1
Q
Methods of Dispute Resolution
A
-Litigation
-Mediation
-Negotiation
-Arbitration
2
Q
True or False: Litigation results in a legally binding judgement which can be enforced against the other party.
A
True
It is also expensive, time consuming, a judge decides, and strict rules of evidence apply
3
Q
True or False: Negotiations cannot take place once litigation proceedings have begun.
A
False.
They can! AND these conversations cannot be used in Court.
4
Q
Round-Table Discussions
A
aka - joint settlement meeting
Usually held post-proceedings and following disclosure of all witness statements and evidence so the partied have a better idea of the strengths and weaknesses of the claim.
5
Q
ADR
A
Alternative Dispute Resolution
Includes:
-Mediation
-Negotiation
-Arbitration
Outside of Trial
6
Q
True or False: Mediation and Negotiation can be standalone or part of litigation.
A
True
7
Q
True or False: Arbitration is only an alternative to litigation
A
True
8
Q
True or False: Courts cannot order parties to engage in ADR.
A
False.
They can also set the proceedings for them to do so.
9
Q
True or False: Failure to consider ADR or participate in it is likely to impact a party’s ability to recover costs of the proceedings.
A
True
10
Q
True or False: The Court can change a party for costs the Court think could have been avoided if the parties engaged in ADR.
A
True
11
Q
Arbitration
A
Parties choose a neutral third party to decide the matter.
A party can request the Court to not progress the claim (grant a stay if one party wants to litigate after arbitration in over)
12
Q
Mediation
A
Most common.
A neutral 3rd party is the mediator, appointed by the parties.
Mediator does not make a decision, it helps the parties come to a decision.
Mediator does not have to be qualifier, nor an expert in the field.
It is successful because a Mediator can explore issues a judge cannot, (e.g. feelings)
13
Q
Arbitration
A
Parties appoint an arbitrator. Arbitrator will discuss the case individually with each party and produce a timetable for resolution. Parties provide written submissions and any evidence.
Arbitrator will make final decision, ‘final award’ - legally binding and enforceable by Courts.
Usually a solicitor, barrister, or other professional.
14
Q
Pre-Action
A
Steps taken before and to bring a claim.
All about keeping in mind time limits and statutory requirements.
15
Q
Limitation Act 1980 set time limitations to bring a claim. What are they?
A
15y (longstop for latent defects)
6y (breach of contract, most torts)
3y (personal injury & fatal accidents)
1y (defamation)
3m (unfair dismissal)
16
Q
Date of Knowledge
A
The point at which the claimant has knowledge of all the facts establishing elements of the claim.
Not necessarily precise details, but sufficient information to commence investigations.
17
Q
Date of Knowledge in Clinical Injury Claims
A
Often the same as the date of accrual. BUT - sometime you don’t know until later (e.g. sponge in body).
The day the claimant knows:
-injury was significant;
-It was attributable in whole or in part to the act or omission;
-the identity og the defendant; and
If it is alleged that the act or omission was that of a person other than the defendant.
18
Q
True or False: Causation is an essential element in the tort of negligence.
A
True
The claimant must prove that the defendant’s actions caused the claimant’s injuries.
19
Q
If an injured party dies within 3 years of the accrual fate, the limitation period will be:
A
-3y from date of death; or
-3y from the date of knowledge of the deceased’s personal representative.
20
Q
For contract, when do the 6y count start?
A
Time starts on the date of breach of contract
21
Q
Contracts for Constructions and Defective Constructions. When do the 3y start?
A
From the date the Claimant knew or ought to have known material fact.
22
Q
Long-Stop period is how many years?
A
15y from the date the work was completed.
23
Q
Latent Defects
A
Defect in a property by fault in design, materials, or workmanship that existed at the time construction was completed but was not apparent at the time of completion. Then, the later of:
-6y fro the date of accrual; or
-3y from the earliest date on which the potential claimant knew.
24
Q
True or False: Some construction contracts seek to restrict liability to losses and damage which are expressly set in the contract. These are subject to reasonableness test.
A
True
25
True or False: Limitation time ENDS on the day the claim delivers the completed claim form to the Court, with the correct fees.
True
26
How long do claimants who are minors have on limitation periods?
Limitation period will not start until the claimant's 18th birthday (+6y).
If it is a personal injury claim, they are free to start their claim up until their 21st birthday.
27
How long do claimants who lack capacity have on limitation periods?
If capacity is re-gained, and they have a certificate to prove it, then the count starts.
28
True or False: For cases involving fraud or concealment, limitation period runs from the date when the claimant discovers the fraud or concealment or could have done so with reasonable diligence.
True
29
True or False: Claims from the consequence of a mistake, time starts to run when the mistake is made.
False.
Time does not start until the mistake has been discovered or could have been discovered with reasonable diligence.
