hearing the applicant may then respond with further evidence as long as it is submitted at least 3 days before the hearing

Answer 82

* the amount requested and what it will be used for; * the amount of the sum of money that is likely to be awarded at final judgment; and * the reasons for believing that the grounds required by the CPR are satisfied.

Answer 83

(a) the defendant has ADMITTED liability; or (b) the claimant has OBTAINED A JUDGMENT against the defendant for damages to be assessed or for a sum of money; or (c) the court is satisfied that, if the case went to trial, the claimant would obtain judgment for a SUBSTANTIAL amount of money (other than costs). - note the burden on the applicant on ground c is very high - must show on the balance of probabilities that THEY WILL SUCCEED

Answer 84

delay in the assessment of damages

Answer 85

(a) Should an order for an interim payment be made? - If the issues are complicated or difficult questions of law arise, the court may decide not to order an interim payment at all. (b) If yes, what should the amount be? - If the applicant succeeds, the court CANNOT ORDER A SUM OF MORE THAN A REASONABLE PROPORTION OF THE LIKELY AMOUNT OF THE FINAL JUDGMENT and must take into account contributory negligence and any counterclaim. {the court will TRY AND CALCULATE A FIGURE THAT IS INDISPUTABLY DUE to the claimant and then determine what the defendant is able to pay} The court may order an interim payment in one sum or in instalments.

Answer 86

- trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents (unlikely) - to avoid the judge's decision being influenced in any way

Answer 87

applications made between the issue of proceedings and trial

Answer 88

Option A is correct because this is one of the grounds which must be satisfied before the court will make an interim payment under CPR Part 25. The evidence suggests that the defendant is to blame, therefore it is likely the claimant could prove on the balance of probabilities they would obtain judgment if the case went to trial. The claim is worth over £100,000 so if the claimant obtained judgment it would likely be for a substantial amount of money (other than costs). if a situation is ongoing the court is more likely to award an interim payment. Here, there is likely to be a delay in assessment of damages because the claimant’s long-term prognosis is unknown.

Answer 89

no statement needs to accompany it - where a solicitor signs a statement of truth they are deemed to have their client’s authority to do so and no separate written statement to that effect is needed.

Answer 90

- the role of the court is not a passive one - judges are expected to be robust and interventionist in their approach to ensure compliance with rules, practice directions and orders

Answer 91

the overriding objective of the CPR (cases be dealt with justly and in proportionate costs)

Answer 92

1. ensure the parties are on equal footing 2. saving expense 3. dealing with the case in ways that are proportionate to: — the amount of money involved — the importance of the case — the complexity of the issues and — the financial position of each party 4. ensuring that the case is dealt with expeditiously and fairly 5. allotting to it an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases 6. enforcing compliance with rules, practice directions and orders

Answer 93

CPR rule 1.3 the parties are required to help the court to further the overriding objective this is a positive duty the court will expect a high level of cooperation and realism from those involved in the litigation process

Answer 94

actively manage cases tailored directions to each case examples: - whether the likely benefits of taking a particular step justify the cost of taking it - keeping the amount of times parties have to attend court to a minimum - the use of technology - dealing with as many aspects of the case at the same time

Answer 95

- ensures that the most difficult and highest value claims receive greater resources and attention than simpler matters e.g. small claims track = least formality > usually litigants in person and simpler vs intermediate track = incorporates greater flexibility to reflect the variety and complexity of these cases

Answer 96

- initially decided by a court officer - once a defence has been filed, the court provisionally decides which track is most appropriate - the court then serves a notice of proposed allocation, requiring the parties to file and serve a completed DQ

Answer 97

1. assign to a track 2. assign to a complexity band 3. determine directions for case management

Answer 98

(a) a case summary (b) a disclosure report (c) a costs budget and budget discussion report.

Answer 99

* MONEY CLAIM IN CC the court will serve a NOTICE on the defaulting party requiring COMPLIANCE WITHIN 7 DAYS * Failure to do so results in the party’s statement of case being AUTOMATICALLY struck out. *in all other cases > court makes order it considers appropriate*

Answer 100

the financial value

Answer 101

no - doesn't usually aggregate the largest of the two figures will usually determine the financial value of the claim

Answer 102

In road traffic cases occurring after 31 May 2021, the value of the damages claimed for the pain, suffering and loss of amenity aspect must not exceed £5,000.

Answer 103

- much simpler to reflect sols arent usually involved - typical directions would include: * each party delivering to the others copies of all documents on which they intend to rely; * bring original documents to the hearing; and * not rely on an expert’s report without express permission from the court. the hearing = informal and if all parties agree, a court can make a decision based on the statements of case and documents submitted rather than by hearing oral evidence

Answer 104

no longer than one day

Answer 105

intended to be sufficient to allow parties to prepare their case whilst being short enough to discourage tactical litigation such as making technical applications

Answer 106

1. trial date 2. the date for returning pre-trial checklists

Answer 107

- max number of parties = 3 - max number of experts = not more than 2 experts giving oral evidence on each side - max length of trial = 3 days

Answer 108

CMC = discretionary

Answer 109

1. disclosure of documents 2. service of witness statements 3. expert evidence (with oral expert evidence being limited to one witness per party, except where a second expert is reasonably required and proportionate) 4. whether to fix a pre-trial review 5. listing for a trial

Answer 110

20 pages any supporting materials such as photographs, plans and academic articles

Answer 111

will determine fixed recoverable costs

Answer 112

- an individual who is familiar with the case - must have authority to deal with the case - must have sufficient info - if inadequacy of the person attending > adjournment of the hearing > order that the other party’s costs incurred in preparing for and attending the hearing are paid by either the solicitor personally or their firm (known as a wasted costs order).

Answer 113

- after statements of case - purpose = to describe what matters are still in dispute and which are agreed - effectively, it is an updated case analysis - claimant responsible for providing one at the CMC but agreement between the parties should be sought where possible

Answer 114

(a) any case management conference; (b) a pre- trial review; (c) the return of a pre- trial checklist; or (d) the trial or the trial period.

Answer 115

costs in the case

Answer 116

- this will not generally be an issue provided the parties co- operate and are able to meet certain key dates, such as the CMC and the trial - However, to ensure the case proceeds without delay, if a step is missed any other party may apply for an order enforcing compliance and/ or for a sanction to be imposed. - in addition, to comply with the overriding objective: the trial date is sacrosanct and the court will not allow failure to comply with directions to lead to the postponement of the trial, unless the circumstances are exceptional

Answer 117

cost budgets

Answer 118

1. a detailed breakdown of the costs and disbursements already incurred (pre- action, issue of proceedings and statements of case) – ‘incurred costs’ 2. an estimate of future costs and the assumptions on which those are based - 'budgeted costs' must be dated and verified by a statement of truth signed by a senior legal representative of the party

Answer 119

∘ with the directions questionnaire for claims of less than £50,000; and ∘ no later than 21 days before the first CMC for all other claims.

