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SQE2 > 4a. Disputes > Flashcards

4a. Disputes Flashcards

1
Q

Methods of dispute resolution

What are the four processes for resolving disputes?

A
  1. Litigation
  2. Negotiation
  3. Arbitration
  4. Mediation
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2
Q

Methods of dispute resolution

What does the fact negotiations are without prejudice mean?

A

Conversations cannot be relied on by parties or referred to in courts

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3
Q

Methods of dispute resolution

To keep in line with the overriding objective, which requires cases be resolved in a proportionate, expeditious and fair matter, how should ADR be considered?

A
  • Lawyers should make their clients aware of it
  • Possibility of ADR should be considered throughout a proceeding
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4
Q

Methods of dispute resolution

If a party considers ADR inappropriate, but does not set out their reasons, what can the court do?

A
  1. Increase the amount of costs/interest to be paid
  2. Decrease the amount of costs/interest to be received

applies to failure to follow CPR generally

OR, stay proceedings until the relevant steps (which have not been complied with are taken).

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5
Q

Methods of dispute resolution

What are the five key features of mediation?

A
  1. Parties can walk away at any time
  2. Strict rules of evidence don’t apply
  3. Non-binding until final written agreement is signed
  4. Confidential
  5. Promotes amicable solution
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6
Q

Pre-action considerations: limitation

What is the limitation period for:
(1) breach of contractual/tortious claims
(2) personal injury and fatal accident claims

A
  1. Six years from cause of action
  2. Three years from cause of action / date of knowledge of injured / dependent
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7
Q

Pre-action considerations: limitation

What is the long stop limitation for latent (hidden) defects?

A

Fifteen years

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8
Q

Pre-action considerations: limitation

In a tort action, when does the limitation period begin running?

A

Generally, from the date the cause of action accrues, i.e. when the tort occurs

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9
Q

Pre-action considerations: limitation

In a tort action where the claimant’s injury is not apparent, when does the limitation period begin running?

A

When the claimant first gains knowledge that they have a claim

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10
Q

Pre-action considerations: limitation

In a tort action, when is the date of knowledge considered to be?

Does the C need to know the precise details?

A

Point at which C had sufficient knowledge of all the facts to commence investigations into the potential claim against D

No, sufficient information is enough

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11
Q

Pre-action considerations: limitation

In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?

In addition to knowing they have an injury, what must a C know?

A
  1. That the injury is significant
  2. That it is attributable in whole or part to the act or omission alleged
  3. Knowledge of the defendant
  4. Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor situation)

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

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12
Q

Pre-action considerations: limitation

In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?

A

Three years from:

  1. Date of death, or
  2. Date of knowledge of the deceased’s personal representative
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13
Q

Pre-action considerations: limitation

In a contract action, when does the limitation period begin running?

A

On the date of breach

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14
Q

Pre-action considerations: limitation

Where there’s a latent defect, what limitation period is available in addition to the general rule of six years from the date of accrual?

A

Three years from the earliest date on which the claimant knew or ought reasonably to have known material facts necessary to bring an action

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15
Q

Pre-action considerations: limitation

Is it possible to expressly shorten a limitation period in a contract?

A

Yes, subject to the reasonableness requirements under UCTA 1977

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16
Q

Pre-action considerations: limitation

Procedurally, when does time (1) begin to run relative to the date the cause of action accrues and (2) stop running?

A
  1. The day after the date of accrual
  2. When C delivers the claim form to the court together with the appropriate fee
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17
Q

Pre-action considerations: limitation

What occurs if the limitation period expires on a day when the court office is closed?

A

Action will still be on time as long as the documents/fee are filed on the next business day

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18
Q

Pre-action considerations: limitation

Is it possible to add a new party to proceedings after the limitation period has expired?

A

No, unless an application to disapply the limitation period is made to the court

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19
Q

Pre-action considerations: limitation

After the expiry of the limitation period, is it possible to amend the name of a mistakenly spelled/identified defendant in proceedings which were originally filed on time?

A

Yes

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20
Q

Pre-action considerations: limitation

When does the limitation period begin to run where a claimant is a minor?

A

On their 18th birthday

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21
Q

Pre-action considerations: limitation

When does the limitation period begin to run where a claimant lacks capacity at the time of accrual?

If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock paused?

A

When they are certified as being of sound mind

No

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22
Q

Pre-action considerations: limitation

When does the limitation period begin to run in cases of (1) fraud or concealment or (2) relief from the consequences of a mistake?

A

When C discovers the fraud/concealment or mistake, or could have done so with reasonable diligence

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23
Q

Pre-action considerations: protocols and applications

What is the purpose of the pre-action protocols?

Do protocols have the same status as Civil Procedure rules?

A

To focus the parties on trying to settle the dispute without litigation

No, protocols are not rules

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24
Q

Pre-action considerations: protocols and applications

Where no specific protocol exists, what will the courts expect a litigant to follow, and what four things does it require?

A

Practice Direction on Pre-Action Conduct and Protocols

  1. C sends letter before claim with concise details of claim attaching key docs
  2. D sends letter of response within a reasonable time (14 days if straightforward case; no more than 3 months if complex) attaching key docs
  3. C replies and parties consider negotiation, ADR and appointment of expert(s)
  4. Parties take stock before issuing proceedings
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25
Q

Pre-action considerations: protocols and applications

What are the consequences of not complying with any pre-action protocol?

Does the court have discretion to relieve a party of their obligation to comply with the protocols?

A
  1. Stay proceedings to allow the Practice Direction or protocol step to be complied with
  2. Order the non-compliant party to pay costs, or pay higher interest on damages
  3. If the non-compliant party is C, limit the amount of interest on the claim

Yes

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26
Q

Pre-action considerations: protocols and applications

What are three situations where the court is unlikely to criticise issuing proceedings without following a protocol?

A
  1. Where end of limitation period is close (issue claim then stay proceedings to comply with pre-action protocol)
  2. Where a court order is required to protect or preserve evidence or assets
  3. Where there is concern D may seek to issue proceedings in another country
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27
Q

Pre-action considerations: protocols and applications

Where the parties are likely to get embroiled in proceedings, what must be satisfied for pre-action disclosure to be available?

A
  1. Applicant and respondent likely to be parties to subsequent proceedings
  2. Docs which applicant seeks are those that would’ve been disclosed in proceedings
  3. Pre-action disclosure is desirable to:
  • Dispose of anticipated proceedings fairly
  • Assist in resolving the dispute without proceedings
  • Save costs
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28
Q

What is required for pre-action disclosure from a non-party?