30
In cases where no specific protocols exist, Courts expect litigants to follow 6 guidelines set out in the Practice Direction, which state...
1) The claimant should write to the defendant with concise details of the claim.
2) The defendant should respond within a reasonable amount of time. Suggests 14 days and no more than 3 moths.
3) The parties should disclose key relevant documents.
4) The parties should be aware that the Court must give permission before they can rely on expert evidence. Court may limit fees recoverable.
5) The parties should consider ADR. OR show evidence it was not possible.
6) If not possible to resolve the issue within the pre-action process, parties expected to understand their positions before they launch into Court action.
31
The Personal Injury Protocol
Used primarily for claims in the fast track (up to 25,000), but it does not apply to clinical negligence disputes.
32
Elements in a Letter of Claim for Personal Injury Protocol.
-Clear summary of the facts;
-Details on injuries sustained and the impact they have on the claimant's day-to-day life;
-The hospital attended, with relevant reference number; and
-An indication of financial losses, such as they are known at this stage.
33
In a Personal Injury Protocol, how long does a Defendant have to respond to a letter of claim?
21 days.
If no response, claimant can start proceedings.
If response provided, defendant has 3 months to investigate and provide a guilty or not.
If denial, reason must be given and provide relevant docs.
33
True or False: In a Personal Injury denial, you can disclose all the evidence you can.
False.
There are standard disclosure lists that would be expected and referred to in a letter of claim.
34
True or False: If a party does not comply with protocols, there will be sanctions.
True
35
When is it appropriate to issue proceedings?
-Where the end of the limitation period if close
-Where a court order is required to protect or preserve evidence or assets
-Where there is concern that the defendant may seek to issue proceedings in another country
36
There are some situations where an application to the court may be appropriate before commending proceedings. What are they?
-Need disclosure of documents
-Need actions from someone who is not a party
-if an inspection of property is needed and relevant
37
True or False: Unsuccessful party pays the costs of both parties in the protocol
True
38
True or False: If a claimant decides to leave things as they are, the Defendant cannot recover costs.
True
39
True or False: Parties can make offers to settle during the protocol period and, if not withdrawn, they will have the same effect as a Part 36 offer made after issue.
True
40
If a resolution field, you move on to the action phase. This starts with a claim. What does this include?
A Claim Form
-Issuing the claim form stops limitation.
-will have a claim number
-indicate Court
41
A case can start at High Court if...
Value is more than £100,000
Value is more than £50,000 in personal injury
42
True or False: Claim exceeding £100,000 can be dealt with at County Court.
True
As long as it's not a complex case and there is no public interest.
43
True or False: the High Court can transfer a case to Country Court
True
44
All Country Court claims, whether debts (specified claims) or damages (unspecified claims). are issued by...
the Civil National Business Centre (CNBC)
45
Where is the High Court Found?
London - Royal Courts of Justice (RCJ)
District Registries everywhere else.
Note: claimant should always specify which one they mean
46
Types of cases in the King's Bench Division of High Court
-Defamation
-Breach of contract
-Negligence
-Personal Injury
-Land possession; and
-Non-payment of debts
47
What are 2 Specialist Courts in the King's Bench Division?
Technology and Construction Court (TCC)
Commercial Court
48
What does the TCC deal with?
Construction and tech matters, if more than £250,000.
49
What does the Commercial Court deal with?
Business disputes
Especially international and complex matters
50
Chancery Division deals with what type of cases?
- Under the High Court -
Deals with:
Equity and Trust; Commercial Fraud; Tax; Intellectual Property; Land; Business disputes; Contentious probate; regulatory work; Bankruptcy; and Professional Negligence
51
How do you issue a claim?
Claim Form, it includes:
-Names
-Nature/details of claim
-Remedy claimed/sought
-Value in damages
-Preferred Court for Hearing
-Fees and Costs
-Particulars of Claim
-Statement of truth
-Claimant's address for service
52
When valuing a claim, the claimant should disregard what?
Interests, costs, contributory negligence
53
The Court fee depends on the amount of damages claimed. What are the two options?
Exceeds £10,000, but less than £200,000 = 5% fee
Exceeds £200,000 = £10,000 fee
54
The Statement of Truth needs to be...
-Worded correctly
-Signed by the right person (usually the client, sometimes the solicitor if there is a time constraint)
55
Who should serve the claim, the court or claimant?
Both can be true, but needs to be decided prior to submitting the claim form.
56
What needs to be sent to the Court?
-Enough copies of the claim for all parties
-Same number of copies of the Particulars of Claim
-If via Litigation Friend, certificate of suitability
-If Court serving, notice of funding
-Court fee
57
Part 8 Claims
When parties don't dispute the facts, but require the claim to go before the court
58
True or False: a Defendant to a Part 8 Claim does not need to make a formal defence.
