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Law: Civil Litigation > 1 Introduction > Flashcards

1 Introduction Flashcards

1
Q

CPR - overriding objective

A

CPR 1.1 – overriding objective = enable court to deal with cases justly and at proportionate cost

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2
Q

Claim form - CPR?

A

CPR 7 & CPR 16

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3
Q

Particulars of claim - CPR?

A

CPR 16

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4
Q

Responding to claim - options + CPRs?

A
  1. Acknowledgement of service - CPR 10
  2. Admission - CPR 14
  3. Defence - CPR 15 & CPR 16
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5
Q

Defence - what must it contain?

A

Comprehensive response to POC:

  1. Allegations it denies
  2. allegations it admits
  3. Which it requires evidence for - put to proof
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6
Q

What happens if D doesn’t file AOS within time limit? CPR?

A

D may obtain judgment in default - CPR 12

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7
Q

Counterclaim - CPR

A

CPR 20 - particulars of counterclaim to be filed w. defence (or w.o defence if approval granted by court)

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8
Q

What can C do if wishing to allege facts in answer to a defence which weren’t included in POC?

A

File a reply - CPR 15

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9
Q

If party requires clarification of a SOC?

A

Written request to other party - CPR 18

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10
Q

Interim applications - CPR?

A

CPR 23 -25

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11
Q

Allocation - options? CPR?

A

CPR 26

o Small claims track £25,000

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12
Q

Directions - CPR?

Multi-track cases?

A

CPR 26-29

Multi track cases:

  • model directions
  • case management conference
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13
Q

Disclosure & inspection - CPR?

A

CPR 31

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14
Q

Witness statements - CPR?

A

CPR 32

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15
Q

Expert evidence - CPR

A

CPR 35

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16
Q

What can parties if they wish to settle their dispute?

CPR?

A

Make evaluation of what they consider realistic value of judgment –> then offer to settle
Party 36

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17
Q

Divisions of High Court?

A
  1. Chancery Division
  2. Queen’s Bench Division
  3. Family Division
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18
Q

What divisions of the High Court are contract & tort claims usually bought in?

A

Usually in QBD

Can be in Chancery Division if an element connected with Chancery areas

19
Q

What 3 matters need to be considered when deciding to bring a claim in the High Court or County Court?

A
  1. Jurisdiction
  2. Rules governing commencement
  3. Rules governing transfer
20
Q

What are the rules governing commencement? CPR?

A

CPR 7
• Claims w. value of £100,000 → High Court or County Court
- Guidelines for deciding which court are in PD7A
- Factors set out in 7A PD 2.4 → determine if matter is sufficiently complex / of sufficient public importance to be dealt w. in High Court

21
Q

Claim w. estimated value >100,000 could still be transferred to CC - authority?

A

29 PD 2.3

22
Q

Claim w. estimated value

A

29 PD 2.2

23
Q

Some special types of case must be commenced in High Court, regardless of value - authority?

A

29 PD 2.6

24
Q

Rules governing transfer between courts

A
  • Court will consider whether it should remain in the court of issue
  • Criteria court uses in deciding where case should be tried in CPR 30.3
25
Q

What issues should be considered at first interview?

A
  • Evidence you have or will need to obtain - THINK TRIAL
  • Client’s objectives
  • Merits of case, available remedies & limitation periods
  • Position of the other side: FINANCIAL STATUS & what if they won’t pay / if assets located abroad
  • Professional conduct issues
  • Alternative ways of achieving objectives
  • Costs (legal fees)
  • Funding
26
Q

What are the elements of the cause of action?

A
  1. Duty
  2. Breach
  3. Causation
  4. Loss
27
Q

What needs to be shown for duty in contract?

A
  1. Privity of contract

2. Duty/duties owed under that contract - derived from express term (oral or written) and/or implied term

28
Q

What needs to be shown for duty in tort

A

Duty.duties owed, for exampled, inunder common law of negligence and/or statutory duty

29
Q

What needs to be shown for ‘damage’ (loss)?

A
  • Loss suffered was foreseeable (not too remote)

- Amount of loss

30
Q

How are damages measured for each type of claim?

A

Contract: place C in position as if contract properly performed

Tort: place C in position it as if tort hadn’t been committed

Debts: technically a claim for sum the D promised to pay under contract – not a claim for damages, so no duty on C to mitigate loss

31
Q

What does a case theory comprise of?

A

Answers to:

  1. What needs to be proved?
  2. What evidence is there to prove it?
  3. Is that evidence admissible?
32
Q

On who does the burden of proof fall?

A

Generally on the party who asserts it

33
Q

What is the standard of proof in civil proceedings?

A

Balance of probabilities

34
Q

What facts need to be proved?

A

facts in issue → shown by parties’ conflicting versions of events

35
Q

When may the court treat matters as established, w.o evidence?

A
  1. Formal admissions
    a. In statements of case; or
    b. In response to a notice to admit facts (CPR 32.18)
  2. Presumptions (e.g. res ipsa loquitur)
  3. Inferences of fact: common sense conclusions
36
Q

What conditions must be satisfied for pre-action disclosure of documents?
CPR?

A

CPR 31.16: pre-action disclosure of documents if conditions met:

  1. Respondent likely to be party to subsequent proceedings;
  2. Applicant also likely to be party to subsequent proceedings;
  3. Had proceedings started, documents would have been disclosed under standard disclosure; and
  4. Pre-action disclosure desirable in order to:
    a. Dispose fairly of anticipated proceedings;
    b. Assist dispute to be resolved w.o proceedings; or
    c. Save costs
37
Q

What do solicitor/client costs comprise of?

A
  1. Profit costs (charge out hourly rate x number of hours spent) + VAT; and
  2. Disbursements + VAT
38
Q

What are ‘costs on account’?

A

describes funds which client pays solicitor up front, before solicitor begins work on their case

39
Q

When is ‘interim billing’ used?

A

in lengthy cases – bills rendered at regular intervals

40
Q

What is the general rule in relation to party/party costs?

CPR?

A

• Generally ‘costs follow the event’ CPR 44.2(2), although court has complete discretion

41
Q

What is the courts discretion in relation to costs?

CPR?

A 
Court has discretion as to how much, when they are to be paid and by who
CPR 44(2)(1)
42
Q

What will the court take into account when deciding costs?

A

Factors affecting how much is payable can be found in

CPR 44.2(4) & (5)

43
Q

What is a solicitor REQUIRED to do in relation to costs? Authority?

What is a solicitor EXPECTED to do in relation to costs? Authority?

A

REQUIRED
O(1.13) → solicitor must give client best possible info about likely overall costs both at outset & during retainer

EXPECTED

  • IB(1.13) → solicitor should discuss how client will pay & if legal aid is available
  • Solicitor should discuss whether potential outcomes will justify expense or risk involved, including, if relevant, having to pay an opponent’s costs IB(1.13)

Law: Civil Litigation (11 decks)

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