A

Norwich Pharmacal Order: Orders non-party to disclose info to enable C to sue D (i.e. identify D)

Requirements:
1. C files claim form at court against ‘persons unknown’

  1. C applies to court for NPO and names the non-party as respondent
  2. Court must be satisfied that:
  • Wrong committed by an ultimate wrongdoer (not respondent)
  • Wrongdoer can’t be traced without NPO (i.e. it’s necessary)
  • Respondent is:
    (i) more than a mere bystander/witness (involved but not necessairly at fault) to wrong doing
    (ii) likely able to provide info on the ultimate wrongdoer
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29
Q

Starting proceedings: choice of court

How are proceedings commenced?

A

Completing a claim form, which is then issued by the court and served on the defendant by either the court or the C’s solicitor

If court is to serve, C must include one copy of the claim form for each D and one for the court

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30
Q

Starting proceedings: choice of court

Although most cases must be started in County Court, what is the claim value threshold for a case to be started in the High Court in the context of personal injury, and all other cases?

A

Personal injury: £50,000
All other cases: £100,000

Although a claim exceeding £100,000 could be started in the County Court

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31
Q

Starting proceedings: choice of court

What are three reasons why a claim might be best suited to the High Court?

A
  1. Financial value/amount in dispute
  2. Complexity of the case
  3. Importance of the outcome of the claim to the public in general

These factors can also be used to determine appropriateness of starting a £100,000+ claim in County Court, e.g. is it low-complexity or unimportant to public despite high value?

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32
Q

Starting proceedings: choice of court

Where a known debt is owed (specified claim), what is the special procedure for claiming this in the County Court?

What is the monetary threshold within which this procedure can be availed of?

A

Complete a money claim form which will be issued by the Civil National Business Centre.

Threshold is £100,000

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33
Q

Issuing proceedings

What seven things must a claim form contain?

A
  1. Names/addresses of parties
  2. Brief details of claim
  3. Value of claim and remedy sought (if specified claim, specify amount of debt)
  4. C’s preferred court
  5. Fees and costs
  6. Particulars of claim (optional - can be served seperately within 14 days of the claim form)
  7. Statement of truth
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34
Q

Issuing proceedings

What is considered a full name for the purposes of the claim form for:

(1) an individual

(2) an individual carrying on business a sole trader

(3) a general partnership

(4) a limited liability partnership or company

A
  1. Individual: Full name
  2. Individual carrying on business: Full name with their trading as name
  3. General partnership: Full name of partnership with “(a firm)”
  4. LLP/company: Registered name
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35
Q

Issuing proceedings

What will a claim for damages always be, even if C is able to itemise their loss in detail?

A

An unspecified claim

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36
Q

Issuing proceedings

If the claim is for damages, what must the claimant state on the claim form?

Why?

A

What range they expect to recover

For the purposes of and using the same ranges as allocating to a track

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37
Q

Issuing proceedings

In estimating value of a claim, what should the C focus on and what should be disregarded?

A

Focus on: What the claimant is claiming for damages

Disregard: Interest, costs, contributory negligence, any counterclaim

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38
Q

Issuing proceedings

What are the two options for including the Particulars of Claim?

A
  1. Include on back of claim form, or
  2. Produce as a separate document and either serve with claim form, or within 14 days following service
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39
Q

Issuing proceedings

Who usually signs the statement of truth?

A

The claimant, but solicitor can

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40
Q

Service of proceedings

Why is service of a claim a critical step?

A

Because it triggers the D’s obligation to respond

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41
Q

Service of proceedings

Within how long of issue must a sealed claim form be served on D where they are:
(1) within the UK and
(2) outside the UK?

What is this period known as?

A

In the UK: Four months
Outside the UK: Six months

The validity period.

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42
Q

Service of proceedings

If C wishes to apply to have the claim form validity period extended, within what time period must the application be made?

Only in what circumstances will the court grant it?

A

Application must be made within the original validity period

Exceptional circumstances

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43
Q

Service of proceedings

Where C’s solicitor as opposed to the court will serve proceedings:

What must the claimant ensure is enclosed, otherwise the court won’t deem service effective?

A

Form N9 (the response pack)

Explains how D should respond and time limits for doing so

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44
Q

Service of proceedings

Where D has nominated solicitors to accept service, on whom must proceedings be served?

What is allowed if D hasn’t nominated solicitors to accept service?

A

Must be served on solicitors

If D hasn’t nominated solicitors to accept service, D may serve on D personally

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45
Q

Service of proceedings

How is personal service effected where D is:

(1) an individual

(2) a company

(3) a partnership being sued in the firm name

A

Leaving proceedings with:

  1. The individual being served
  2. Any person holding a senior position
  3. A partner or any person who had control or management of the partnership business at the principal place of business at the time of service
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46
Q

Service of proceedings

What is required for service to be sent by fax or other electronic means (e.g. email)?

A

Only permitted if D or its solicitor give express consent to the method being used.

Where fax or email is used, D will indicate the fax number / email address for service.

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47
Q

Service of proceedings

What are the two requirements for service to be sent by document exchange (DX)?

A
  1. Party’s address for service contains a DX number
  2. DX number is on the party’s writing paper
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48
Q

Service of proceedings

What is the step required to effect service in the case of:

(1) post or DX

(2) fax

(3) other electronic method?

A
  1. Post or DX: post, or leave with service provider
  2. Fax: complete fax transmission
  3. Other electronic method: send email or transmission
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49
Q

Service of proceedings

When is the claim form deemed to be served, and does this depend on the method used?

A

Irrespective of method used, the claim form is deemed served on the second business day after the step required to effectuate service

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50
Q

Service of proceedings

What is a business day per the CPR?

A

Any day other than Saturday, Sunday, a bank holiday, Good Friday, or Christmas Day

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51
Q

Service of proceedings

What should C do if they believe D no longer lives at an address?

After these steps, what can C do?

A

Take reasonable steps and make reasonable enquiries to ascertain D’s current address

If they still can’t ascertain, C can serve on D’s last known address

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52
Q

Service of proceedings

If D wishes to argue that service of proceedings was invalid, where do they indicate this and within what time period must they make an application?

A

On acknowledgement of service, and make an application to set aside service within 14 days

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53
Q

Service of proceedings

If C’s solicitor is serving proceedings, within what time period must they file a certificate of service?

A

21 days certifiying date on which claim was served and method used.

