4a. Disputes

Question 1

Methods of dispute resolution

What are the four processes for resolving disputes?

Answer 1

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

Question 2

Methods of dispute resolution

What does the fact negotiations are without prejudice mean?

Answer 2

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

Question 3

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?

Answer 3

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

Question 4

Methods of dispute resolution

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

Answer 4

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).

Question 5

Methods of dispute resolution

What are the five key features of mediation?

Answer 5

1. Parties can walk away at any time
2. Strict rules of evidence do not apply
3. Mediation is non-binding until final written agreement is signed
4. Confidential
5. Promotes amicable solution

Question 6

Pre-action considerations: limitation

What is the outcome where a solicitor incurs costs advancing a claim which is statute-barred?

Answer 6

They will be deemed negligent and not acting in client’s best interests

Question 7

Pre-action considerations: limitation

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

Answer 7

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

Question 8

Pre-action considerations: limitation

What is the long stop limitation for latent defects?

Answer 8

Fifteen years

Question 9

Pre-action considerations: limitation

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

Answer 9

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

Question 10

Pre-action considerations: limitation

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

Answer 10

When the claimant first gains knowledge that they have a claim

Question 11

Pre-action considerations: limitation

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

Does the claimant need to know the precise details?

Answer 11

The point at which the claimant had sufficient knowledge of all the facts to commence investigations into the potential claim against the defendant

No, sufficient information is enough

Question 12

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 claimant know?

Answer 12

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

Question 13

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?

Answer 13

Three years from:

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

Question 14

Pre-action considerations: limitation

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

Answer 14

On the date of breach

Question 15

Pre-action considerations: limitation

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

Answer 15

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

Question 16

Pre-action considerations: limitation

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

Answer 16

Yes, but this will be subject to reasonableness requirements under the Unfair Contract Terms Act 1977 (see contract law slides on exclusion causes)

Question 17

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?

Answer 17

1. The day after the date of accrual
2. When the claimant delivers the properly completed claim form to the court with a request to issue together with the appropriate fee

Question 18

Pre-action considerations: limitation

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

Answer 18

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

Question 19

Pre-action considerations: limitation

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

Answer 19

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

Question 20

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?

Answer 20

Yes

Question 21

Pre-action considerations: limitation

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

Answer 21

On their 18th birthday

Question 22

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?

Answer 22

When they are certified as being of sound mind

The clock is not paused

Question 23

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?

Pre-action considerations: protocols and applications

Answer 23

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

Question 24

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?

Answer 24

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

No, protocols are not rules

Question 25

# 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?

Answer 25

Practice Direction on Pre-Action Conduct and Protocols 1. Claimant should write to defendant with **concise details of claim** 2. Defendant should respond within a reasonable time (**14 days** if straightforward case; no more than 3 months if complex) 3. Parties should **disclose key documents** 4. Court must give permission before an expert can be relied on

Question 26

# Pre-action considerations: protocols and applications What four things should a letter of claim under the Personal Injury Protocol include? ## Footnote What claims does the Personal Injury Protocol not apply to?

Answer 26

1. Summary of facts 2. Details of injuries and impact on day to day life 3. Hospital attended*, with reference number* 4. Indication of financial losses as known at this stage ## Footnote Clinical negligence

Question 27

# Pre-action considerations: protocols and applications Within what timeframe must a defendant respond to a letter of claim under the Personal Injury Protocol? ## Footnote What is the purpose of this timeframe, and in what situation is it waived, meaning the claimant can issue proceedings within the timeframe?

Answer 27

21 days ## Footnote It allows defendant to make a settlement offer, and is waived if the limitation period will expire within the 21 days

Question 28

# Pre-action considerations: protocols and applications Under the Personal Injury Protocol, if the defendant responds to the letter of claim within 21 days, how long do they have to investigate the claim? ## Footnote What is the claimant's option if the defendant does not respond to the letter of claim within 21 days?