Answer 120

- must complete a budget discussion report (Precedent R) no later than 7 days before the first CMC. - this itemises the figures for phases that are agreed and those that are not, with a brief summary of the grounds of dispute

Answer 121

usually at the CMC but can be dealt with separately if a complex matter

Answer 122

- once approved by a court it is extremely difficult to be amended - inadequacies and mistakes cannot be rectified - only if the OTHER PARTY AGREES (which is unlikely) or - the court can be PERSUADED that there have been SIGNIFICANT DEVELOPMENTS, for example the need for an additional expert’s report that could not have been anticipated, may it be revised - budget variation summary sheet (Precedent T)

Answer 123

If one party considers that another is acting oppressively in seeking to cause the applicant to spend money disproportionately on costs, an application can be made to the court, which will grant such relief as may be appropriate.

Answer 124

automatic sanction = the party will be treated as having filed a costs budget consisting only of the court fees (unless the court orders otherwise)

Answer 125

- further means of ensuring costs are kept in check - such an order is imposed unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost - in the ORDER, the court will: a) RECORD THE EXTENT TO WHICH ANY incurred or budgeted costs ARE AGREED between the parties; and b) in respect of the budgeted costs that are NOT AGREED, record the court’s approval after making appropriate REVISIONS - if the winner is ordered to pay the losers costs, the court WILL NOT DEPART from the winner's last approved budget UNLESS THERE IS GOOD REASON FOR DOING SO - the consequence is that the parties are tied to their costs budget figures even if the litigation proves far more expensive than anticipated.

Answer 126

- If there is no costs management order, there is more flexibility when dealing with costs. - Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference. - It is then a matter for the court to decide whether the additional amounts can be recovered.

Answer 127

1. striking out a statement of case 2. Costs: the party in default to pay the other party’s additional costs on an indemnity (penalty) basis or to provide an uplift on the fixed costs. 3. Interest: orders could be made increasing or reducing – depending upon which party is at fault – the interest payable on any damages. 4. The unless order: if a party has not taken a step in the proceedings in accordance with a court order, an application may be made to the court for an ‘unless’ order.

Answer 128

relief from sanctions when considering a party’s failure to comply with any rule, practice direction or court order, the court should adopt a structured approach as follows: (a) identify and assess the SERIOUSNESS OR SIGNIFICANCE of the RELEVANT FAILURE. If a breach was not serious or significant, relief is usually granted (b) The second stage is to consider WHY THE FAILURE OR DEFAULT OCCURED (c) The third stage is to EVALUATE ALL THE CIRCUMSTANCE of the case so as to ENABLE THE COURT TO DEAL JUSTLY with the application. Factors would include whether the trial date could still be met and the effect the failure to comply and the granting of relief would have on each party

Answer 129

to enable the parties to evaluate the strengths and weaknesses of their case in advance of the trial This will assist them in making an informed decision about whether to pursue the matter or whether to seek an early settlement.

Answer 130

any documents that have a bearing on the case, even if they are unhelpful to the party giving disclosure and which they would rather keep hidden

Answer 131

those allocated to the small claims track

Answer 132

The usual direction is that each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at that hearing.

Answer 133

- disclosure will be limited to what is necessary to deal with the case justly and at proportionate cost - standard disclosure is an option, but the court may direct a more limited approach such as specifying classes of docs to be disclosed

Answer 134

- similar to the fast track, disclosure will be limited to what is necessary to deal with the case justly and at a proportionate cost - the court will select one of the following orders: 1. dispense with disclosure; 2. specific disclosure 3. issue by issue 4. standard disclosure 5. any other order considered to be appropriate

Answer 135

- usually standard disc. with tailoring

Answer 136

(a) the documents on which they rely; and (b) the documents which: (i) adversely affect their own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. *no need to disclose docs that record info relating to agreed matters*

Answer 137

documents that: (a) either are or were in their physical possession; (b) they have a right to possess; or (c) they have a right to inspect.

Answer 138

reasonable and proportionate What is reasonable depends upon: * the number of documents involved; * the nature and complexity of the proceedings (includes financial value) * the ease and expense of retrieval of any particular document; and * the significance of the document.

Answer 139

justified limitations will be acceptable if the court is satisfied they would not affect a proper investigation into the merits of the case if a search is limited it must be specifically stated in the disclosure list of documents

Answer 140

- The CPR require the parties to manage electronic documents to minimise the cost incurred in disclosure and to use technology to ensure that the search is undertaken efficiently and effectively. - To keep the work involved to a sensible level, the parties must discuss and (if possible) agree such matters as the format for inspection and any limitations, for example, what keywords will be used. - This must be done before directions are given for the conduct of the case and the parties may, if they wish, use an electronic disclosure questionnaire for this purpose. at the CMC, the court will discuss disclosure and provide written instructions as to electronic disclosure or if necessary order a separate hearing

Answer 141

- list of disclosure docs on Form N265

Answer 142

- made in the N265 form - the party must sign to confirm the extent of the search made to locate any documents - they must also certify that they understand their duty of disclosure and that, to the best of their knowledge, the duty has been carried out.

Answer 143

- legal representative cannot sign the disclosure statement on behalf of their client - if the party = partnership, LLP, company or corporation > an individual in that organisation who was responsible for overseeing the disclosure process should sign - The name, address and the office or position that the signatory holds in the disclosing party or the basis upon which they have made the statement on behalf of the party must be included.

Answer 144

- disclosure statement - you would also explain your reasons for the limitation here

Answer 145

contempt of court proceedings may be brought

Answer 146

continuing duty so that if, after signing the statement and at any time before the proceedings are concluded, the party becomes aware of additional documents, they must prepare and serve a supplemental list of documents having done so, if they wish to rely upon the ‘new’ document at trial and the opponent does not agree, they will have to obtain the court’s permission

Answer 147

Part 1 = documents that are within the party’s control and which they do not object to the other party inspecting Part 2 = documents which are in the party’s control but where there is an objection to inspection, usually because they are privileged Part 3 = documents that are not privileged from inspection but are no longer in the party’s control. (must state what happened to the docs)

Answer 148

may not rely on it unless the court permits could even be struck out

Answer 149

you must still disclose them but: (a) the other parties cannot inspect them; and (b) they are described generically

Answer 150

non-lawyers giving legal advice e.g. an accountant

Answer 151

- communication between sol + lawyer - SOLE OR DOMINANT purpose of the communication is to seek or to give legal advice - if the document has a DUAL purpose, the dominant one must be established

Answer 152

The document must be a communication: (a) passing between the CLIENT OR LAWYER AND THIRD PARTY (b) which CAME INTO EXISTENCE WHEN LITIGATION WAS CONTEMPLATED OR ONGOING; and (c) which was produced with a view to the litigation, either for the SOLE OR DOMINANT purpose of giving or receiving legal advice in regard to it, OR FOR OBTAINING EVIDENCE TO BE USED IN LITIGATION e.g. a report from an expert, attendance notes from conference with counsel

Answer 153

the client, not the lawyer

Answer 154

if it is the only way to advance proceedings

Answer 155

- correspondence in attempt to settle - will probably therefore satisfy the definition of standard disclosure as it is likely to set out the strengths of a party’s case and may also contain concessions that are adverse to their case and support the opponent - this is fine as remember the purpose of WP is to prevent a trial judge from seeing the correspondence, whereas disclosure is just between the parties

Answer 156

The request to inspect must be made in writing and granted within 7 days, although a longer period is often agreed between the parties.

