1 Introduction Flashcards
CPR - overriding objective
CPR 1.1 – overriding objective = enable court to deal with cases justly and at proportionate cost
Claim form - CPR?
CPR 7 & CPR 16
Particulars of claim - CPR?
CPR 16
Responding to claim - options + CPRs?
- Acknowledgement of service - CPR 10
- Admission - CPR 14
- Defence - CPR 15 & CPR 16
Defence - what must it contain?
Comprehensive response to POC:
- Allegations it denies
- allegations it admits
- Which it requires evidence for - put to proof
What happens if D doesn’t file AOS within time limit? CPR?
D may obtain judgment in default - CPR 12
Counterclaim - CPR
CPR 20 - particulars of counterclaim to be filed w. defence (or w.o defence if approval granted by court)
What can C do if wishing to allege facts in answer to a defence which weren’t included in POC?
File a reply - CPR 15
If party requires clarification of a SOC?
Written request to other party - CPR 18
Interim applications - CPR?
CPR 23 -25
Allocation - options? CPR?
CPR 26
o Small claims track £25,000
Directions - CPR?
Multi-track cases?
CPR 26-29
Multi track cases:
- model directions
- case management conference
Disclosure & inspection - CPR?
CPR 31
Witness statements - CPR?
CPR 32
Expert evidence - CPR
CPR 35
What can parties if they wish to settle their dispute?
CPR?
Make evaluation of what they consider realistic value of judgment –> then offer to settle
Party 36
Divisions of High Court?
- Chancery Division
- Queen’s Bench Division
- Family Division
What divisions of the High Court are contract & tort claims usually bought in?
Usually in QBD
Can be in Chancery Division if an element connected with Chancery areas
What 3 matters need to be considered when deciding to bring a claim in the High Court or County Court?
- Jurisdiction
- Rules governing commencement
- Rules governing transfer
What are the rules governing commencement? CPR?
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
Claim w. estimated value >100,000 could still be transferred to CC - authority?
29 PD 2.3
Claim w. estimated value
29 PD 2.2
Some special types of case must be commenced in High Court, regardless of value - authority?
29 PD 2.6
Rules governing transfer between courts
- 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
What issues should be considered at first interview?
- 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
What are the elements of the cause of action?
- Duty
- Breach
- Causation
- Loss
What needs to be shown for duty in contract?
- Privity of contract
2. Duty/duties owed under that contract - derived from express term (oral or written) and/or implied term
What needs to be shown for duty in tort
Duty.duties owed, for exampled, inunder common law of negligence and/or statutory duty
What needs to be shown for ‘damage’ (loss)?
- Loss suffered was foreseeable (not too remote)
- Amount of loss
How are damages measured for each type of claim?
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
What does a case theory comprise of?
Answers to:
- What needs to be proved?
- What evidence is there to prove it?
- Is that evidence admissible?
On who does the burden of proof fall?
Generally on the party who asserts it
What is the standard of proof in civil proceedings?
Balance of probabilities
What facts need to be proved?
facts in issue → shown by parties’ conflicting versions of events
When may the court treat matters as established, w.o evidence?
- Formal admissions
a. In statements of case; or
b. In response to a notice to admit facts (CPR 32.18) - Presumptions (e.g. res ipsa loquitur)
- Inferences of fact: common sense conclusions
What conditions must be satisfied for pre-action disclosure of documents?
CPR?
CPR 31.16: pre-action disclosure of documents if conditions met:
- Respondent likely to be party to subsequent proceedings;
- Applicant also likely to be party to subsequent proceedings;
- Had proceedings started, documents would have been disclosed under standard disclosure; and
- 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
What do solicitor/client costs comprise of?
- Profit costs (charge out hourly rate x number of hours spent) + VAT; and
- Disbursements + VAT
What are ‘costs on account’?
describes funds which client pays solicitor up front, before solicitor begins work on their case
When is ‘interim billing’ used?
in lengthy cases – bills rendered at regular intervals
What is the general rule in relation to party/party costs?
CPR?
• Generally ‘costs follow the event’ CPR 44.2(2), although court has complete discretion
What is the courts discretion in relation to costs?
CPR?
Court has discretion as to how much, when they are to be paid and by who CPR 44(2)(1)
What will the court take into account when deciding costs?
Factors affecting how much is payable can be found in
CPR 44.2(4) & (5)
What is a solicitor REQUIRED to do in relation to costs? Authority?
What is a solicitor EXPECTED to do in relation to costs? Authority?
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)