Answer 28

Three months ## Footnote Claimant can issue proceedings

Question 29

# Pre-action considerations: protocols and applications How long does the defendant have to disagree with a list of suggested experts that the claimant must send under the Personal Injury Protocol? ## Footnote What is the situation if no joint expert can be agreed upon?

Answer 29

14 days ## Footnote Each party can instruct their own expert

Question 30

# Pre-action considerations: protocols and applications What are the consequences of not complying with *any* pre-action protocol? ## Footnote Does the court have discretion to relieve a party of their obligation to comply with the protocols?

Answer 30

1. Stay the proceedings to allow the Practice Direction or a step in a protocol 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 the claimant,* limit the amount of interest on the claim ## Footnote Yes

Question 31

# Pre-action considerations: protocols and applications What are three situations where the court is unlikely to criticise issuing proceedings without following a protocol?

Answer 31

1. Where the end of the limitation period is close 2. Where a court order is required to protect or preserve evidence or assets 3. Where there is concern the defendant may seek to issue proceedings in another country

Question 32

# Pre-action considerations: protocols and applications Where the parties are likely to get embroiled in proceedings, what two criteria must be satisfied for **pre-action disclosure** to be available? ## Footnote What is required for pre-action disclosure from a **non-party**?

Answer 32

1. The documents would be disclosed under standard disclosure rules 2. Disclosure now would assist in disposing the claim without proceedings ## Footnote Disclosure from non-party would support claim or adversely affect opponent's case, and is necessary to dispose of the matter or to save costs

Question 33

# Pre-action considerations: protocols and applications One of what two criteria must be satisfied for pre-action disclosure of **property**?

Answer 33

The property is: 1. Or may become the subject matter of proceedings 2. Relevant to the issues that will arise in proceedings

Question 34

# Starting proceedings: choice of court How are proceedings commenced?

Answer 34

Completing a claim form, which is then issued by the court and served on the defendant by either the court or the claimant's solicitor ## Footnote If court is to serve, claimant must include one copy of the complaint for each defendant and one for the court

Question 35

# 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?

Answer 35

**Personal injury**: £50,000 **All other cases**: £100,000 ## Footnote Although a claim exceeding £100,000 could be started in the County Court

Question 36

# Starting proceedings: choice of court What are three reasons why a claim might be best suited to the High Court?

Answer 36

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

Question 37

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

Answer 37

Complete a **money claim form** which will be issued by the *(now called)* Civil National Business Centre (CNBC) in Northampton. | Threshold is £100,000 ## Footnote The Civil National Business Centre in Northampton is where most other claims will also begin

Question 38

# Starting proceedings: choice of court Following receipt of a defence or admission, where will the CNBC normally transfer the claim if defendant is (1) an individual and (2) a company?

Answer 38

**Defendant is individual**: Hearing centre closest to D's home **Defendant is company**: Claimant's preferred hearing centre

Question 39

# Issuing proceedings What seven things must a claim form contain?

Answer 39

1. Names/addresses of parties 2. Details of claim 3. Value of claim and remedy sought *(if specified claim, specify the amount of the debt)* 4. Claimant's preferred court 5. Fees and costs 6. Particulars of claim *(optional as can be served on its own within 14 days of service of the claim form)* 7. Statement of truth

Question 40

# 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, and (4) a limited liability partnership or company?

Answer 40

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

Question 41

# Issuing proceedings What will a claim for damages always be, even if the claimant is able to itemise their loss in great detail?

Answer 41

An unspecified claim

Question 42

# Issuing proceedings If the claim is for damages, what must the claimant state on the claim form? ## Footnote Why?

Answer 42

What range they expect to recover in ## Footnote For the purposes of and using the same ranges as allocating to a track

Question 43

# Issuing proceedings In estimating value of a claim, what should the claimant focus on and what should they disregard?

Answer 43

**Focus on**: What **the claimant** is claiming for damages **Disregard**: Interest, costs, contributory negligence, any counterclaim

Question 44

# Issuing proceedings What are the two court fees and what are the thresholds for each to apply?

Answer 44

Case over £10,000 but less than £200,000: **5%** of claim value Claims over £200,000: **Fixed fee of £10,000**