True
They just file their witness evidence with their acknowledgment of service.
BUT - if they don't respond at all, they cannot take part in the hearings, unless judge allows it.
59
Part 7 Claim
Factual dispute
Not seeking approval for a minor's settlement claim.
60
Tue or False: There is no requirement for the defendant to respond to the claim until they are properly served with the claim form.
True
61
Time limits for service of the claim form
-Must be served within 4 moths
-If outside England and Wales, 6 months.
Extensions are possible, if requested within 4/6 months,
62
Who can serve?
Solicitor (other methods of service) or Court (uses mail)
63
What is served?
-Claim form
-Particulars of claim
-Other relevant documents
-Response pack to be sent to Court
64
What are a Solicitor's other methods of service?
-Personal Service (to individual, person in senior position, or a partner)
-To individual (requires them to hold it)
-Fax (permission)
-Document Exchange (DX)
-Email (only if express consent)
NOTE: If the defendant is a company, delivery or posting to the company's registered office address will suffice.
65
When do you know the claim has been served?
-Claimant needs to know when the service occurred
-Must be served within 14 days of service of claim
-The CPR includes an indisputable presumption that the claim form is deemed to be served on the second business day after the step at out in the preceding table has occurred.
66
If whereabouts are unknown, what should I claimant do to serve?
Take reasonable steps to find where the person lives.
If no luck, serve at last known address.
67
What is an invalid service to serve?
-only a photocopy
-used fax or email without permission
-out of time
-wrong person
-wrong address
68
A Defendant has been served a claim. How long do they have to respond?
14 days after being served the Particular of the claim
69
What are the 3 ways a Defendant can respond to service of proceedings?
1) Admit the claim;
2) File and serve a defence to the claim (+ potential counter claim); and
3) Acknowledge service and indicate they propose to defend the claim.
70
Can a Defendant get additional time to respond to service proceedings?
Yes, 28 days
71
(1) Response by Admission
-Admit the whole claim
-If they pay w/in 14 days, the judgement is not recorded
-Up to £25,000
-Can ask for time to pay
-If amount unspecified, Court will determine
-Partial admission - possible with with filed defence
-Can admit liability but dispute quantum
72
(2) Response by filing a defence and acknowledging service
-require the defendant to set out the reasons why they dispute the claim
-must put forward an alternative version to persuade the court that the claim's case is unproven.
73
(3) Response by acknowledgement of service and time for service of defence
-if particulars are complex, defendant can ask for more time, another 14 days
-can dispute the jurisdiction of the court
-admit some of the claim but ask for time to pay
74
If the Defendant fails to file a defence within the specified period, the claimant can obtain judgement in default. Then what happens?
The defendant is not permitted to defend the claim further.
Required to pay the specified amount or to ay a sum in damages to be decided by the Court.
75
What do you need to have a successful application to Set Aside Default Judgment?
Court must be satisfied that:
-The defendant has a real prospect of successfully defending the claim; or
-There is some other good reason why the judgement should be set aside and the defendant allowed to defend the claim.
76
The Court must set judgements aside if Defendant can show what?
-Judgment was entered too early;
-The application for judgment was made after an application has been issued by de defendant to strike out the claim or dismiss the claim summarily and the application has not yet been considered by the Court;
-Claim has already been paid or settled; or
-The Defendant has already submitted a request for time to pay which has not yet been considered.
77
Discontinuance
Notice to the Defendant that they do not intend to proceed with their claim.
78
Deemed dates of service (two general rules)
-If next-day mail or document exchange: second day after it was posted.
-Delivery in person, electronically, fax, or delivering at permitted address: next day if delivered after 4:30 PM
78
What are the Statements of Case? What is its purpose?
Contents of Particulars of Claim and Defences.
Purpose: to provide an outline of a party's case on liability, causation, and quantum.
79
True of False: A Statements of Case should state facts and conclusions of laws.
False
ONLY facts.
79
A Defendant who wishes to defend a claim must prepare a defence and serve it on other party to the claim. What are the types of defences?
-Procedural
-Denial of element of claim
-Damages
80
A defendant should respond to every single allegation. Why?
If they don't respond to the allegation, it will be admitted as truth.
81
What are the 3 ways a Defendant can respond to the Particulars of a Claim?
1) Admission
2) Deny
3) Non-Admission (they don't know)
82
Defence of Set-Off
When the Defendant claims the claimant owes them money, the defendant may file a defence seeking to reduce the amount that they have to pay to the claimant by the amount that the claimant owes to them.
83
True or False: It is optional for the Claimant to reply to the Defence's Statement of Case
True
84
Third-Party (Part 20) Claims
Defendant's may bring claims against third parties who might be liable to the claimant or the defendant under the facts relating to the claimant's claim.