Answer 157

1. write to the other side first 2. if the above fails = application notice (Form N244) must be filed at court accompanied by a witness statement, and served on the opponent

Answer 158

- the specific disclosure order could request that the party: 1) carry out a more extensive search; and 2) disclose any further documents located as a result of that search; or 3) disclose specific documents that the party would have expected to see. the application will require a witness statement in support - this should include why the party believes the specific document(s) exist - why their application is justified

Answer 159

- dispute privilege - if it has not been correctly categorised, the court will order for it to be revealed to the other side - although this is arguably harder to do because would have to base your application off the general description in part 2 of the N265

Answer 160

- the pre-action protocols require the parties share information regarding the prospective litigation - however, there is no general obligation on a party to show their opponent the contents of documents or to disclose those which are adverse to their own position - the only way to compel in pre-action > apply for court order

Answer 161

- issue an application for pre-action disclosure - app. supported by a witness statement - the court must be satisfied that: a) both the applicant and the respondent are likely to be a party to subsequent proceedings; b) the documents sought would come within standard disclosure; and c) disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute being resolved without proceedings or save costs.

Answer 162

- can apply for NON-PARTY DISCLOSURE - proceedings must've commenced - you would WRITE to the non-party asking for disclosure but if they dont provide it = APPLICATION can be made The application must be SUPPORTED BY EVIDENCE and disclosure will only be ordered if: (a) the documents in question are likely to support the applicant’s case or adversely affect the case of another party; (IE. FALL WITHIN STANDARD DISCLOSURE) and (b) disclosure is NECESSARY TO DISPOSE FAIRLY OF THE CASE OR TO SAVE COSTS The order must specify the documents to be disclosed; and require the non- party to identify which documents are no longer in their control and which are privileged.

Answer 163

The fast track is the appropriate track, because the case involves disputed allegations of dishonesty which adds to the complexity of the case making it unsuitable for the small claims track.

Answer 164

In determining the financial value, the court disregards any amount not in dispute, any claim for interest, costs and any contributory negligence.

Answer 165

It is false. Before the first case management conference in multi-track proceedings, a party must raise any objections to an opponent’s budget in the Budget Discussion Report which the court will consider at the hearing.

Answer 166

where the D in civil proceedings has been convicted of a relevant criminal offence the burden of proof is then reversed

Answer 167

- should be in writing via a witness statement - if not done so, the witness will only be able to speak at trial with the court's permission = very rare

Answer 168

- cant obtain WS because the witness is UNCONTACTABLE OR UNWILLING to provide one - the party can APPLY TO THE COURT WITHOUT NOTICE for an order to serve a written witness summary, containing: a) the witness’s name and address; b) the EVIDENCE THE WITNESS CAN PROVIDE, if it is known; or if not c) the matters on which the witness would be questioned at trial, namely, the relevant disputed issues - witness summaries are LESS SATISFACTORY to the party than a statement but they may be useful where the alternative is no evidence at all.

Answer 169

- proper headings with details such as the case title, witness's name, and date - numbers should be expressed in numbers not words e.g. 5 people is correct / five people is not correct - dates should be expressed as 1 January 2025 instead of 01.01.2025 - a first-person account of events in chronological order - should be written in the witness' own words where possible - the statement must clearly distinguish between facts known to the witness and those based on information or belief (naming the source if appropriate) - should state the process in which the statement was prepared e.g. face to face or over the telephone - statement of truth (cannot be signed by a legal representative) - any attached documents must be formally exhibited - if the statement is not in English, it must include translation details

Answer 170

usually once the matter has been allocated to a track

Answer 171

- a few weeks after disclosure and inspection of the documents - this allows the witness an opportunity to review their evidence after having taken into account any documents that have been inspected

Answer 172

- the witness will usually be called to give oral evidence at trial but this just entails them confirming via oath the contents of the WS (the WS therefore stands as their evidence in chief) - the court can allow further examination in chief if appropriate - the witness is then cross examined by the other side's advocate

Answer 173

- sworn statements of evidence - the maker has to swear or affirm before a solicitor (not their own), or other authorised person, that the contents of the affidavit are true - only really used for applications for a freezing order or a search order

Answer 174

- when it addresses the relevant facts in dispute ie. what is denied in the particulars of claim

Answer 175

- general rule = opinion evidence is not admissible (contrasted with the position on expert evidence) EXCEPTION: - a witness may give a statement of opinion if made as a way of conveying relevant facts personally perceived by them - but should not draw a conclusion from their evidence as this is the role of the court - e.g. the witness to the road traffic collision cannot say in evidence that (in their opinion) the defendant’s speed was ‘excessive in the circumstances’ or ‘too fast’

Answer 176

* a statement made outside court; * which is repeated in court; * to prove the truth of the matter stated. - the purpose of hearsay evidence = the statement is being offered in evidence to prove the truth of the matter stated - where submitting oral statements made to a claimant, for a claim of misrep, this will not be hearsay because the claimant is not repeating the statements to prove their truth > they are doing the opposite i.e. they are trying to prove they were not true

Answer 177

- hearsay is admissible but... - notice requirements: 1. if a party plans to use a witness statement containing hearsay evidence, they must serve the other party with the statement 2. the opposing party then has two options: i) either request the court to order the person who made the original statement to attend for cross-examination, or ii) they can give notice that they intend to challenge the credibility of the hearsay evidence 3. if the party does not intend to call the witness to give oral evidence and instead relies on the written statement = the whole statement becomes hearsay - this limits the opponents options as they cannot cross examine the witness - they must be given a hearsay notice - this should be given at the same time as the WS

Answer 178

the hearsay is still admissible but the failure may be taken into account when assessing the weight to be given to it, or when making a costs order at the end of the trial

Answer 179

1. Reasonableness of not calling the original - If the person is unavailable, e.g., deceased or abroad, the statement may be given more weight - otherwise, the absence of the original witness may weaken the statement's credibility. 2. Timeliness of the statement: A statement made close to the event in question = more reliable 3. Multiple hearsay > the potential for inaccuracy increases 4. Motive to misrepresent 5. Any evidence of editing or collaboration 6. Attempt to obstruct evaluation e.g trying to withold evidence

Answer 180

permission

Answer 181

- objective + unbiased opinions - on matters within their expertise

Answer 182

- assist the court by providing objective, unbiased opinions on matters within their own expertise - have a duty of reasonable care + skill to party that instructed them - but duty to the court overrides this - duty is not to assume the role of an advocate

Answer 183

- is it proprtionate to have separate experts? - speed - cost effectiveness - is there likely to be a range of expert opinion?