No need to file if D has filed an acknowledgement of service within that time.

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54
Q

Service of proceedings

What must a claimant show to the court to be granted an order to permit service by alternate means or in an alternative place?

A

Good reason for the order, e.g. service might not be achieved within the validity period

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55
Q

Service of proceedings

Even though the Particulars of Claim must be served within 14 days of service of the claim form, what must happen if this 14-day period would take the C beyond the validity period?

A

The Particulars of Claim must be served within the validity period

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56
Q

Responding to a claim

Within what time of the date of deemed service of the Particulars of Claim must D respond to a claim?

A

14 days

C can obtain judgment in default if D doesn’t respond by this time

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57
Q

Responding to a claim

What is the deemed date of service for first class post and DX for documents other than the claim form?

A

The second business day after it was posted provided that day is a business day. If not, on the next business day.

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58
Q

Responding to a claim

What is the deemed date of service for personal service, fax, email and delivery to a permitted address for documents other than the claim form?

A

On the business day it is left at the address, transmitted, or served personally if this is before 4.30pm. If not, the next business day

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59
Q

Responding to a claim

What are the three things D can do in their response?

A
  1. Admit part or all of the claim
  2. File and serve a defence to the claim, and possibly a counterclaim
  3. Acknowledge service and indicate they propose to defend the claim

Admissions can be withdrawn with court permission

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60
Q

Responding to a claim

If D files an acknowledgement of service, how much additional time from the filing are they given to respond?

A

14 more days

D must file a defence within 28 days of the deemed service of the particulars of claim

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61
Q

Responding to a claim

How can this possible 28 day time limit to respond be extended, and what is the maximum extension?

A

By agreement of the parties. For a further 28 days but not to exceed 56 days in total from the date of deemed service

14 days to respond acknowledging service, plus 14 days additional, plus 28 further days if parties agree

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62
Q

Responding to a claim

When will a defendant not have to file an Acknowledgement of Service?

A

If they file a defence within 14 days of service of the Particulars of Claim

However it may still be advisable to file an acknowledgement to have more time to work on a defence, as it extends the initial deadline for service of the defence from 14 days to 28 days from service of the Particulars of Claim

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63
Q

Responding to a claim

What three things can the D achieve on the Acknowledgement of Service form?

A
  1. Indicate intention to dispute, but claim additional 14 days
  2. Admit some of the claim but ask for time to pay
  3. Dispute the jurisdiction of the court

If the D disputes the court’s jurisdiction, must make such an application supported by written evidence, within 14 days of filing the acknowledgement. D must also not file a defence, as this could be deemed submitting to the court’s jurisdiction.

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64
Q

Responding to a claim

What can C do when D files an acknowledgement of service?

A

Make an application for summary judgment or apply for an interim payment

Summary judgment: D has no real prospect of defending the claim

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65
Q

Responding to a claim

What can C do when D fails to respond to service within 14 days, or within the extended time limit?

A

Make an application for default judgment

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66
Q

Responding to a claim

If C is granted judgment in default because of the D’s failure to respond, D must show one of what two things to have default judgment set aside?

A
  1. They have a real prospect of successfully defending the claim, or
  2. Some other good reason why the judgment should be set aside
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67
Q

Responding to a claim

What are the four ways in which a default judgment could have been wrongly entered?

A
  1. Judgment entered before time limit expired
  2. Application for judgment came after an application by D to strike out/dismiss the claim, and this application hasn’t yet been considered
  3. Claim already paid or settled
  4. D already submitted a request to pay which has not yet been considered
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68
Q

Statements of case

What is the purpose of the Particulars of Claim and what must it provide to be adequate?

A

Provide an outline of the party’s case on liability, causation, and quantum to allow the judge to give proper directions

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69
Q

Statements of case

What should the particulars include in a contract claim?

A
  • Parties to the agreement
  • Nature of the agreement
  • Terms that claimant alleges the defendant breached
  • Facts showing breach and loss
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70
Q

Statements of case

What should the particulars include in a negligence claim?

A
  • Description of events
  • Details of injury, with medical records
  • Allegations of negligence (duty owed, defendant fell below standard)
  • Schedule of past and future losses
  • Prayer for relief (i.e. remedies sought)
  • Statement of truth
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71
Q

Statements of case

What should the particulars include in an employers’ liability claim in tort?

A
  • Facts establishing employer-employee relationship
  • Description of events
  • Establish duty owed and breached
  • Details of injury
  • Schedule of past and future losses
  • Prayer for relief
  • Statement of truth
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72
Q

Statements of case

What must a claimaint do when they are claiming interest on damages?

A

State the:
1. Basis for the interest claim, i.e., contract, statute
2. % interest rate if the claim is for a specified sum

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73
Q

Statements of case

What eight things must C include in the Particulars if they wish to rely on them?

A
  1. Allegations of fraud
  2. Illegality
  3. Misrepresentation
  4. Breach of trust
  5. Knowledge of a fact
  6. Unsoundness of mind or undue influence
  7. Willful deceit
  8. Defendant’s failure to mitigate loss
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74
Q

Statements of case

If D wishes to defend a claim, on whom must they serve the defence?

A

Every other party to the claim

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75
Q

Statements of case

What are the three ways in which a defendant can respond to each of the paragraphs in the particulars?

A
  1. Admit
  2. Deny
  3. Non-admission

Admitted claims are no longer in dispute and the claimant no longer has to prove them. Failure to respond means a claim is deemed admitted

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76
Q

Statements of case

What must D do if they deny a paragraph?

A

State reasons for doing so, or set out an alternate version of events

If they simply dispute the C’s statement of value, they should explain why, and provide an alternate value.

In a personal injury claim, if they don’t agree with the medical report, the defence must state this.

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77
Q

Statements of case

When may D neither admit nor deny a paragraph?

A

When the facts alleged in the paragraph are outside D’s knowledge

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78
Q

Statements of case

What happens when D admits damages but denies liability?

A

They are admitting a damages sum, but it will only be payable if the court finds the claim is proved

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79
Q

Statements of case

What must D do if they raise a limitation issue in the defence?

A

State the date on which they allege the limitation period expired, with reasons why

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80
Q

Statements of case

What is a reply, is it mandatory, and when will it typically be used?

Can a reply be used to rectify mistakes in or omissions from the particulars?

A

A reply is an optional response sent by C to D, usually only if something has been raised in the defence which requires a response

No, it can only be used to deal with points raised in the defence which were not covered by the particulars

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81
Q

Statements of case

What are the four types of claim available to a D under Part 20?