85
True or False: The Part 20 claim MUST be brought within the same set of proceedings.
True
86
A defendant can make a counterclaim against the claimant without the court's permission if the defendant filed the counterclaim with their defence. If the defendant wishes to make a counterclaim at another time, then what?
The defendant then must obtain the court's permission.
87
True or False: A defendant can bring a Part 20 claim against someone who is not already a party in the case whom the defendant blames for the claimant's loss.
True
88
A party can use Part 20 to serve notice that another party should pay some or all of the money that is owed to the claimant. What is this called?
Contribution (some)
or
Indemnity (all)
No permission by the Court needed.
89
Counterclaim against a third-party absentee
Claim against an absentee for own injuries arising from the same facts. Absentees brought into case as a third party.
Court permission required.
90
Responding to a Part 20 Claim
-Defence must be served within 14 days
-Defendant can file a reply and defence if new issues arise
-If already a party, must serve a defence
-Of not a party, must serve an acknowledgement and/or defence.
-Failure to respond = admission of the claim, and the party is bound by the outcome.
91
Requests for further information
-Party should make request to the other party.
-If no response or not an appropriate response, then get the Court involved.
92
Grounds for objecting a request for further information:
-unnecessary, irrelevant, improper
-unable to provide info
-insufficient timeline
-expense in response is disproportionate
-protected based on privilege
93
True or False: Before a Statement of Case has been served, it can be amended without permission from the Court. After the Statement of Case has been served, all parties need to approve or you need permission by the Court.
True
94
Application to Remove a Party
Court can order a person to cease to be a party if it is not desirable for them to be a party in the proceedings.
95
Application to Substitute a Party when...
-Mistake in naming
-Claim cannot be properly carried on by or agains the original party unless new party is added of substituted.
-Original party has died or has bankruptcy order made against them, and their liability has passed to a new party.
96
The Courts have the duty of case management. What is the overriding objective of the Court?
For cases to be dealt justly and at a proportionate cost.
97
The aim of the overriding objective is to:
-ensure parties are on equal footing
-Save expenses
-Deal with case in a proportionate way
-Ensure the case is dealt with expeditiously and fairly
-Allot the appropriate share of court resources
-Enforce compliance with rules, practices, directions, and orders.
98
The Court is to allocate a case to the appropriate court track. What are the options?
-small track
-fast track
-intermediate track
-Multi track
99
After the Court decides the track allocation, they send the parties a notice of the proposed allocation and a Directions Questionnaire. How long do the partied have to complete and return the questionnaire?
28 days
100
Small Claims Track
-straight forward cases
-upper limit of £10,000
-will take higher value cases if parties agree or if the amount in dispute is £10,000 or lower.
-less formal
-successful party recovers costs of issuing the claim and expenses reasonably incurred by party or witnesses, which are restricted to £750
-party can set aside a small claim decision if not in attendance (for good reason and have reasonable prospects), if they file application within 14 days of the order showing.
101
Fast Track
-£10,000-£25,000
-1 day trial
-2 experts per party
-expert evidence limited to 2 fields
-tight management
-within 30 weeks of trial allocation
-amount recoverable includes amount in dispute and money in bringing and defining the claim
-Amounts are fixed
-prefer written evidence
-provide cost schedules at the star of the hearing
102
Intermediate Track
(NEW)
-£25,000 - £100,000
-exclude clinical negligence claims, unless breach and causation have been admitted)
-successful party recovers costs fixed to statutory table
-Trial is 3 days max
-max 2 experts
-Expert report should not exceed 20 pages
103
Multi-track
-£100,000+ OR when the trial will last more than 3 days
-Courts expect parties to discuss and try to agree as to directions
-Procedural judge has greater flexibility
-Courts will usually allow parties to instruct their own experts and instruct experts in more than one field.
-Costs budgets must be filed before the initial directions hearing.
104
Small Claims Directions
-Documents to be exchanged 14 days before the hearing;
-Documents to be filed or originals brought to court;
-provisions for the final hearing date;
-Encouragement to try to agree the claim; and
-No expert can be used without express permission.
105
Fast Track Directions
-Trial should be held w/in 30 days
106
Intermediate Track Directions
-agreed by the parties and approved by the court
-will have greater time periods to reflect greater complexity
107
True or False: If a party is not happy with the directions given by the Court, they cannot do anything.
False
They can apply to vary, but must do so within 14 days.
108
Fee payable
Pre-trial fee that may be recoverable if the parties settle.
109
Multi-track Directions
-Case Management Conference (CMC), an opportunity for the Court to take stock of the case and consider the further steps that may be necessary to prepare the matter for trial.
-Parties should provide fee estimates, with evidence
-general directions on witnesses, experts, etc.
110
What happens if a party is non-compliance with orders?
may lead to the court striking out the claim, defence, or counterclaim.