Question 45

# Issuing proceedings What are the two options for including the Particulars of Claim?

Answer 45

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

Question 46

# Issuing proceedings Who usually signs the statement of truth?

Answer 46

The claimant, but the solicitor may sign it

Question 47

# Issuing proceedings What is a **Part 8 claim**?

Answer 47

A claim which does not involve a substantial dispute of the facts

Question 48

# Issuing proceedings What four things must a Part 8 claim state?

Answer 48

1. That Part 8 applies 2. Questions the claimant wants the court to decide 3. Details of the claim being made 4. Capacity of the representative if claim is made in a representative capacity

Question 49

# Issuing proceedings What two things must be served with a Part 8 claim form?

Answer 49

1. Witness evidence*, supported by a statement of truth* 2. Particulars of claim ## Footnote Note for a regular claim, the Particulars can be included in the claim form, included as a separate document with the claim form, or served separately within 14 days of service of the claim form. For Part 8, the Particulars must be included in the claim form

Question 50

# Issuing proceedings What are the consequences for a defendant who fails to respond to a Part 8 claim?

Answer 50

They cannot take part in the hearing, unless the court gives permission

Question 51

# Service of proceedings Why is service of a claim a critical step?

Answer 51

Because it triggers the defendant's obligation to respond

Question 52

# Service of proceedings Within how long of **issue** must a sealed claim form be served on the defendant where they are: (1) within the UK and (2) outside the UK? ## Footnote What is this period known as?

Answer 52

In the UK: **Four months** Outside the UK: **Six months** ## Footnote It is known as the claim form **validity period**

Question 53

# Service of proceedings If a claimant wishes to apply to have the claim form validity period extended, within what time period must the application be made? ## Footnote Only in what circumstances will the court grant it?

Answer 53

Application must be made **within the original validity period** ## Footnote Exceptional circumstances

Question 54

# Service of proceedings *Where a claimant'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?

Answer 54

The response pack

Question 55

# Service of proceedings *Where the defendant has nominated solicitors to accept service:* On whom must proceedings be served where (1) defendant is an individual, and (2) defendant is a company? ## Footnote What is allowed if the defendant has not nominated solicitors to accept service?

Answer 55

**Individual:** Must be served **on solicitors**, otherwise ineffective **Company:** *May* be served **on solicitors**, or also *may* be delivered or posted to the **company's registered address** ## Footnote If the defendant has not nominated solicitors to accept service, the claimant may serve the defendant personally

Question 56

# Service of proceedings How is personal service effected where the defendant is: (1) an individual; (2) a company; and (3) a partnership being sued in the firm name?

Answer 56

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

Question 57

# Service of proceedings What are the three requirements for service to be sent by fax?

Answer 57

1. Express consent in writing*, even if already communicating by fax* 2. Party has given a fax number to be contacted on 3. Fax number is within the jurisdiction ## Footnote The requirement that a party must give a fax number to be contacted on can be satisfied by a fax number on the firm's writing paper, **unless an express indication to the contrary is given**

Question 58

# Service of proceedings What are the two requirements for service to be sent by email?

Answer 58

1. Express consent*, even if already communicating by email* 2. Party has given an email address to be contacted on

Question 59

# Service of proceedings What are the three requirements for service to be sent by DX?

Answer 59

1. Party's address for service contains a DX number 2. DX number is on the party's writing paper 3. No express indication that service by DX is not acceptable

Question 60

# Service of proceedings What is the step required to effectuate service in the case of (1) post or DX, (2) fax, or (3) other electronic method?

Answer 60

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

Question 61

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

Answer 61

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

Question 62

# Service of proceedings As an aside, what is a **business day** per the Civil Procedure Rules?

Answer 62

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

Question 63

# Service of proceedings What should a claimant do if they believe a defendant no longer lives at an address? ## Footnote After these steps, what can the claimant do?