A
  1. Counterclaim
  2. Claim against a third party
  3. Claim seeking contribution or indemnity
  4. Counterclaim against a third party
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82
Q

Statements of case

What are the four key features/requirements of a counterclaim?

When is court permission required and not required to file a counterclaim?

A
  1. Brought by D against C within same proceedings
  2. Arises out of same or substantially the same facts as C’s claim against D
  3. Monetary claim in its own right
  4. Is not a defence

Permission not required if counterclaim is filed with defence. Permission required after this time.

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83
Q

Statements of case

What is a claim against a third party under Part 20, and what are three features?

A

D claims a person who isn’t a party to the case has caused C’s losses

  1. New party will be called a third party
  2. Application can be made without notice, unless directed otherwise
  3. Particulars of the third party claim must be contained in or served with the third party claim form (no option for them to follow as with an initial claim)

Court permission the same as counterclaim

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84
Q

Statements of case

What is a claim seeking contribution or indemnity under Part 20?

A

D claims that if they are found liable to C, another party to the claim (usually another D) is liable to repay some of the amount (contribution) or all of the amount (indemnity)

Court permission the same as counterclaim and third party claim, except that permission not needed after defence if contributing/indemnifying party was not added until later in the case and the contributing/indemnifying party is served within 28 days of filing their defence

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85
Q

Statements of case

What is always required for a counterclaim against a third party under Part 20?

A

Court permission

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86
Q

Statements of case

How is an additional Part 20 claim served in cases where permission is not required?

How is an additional Part 20 claim served if issued later than this time?

A

It is served on each party to the claim when the defence is filed

It must be served on the person against whom it is made within 14 days

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87
Q

Statements of case

Within what timescale of service must a defence to a Part 20 claim be served, and what is the consequence of failing to do so?

A

Within 14 days of service of the counterclaim. Failing that, the original D can obtain default judgment on the counterclaim

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88
Q

Statements of case

Where additional claims are brought by D, what must the additional party do where:

(1) they are already a party to the case, and

(2) they are not already a party to the case?

A
  1. File a defence, if already a party
  2. File an acknowledgement and/or defence, if not already a party

Same rules apply to them as the original D at the beginning

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89
Q

Statements of case

If a party wishes to make a request for information from the other side, do they need to go through the court for this?

A

Only if the party does not adequately respond within a reasonable time

If a party objects to a request for information, they should respond providing reasons why

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90
Q

Statements of case

What are five grounds for objecting to a request for information?

A
  1. Unnecessary, irrelevant, or improper
  2. Unable to provide information/clarification
  3. Insufficient time to reply
  4. Disproportionately expensive to reply
  5. Privilege

Something is relevant if it relates to matters which are disputed by the parties

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91
Q

Statements of case

What is required to amend a Statement of Case before it has been served, and after it has been served?

A

Before: Can be amended at any time without permission

After: Written consent of all parties or court permission required

92
Q

Statements of case

What must the court be convinced of to add a party to a case?

A

Adding the party will allow the court to resolve all the matters in the case or resolve a connected matter

93
Q

Statements of case

What are the two requirements which must be satisfied for a court to grant an application substituting a party?

A
  1. Existing party’s interest or liability has passed to the new party (e.g. assignment, merger) and
  2. Desirable to substitute the new party, so the court can resolve all matters in dispute
94
Q

Statements of case

What is required to add or substitute a party after the limitation period has expired?

A
  1. Relevant limitation period must have been live when proceedings were started, and
  2. The addition or substitution is necessary

Necessary can come from: new party substituting for a party named in the claim by mistake; or original party has died or is bankrupt

95
Q

Case management

What is the process for allocation?

A
  1. Once the defence has been filed, parties file a notice of proposed allocation
  2. Parties file a directions questionnaire (Form N180 for small claims; Form N181 for fast/multi track) and proposed directions within time period stated (usually 14 days)
  3. Court provides notice of allocation
  4. Court provides
    (i) directions for cases allocated to the small claims/fast track, OR
    (ii) directions for cases allocated to the multi-track or fixes a Case Management Confrence at which directions will be considered
96
Q

Case management

In determining the value of the claim, what four things will the court ignore?

A
  1. Sums not in dispute
  2. Interest
  3. Costs
  4. Contributory negligence
97
Q

Case management

To reiterate, what are the thresholds on the small claims track for:
(1) claims generally
(2) road traffic accidents
(3) personal injury generally?

A
  1. £10,000
  2. £5,000
  3. £1,500
98
Q

Case management

When might the court allocate claims with a higher value than the small claims track threshold, to the small claims track?

A

Parties agree, or less than £10,000 is actually in dispute even if the claim is for more

99
Q

Case management

Unless the other side has behaved unreasonably, what costs can be recovered on the small claims track, and what is the upper limit for expert fees?

A

Fixed costs and reasonable expenses.

Expert fees limited to £750.

100
Q

Case management

When will cases be allocated to the fast track?

A
  1. Claim is worth up to £25,000
  2. Trial will last no more than 1 day (5 hours)
  3. Oral expert evidence from 1 expert per party in no more than two expert fields
101
Q

Case management

What are the five standard directions for cases allocated to the fast track?

A
  1. Disclosure - 4 weeks
  2. Exchange of witness statements - 10 weeks
  3. Court circulate pre-trial checklists - 20 weeks
  4. Parties return pre-trial checklists - 22 weeks
  5. Trial - 30 weeks
102
Q

Case management

In what two ways is evidence restricted on the fast track?

A
  1. Court prefers written rather than oral evidence
  2. Use of single joint expert is encouraged

Witness statement stands as evidence in chief meaning it has the same weight as if the witness had testified in court

103
Q

Case management

In the fast track, what must costs be in order to be recoverable?

A

Proportionate to the amount in dispute

Parties must submit cost schedules ahead of the costs hearing

104
Q

Case management

What is the monetary threshold and what is the time threshold for a case to be put in the multi-track?

A
  • Claim exceeds £25k, or
  • Lesser value but trial will last more than one day
105
Q

Case management

What is the Directions Questionnaire, and what does it ask?

Within what time limit must the parties complete and return it?

A

Questionnaire sent by the court with the Notice of Proposed Allocation in a fast track or multi-track case, which asks:
* Estimated trial length
* Estimated trial costs
* Whether parties complied with protocols
* Whether experts will be required
* Names of witnesses

28 days of receiving the Notice of Proposed Allocation, and cannot be extended

106
Q

Case management

At what stage is a Directions Order made?