111
Unless Order
Court uses this order to specify the penalty that will be imposed unless the party complies with the direction.
112
Instead of striking out the claim or defence, the court may impose a costs order on a party who fails to comply, award indemnity costs or increased interests. What is this called?
Imposition of Costs Order
113
True or False: minor breaches are normally not a problem as long as the parties can keep the dates of the Case Management Conference, pre-trial reviews, and the trial.
True
114
Relief from Sanctions
If a party has good reason for non-compliance, depending on seriousness for the breach, they can apply for relief.
115
The Overriding objective
an understanding of how this informs the court's role and priorities in case management
116
Track allocation
The financial and other criteria that dictate a case should be allocated to a particular track.
117
What is an interim application?
any application made to the court that required a judicial decision.
118
Procedures for making an interim application
-in writing
-on notice (usually): as soon as practicable, 3 days before hearing, no notice if it would interfere with purpose of the interim application
-state what is being sought
-state why application is being sought
119
True or False: After order is served on the party, they have 14 days to have the order set aside or varied.
False
7 days!
120
Summary Judgement
asks the court to enter judgement for the applicant without proceeding to trial.
The application must show that the other party has no real prospect of success and there is no other compelling reason why the case should proceed.
121
True or False: A defendant cannot make an application for summary judgement until the claimant has served the Particulars of Claim and defendant has served the acknowledgment or defence.
True.
122
Party served application within 14 days, response within 7 days, and response to response in 3 days.
Just know that...
123
If a claimant is successful on their application for summary judgement, then what?
For claimant: Court will offer a summary judgement on the claim.
For defendant: claim will be struck.
124
Application for interim payment
Application for the Court to order some payment before the Court has given a final determination on the claim.
Grounds:
-defendant admitted liability;
-claimant has obtained judgement, but the sum to be paid has not yet been determined;
-Court if satisfied that if the action proceeded to trial, the claimant would obtain judgement for a substantial sum; or
- Court knows claimant will get paid by at least one defendant.
125
When can an Interim payment application be made?
-cannot make the application until the time for filing the acknowledgement of service has expired
-not less than 14 days before the hearing
126
What must be included in the application for Interim payment?
1) the sum of money sought
2) items and matters in respect of which the payment is sought
3) an estimate of the final judgement
4) in personal injury claims, a schedule of loss containing details of past and future loss and damage
127
True or False: An interim payment application must take into account contributory negligence
True
25%
128
Injunction
A Court order that requires a party to do or stop doing something
Do = Mandatory injunction
Don't= Prohibitory injunction
129
How fast can you obtain an interim injunction?
48-72 hours
130
A defendant seeking the discharge of an injunction must apply on notice to a judge of the division in which the claim is proceeding. Grounds may be:
-material non-disclosure
-Failure of the applicant to comply with terms on which the injunction was granted
-the facts do not justify the interim injunction relief
-injunction is oppressive
-There has been a material change in the circumstances of the parties
-The claimant has failed to prosecute the claim with due speed
131
Freezing injunctions
type of prohibitory injunction
-designed to freeze the assets of a defendant
-application must be to High Court
132
Search Orders
-mandatory injunction
-allow to search property
-potentially cease evidence that could be destroyed
-
133
Preservation of Property
-mandatory injunction
-preserve the property
134
What is disclosure?
To clearly identify and inform the other side of the existence of a document; NOT that you show the document.
135
When does the duty of disclosure end?
At the conclusion of the proceedings.
136
What type of documents need to be disclosed?
-any document on which it relied and any documents which adversely affects its case
-includes anything with information recorded on it
-they have to be relevant!
137
What happens if a claimant refuses to disclose a document?
you cannot continue to represent them
138
True or False: if a documents is removed or destroyed, the representative is required to inform the court and the other party of its existence, together with the reason for its destruction.
True
139
What constitute a reasonable and proportionate search for a documents?
-Nature of the case
-It's value
-It's importance
-Ease of retrieval
140
In fast-track and personal injury multi-track cases, the parties are required to file and serve a disclosure list. The list is divided into 3 sections, what are they?
-list of docs they don't reject the other party inspecting;
-list of docs in it's control that they object to the other side inspecting and why; and
-list of documents that are no longer in its control, and where they were last in their control
141
What is the time limit for disclosure?
28 days from the date of the directions order for the parties to serve their list of documents
142
Disclosure of a document provides an automatic right to inspect unless specifically challenged. What are grounds for a challenge?
-Privilege
-Doc no longer in party's control
-It would be disproportionate to allow inspection
143
Party wishing to inspect must give notice to the other party. How long does the other party have to let them inspect or give them a photocopy?
7 days after receiving notice.
144
What happens if after notice to inspect, the disclosure is inadequate?