Answer 184

If agreement cannot be reached on who this will be, the court will select the expert from a list prepared by the parties.

Answer 185

fast track costs are shared

Answer 186

usually 1 witness per party unless a second is reasonably required and proportionate

Answer 187

1. imposing a DEADLINE for exchange of expert reports 2. each party may, WITHIN 28 DAYS PUT WRITTEN QS TO THE EXPERT - answers form part of report - if NO REPLY > court MAY ORDER the expert evidence CANT BE RELIED UPON 3. the court may order a WP DISCUSSION between the experts - usually in the absence of the parties or their legal representatives - following the discussion, a WRITTEN JOINT STATEMENT must be prepared for the court and signed by the experts stating the issues on which they agree and those on which they disagree with a summary of the reasons 4. the judge will decide whether the expert may give oral evidence at trial - usually rely on written reports - can be called to give oral evidence

Answer 188

(a) be addressed to the COURT (b) give details of the expert’s QUALIFICATIONS; (c) give details of any LITERATURE or other material that the expert has relied on; (d) contain a statement setting out the substance of all facts and instructions; (e) say WHO CARRIED OUT ANY OF THE EXAMINATIONS measurements, tests or experiments, their qualifications and whether the expert supervised; (f) where there is a RANGE OF OPINION, summarise this and give reasons for the expert’s own opinion; (g) include a SUMMARY reached; and (h) contain a STATEMENT that the expert understands their DUTY TO THE COURT and has complied with this, and is aware of the requirements of Part 35 and related guidance. The report must also be VERIFIED BY STATEMENT OF TRUTH When drafting the report, the expert must set out all the INSTRUCTIONS, whether written or oral, that are material to the opinions expressed or upon which their opinions are based.

Answer 189

If the breach is serious, the party may not be allowed to rely on that expert’s evidence, but in most cases, the judge will simply take account of the breach when deciding what weight should be given to the expert evidence.

Answer 190

fast track = on allocation intermediate or multi = CMC

Answer 191

the court will give permission only if it considers that there is GOOD REASON not to confine the evidence of the witness to the contents of his witness statement

Answer 192

- witnesses should: i) be asked, at an early stage, if there are any dates when they cannot attend; and ii) be notified of the trial date without delay - witness' availability should be given on DQ and on pre-trial checklist

Answer 193

expert evidence is REASONABLY REQUIRED TO RESOLVE THE ISSUES - the burden of proving this is on the party who seeks permission to use the expert evidence - if it is necessary in deciding an issue or it will assist the judge in deciding an issue = allowed

Answer 194

- if there is any doubt at to whether the witness will attend voluntarily - if they are essential witnesses, it may be best practice to request a summons even if they have confirmed attendance - a witness summons requires a witness to: * attend court to give evidence; and/ or * produce documents to the court. - should be issued and SERVED AT LEAST 7 days before the date on which the witness is required to attend court - need court PERMISSION to issue a summons where LESS THAN 7 days (should be sought IMMEDIATELY) - summons usually served by court - must pay relevant court office > reasonable expenses - can be served by party serving it (along with payment) > must inform the court of this - reasonable expenses: (a) a sum reasonably sufficient to cover their expenses in travelling to and from the court; and (b) compensation for loss of time - if witness fails to appear = fine or imprisoned for contempt of court (if HC proceedings) note > a witness can write to the court and ask them to set the summons aside if they believe they have no relevant evidence to provide

Answer 195

the judge is more likely to be sympathetic to an adjournment of the trial should the witness fail to attend

Answer 196

PURPOSE: to ensure the parties have complied with all the directions and the trial is ready to proceed COMPLETION: must be filed at court NO LATER THAN 8 WEEKS BEFORE THE TRIAL DATE ROLE OF THE JUDGE: check whether further directions + pre trial hearing needed NON-COMPLIANCE: - if NEITHER PARTY comply > court orders that unless a completed checklist is filed within 7 DAYS > the claim, defence and counterclaim will be STRUCK OUT. - if only ONE PARTY does, the court will fix a HEARING to ensure the case is ready for the trial

Answer 197

a representative that is familiar with the case and has authority to deal with any issues that may arise

Answer 198

WHO: the CLAIMANT or their lawyer (contents are agreed with the D wherever possible) WHEN: must be filed BETWEEN 3-7 days before the start of the trial WHAT SHOULD BE INCLUDED: ∘ the claim form and all statements of case; ∘ a case summary and/ or chronology where appropriate; ∘ requests for further information and responses; ∘ witness statements; ∘ notices of intention to rely on hearsay evidence; ∘ experts’ reports and responses; ∘ directions orders; and ∘ any other necessary documents containing evidence that a party intends to rely on *identical copies should be provided to all parties and witnesses*

Answer 199

multi-track cases what should be included: (a) review the party’s SUBMISSIONS OF FACT in relation to each of the issues with reference to the evidence; (b) set out any PROPOSITIONS OF LAW TO BE RELIED UPON; and (c) identify any KEY DOCUMENTS that the trial judge should, if possible, read before the trial starts.

Answer 200

- advocates remain seated for hearings in chambers or before district judges - advocates should stand when speaking in open court - witnesses should be addressed by their title and surname, for example, Mrs Rees - children are called by their first name - modes of address (see attached)

Answer 201

- judgment immeditately - if complex > judgment might be reserved - the judgment will take effect on the date is it given unless another date is specified in the judgment

Answer 202

- if D has won, substantive proceedings end at judgment - if C has won, last bit of substantive proceedings = court needs to decide on remedies (quantum)

Answer 203

FIXED COSTS; fast and intermediate MULTI-TRACK: the judge will only determine who should pay costs and the amount will be determined at a later hearing (known as a detailed assessment), unless agreement can be reached between the parties

Answer 204

liability, quantum, interest and costs

Answer 205

- a hostile witness fails to come up to proof because they are unwilling to support the party who called them - they may refuse to answer or tell lies so their evidence now differs from what is in their statement - the party calling the person may ask the judge to declare them a hostile witness - the effect is that the advocate may now attack the witness’s credibility or cross- examine them as if they were a witness for the other side

Answer 206

for first appeals: - must have a REAL PROSPECT OF SUCCESS or - OTHER COMPELLING REASON e.g. important question of law second appeals: - permission is required from the Court of Appeal itself before the judges will hear the case - must have real prospect of success or other compelling reason - in addition = raise an IMPORTANT POINT OF PRINCIPLE OR PRACTICE

Answer 207

- there is no right of appeal - permission from trial judge or appeal court - usually deal with such a request on paper, without a hearing - however, in the Court of Appeal, the judge must list the matter for an oral hearing no later than 14 days after the relevant direction if they decide that the application cannot be fairly determined without the presence of the parties

Answer 208

COUNTY COURT / HIGH COURT = 21 days COA / SC = 28 days

Answer 209

- depends on who made the decision (see attached)

Answer 210

- appeals that would usually take place in the County or High Court > COA - COA > SC - involves a point of law of general public importance - NEED BOTH: (a) the grant of a leapfrog certificate by the trial judge; and (b) the grant of permission to appeal by the Supreme Court

Answer 211

1. preliminary issues (if there are any) 2. opening speeches (if permitted by the judge, the claimant may make one) 3. examination in chief 4. cross examination 5. re-examination 6. closing speeches (both advocates) 7. judgment

Answer 212

solicitor’s charges, disbursements such as court fees, expert’s fees and even pre- action costs

Answer 213

* Small claims track: legal costs are not recoverable and so the costs payable will only relate to disbursements. * Fast and intermediate tracks: fixed costs apply. * Multi- track: a detailed assessment of the costs will be carried out.