Answer 63

Take **reasonable steps** and make **reasonable enquiries** to ascertain the defendant's current address ## Footnote If they still cannot ascertain, claimant can serve on the defendant's last known address

Question 64

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

Answer 64

Indicate on acknowledgement of service, and make an application to set aside service within 14 days.

Question 65

# Service of proceedings If the claimant's solicitor is serving proceedings, within what time period must they file a certificate of service?

Answer 65

21 days

Question 66

# 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**?

Answer 66

Good reason for the order, e.g. service might not be achieved within the validity period ## Footnote This order can be retrospective and serve to greenlight previous steps taken to serve

Question 67

# 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 claimant beyond the validity period, i.e. four/six months from issue depending on where defendant is?

Answer 67

The Particulars of Claim **must** be served within the validity period

Question 68

# Responding to a claim Within what time of the date of **deemed service of the Particulars** of Claim must a defendant respond to a claim?

Answer 68

14 days ## Footnote Claimant can obtain judgment in default if defendant does not respond by this time

Question 69

# Responding to a claim What is the deemed date of service for first class post, services with next day delivery, and document exchange, where Particulars are not included with the claim form?

Answer 69

The **second day** (as long as it is a business day) after it was posted, left with, delivered to, or collected by the relevant service provider. If not a business day, then the next available business day

Question 70

# Responding to a claim What is the deemed date of service for personal delivery, fax, electronic service, and personal service, where Particulars are not included with the claim form?

Answer 70

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

Question 71

# Responding to a claim What are the three things a defendant can do in their response?

Answer 71

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 ## Footnote Admissions can be **withdrawn** with court permission

Question 72

# Responding to a claim If the defendant files an acknowledgement of service, how much additional time from the filing are they given to respond?

Answer 72

14 more days ## Footnote 14 days to respond acknowledging service, plus 14 days additional

Question 73

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

Answer 73

By agreement of the parties. For a **further 28 days** but not to exceed **56 days in total** from the date of deemed service ## Footnote 14 days to respond acknowledging service, plus 14 days additional, plus 28 further days if parties agree

Question 74

# Responding to a claim When will a defendant **not** have to file an Acknowledgement of Service?

Answer 74

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

Question 75

# Responding to a claim What three things can the defendant achieve on the Acknowledgement of Service form?

Answer 75

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** ## Footnote If the defendant disputes the court's jurisdiction, they must make such an application supported by written evidence, within 14 days of filing the acknowledgement. Defendant must also not file a defence, as this could be deemed submitting to the court's jurisdiction.

Question 76

# Responding to a claim What can the claimant do when the defendant files an acknowledgement of service?

Answer 76

Make an application for **summary** judgment or apply for an interim payment ## Footnote Summary judgment: defendant has **no real prospect of defending the claim**

Question 77

# Responding to a claim What can the claimant do when the defendant fails to respond to service within 14 days, or within the extended time limit?

Answer 77

Make an application for **default** judgment

Question 78

# Responding to a claim If the claimant is granted judgment in default because of the defendant's failure to respond, the defendant must show one of what two things to have default judgment set aside?

Answer 78

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

Question 79

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

Answer 79

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

Question 80

# Responding to a claim What happens if the defendant admits the whole claim, and the amount at issue is a specified sum?

Answer 80

The court will issue a judgment for the amount ## Footnote Admissions under £25,000 are binding

Question 81

# Responding to a claim If a defendant admits a claim during the protocol, what is the monetary threshold below which such an admission will be binding?

Answer 81

£25,000

Question 82

# Responding to a claim If a defendant wishes to withdraw an admission, what five things will the court consider in determining whether to grant permission for this?

Answer 82

1. Prejudice to the parties 2. Reasons the admission was made 3. Stress the party was under when they made the admission 4. Interests of the public 5. The timing of the application of the application to withdraw

Question 83

# Statements of case What is the purpose of the Particulars and what must it provide to be adequate?

Answer 83

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

Question 84

# Statements of case What should the particulars include in a contract claim?

Answer 84

* Parties to the agreement * Nature of the agreement * Terms that claimant alleges the defendant breached * Facts showing breach and loss

Question 85

# Statements of case What should the particulars include in a negligence claim (1) generally and (2) arising from a road traffic accident?