Give another request for party to voluntarily disclose. If they refuse, apply to the Court to request it. With evidence and reason why they think party does have the evidence.
145
True or False: In small claims cases, disclosure is limited to documents the Court considers necessary.
True
146
In a non personal injury-multi-track claim, the Court requires each party to prepare a disclosure report, which must be filed at least ___ days before the first ____ or otherwise with the Directions Questionnaire.
14 days
Case Management Conference (CMC)
147
True or False: In multi-track cases, the a disclosure should be verified by a statement of truth.
True!
148
An application for disclosure is usually available only against a person who is likely to become a party to the proceedings. In certain cases, however, an order to disclose documents may be available against persons who are not parties to the proceedings if the case involves:
-freezing injunctions;
-Search orders;
-Applications for preservation or property; or
-Requests for further information pursuant.
149
What are 4 types of privilege plus one type of immunity which functions similarly:
-Legal advice privilege;
-Litigation privilege (preparation or contemplation of litigation with 3rd parties);
-Common interest privilege;
-Without prejudice privilege (w/intent to settle); and
-Public interest immunity (doctrine with similar effect)
150
True or False: Privilege cannot be recovered.
True.
151
If a party mistakenly allows a privileged document, what happens?
-Can only be used with the permission of the Court
-If it's an obvious mistake, the Court might prevent the use of it.
152
Electronic disclosure
emails, electronic docs, database info, and so on.
Most likely will need an electronic disclosure questionnaire AND a disclosure list.
153
Two types of evidence:
Direct - oral evidence of a witness who perceived the facts; an d
Circumstantial - evidence that does not directly establish a fact but that allows the court to decide whether a particular fact existed.
154
Is a signed statement generally needed to testify?
Yes.
The statement must have been endorsed with a statement of truth and served on the opponent on time in accordance with the court directions order.
155
If the witness does not serve a statement, what happens?
Party cannot call the witness to give evidence unless the Court gives permission.
156
Can a Witness be summoned?
Yes. A witness can be served with a witness summon. It must be at leat 7 days before the hearing.
157
A party must disclose its draft witness statements to the other side. Can this be objected?
Yes, a party can successfully object to the other side inspecting the draft witness statements.
158
What should a draft Witness Statement include?
-title of the case
-indicate on whose behalf the statement was made
-Name and initials of witness
-indicate whether they are a party or employed by a party
-Set out the evidence Witness will allude in the first person
-include a statement of truth
159
Witness statements come from their ___ ___ OR matters of ___ or ___.
come from their own knowledge
or
matter of information or belief
(if information or belief, then state source of info or belief).
160
If it is not possible to obtain a statement before the date for exchange in the directions order, a party may serve what instead?
A Witness Summary
It should identify the witness and summarise the factual issues that their evidence will cover.
161
Affidavit
A sworn statement
162
Hearsay evidence
A statement (oral or in writing) made outside of court which is tendered as evidence of matters stated. Used to prove the truth of what is being stated.
Admissible in civil cases
163
Evidence in chief
After a witness is sworn in, they confirm their signed statement is theirs, then their statement will cease to be hearsay and stand as their evidence. That is know as evidence in chief.
164
If the witness does not show at court, what happens to their statement?
Their statement will stay hearsay.
If they still want to use it in court, must give notice and explain the person's absence.
165
True or False: In making their judgement, the trial judge will indicate the weight that they attach to each hearsay evidence.
True
166
With how many days of receiving a hearsay notice can the opposing party serve notice of their intention to attack the credibility of the hearsay or make an application to call the witness to the court for the trial?
14 days!
167
What happens if you have a Hostile Witness>
-if they change their story, a party cannot cross-examine and therefore seek to discredit their own witness
-Party can ask the judge to declare them a hostile witness. If judge agrees, the witness can be cross-examined on the facts of the case to prove inconsistency.
168
True or False: If a party want to use a prior conviction as evidence, they can.
False.
They may be able to if approved by the Court.
169
What is a notice to admit facts?
If a party believes certain facts are of agreement and admission and don't want to waste time, they can serve a Notice to Admit Facts which includes facts that won't have to be proved later on.
-must serve the notice to opponent no later than 21 days before trial.
170
If a party believes a document produced by an opponent is not authentic, they party can serve a notice to prove the document at trial. When should the notice be served?
By the last day of witness statements OR within 7 days of disclosure of the document (whichever is later).
171
What type of evidence is inadmissible?
-Opinion evidence (except experts);
-Evidence that is privileged;
-Communications without prejudice;
-Evidence protected by public interest immunity; and
-Irrelevant evidence.
172
To have an expert provide oral evidence in court, the Court will allow it if 4 conditions are met, what are they?
1- Expert oral evidence is likely to have an impact on the outcome;
2- It will assist the Judge;
3-there is risk of injustice if the expert evidence is not tested; and
4-The cost of the experts attending is not disproportionate.