Answer 214

- apply to fast and intermediate tracks - the higher the band of claim and the later that settlement is reached or the closer to trial, the higher the costs payable by the loser to the winner - DISBURSEMENTS MAY BE ALLOWED IF REASONABLY INCURRED - parties can make applications for costs greater than the fixed recoverable costs but they would only be ordered in ‘EXCEPTIONAL CIRCUMSTANCES’ - a party’s fixed recoverable costs may be INCREASED as the paying party OR DECREASED as the receiving party by 50% for ‘UNREASONABLE CONDUCT’ - cases on the fast and intermediate track therefore do not require any costs budget in advance of trial, nor any costs assessments afterwards

Answer 215

- general rule = the court should, unless there is a good reason not to do so, make a summary assessment of the costs at any other hearing that has not lasted more than a day - the parties must file and serve a statement of costs at least 24 hours before an interim hearing - parties should agree costs wherever possible

Answer 216

- detailed assessment of costs - within 3 months of the date of the judgment or order, the RECEIVING PARTY MUST SERVE ON THE PAYING PARTY A NOTICE OF COMMENCEMENT + their BILL of costs and EVIDENCE in support, such as receipts - if the paying party wishes to challenge the bill the following occurs: (a) The paying party has 21 days to serve POINTS OF DISPUTE (b) The receiving party has 21 days to FILE A REPLY (c) The receiving party must then file a REQUEST FOR AN ASSESSMENT HEARING WITHIN 3 MONTHS of the expiry of the period for commencing detailed assessment proceedings. (d) If the costs claimed are less than £75,000, the court undertakes a PROVISIONAL ASSESSMENT where the JUDGE DECIDES what costs are allowable IN THE ABSENCE OF THE PARTIES (e) If either party is UNHAPPY WITH THE PROVISIONAL ASSESSMENT, they may REQUEST ORAL HEARING WITHIN 21 days; but if the party fails to achieve an adjustment in their favour by at least 20% they will be ordered to PAY THE COST OF THE HEARING

Answer 217

- Conduct of parties - Value of money involved - Importance of matter - Complexity of matter - Skill, effort and specialised knowledge - Time spent on case - Place and circumstances work done - RPs last approved or agreed budget

Answer 218

- applies to most multi-track cases - reasonably incurred + reasonable in amount - and proportionate

Answer 219

Stage 1: - go through the bill on a line by line basis, scrutinising each point in turn - any items deemed to be unreasonably incurred or unreasonable in amount will be disallowed Stage 2: - proportionality of overall costs in a case is assessed using the factors listed in Part 44 - if the costs are deemed proportionate, no further assessment is needed - if deemed disproportionate, the judge will review specific cost categories (e.g., disclosure or factual evidence) to determine if further reductions are necessary - once these adjustments are made, the final cost figure is determined - May v Wavell shows reductions can be considerable

Answer 220

- costs are awarded on this basis as a penalty - reflects the court’s displeasure with the manner in which a party has behaved either pre- action and/ or during proceedings - costs on this basis must be: (a) reasonably incurred; and (b) reasonable in amount. - any benefit of the doubt is given to the receiving party (see attached)

Answer 221

* When assessing on the standard basis, the court will only allow those costs that are proportionate to the matters in issue. There is no test of proportionality on the indemnity basis. * Any doubts are resolved in favour of the receiving party on the indemnity basis, and the paying party on the standard basis.

Answer 222

- discretionary power - if the losing party cannot pay the costs - exceptional - the court would have to be satisfied that the non- party was the real party interested in the litigation or that they were responsible for bringing the proceedings - external litigation funders such as family, friends or people who have given to a fund- raising campaign and who have no interest in the outcome will not be at risk of such an order - third party funders in a more formal context may well be - BEFORE AN ORDER CAN BE MADE, THE THIRD PARTY MUST BE ADDED AS A PARTY TO THE PROCEEDINGS AND MAY ATTEND THE HEARING WHEN THE COURT DETERMINES THE ISSUE OF COSTS - no requirement to make a finding that the non- party acted improperly before making an order

Answer 223

- Part 25 security for costs order where: (a) it is satisfied, having regard to all the circumstances of the case, IT IS JUST to make such an order; and (b) ONE OR MORE OF TEH CONDITIONS in Part 25 applies

Answer 224

conditions are: i) where C is resident OUT OF JURISDICTION (namely, England and Wales) and is NOT RESIDENT IN A STATE WHICH IS BOUND BY THE HAGUE CONVENTION(which includes the EU and the UK) - individuals = where they normally and habitually live - companies = where central control and management are located - addresses the difficulties a D may face in enforcing a costs order outside countries bound by the Hague Convention ii) Claimant is an IMPECUNIOUS company - defendant must establish there is reason to believe the C WILL BE UNABLE TO PAY DS COSTS if ordered to do so - evidence of the company's financial assets and the likely total costs of litigation will be essential iii) claimant has TAKEN STEPS TO MAKE ENFORCEMENT DIFFICULT - D must demonstrate C has moved assets in such a way that will make it difficult to enforce a costs order against them - THE EFFECT, NOT THE MOTIVATION IS RELEVANT - a failure to disclose assets may be sufficient to establish this requirement

Answer 225

the following factors are relevant: (a) The STRENGTH OF CLAIM AND DEFENCE: the less likely the defendant is to win at trial, the less justified they are in seeking security. (b) The claimant’s ABILITY TO PROVIDE SECURITY: where the claimant has a reasonable prospect of success, the courts will be reluctant to make an order for security with which they cannot comply as the effect will be to stifle the claim. (c) The CAUSES OF THE Cs IMPECUNIOSITY the claimant may be able to persuade the court that their poor finances are caused by or contributed to by the defendant’s behaviour. (d) PROPERTY WITHIN THE JURISDICTION: where the application is made against a claimant resident outside the EU, the court is unlikely to grant security if they have sufficient assets within the jurisdiction that would be available to meet the defendant’s costs. (e) The TIMING of the application: the order should be applied for AS SOON AS PRACTIBLE