What does it set out?

A

Once the case is allocated to the small-claims or fast tracks

(Multi-track directions are usually given at the Case Management Conference)

The schedule for how the case will progress: disclosure, witness statement exchange, expert reports, trial, etc.

107
Q

Case management

What are two notable directions which will be given on the small claims track?

A
  1. Documents to be exchanged 14 days before hearing
  2. No expert may be used without express permission
108
Q

Case management

If a party is not happy with the directions given by the court, within what time limit must they apply for the directions to be varied?

What should the innocent party do if the other party defaults on the directions?

A

14 days

Make an immediate application to the court for an unless order

109
Q

Case management

When a Case Management Conference is listed on the multi-track, within what time limits before the conference must the parties file:
(1) disclosure reports, and
(2) costs budgets?

A
  1. Disclosure report: 14 days
  2. Cost budget: 7 days
110
Q

Case management

Where a party has defaulted on directions, and the innocent party has made an application to court about this, what is one type of order that the court will typically make which gives the party an opportunity to comply, and what is the impact of this?

A

The court will make an unless order, which specifies a penalty which will be imposed unless the party complies with the direction

111
Q

Case management

Where a party has defaulted on directions, what are three other options available to the court?

A
  1. Impose a costs order, including indemnity costs, or increased interest
  2. Require the defaulting party to pay money into court
  3. Debar a party from relying on evidence
112
Q

Case management

Where a party has a good reason for non-compliance and applies for relief from sanctions, what two things will the courts consider?

A
  1. Seriousness of the breach, and
  2. Reasons for the breach
113
Q

Interim applications

What is an interim application?

How soon should they be made?

A

Any pre-trial application made to the court which requires a judicial decision

As soon as it is apparent that it is necessary or desirable

114
Q

Interim applications

What is true of an interim application if there is already another hearing listed in the matter?

A

It should be raised at that hearing, if possible

115
Q

Interim applications

Unless there is good reason why notice should not be required, what notice of an interim application must be given to parties?

What is an example of a good reason?

A

Three clear days

Notice would provide the other party an opportunity to dispose of evidence or assets

116
Q

Interim applications

Other than what two types of orders would it be extremely unusual to not give notice of an interim application?

Where an interim application is made without notice, what must it include?

A
  1. Freezing injunction
  2. Search order

Evidence explaining the good reason

117
Q

Interim applications

What three things must be served on the non-applicant party if an order is granted based on
a without-notice application?

A
  1. The Order
  2. Application notice (Form N244)
  3. Supporting evidence
118
Q

Interim applications

If an order is granted based on a without-notice application, within what time limit of being served must the non-applicant party apply to vary or set aside the order?

A

7 days

119
Q

If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?

A

A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application

120
Q

Interim applications

What should be true of evidence relied on in support of an interim injunction?

A

It should be in writing and filed at court within the relevant time limit

121
Q

Interim applications

What four things must an applicant file at court for a with-notice interim application hearing?

A
  1. Application notice (Form N244)
  2. Supporting evidence
  3. Draft order
  4. Fee
122
Q

Interim applications

What four things must an applicant serve on the respondent three clear days before a with-notice interim application hearing?

A
  1. Application notice (Form N244)
  2. Supporting evidence
  3. Draft order
  4. Notice of hearing date
123
Q

Interim applications

What must both parties file and exchange not less thatn 24 hours before the interim application hearing?

A

Statements of cost

124
Q

Interim applications

What is the difference between default judgment and summary judgment?

A

Default judgment: D has failed to acknowledge service or file a defence on time, not related to strength of defence

Summary judgment: Other party has weak case and there’s no other reason to have the trial

125
Q

Interim applications

What are the two criteria which the applicant must satisfy when applying for summary judgment?

A
  1. Other party has no reasonable prospect of success, either their claim or defence, and
  2. No other compelling reason why the case should proceed
126
Q

Interim applications

When can an applicant apply for summary judgment?

A

C:
* If C has complied with the pre-action protocol, after D has submitted an acknowledgement of service or defence

  • If C hasn’t complied with the pre-action protocol, after D has submitted a defence or the time for submitting a defence has run out

D:
* Any time after proceedings have been issued

127
Q

Interim applications

What are the consequences of a summary judgement application being made?

A
  • C application: D doesn’t have to file defence until the hearing
  • D application: D doesn’t have to file an acknowledgement of service or defence until the hearing
128
Q

Interim applications

In an application for summary judgment, what are the three time periods before the hearing before which:

(1) Applicant must serve written evidence in support of the application on the respondent

(2) Respondent must serve evidence in response, and

(3) Applicant must serve any further evidence in response to (2)?

A
  1. 14 days
  2. 7 days
  3. 3 days

Same for interim payments

129
Q

Interim applications

What is the difference between an application to strike and summary judgment?

A

Application to strike: goes to procedure

Summary judgment: goes to merits

130
Q

Interim applications

What are three things for which the court will grant an application to strike?

A
  1. Statement of case discloses no reasonable grounds for bringing/defending claim
  2. Statement of case is an abuse of court process
  3. Failure to comply with a rule, practice direction, or order
131
Q

Interim applications

What are the three conditions, one of which is required for an order of interim payment to be made?

Are interim payments mandatory or discretionary?

A
  1. D has admitted liability
  2. C has obtained judgment but sum to be paid hasn’t yet been assessed
  3. If claim goes to trial, C is likely to receive a substantial amount

Discretionary, and the court will not grant one if it would cause an injustice

132
Q

Interim applications

Before making an application for interim payment, what should the applicant do?

Before when can the claimant not make an application for interim payment?

A

Request that the defendant make a payment voluntarily

Before defendant receives particulars and serves either an acknowledgement or defence, i.e. claim must be live from defendant’s point of view

133
Q

Interim applications

In an application for interim payment, what three things must the claimant’s written evidence contain?

Does claimant need to demonstrate need?

What additional thing should be included in a personal injury claim?

A
  1. Sum of money sought
  2. Items and matters in respect of which payment is sought
  3. An estimate of the final judgment

No

Medical records should be attached to estimate of judgment; and a schedule of loss with details of past and future loss

134
Q

Interim applications

In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?

A

Yes

135
Q

Interim applications

What is an injunction?

What are the two types?

When is an injunction considered interim, and when is it considered final?

A

A court order that requires a party to do or stop doing something.