173
Hot Tubbing
When Court orders experts to give evidence at the same time
174
True or False: A party who wishes to instruct their own expert must persuade the court that it is reasonable to do so.
True
175
True or False: Both the instructions to and an expert's report prepared for a party are privileged documents.
True
176
True or False: If a party wants to rely on an expert's report, it must be disclosed.
True
When disclosed it loses its privilege and the other party can rely on it.
177
True or False: The parties can ask one single set of questions of the expert within 14 days of the expert sending the report.
False
Parties can ask questions jointly or on their own.
Must be within 28 days.
178
If
179
If there are discussions between experts, what are the guidelines?
-arrangement of a 'without prejudice' meeting
-experts may come to agreement on some issues
-can be arranged any time, even over the phone
-legal representatives should NOT be present.
180
What should you do if there was a pre-trial settlement?
-record terms
-prepare consent order (there is no automatic right to payment without order) (Tomlin Orders, one type)
181
Tomlin Order
Settlement order often used because it can be re-opened without restarting procedures.
182
Pre-trial Checklist
-used by partied to litigation to inform the Court of their preparation for the trial
-prepared by each party
-seek to confirm what should have already been done
183
Pre-trial hearing
-Consider parties' compliance
-set a trial timetable
-Set # of experts and other witnesses
184
Case summary
-500 words
laymen terms explanation of case
185
Conduct money
money paid to witnesses in compensating them for their loss time. Current maximum in £67.
186
True or False: Solicitors have right of audience at County Court. Can appear at High Court and Court of Appeal if they have obtained Higher Rights of Audience.
True
187
Trial Bundle
Claimant's solicitor should prepare and bear the costs of a bundle (at leats 6) for the Court and one for each party.
Filed between 3-7 days before trial.
Contains:
-statement of case - key disclosure - witness statements - expert evidence
Can have more than one bundle in complex cases.
188
At the conclusion of a trial, when is the judgement delivered>
immediately after or they judge can reserve judgement
189
After judge has handed down their judgment, the parties make submissions in relation to any other matters that flow from the judgement. These are called Ancillary Matters. What do these include?
-Calculation of Interests
-Costs
-Time to pay
-Stay of execution (if appeal is coming)
-Permission to appeal
190
When a party decides that they want to discontinue a claim before trial (they submitted a notice for....)
Discontinuance
191
An appeal at the County Court goes where?
Depends on judge.
First - from District judge to Circuit Judge.
Second - from Circuit judge to High Court Judge
192
An appeal at the High Court goes where?
Depend on judge.
First - Master judge to High Court Judge
Second - High Court Judge to Court of Appeal
193
True or False: All cases has an automatic permission to appeal.
False.
First, they need to apply for permission to appeal (from judge that made the decision or to the court you ask the appeal to go to)
194
What are grounds for appeal?
-The decision is wrong in fact, law, or the exercise of the Court's direction; OR
-The decision is unjust because of serious procedural or other irregularity in the proceedings.
195
How long do you have to apply for an appeal?
21 days
196
True or False: The appeal hearing is limited to a review of the decision of the lower court. It will not consist of a re-hearing.
True.
Without permission, you can't bring new evidence or such.
197
True or False: You can ask for retrospective approval to appeal for cases where they missed the 7 and 21 days.
True
198
Who pays the costs of an appelal?
Loser pays all
Note: The Court can depart from these if circumstances are right)
199
Indemnity Principal
A party cannot recover more from an opponent than they are liable to pay their own legal representative.
AKA - costs are limited to the actual costs.
200
What costs can be recovered in small claims track?
successful party cannot recover its legal costs. Only fixed costs including witness expended and expert fees, up to £750
201
What costs can be recovered in fast and intermediate tracks?
Successful party can recover (in principle) their legal costs. But - legal cots will be determined by the fixed amounts in the tables in CPR PD 45
202
What are the 2 basis costs are assessed by?
Indemnity Basis - to sanction paying party for misconduct (e.g. refusing mediation)
Standard Basis - DEFAULT - proportionate costs, any doubt seen in favour of paying party.
203
True or False: A party must file costs budget for multi-track cases.
True
204
Cost Management Order (CMO)
A CMO is done by the judge to set costs budget and it should not be departed from (20% leeway)
205
Inter-partes costs
When a judge awards winning party costs against a party, distinguished from party's own costs, which is the amount they have agreed to pay their own solicitor.
206
Summary Assessment of costs
Summary assessment of costs payable at conclusion of hearing.
Normally payable within 14 days.
207
How long do parties have to file statements of costs?
24h before hearing or 2 days before trial.
208
True or False: In multi-track cases, the Court is likely to order a detailed assessment.
True
-detailed order
-served within 3 months
-other party can dispute within 21 days.
