1 General matters Flashcards
When assessing value include
• money to be paid to the state
• where relief sought is not monetary, how much C can say it would reasonably be
• aggregate value when more than one claim
When assessing the value of a claim do not include (6)
• any sum not in dispute
• interest
• costs
• unspecified further or other relief
• possible counterclaim or set off (can reduce by any debts C ADMITS TO OWING D)
• possible future applications
How to assess the value of an unquantifiable claim?
You cannot, if the claim is unquantifiable it’s value cannot be assessed
When should a claim be started in the HC?
A claim should be started in the HC if:
• the value is sufficient and or
• the matter is complex and or
• the matter is in the public interest
Must chancery claims only be started in HC?
No they can be started in either
How can you distinguish is a chancery claim is in the CC?
If it “chancery business”
How can you distinguish if a chancery claim is in the HC?
It will be “chancery division”
When can a claim be dealt with by the online civil money claims?
Yes, if the value of the claim is under 10k
What are two most important words when we think of the overriding objective?
Justly and at a proportionate cost
The overriding objective enables the court to deal with cases justly and at a proportionate cost, which includes:
a) e
b) sa
c) dea
d) exp
e) al
d) en
a) equal footing
b) saving expense
c) dealt with proportionate to its value, complexity, importance and financial position
b) expeditiously and fairly
e) allotting an appropriate amount of courts resources
d) enforcing compliance
What are the court’s duties to manage cases? CPR 1.4 (a-j)
a) encourage cooperation
b) identifying issues early on
c) deciding promptly which issues require further investigation or disposal
d) order issues are to be resolved in
e) encourage ADR (can order ENE)
f) help settle in whole or in part
g) set timetable / control progress
h) weigh up benefit of taking particular step
i) deal with as many aspects on one occasions as possible
j) dealing with issues w/o court
k) tech
j) directions to ensure quick and efficient
What was set out in Halsey v Milton Keynes?
That the court cannot force parties to participate in ADR, can only consider this as unreasonable conduct / all the circumstances when deciding an order for costs
What was set out in the case of Lomax v Lomax 2019?
That despite the ruling in Halsey, the courts can order an ENE as per CPR 3(1)(m)
What factors should be considered when ascertaining unreasonable refusal to partake in ADR?
• merit alone is not a reason to refuse
• merit if other parties attempts at negotiation are unreasonable - refusal is sufficient
• nature of the matter
• attempts made to partake in ADR, where one party was unreasonable / silent
• would ADR have caused a delay or been costly?
• silent in the face of an invite for ADR is unreasonable unless good reason
What is expected of parties with regard to there duty to help the overriding objective?
Essentially to not be sneaky / difficult. This duty does not extend to informing the other party of time limits or mistakes
What are the court’s general powers of case management? (a-m)
CPR 3.1(2)
a) shorten or extend time for compliance
b) adj or bring forward a hearing
bb) require a hearing be heard in the CC or HC
c) require legal representation to attend court
d) allow or order evidence or hearing over the phone
e) order part of the proceedings to be dealt with separately
f) stay whole or part of proc
g) consolidate proceedings
h) try two or more claims on the same occasion
i) direct separate trial
j) decide order of issues
k) exclude issues
l) dismiss or give j after preliminary issue
ll) order costs budget
m) step toward OO which can include ordering an ENE
When are standard directions used a starting point?
Multi and fast track
What must the court do when one party is unrepresented?
The court must:
• have regard for this fact
• adopt proceedings to help
• ask questions to the unrep party about what questions they intend to ask witnesses
What are the court’s powers to make orders of their own initiative?
Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application (i.e. Part 23 applications) or of its own initiative
Can the court grant an order of its own initiative without a hearing?
Yes, but the order must contain a statement that that the party who the order effects, may apply to have it set aside, varied, stayed or temporarily suspended. Such an application must be made within the time specified by the court. If not time frame is given the application must be made within 7 days or the order being served
What must do the court do if it intends to hold a hearing for an order of its own initiative?
The court may give any person likely to be affected by the order an opportunity to make representations (specifying the time and manner they must be made)
The court MUST give each party likely to be affected by the order at least 3 days notice of the hearing
What if the court wishes to grant an order of strike out of its own initiative?
The order must record the fact that the statement of case the order refers to an is “totally without merit” and must consider a civil restraint order