Mandatory and prohibitory

Interim if made before trial; final if at trial

136
Q

Interim applications

In the context of an injunction application, what is an undertaking in damages?

A

An undertaking by the person making the application that they will compensate the other party for any loss suffered if the court later determines that the injunction should not have been granted

137
Q

Interim applications

What is a freezing injunction?

To whom must an application for one be made?

A

A type of prohibitory injunction designed to freeze the assets of the defendant

A High Court judge only

138
Q

Interim applications

What is a search order?

To whom must an application for one be made?

A

A last resort order applied for without notice by the applicant if it is clear D won’t obey the rules relating to disclosure, or may seek to destroy evidence, which allows tC to search for and potentially seize this evidence

A High Court judge only; same as freezing injunction

139
Q

Disclosure

What does disclosure mean?

For how long does the duty to disclose run and when does it terminate?

A

Clearly identify and inform the other side of the existence of a relevant document

Continues through the whole case and concludes when the case is over

140
Q

Disclosure

What two types of documents must be disclosed?

What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?

A

Documents which:
1. Support your case
2. Are adverse to your case

Cease to act

141
Q

Disclosure

How far does the obligation to disclose go?

Does a party need to have possession?

A

A party’s obligation to disclose extends to any document within the party’s control

No, a right to control is sufficient

142
Q

Disclosure

What three criteria, one of which is enough, will determine if a party has control of a document?

A
  1. Physical possession
  2. Right to take possession, inspect or take copies, or
  3. Had the document in their possession but no longer
143
Q

Disclosure

What is the obligation when a document is unavailable or has been destroyed?

Can the court draw an adverse inference from this?

A

Notify the court and other party of its existence, and provide reasons

Yes

144
Q

Disclosure

What is the standard that the court will expect a search for documents to meet?

A

The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance

145
Q

Disclosure

What are the three sections of the disclosure list which is filed and served on the fast track, as well as personal injury on the multi-track?

A

Part 1: Docs a party controls and allows inspection of

Part 2: Docs a party has control of but object to the other party inspecting (along with reasons)

Part 3: Docs that are no longer in a party’s control

146
Q

Disclosure

Who signs the disclosure statement detailing the extent of the search made?

What is declared in the disclosure statement?

A

The party, not their solicitor

Party understands the duty of disclosure, they have carried it out to the best of their knowledge, and that they believe the extent of the search was reasonable and proportionate; also explaining why a particular search was not carried out

147
Q

Disclosure

Under standard directions, within what time limit from that point must the disclosure lists be served?

Within what time limit should inspection occur?

A

28 days

7 days, for which the party seeking inspection must notify the party with the document

148
Q

Disclosure

What are the 3 obligations under standard disclosure?

A

1. Disclose docs
Step 1: is it a doc (broadly defined)

Step 2: is/was the doc in the party’s control? If a party has phsyical possession or a right to possess or inspect the doc the it is in their control

Step 3: parties must dislose docs in their control which (i) they rely on, (ii) are adverse to their/another party’s case or (iii) a practice direction requires disclosure of

2. Conduct a reasonable search for docs falling within standard disclosure

3. List documents in a disclosure list with a disclosure statement

149
Q

Disclosure

What triggers a requirement for specific disclosure and what are the two criteria, one of which the court must be satisfied of to grant an order?

What should a party do before making an application for specific disclosure?

A

Triggered by a party believing certain documents have not been disclosed.

Court must be convinced the party has documents that may:

  1. Contain information that would assist the applicant’s case or damage the respondent’s case; or
  2. Lead to a train of enquiry which has either of those consequences

Make a written request for the documents: describing the document and explaining why it is relevant, why it is reasonable and proportionate to disclose, grounds for believing the document exists, and safeguards that can be provided, e.g. redaction

150
Q

Disclosure

Unless challenged, what does disclosure of a document provide?

A

An automatic right to inspect it

151
Q

Disclosure

What are the three grounds for refusing inspection of a disclosed document?

A
  1. Privilege
  2. Document no longer in party’s control
  3. Disproportionate to allow inspection
152
Q

Disclosure

Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track?

Within what time limit of what event must this be filed?

A

Disclosure report

At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.

153
Q

Disclosure

Must a document which is privileged still be disclosed?

A

Yes, but it can be withheld from inspection

154
Q

Disclosure

What are the three types of privilege?

Only whom can waive privilege?

A
  1. Legal advice privilege
  2. Litigation privilege
  3. Without prejudice privilege

The client

155
Q

Disclosure

What does legal advice privilege protect?

A

Communication between a lawyer and a client in which advice is given or requested within a legal context

156
Q

Disclosure

What does litigation privilege protect?

Who bears the burden of proving litigation privilege?

A

Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation

The party seeking to assert it

157
Q

Disclosure

If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?

A

Only if the court decides the dominant purpose is to prepare for litigation

158
Q

Disclosure

If a solicitor accidentally sends a privileged documents to the other side, what is required for the other side to use the information?

A

Court permission

159
Q

Witness evidence

What is the general rule for what a witness must have done to be able to give evidence at trial?

A

Signed a previous witness statement setting out their evidence, which is endorsed by a statement of truth and served on the other party

160
Q

Witness evidence

What is possible if a witness statement cannot be obtained?

A

Party can get court permission to serve a witness summary which identfies the witness and summarises the factual issues the witness will cover when testifying

161
Q

Witness evidence

If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served by the party calling the witness?

A

7 days

Summons must contain conduct money or it is ineffective

162
Q

Witness evidence

What can the other party do if a party decides not to call a witness who has had a witness statement served, and how will the court treat what they do?

A

Other party can refer to the statement, but the court will treat this as hearsay

163
Q

Witness evidence

Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?

A
  1. Statement must have been made out of court
  2. Statement must be used to prove the truth of what is being stated
164
Q

Witness evidence

When will the contents of a witness statement cease to be hearsay?

A

When the witness thereafter comes to court, their statement plus their answers under cross-examination are all treated as if they were made in court and cease to be hearsay

165
Q

Witness evidence

If a party wishes to rely on hearsay evidence, what must they do, and what is the effect of the witness attending the trial on how this obligation must be satisfied?

If the other side wishes to have that witness attend court so that their credibility can be attacked, within what time limit must they make an application to the court?

A

Must serve notice on the other side. If the witness is attending court, the witness statement itself constitutes notice.

14 days

166
Q

Witness evidence

What is admissible in any civil case to prove the conduct occurred?

A

Details of a criminal conviction arising from the same events

167
Q

Witness evidence

What are three types of evidence that is inadmissible?