Answer 226

- D should WRITE to C asking for the security to be provided for VOLUNTARILY - if it is not provided voluntarily = NOTICE OF APPLICATION to the court with a witness statement in support - the evidence must establish that: i) a CONDITION exists ii) persuade the court it is JUST TO EXERCISE ITS DISCRETION in favour of the defendant and iii) JUSTIFY THE AMOUNT sought

Answer 227

- if granted, the order will specify: i) the amount of security ii) the date by which the claimant needs to provide it iii) the form it will take (usually the C makes a payment to the court)

Answer 228

consent order or Tomlin order

Answer 229

(a) be in WRITING (b) make clear it is made PURSUANT TO PART 36 (c) specify a period of NOT LESS THAN 21 DAYS during which, IF the offer is ACCEPTED, the D WILL PAY Cs COSTS (known as ‘the relevant period’); and (d) state whether it relates to the WHOLE OR PART OF THE CLAIM, and whether it takes into account any COUNTERCLAIM - The offer is made when it is served on the other party and the rules of deemed service will apply here. - It is INCLUSIVE OF INTEREST UNTIL THE RELEVANT PERIOD ENDS - WPSATC until costs are to be dealt with by the judge

Answer 230

- where part 36 offers are successful: - instead of costs being assessed on the standard basis, the costs are fixed in accordance with Parts 45 and 46 of the CPR - the provision for indemnity costs for a claimant’s Part 36 offer is replaced with a 35% uplift on the claimant’s fixed recoverable costs

Answer 231

from the day after the relevant period of acceptance expires

Answer 232

- HOW CLOSE TO THE TRIALit was made - WHAT INFO WAS AVAILABLE to the parties at the time - the parties CONDUCT - whether it was a GENUINE ATTEMPT to settle proceedings

Answer 233

1. D will pay an ADDITIONAL amount on top of the damages awarded - this amount depends on the sum awarded: - 10% of the first £500,000. - 5% of the next £500,000 - non-monetary awards, this would apply to the costs - the max value of the above additional damages =75k 2. ENHANCED INTEREST on damages - from the day after the Part 36 offer expires, the claimant is entitled to enhanced interest on the damages at a rate of up to 10% above the base rate 3. COSTS A) MULTI TRACK pay C's costs on an indemnity basis from the day after the part 36 offer expired B) FAST OR INTERMEDIATE 35% uplift on the claimant’s fixed recoverable costs 4. FOR BOTH = INTEREST ON COSTS TO A MAX OF 10% ABOVE BASE RATE

Answer 234

no extra penalty is imposed on either party

Answer 235

no extra penalty is imposed - essentially part 36 has no effect C will just be awarded to pay D's costs either on the standard basis (multi-track) or on a fixed recoverable cost basis (fast and intermediate)

Answer 236

If the claimant obtains a judgment that is more advantageous than the defendant’s Part 36 offer, it is clear they were justified in their refusal because it was too low. Part 36 has no effect - so the D will be ordered to pay the usual: * the amount of the judgment plus interest as claimed in the particulars of claim; and * the claimant’s costs on the standard basis (multi-track) or fixed costs (fast and intermediate tracks)

Answer 237

- the court will, unless it is unjust to do so, make an order that punishes the claimant financially for continuing with the claim when (in hindsight) they should have accepted the offer - by failing to do so they have, since the relevant period expired, wasted the time and money of both the defendant and court known as split costs, because the D will always pay C's costs up until the day after expiry of the offer, then after C pays D (see attached)

Answer 238

Claimant makes an offer and... (a) wins at trial and be awarded a sum that equals or beats their own offer; (b) win the case but obtain a judgment that is less than their own offer; or (c) lose at trial. Claimant makes an offer and.... (a) wins at trial and beats the defendant’s Part 36 offer; (b) wins at trial but fails to beat the defendant’s Part 36 offer; and (c) loses at trial.

Answer 239

- C is ordered to pay D's costs - plus penalise the claimant for not accepting the defendant’s Part 36 offer, they would also be ordered to pay interest on those costs from Day 22 until judgment – usually at 1% or 2% above base rate.

Answer 240

same as other interim applications - loser pays winners costs

Answer 241

(a) instruct an enquiry agent; and - note incurs additional cost - but may be appropriate where the judgment is a significant sum and the debtor appears to be hiding assets (b) apply to the court for an order to obtain information from the debtor.

Answer 242

- court order requiring the debtor to attend before an officer of the court to be questioned on oath about their finances or those of a company of which they are an officer

Answer 243

(a) The judgment creditor files a NOTICE OF APPLICATION at court, including: - name and address of the debtor, - the judgment the creditor is seeking to enforce - the amount owed - any specific documents that the creditor wants produced at the hearing (b) The order is normally personally served on the debtor who can, WITHIN 7 days, REQUEST payment of their REASONABLE TRAVELLING expenses to and from the court. (c) The hearing will usually take place in the County Court hearing centre for the area where the debtor resides or carries on business. (d) The examination is conducted by an OFFICER of the court, or a JUDGE IF REQUESTED by the creditor. (e) Standard questions are asked, although the creditor may also request additional ones. The officer will make a written record of the responses given by the debtor, who will be invited to read and sign it at the end of the hearing. (f) If the debtor fails to attend court, the judge may make a COMMITTAL ORDER against them, which is USUALLY SUSPENDED provided the debtor complies with the order.

Answer 244

1. taking control of goods 2. charging order 3. third party debt order 4. attachment of earnings order

Answer 245

- sold at public auction WHO - High Court Enforcement Officers or Bailiffs for CC POWERS - cannot force entry into a debtor’s home - can use reasonable force to enter business premises if they believe the debtor’s goods are inside (if no living accommodation attached and the debtor’s goods are believed to be inside) WHAT MAY BE SEIZED? - the usual contents of a home or business premises WHAT MAY BE EXEMPT? - ‘necessary items exemption’ only applies to individuals - if applicable goods which are reasonably required for the BASIC NEEDS of the debtor and their family, cannot be taken - Neither can work tools, computers, vehicles and other equipment that are NECESSARY to the debtor personally for WORK OR STUDY, subject to a maximum aggregate value of £1,350. - goods that BELONG SOLELY TO ANOTHER, such as a spouse or other family member, or those subject to hire or hire- purchase agreements may not be removed - any disputes over co-owners entitlement to a share of the proceeds of sale = resolved by the court

Answer 246

- High Court = writ of control

Answer 247

(a) The judgment creditor delivers a PRAECIPE (request) and 2 COPIES OF THE WRIT of control to the court office, together with the judgment. (b) The court SEALS the writ and returns one copy to the creditor. (c) The creditor then FORWARDS this to the HCEO for the county where the debtor resides or carries on business, for the writ to be EXECUTED.

Answer 248

(a) The creditor files the FORM OF REQUEST FOR WARRANT of control at the County Court hearing centre that serves the address where the goods are to be seized. (b) The warrant is EXECUTED BY THE ENFORCEMENT OFFICER for the district where the debtor resides or carries on business.