209
True or False: No provisional assessment will be more than £100,000.
False
None will be above £75,000
210
Security for Costs
A defendant may apply for a security for costs order if they are concerned that the claimant will not be able to pay the defendant's costs if the defendant wins the case
211
True or False: A Court can penalise unreasonable behaviour by parties by reducing or uplifting costs payable by 50%
True
212
Non-Party Costs Orders
It is exceptional, but possible.
It is possible in situations where the non-party funds the proceedings and controls or benefits from them.
213
Wasted Costs Orders
Court will do this if Solicitor's behaviour has been improper, unreasonable, or negligent.
It's essentially a sanction.
214
Part 36 Offer
Provides parties with a formal mechanism for making an offer of settlement with potentially serious sanctions if a party refuses an offer of settlement.
215
Formal requirements of a Part 36 Offer
-in writing
-clearly state it's a Part 36 offer
-Specify a period of no less than 21 days within which the offeree can accept.
-State whether its for the whole or part of the claim
-State whether offer takes into account any counter claim
Form or letter, letter pefered.
216
True or False: a Part 36 Offer can be made for all claims.
False
NOT for Small-track claims.
217
Clarifications can be requested within how many days of receiving a Part 36 Offer?
7 days
218
How can a Part 36 offer be accepted?
In writing!
As long as it hasn't been withdrawn.
219
If the claimant accepts the defendant's Part 36 Offer outside the relevant period, what happens to the costs owed to the claimant?
The defendant is only liable for the costs running up to the end of the relevant period (normally 21 days after the offer was made).
220
True or False: Accepting a Part 36 Offer is possible by stating so in court. No additional formalities are needed.
False.
The Judge needs to approve it, if trial has started.
221
If the defendant accepts the claimant's Part 36 Offer outside the relevant period, what happens to the costs owed to the claimant?
The Court will decide the liability for costs if the parties cannot agree.
222
If the claimant wishes to accept a Part 36 offer from a single defendant when there are multiple defendants, what happens?
The claimant must obtain the Court's permission to accept.
223
If the claimant rejects the defendant's Part 36 Offer and beats it...
the defendant will be ordered to pay the claimant's costs of the entire proceedings.
224
If the claimant rejects the defendant's Part 36 Offer and fails to beat it...
unless it considers unjust to do it, the Court will award the defendant their costs on the standard basis form the date when the relevant period for acceptance expired.
225
If the defendant rejects a Part 36 Offer made by the claimant and the claimant fails to secure a more advantageous or equal result at trial...
The Claimant's Part 36 Offer will have no effect.
226
If the defendant rejects a Part 36 Offer made by the claimant and the claimant secures a more advantageous or equal result at trial...
unless it is unjust, the claimant is entitled to interest on the entirety of the claim at an enhanced rate of up to 10% above the base rate for the period after the time for acceptance expired.
And the claimant may seek an additional amount of damages by virtue of the defendant failing to accept their reasonable Part 36 Offer.
227
Damages only or mixed claims
Amount awarded by the Court
Up to £500,000 - 10% of the amount awarded
Above £500,000 - 10% for the first £500,000 and 5% of the amount awarded above that figure.
228
Non-Monetary claims
Up to £500,000 - 10% of the costs ordered to be paid
Above £500,000 - 10% for the first £500,000 and 5% of any costs ordered to be paid above this figure,
229
True or False: The Court will automatically begin enforcing payment of costs.
False.
Steps need to be taken by winning party.
230
Interest in High Court
8% per annum
231
Interest in County Court
Under £5,000 - no interest normally
£5,000 and over - same as High Court
232
Oral Examination
Winning party requests a hearing.
Notice needs to be served 14 days before the oral examination hearing,
233
Methods of Enforcement (money judgements)
-Taking control of goods
-Third party debt order (e.g. bank)
-Charging order on land
-Attachment of earnings
234
Procedure for taking control of goods
Creditor must give the debtor no less than 7 days notice of the creditor's intention to take control of goods. Has to be within 12 months of giving notice.
Note: cannot seize equipment for use in the debtor's trade or household items necessary for basic domestic needs.
235
Controlled Goods agreement.
An agreement that permits the debtor to retain custody of the goods on the understanding that the enforcement office is taking control of them, and the debtor agrees not to dispose of them before the debt is paid.
SQE1
flashcards
Decks in class (15)
# Cards
-
Constitutional & Administrative Law & EU Law149
-
Ethics & Progessional Conduct46
-
Legal System of England & Wales42
-
Legal Services70
-
Contract178
-
Tort145
-
Dispute Resolution238
-
Business Law and Practice250
-
Land Law160
-
Property Practice390
-
Solicitor's Accounts65
-
Wills & the Administration of Estates315
-
Trusts136
-
Criminal Law99
-
Criminal Practice187