Answer 85

**Negligence** * 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 * Statement of truth *Additional for* **Road Traffic Accident** * Brief description of the collision *(date, time, place)* * Details of any **criminal conviction** arising from the collision

Question 86

# Statements of case What should the particulars include in an employers' liability claim in tort?

Answer 86

* 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

Question 87

# Statements of case What must a claimaint do when they are claiming interest on damages?

Answer 87

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

Question 88

# Statements of case What eight things must a claimant include in the Particulars if they wish to rely on them?

Answer 88

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

Question 89

# Statements of case If a defendant wishes to **defend** a claim, on whom must they serve the defence?

Answer 89

Every other party to the claim

Question 90

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

Answer 90

1. Admit 2. Deny 3. Non-admission ## Footnote 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**

Question 91

# Statements of case What must a defendant do if they deny a paragraph?

Answer 91

State reasons for doing so, or set out an alternate version of events ## Footnote If they simply dispute the claimant'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.

Question 92

# Statements of case When may a defendant neither admit nor deny a paragraph?

Answer 92

When the facts alleged in the paragraph are outside the defendant's knowledge

Question 93

# Statements of case What happens when the defendant admits **damages** but denies **liability**?

Answer 93

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

Question 94

# Statements of case What must the defendant do if they raise a limitation issue in the defence?

Answer 94

State the date on which the defendant alleges the limitation period expired, with the reasons why

Question 95

# Statements of case What is a **reply**, is it mandatory, and when will it typically be used? ## Footnote Can a reply be used to rectify mistakes in or omissions from the particulars?

Answer 95

A reply is an **optional** response sent by claimant to defendant, usually only if something has been raised in the defence which *requires a response* ## Footnote No, it can only be used to deal with points **raised in the defence** which were not covered by the particulars

Question 96

# Statements of case What are the four types of claim available to a **defendant** under Part 20?

Answer 96

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

Question 97

# Statements of case What are the four key features/requirements of a counterclaim? ## Footnote When is court permission required and not required to file a counterclaim?

Answer 97

1. Brought by existing defendant against the claimant within the same proceedings 2. Arises out of the **same** or **substantially the same** facts as the claimant's claim against defendant 3. Monetary claim in its own right 4. Is not a defence ## Footnote Permission not required if counterclaim is filed with defence. Permission required after this time.

Question 98

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

Answer 98

Defendant claims a person who is not a party to the case has caused the claimant'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)* ## Footnote Court permission the same as counterclaim

Question 99

# Statements of case What is a claim seeking contribution or indemnity under Part 20?

Answer 99

Defendant claims that if they are found liable to the claimant, another party to the claim (usually another defendant) is liable to repay some of the amount *(contribution)* or all of the amount *(indemnity)* ## Footnote 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

Question 100

# Statements of case What is always required for a counterclaim against a third party under Part 20?

Answer 100

Court permission

Question 101

# Statements of case How is an additional Part 20 claim served in cases where permission is not required? ## Footnote How is an additional Part 20 claim served if issued later than this time?

Answer 101

It is served on each party to the claim when the defence is filed ## Footnote It must be served on the person against whom it is made within 14 days

Question 102

# 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?

Answer 102

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

Question 103

# Statements of case Where additional claims are brought by the defendant, 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?

Answer 103

1. **File a defence**, if already a party 2. **File an acknowledgement and/or defence**, if not already a party ## Footnote Same rules apply to them as the original defendant at the beginning

Question 104

# 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?

Answer 104

Only if the party does not adequately respond within a reasonable time ## Footnote If a party objects to a request for information, they should respond providing reasons why

Question 105

# Statements of case What are five grounds for objecting to a request for information?

Answer 105

1. Unnecessary, irrelevant, or improper 2. Unable to provide information/clarification 3. Insufficient time to reply 4. Disproportionately expensive to reply 5. Privilege ## Footnote Something is **relevant** if it relates to matters which are **disputed by the parties**

Question 106

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

Answer 106

**Before**: Can be amended at any time without permission **After**: Written consent of all parties or court permission required

Question 107

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

Answer 107

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

Question 108

# Statements of case What are the two requirements which must be satisfied for a court to grant an application **substituting** a party?