Answer 249

- if writ/warrant obtained > HCEO/Bailiff can take possession of goods immediately - if the debtor needs time to pay > controlled goods agreement gives few days as a final opportunity to pay - if payment not received > possession taken > goods sold at auction > the amount required to pay the judgment, including costs, will be deducted from the money raised, with any surplus being returned to the debtor (and any co- owner)

Answer 250

- HCEOs are usually paid on their results - in the HC, interest continues to accrue on the debt

Answer 251

- made on land or securities (e.g. stocks/shares) - for securities = charge extends to any interest or dividend payable - charging order will sit on the asset until such time as it is worth the creditor pursuing the matter further and applying for an order for sale - e.g. the land has increased in value such that there is sufficient equity in the property to cover the judgment debt

Answer 252

- land owned by the debtor - land co-owned by the debtor (charge upon the debtor’s beneficial interest, rather than upon the land itself) - should be registered at the LR - to get their money back there and then > apply to the court for an order for sale - use proceeds to satisfy judgment

Answer 253

- debt is more than £5,000 > app can be made in HC or CC - if it is made to the CC, the application must be submitted to the County Court Money Claims Centre 1. INTERIM CHARGING ORDER - creditor files app notice with details of: i) details of judgment debt ii) the land over which the charge is sought iii) names and addresses of any other person affected such as a party with a prior charge over the property - file draft interim charging order - usually dealt with by court officer without hearing > make the ICO or refer the matter to a judge for further consideration - ICO, the application notice and any documents filed in support must be served by the creditor on the debtor within 21 days - debtor = 14 days for ICO decision to be considered by a judge 2. FINAL CHARGING ORDER - if anyone objects to FCO > file objection + written evidence within 28 days of service of the ICO - if objection received > court will transfer the application to the debtor’s home court for a hearing - at the hearing, court can make a FCO, discharge the ICO or direct a trial of any issues in dispute between the parties 3. ORDER FOR SALE - if FCO made > can apply for order for sale - in order to do so, fresh proceedings must be commenced similar process for charge over securities

Answer 254

ADVANTAGES: - useful where debtor does not have any liquid assets - likely to secure the debt - it may encourage the debtor to make efforts towards settling the debt, particularly as interest will continue to accrue (unless the debt falls under the Consumer Credit Act 1974) DISADVANTAGES: - not appropriate where there are significant other prior charges or mortgages over the property so that there may be no or insufficient equity available to enforce against, or where the debtor has no beneficial interest over it - delayed payment - order for sale may be unsuccessful if children in the house

Answer 255

e.g. where there is credit in a bank/building society account (bank owes you money so considered a debt) or where the debtor's business is owed money by third parties note > the debt must belong to the judgment debtor solely and beneficially

Answer 256

- app must be ISSUED IN THE COURT THAT MADE THE ORDER THAT IS BEING ENFORCED, (unless the proceedings have been transferred) (a) creditor APPLIES TO THE COURT WITHOUT NOTICE to the debtor - provide details of name + adress of bank + account number (b) judge makes INTERIM ORDER - freezes the bank account or funds held by third party - hearing listed no more than 28 days later (c) the hearing - court will consider objections - unless there is good reason not to do so > final order will be made - third party will pay money to the creditor

Answer 257

ADVANTAGE - element of surprise - debtor not aware of app until freezing order made DISADVANTAGE - an informed debtor is likely to be aware of this as a possibility and may move the funds as soon as a judgment is made (if not before) - if the account is not in credit on the day when the order is served, it is ineffective

Answer 258

- debtor must be employed (not self-employed) - an order that compels the debtor’s employer to make regular deductions from the debtor’s earnings and pay them into court

Answer 259

- MUST BE MADE MY THE COUNTY COURT - (HC has no power to make these orders) (a) The creditor APPLIES TO CNBC (b) The court INFORMS THE DEBTOR of the application and requires them either: - to PAY the sum due, or - to file a STATEMENT OF MEANS giving details of their income and outgoings. (c) On receipt of the form, a COURT OFFICER will make an ATTACHMENT OF EARNINGS ORDER, fixing the repayment rate by applying certain guidelines. - Only if there is INSUFFICIENT INFO to do so will the matter be REFERRED TO JUDGE. - The order will specify the NORMAL DEDUCTION RATE and the PROTECTED EARNINGS RATE - The latter is the amount that the court considers is reasonable for the debtor to live on, so if their earnings for a particular week are equal to or less than this figure, the creditor will receive nothing that week. (d) The ORDER SENT TO THE PARTIES and to the debtor’s EMPLOYER, with instructions to deduct the amount ordered from the debtor’s pay and forward it to the court. - The employer is entitled to deduct a small additional sum in respect of their ADMIN COSTS (e) If either party OBJECTS TO THE ORDER that has been made, they can apply for the matter to be reconsidered by the DJ AT A HEARING

Answer 260

- if the debtor loses their job, the payments will cease and if they move employment, the creditor will have to repeat the process - the court may order a very low value instalment so the judgment will take a considerable time to satisfy

Answer 261

B is the correct answer where the court gives judgment on BOTH a claim and a counterclaim, if there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance provides that the time for complying with a judgment or order is 14 days from the date of the judgment or order

Answer 262

The general rule is that an appeal is made to a judge who is next in the judicial hierarchy. The court that made the original decision is known as the lower court. So, where the lower court judge is a County Court District Judge, the appeal court will consist of a County Court Circuit Judge. As a general rule, an application for permission to appeal can be made to both the lower court (the County Court District Judge at the end of the hearing) and the appeal court (a County Court Circuit Judge).

Answer 263

Option B is correct. This is not an item included explicitly on the list of required documents in PD32, and on the facts as provided there is no specific reason why the full and extensive lists of documents (many of which will not be referred to at trial) would be necessary to include. Of the items given as options, this seems least likely to be necessary for inclusion.

Answer 264

Option B is the correct answer. The judgment creditor should now apply to the court in Northern Ireland (supported by evidence) to register the judgment within six months. The judgment creditor needs to successfully apply for registration of the judgment before it may be enforced using local methods.

Answer 265

Option A best describes how the costs judge should conduct the detailed assessment of the claimant’s pre-action costs. The effect of the court’s order is that the defendant will be ordered to pay the claimant’s costs on the standard basis from when they were first incurred until the expiry of the relevant period of the claimant’s Part 36 offer. The facts state that, “The relevant period of that offer expired on the same day that the proceedings commenced.” This outcome follows the general costs rule that the losing party pays the winning party’s costs on the standard basis.

Answer 266

Option B is the best answer. It is likely that the defendant will establish a ground for the order to be made, namely, that the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so. By way of information this is the ground provided for in CPR, r 25.13(1)(c). However, the court are likely to refuse to make the order as it would be unjust to do so because the claim would be stifled. By way of information, where a claimant resists an application for security on the basis that its claim would be stifled, the burden lies on the claimant to provide sufficient evidence to support the assertion that there is no prospect of it raising funds from any realistic source in order to pay the defendant's costs in the event the defendant should win at trial. If the court considers that there is a serious prospect of the claimant being able to raise sums, then an order for security may be made.

