1.3 Introduction to civil procedure, the overriding objective and costs

Question 1

What is the ‘overriding objective’?

Answer 1

CPR 1.1(1)
To enable the court to deal with cases
justly, and
at proportionate cost.

Question 2

What does the overriding objective involve?

Answer 2

CPR 1.1(2)
(a)
ensuring the parties are on an equal footing
(b)
Saving expense
(c)
Dealing with the case in ways which 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
(d)
dealing with the case expeditiously and fairly
(e)
allotting an appropriate share of the court’s resources
(f)
enforcing compliance rules, practice directions and orders

Question 3

When must the court give effect to the overriding objective?

Answer 3

CPR 1.2
the court must seek to give effect to the overriding objective when it -
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to [caveats]

Question 4

How does the overriding objective affect the parties?

Answer 4

CPR 1.3

The parties are required to help the court to further the overriding objective.

Question 5

How does the overriding objective affect litigants in person?

Answer 5

Mole v Hunter [2014] EWHC 658 (QB)
Litigants in person are not a special class. The Rules bind them equally. However, the court can assist them in pursuit of the overriding objective.

Question 6

How does the overriding objective affect case management?

Answer 6

CPR 1.4
(1)
The court must further the overriding objective by actively managing cases.
(2)
Active case management includes…
[long list including encouraging co-operation between the parties, encouraging ADR and narrowing issues]

Question 7

Which Part of CPR sets out the court’s case management powers?

Answer 7

Part 3

Question 8

What are the three most common types of court fee?

Answer 8

1. Issue fees;
2. Application fees;
3. Hearing fees.

Question 9

How broad is the court’s discretion to award costs?

Answer 9

Section 51(3) Senior Courts Act 1981
The court shall have full power to determine by whom and to what extent the costs are to be paid.

Question 10

Which statutory provision confers the court’s discretion in awarding costs?

Answer 10

Section 51 Senior Courts Act 1981

Question 11

Which Part of CPR deals with general rules about costs?

Answer 11

Part 44

Question 12

What is the general rule in costs awards?

Answer 12

CPR 44.2(2)

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party

Question 13

Which Rule deals with court’s discretion in awarding costs?

Answer 13

CPR 44.2

Question 14

What should the court have regard to when deciding what order (if any) to make about costs?

Answer 14

CPR 44.2(4)

(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle which is not an offer to which costs consequences under Part 36 apply.

Question 15

When assessing the amount of costs to award on the standard basis, what must the court have regard to?

Answer 15

CPR 44.4(1)
The court will have regard to all the circumstances in deciding whether costs were -
(a)
if it is assessing costs on the standard basis -
(i) proportionately and reasonably incurred; or
(ii) proportionate and reasonable in amount

Question 16

When assessing the amount of costs to award on the indemnity basis, what must the court have regard to?

Answer 16

CPR 44.4(1)
The court will have regard to all the circumstances in deciding whether costs were -
(b)
if it is assessing costs on the indemnity basis -
(i) unreasonably incurred; or
(ii) unreasonable in amount.

Question 17

Which Rule deals with the amount of costs to be awarded?

Answer 17

CPR 44.4

Question 18

Where does the burden of proof lie?

Answer 18

On the party who asserts an issue of fact or law.

Question 19

Which facts need to be proved?

Answer 19

The facts in issue.

Question 20

In what three circumstances can the court treat something as proved without evidence?

Answer 20

1. Formal admissions (statements of case or under CPR 32.18);
2. Presumptions, e.g., res ipsa loquitur;
3. Inferences of fact - common sense conclusions.