Answer 108

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

Question 109

# Statements of case What is required to add or substitute a party **after the limitation period has expired**?

Answer 109

1. Relevant limitation period must have been live when proceedings were **started**, **and** 2. The addition or substitution is **necessary** ## Footnote Necessary can come from: new party substituting for a party named in the claim by mistake; or original party has died or is bankrupt

Question 110

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

Answer 110

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

Question 111

# Case management To reiterate, what are the thresholds on the **small claims track** for: (1) claims generally (2) road traffic accidents (3) personal injury if the value of pain, suffering and loss of amenity is below a threshold, and (4) personal injury generally?

Answer 111

1. £10k 2. £5k 3. £5k 4. £1k

Question 112

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

Answer 112

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

Question 113

# 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?

Answer 113

Fixed costs and reasonable expenses. Expert fees limited to £750.

Question 114

# Case management What are the range/threshold on the **fast track** for: (1) claims generally (2) road traffic accidents, and (3) personal injury generally? ## Footnote What is the other category of case which can be dealt with on the fast track?

Answer 114

1. £10k - 25k 2. £5k - 25k 3. £1k - 25k ## Footnote Cases with **no monetary value**

Question 115

# Case management If a case is allocated to the **fast track**, within what time limit must the trial take place?

Answer 115

30 weeks

Question 116

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

Answer 116

1. Court prefers written rather than oral evidence 2. Use of *single joint expert* is encouraged ## Footnote Witness statement stands as **evidence in chief** meaning it has the same weight as if the witness had testified in court

Question 117

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

Answer 117

Proportionate to the amount in dispute ## Footnote Parties must submit cost schedules ahead of the costs hearing

Question 118

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

Answer 118

* Claim exceeds **£25k**, or * Lesser value but trial will last **more than one day**

Question 119

# Case management What is the Directions Questionnaire, and what does it ask? ## Footnote Within what time limit must the parties complete and return it?

Answer 119

Questionnaire sent by the court with the Notice of 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 ## Footnote 28 days of receiving the Notice of Allocation, and **cannot be extended**

Question 120

# Case management At what stage is a **Directions Order** made? ## Footnote What does it set out?

Answer 120

Once the case is allocated to the small-claims or fast tracks *(Multi-track directions are usually given at the Case Management Conference)* ## Footnote The schedule for how the case will progress: disclosure, witness statement exchange, expert reports, trial, etc.

Question 121

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

Answer 121

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

Question 122

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

Answer 122

14 days ## Footnote Make an immediate application to the court for an unless order

Question 123

# 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?

Answer 123

1. Disclosure report: **14 days** 2. Cost budget: **7 days**

Question 124

# 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?

Answer 124

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

Question 125

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

Answer 125

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

Question 126

# 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?

Answer 126

1. Seriousness of the breach, and 2. Reasons for the breach

Question 127

# Interim applications What is an interim application? ## Footnote How soon should they be made?

Answer 127

Any pre-trial application made to the court which requires a judicial decision ## Footnote As soon as it is apparent that it is necessary or desirable

Question 128

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

Answer 128

It should be raised at that hearing, if possible

Question 129

# Interim applications Unless there is **good reason** why notice should not be required, what notice of an interim application must be given to parties (1) generally, and (2) if over the telephone? ## Footnote What is an example of a good reason?

Answer 129

1. Three clear days 5. Five clear days ## Footnote Notice would provide the other party an opportunity to dispose of evidence or assets

Question 130

# Interim applications Other than what two types of orders would it be extremely unusual to not give notice of an interim application? ## Footnote Where an interim application is made without notice, what must it include?