Answer 267

Option B is the best answer. The market trade is causing an obstruction to the roads. Obstructions to the public fall within the scope of public nuisance. The man would be able to bring a claim as although a class of the public have been affected by this (road users) he has suffered a particular harm (lost trade).

Answer 268

Option B is the best answer. In applying the overriding objective the court is most likely to allow the evidence if it is relevant and proportionate to the issues in the case but may disallow it if to do so would mean that the parties were not on an equal footing/the case would not be dealt with fairly. Not allowing the defendant time to prepare a sufficient response to the witness’ evidence may be seen as not allowing the parties to deal on an equal footing and/or fairly and so the court will not allow the witness to give evidence if this is the case.

Answer 269

Option B is the best answer as it is the only answer which reflects an accurate analysis of both parts of the woman’s statement to the witness and examines understanding of relevance and admissibility of evidence, what constitutes hearsay, what constitutes opinion evidence and the non-admissibility of opinion evidence of a witness of fact. in other words, opinion evidence is normally inadmissible unless it is conveying matters that are personally perceived. here the witness is repeating what someone else personally perceived = inadmissible opinion evidence.

Answer 270

It is false. A defendant to any claim may apply for security for their costs of the proceedings. In this context, that includes a claimant defending a counterclaim and a defendant to a Part 20 additional claim.

Answer 271

option C is the best answer The comment is an opinion expressed by the CEO. The CEO is a witness of fact. The only admissible opinion evidence a witness of fact can give is prescribed by section 3(2) of the Civil Evidence Act 1972, which states that ‘where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.’ The CEO has not even seen the printing press. His statement is just speculation.

Answer 272

false - even if not in the contract, can agree after dispute has arisen to enter into arbitration

Answer 273

the TRIAL JUDGE will not be made aware of any failure to engage with ADR until issues of liability have been dealt with and they are now dealing with costs

Answer 274

- the first date when the claimant knew, or might reasonably be expected to have known, certain specific facts - these include the seriousness of his injury, its cause, and the identity of the defendant

Answer 275

option B is the best answer - it is correct that proceedings should be issued but it is unnecessary to incur the expense of serving the proceedings. The claimant should next write to the defendant seeking agreement to stay the proceedings in order for the parties to follow the procedures in the PD.

Answer 276

England and Wales SoG contracts = jurisdiction in which the goods are delivered to, not dispatched from CHECK HABITUAL RESIDENCE POINT

Answer 277

it can put forward it's counterclaim in the defence. entitling it 'defence and counterclaim'

Answer 278

APP TO SET ASIDE DJ: - D has REAL prospect of successfully defending - some other GOOD reason why D should be allowed to defend APP FOR SUMMARY JUDGMENT: - D has no REAL prospect of defending - D has no other COMPELLING to go to trial

Answer 279

correct answer is B - AOS or defence

Answer 280

B is the correct answer because the legal representative at the hearing should have personal knowledge of the case and sufficient authority and information to deal with any issues that are likely to arise. This will not apply to the trainee on the facts. Therefore, an explanation should be given to the court and a short adjournment requested.

Answer 281

Notifying the defendant via Facebook that proceedings have been commenced is not a method of service automatically permitted under the Civil Procedure Rules, but the court may permit this as an alternative method of service (where there is good reason to do so and the method chosen will bring the commencement of proceedings to the attention of the person to be served). Courts have permitted alternate service via Facebook in the past.

Answer 282

reasonable prospect

Answer 283

no + put defence and counterclaim in same doc where possible

Answer 284

A third party debt order cannot be obtained against a third party based outside of the jurisdiction, so this is not a suitable enforcement method.

Answer 285

Yes, because the defendant did not serve a notice of change or a notice of withdrawal of the first Part 36 offer.

Answer 286

*the periods run from the date of allocation*

Answer 287

appellant will have to persuade the appeal court that the decision of the lower court was either: a) WRONG (as to law, interpretation of facts or exercise of discretion) b) unjust because of a SERIOUS PROCEDURAL IRREGULARITY in the proceedings of the lower court

Answer 288

- claim or defence comes to an immediate halt - most common scenarios: a) statement of case discloses NO REASONABLE GROUNDS for bringing or defending the claim b) the statement of case is an ABUSE of the court’s PROCESS or is otherwise likely to OBSTRUCT the just disposal of the proceedings c) FAILURE TO COMPLY with a rule, practice direction or court order

Answer 289

- calculated precisely - lump sum accrued from breach of contract up to date of issue of proceedings - and daily rate at which the above was calculated (so it is easy to provide an updated total) e.g. outstanding sum x % divided by 365 (rounded down) > this is one day > multiply by how many days outstanding

Answer 290

- by persuading the court that it would be inappropriate, or unjust, for the order to be made - in Asiansky television and Bayer Rosin > emphasised that consideration should be given to whether strike out would be disproportionate

Answer 291

- Hussain v Woods: where ‘an apparently CREDIBLE WITNESS says one thing and another apparently credible witness says the opposite, and there is NOT CONCLUSIVE CIRCUMSTANTIAL EVIDENCE pointing one way or the other’. - where a party has tried to get in contact with a MATERIAL WITNESS but they have not responded - where the case is so COMPLEX/TECHNICAL, it could only be properly understood and decided on following trial and cross examination

Answer 292

- if it is filed with the defendant's defence = no - otherwise > need court's permission

Answer 293

- parties will agree on independent mediator - parties will send written statements to mediator - thereafter, mediator will discuss with each party on WP basis ADVANTAGES: - cheaper because the process is quicker - v flexible (parties can choose which procedure to follow > no need to follow statutes, case law or rules of the court) - privacy - greater chance of preserving the business relationship - could order things a court couldn't e.g. discounts - if unhappy with process > can withdraw at any time DISADVANTAGES: - no formal procedures as to disclosure of docs - either party could walk away at either point - any agreement is not automatically binding

Answer 294

- is a substitute for litigation - will be obliged to use if arbitration clause in contract - arbitrator may be elected in the contract or when dispute arises - less formal than court procedure - but decision is binding - once award made > apply to HC to have AA enforced as if it were a court judgment ADVANTAGES: - likely to be quicker + cheaper than going to court (although arbitrator is likely to be more expensive than mediator) - decision made by impartial third party with expertise in the matter - private (important if wish to maintain business relationship > customers + competitors remain unaware) - solutions are often more practical than the court can order - decision is binding - very limited rights of appeal DISADVANTAGES: - may not receive the dept of investigation the court would do (depending on the procedure adopted) - certain remedies not available e.g. injunctions - very limited rights of appeal

Answer 295

1. pre commencement 2. issuing proceedings 3. interim matters 4. trial 5. appeal / enforcement

Answer 296

- cheaper - more flexible - need to formalise any agreement to ensure it is enforceable - maintain relationships - no duty of disclosure - no independent adjudicator

Dispute Resolution Flashcards

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