Does the court have discretion to disallow evidence which would otherwise be admissible?

A
  1. Opinion evidence, except from experts
  2. Communications that are without prejudice
  3. Any evidence which is irrelevant

Yes

168
Q

Witness evidence

What evidence is a lay person allowed to give, even though it may appear to contradict the general rule that only experts can give opinion evidence?

A

Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident

169
Q

Expert evidence

What are the two requirements for an expert to give evidence?

A
  1. They must be qualified to give the opinion
  2. Their expert evidence must be reasonably required to resolve proceedings

Qualified does not mean a formal degree is needed; experience is sufficient

170
Q

Expert evidence

What is the duty owed to the court by an expert?

A

To exercise independence, integrity, and impartiality

This overrides their obligation to the person who instructed/paid them

171
Q

Expert evidence

Is the default position that experts will attend court to give their evidence?

A

No, the default is a written report

172
Q

Expert evidence

If a party wishes to have an expert testify in court rather than the default of preparing a written report, what four conditions must they satisfy?

A
  1. Expert oral evidence likely to have an impact on the outcome
  2. It will assist the judge
  3. Risk of injustice if expert evidence is not tested, and
  4. Cost of the expert attending is not disproportionate
173
Q

Expert evidence

What is a single joint expert?

A

A single joint expert is one where the court has imposed the obligation that parties share an expert, share the fees whilst the matter is ongoing, and then the losing party will assume responsibility for paying the expert after the trial.

174
Q

Expert evidence

In what four instances may the court allow parties to have their own expert?

A
  1. Complex issues or high value case
  2. Parties already have their own expert from pre-action phase and most cost-effective to retain
  3. Number of different schools of thought concerning the issue requiring expert opinion
  4. Issue the experts are focusing on has huge significance to the outcome
175
Q

Expert evidence

Is an expert’s report privileged?

A

Until disclosed

Expert’s report need only be disclosed if the party intends to rely on it

176
Q

Expert evidence

What is the time limit from the expert sending the report that the parties can ask written questions of the expert?

A

28 days

The expert’s answers are treated as part of the report.

177
Q

Trial

If a case is settled before trial, other than via a Part 36 Order, what must the parties do?

A

Record the terms of the agreement in writing in an appropriately worded consent order

178
Q

Trial

What is the usual order used to record settlement?

What is the consequence of not using an order?

A

Tomlin Order

If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.

179
Q

Trial

What are the two parts of a Tomlin Order?

What happens if a party defaults?

A
  1. The order, which confirms the parties have agreed settlement and that the case is stayed pending the settlement terms being carried out, and
  2. A schedule confirming the amount to be paid, by whom, and by what date

Proceedings can recommence

180
Q

Trial

What three things should be specified in the case summary filed before the pre-trial review hearing?

A
  1. Issues of fact
  2. What is in dispute
  3. Synopsis of the evidence
181
Q

Trial

How many trial bundles should the claimant’s solicitor prepare, and who bears the expense of this?

Within what time period before trial should the trial bundles be filed?

A

The claimant’s solicitor must prepare one bundle each for each party and witness, and the claimant bears the expense of this

Between 3 and 7 days before trial

182
Q

Trial

In what two circumstances will court permission be required to discontinue a case?

What is the costs consequence for the claimant of discontinuing a case?

A
  1. Court has granted an interim injunction
  2. Claimant has received an interim payment (unless paying party consents)

Claimant liable to pay the defendant’s costs up until that point

183
Q

Appeals

What is the destination of appeal where the judgment was delivered by:

(1) District Judge
(2) Circuit Judge
(3) Master of the High Court
(4) High Court Judge
(5) Lord Justice of Appeal?

Is there an automatic right to appeal in civil cases?

A
  1. Circuit Judge
  2. High Court Judge
  3. High Court Judge
  4. Lord Justice of Appeal
  5. Justice of Supreme Court

No

184
Q

Appeals

To where can a party make an application for permission to appeal?

A
  1. Lower court where the decision was made
  2. To the appeal court
185
Q

Appeals

What are the two grounds to appeal a decision of a lower court?

A
  1. Decision is wrong in fact, law, or the exercise of the court’s discretion; and/or
  2. Decision is unjust due to serious procedural or other irregularity
186
Q

Appeals

Within what time limit must a party appeal and when does this time begin to run?

A

Within 21 days of the date the judgment or order they are seeking to appeal was handed down

Appeals can be made orally immediately after the judge makes the decision to be appealed

187
Q

Appeals

What is the consequence of not seeking permission from a lower court, and not requesting a time extension?

A

After 21 days, they can no longer make an application to the court for permission to appeal

188
Q

Appeals

What is an appeal hearing limited to?

Can a party rely on evidence that was not available in the original hearing?

A

A review of the decision of the lower court

Not without permission

189
Q

Costs

What are the two bases of costs assessment?

A
  1. Standard basis
  2. Indemnity basis
190
Q

Costs

What occurs under the standard basis of costs assessment?

A

Court allows only proportionate costs and exercises doubt in favour of the paying party

191
Q

Costs

What triggers costs assessment on an indemnity basis, and what occurs under this?

A

Paying party incurring unnecessary costs by their conduct.

The court does not consider proportionality and the paying party cannot object as to costs unless they are claiming the solicitor shouldn’t have done the work at all.

192
Q

Costs

What are the two ways a party can file their costs budget on the multi-track, depending on the value of the case?

What is the possible consequence of not filing a budget?

A
  1. £50,000 and below: filed with Directions Questionnaire
  2. Over £50,000: filed 21 days before Case Management Conference

Costs may not be recoverable, beyond court fees

193
Q

Costs

What are inter-partes costs?

A

A term given to describe the other party’s costs when you are obligated to pay them, to be distinguished from a party’s own costs

194
Q

Costs

In lower value cases and interim applications, how soon before (1) a hearing, and (2) a trial must a statement of costs be filed?

A
  1. 24 hours
  2. Two days
195
Q

Costs

What is the starting point for a detailed assessment of costs in a larger value claim, and within what time limit must the receiving party file this document?

Within what time frame must the paying party file their points of dispute, if any?

A

The receiving party prepares a bill of costs and serves within three months of judgment or order

21 days

196
Q

Costs

How soon after the issuance of a costs certificate by the court must costs be paid?

A

14 days

197
Q

Who is the only party that can apply for a security of costs order?

A

Defendant

198
Q

Costs

What are the five criteria, one of which is enough, which the defendant must satisfy to make an application for a security of costs order?

A

Claimant:

  1. Resides outside jurisdiction
  2. Has changed address since claim started with a view to evading consequences of litigation, or provided no/incorrect address on the claim form
  3. Is suing for the benefit of a third-party
  4. Is corporate entity and there is reason to believe they won’t be able to pay costs
  5. Has taken steps regarding their assets that would make it difficult to enforce a costs order, e.g. moving them outside the jurisdiction
199
Q

Costs

In addition to improper, unreasonable, or negligent conduct, what are the two criteria for a court to make a wasted costs order against a solicitor?

Within what time limit of a wasted costs order being made must a solicitor inform their client?

A
  1. Conduct caused unnecessary cost, and
  2. It is just to make the order

7 days

200
Q

Part 36 offers

What is a Part 36 offer?

Who can make a Part 36 offer and what must they specify in the offer?

A

A formal, without prejudice offer, to settle a claim

Either party can make a Part 36 offer, and they must specify the amount they would be prepared to pay/accept to settle

201
Q

Part 36 offers

What may the offeror be awarded if they make a Part 36 offer pre-issue and the parties settle the claim before proceedings begin?

A

Pre-issue costs that they incurred

202
Q

What may the offeror be awarded if they make a Part 36 offer pre-issue but it is rejected by the other party, and the offeror wins the case?

A

Costs related to pre-action work, in addition to the costs of the litigation

203
Q

Part 36 offers

Can a Part 36 offer be withdrawn?

A

After the expiry of the relevant period, as long as the offeree has not served notice of acceptance

204
Q

Part 36 offers

If a notice of withdrawal or to change the terms to ones less favourable for the offeree is served before the expiry of relevant period, when does the notice take effect?

A

When the relevant period expires, unless the offeror accepts within that time (in which case the offer cannot be withdrawn/amended in the usual way)

205
Q

Part 36 offers

What two things must the court be satisfied of to grant permission to withdraw or amend a Part 36 offer after it has accepted?

A
  1. Change of circumstances since the offer was made
  2. In the interests of justice to give permission
206
Q

Part 36 offers

How must a Part 36 offer be accepted?

A

In writing

207
Q

Part 36 offers

When can a Part 36 offer be accepted?

A

At any time within the relevant period with no limitations, and after the relevant period as long as the offeror has not withdrawn the offer

208
Q

Part 36 offers

If a Part 36 offer, made by either party, is accepted within the relevant period, up until when will defendant pay the costs of the claim, and on what basis will they be assessed?

A

The defendant will pay costs on the standard basis up to the point of acceptance

209
Q

Part 36 offers

If a claimant accepts a defendant’s Part 36 offer outside the relevant period, up until when will the defendant’s liability to pay the claimant’s costs run?

A

Until the end of the relevant period

210
Q

Part 36 offers

What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?

A
  1. Claimant rejects defendant’s offer and fails to beat offer
  2. Defendant rejects claimant’s offer and claimant is awarded an amount equal to or greater than the offer
211
Q

Part 36 offers

What are the two situations where a Part 36 offer might will not cause cost-related difficulty for a party?

A
  1. Claimant rejects defendant’s offer and beats it
  2. Defendant rejects claimant’s offer and the claimant is awarded less
212
Q

Part 36 offers

Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?

A

Defendant will have costs awarded on a standard basis from the date when the relevant period of acceptance expired

Defendant will usually still have to pay costs up to the expiry of the relevant period

213
Q

Part 36 offers

Where a defendant rejects a claimant’s offer and claimant is awarded an amount equal to or greater than the offer, what is the consequence?

A

Unless it is unjust, for the period after the time for acceptance expired, costs will be assessed on an indemnity basis and the claimant will be entitled to 10% interest on top of costs accrued within this period.

214
Q

Part 36 offers

What things will the court consider when determining whether an order for failure to accept a Part 36 is unjust, such that the court will exercise discretion not to make the order?

A
  1. Stage of proceedings when the offer was made
  2. Conduct of the parties
  3. Whether the offer was a genuine attempt to settle
215
Q

Enforcement of money judgments

What is the annual interest rate of High Court judgments, from when does interest begin to accrue, and what is this interest in addition to?

A

8%, from the date of judgment, in addition to the any punitive interest the court may award on the value of the claim

216
Q

Enforcement of money judgments

What is the lower limit for a County Court judgment to be enforceable in the High Court?

A

£600

£600 is also the lower limit for a High Court enforcement officer to enforce a High Court judgment. County Court judgments are enforced by County Court enforcement officers

217
Q

Enforcement of money judgments

Within what period must a judgment creditor (successful party) serve a court order on a judgment debtor (losing party), for a hearing to examine the debtors means and assets?

What must the judgment creditor also file 2 days before the hearing?

A

14 days

Affidavit providing details of service and how much remains unpaid

218
Q

Enforcement of money judgments

What is a writ of control?

A

A document issued by the High Court where a judgment creditor has requested to execute a judgment, which is forwarded to the High Court enforcement officer

A warrant of control is the County Court version

219
Q

Enforcement of money judgments

If the creditor wishes to take control of debtor’s goods, how much notice must they give?

Within what period of serving must they take control?

A

Seven days

12 months

220
Q

Enforcement of money judgments

Where only can the creditor’s agent enter?

What must they do regarding goods seized?

A

Can only enter the address stated

Must provide an inventory of the goods, and sell them within 7 days and use the proceeds to discharge the debt and enforcement costs.

221
Q

Enforcement of money judgments

What two categories of items can the creditor not seize?

A
  1. Equipment for use in the debtor’s trade
  2. Household items necessary for basic domestic needs
222
Q

Enforcement of money judgments

What is taking control of goods?

A

The seizure and sale of debtor’s goods by an enforcement officer who sells them and uses the proceeds to satisfy the debtor’s debt.

223
Q

Enforcement of money judgments

What is a charging order on land?

A

Where the debtor has an interest in land (even if this is a joint interest), a creditor may obtain a charge on the property which will rank as an equitable mortgage and gives the creditor the right to apply for an order for sale

224
Q

Enforcement of money judgments

What is an attachment of earnings order?

A

Where an individual debtor is in regular employment, the order compels an employer to make regular deductions from the earnings and pay them into court

Must be sought in County Court

225
Q

Enforcement of money judgments

What is a third party debt order?

A

An order requiring a third party who owes money to the debtor to pay it directly to the creditor.

SQE2 (15 decks)

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