Answer 130

1. Freezing injunction 2. Search order ## Footnote Evidence explaining the good reason

Question 131

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

Answer 131

1. The order 2. Application notice 3. Supporting evidence

Question 132

# 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?

Answer 132

7 days

Question 133

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?

Answer 133

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

Question 134

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

Answer 134

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

Question 135

# Interim applications What two things does the applicant have to file and serve on the court within 2 days of the hearing on the interim application?

Answer 135

1. Case summary 2. Proposed draft order

Question 136

# Interim applications What is the difference between default judgment and summary judgment?

Answer 136

**Default judgment**: Defendant 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

Question 137

# Interim applications What are the two criteria which the applicant must satisfy when applying for **summary judgment**? ## Footnote Before when can the claimant not make an application for summary judgment?

Answer 137

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

Question 138

# 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 other party** (2) Other party must serve evidence in response, and (3) Applicant must serve any further evidence in response to (2)?

Answer 138

1. **14** days 2. **7** days 3. **3** days ## Footnote Same for interim payments

Question 139

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

Answer 139

**Application to strike**: goes to procedure **Summary judgment**: goes to merits

Question 140

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

Answer 140

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

Question 141

# Interim applications What are the three conditions, one of which is required for an order of **interim payment** to be made? ## Footnote Are interim payments mandatory or discretionary?

Answer 141

1. Defendant has **admitted liability** 2. Claimant has **obtained judgment** but the sum to be paid is not yet assessed; or 3. The court is satisfied that if the action proceeded to trial, the **claimant would obtain judgment** for a substantial sum *(and in cases with multiple defendants, from at least one of them and each carries insurance)* ## Footnote Discretionary, and the court will not grant one if it would cause an injustice

Question 142

# Interim applications Before making an application for interim payment, what should the applicant do? ## Footnote Before when can the claimant not make an application for interim payment?

Answer 142

Request that the defendant make a payment voluntarily ## Footnote Before defendant receives particulars and serves either an acknowledgement or defence, i.e. claim must be live from defendant's point of view

Question 143

# Interim applications In an application for interim payment, what three things must the claimant's written evidence contain? | Does claimant need to demonstrate need? ## Footnote What additional thing should be included in a personal injury claim?

Answer 143

1. Sum of money sought 2. Items and matters in respect of which payment is sought 3. An estimate of the final judgment | No ## Footnote Medical records should be attached to estimate of judgment; and a schedule of loss with details of past and future loss

Question 144

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

Answer 144

Yes

Question 145

# Interim applications What is an injunction? | What are the two types? ## Footnote When is an injunction considered interim, and when is it considered final?

Answer 145

A court order that requires a party to do or stop doing something. | Mandatory and prohibitory ## Footnote Interim if made **before trial**; final if **at trial**

Question 146

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

Answer 146

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

Question 147

# Interim applications How can a party apply to have the injunction discharged?

Answer 147

By applying on notice to a judge of the division where the claim is proceeding

Question 148

# Interim applications What are the three grounds that can be argued in support of an application to discharge an injunction?

Answer 148

1. Applicant did not disclose all information when applying, or did not comply with its terms, or failed to prosecute claim with speed 2. Relief is oppressive, or not justified 3. Material change in circumstances

Question 149

# Interim applications What is a freezing injunction? ## Footnote To whom must an application for one be made?

Answer 149

A type of prohibitory injunction designed to freeze the assets of the defendant ## Footnote A High Court judge only

Question 150

# Interim applications What are the three requirements of which a court must be satisfied before granting a freezing injunction?

Answer 150

1. Strong case on the merits 2. Defendant has assets within the jurisdiction 3. Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced

Question 151

# Interim applications What two things must be true of a freezing injunction? ## Footnote When will a freezing injunction bind third parties?

Answer 151

1. The assets frozen should not exceed the maximum amount of the claim, and 2. The order must state the period of time it will be in effect ## Footnote When they have knowledge of it

Question 152

# Interim applications What must a defendant offer in order to apply for discharge of a freezing injunction?

Answer 152

Security for the value of the claim

Question 153

# Interim applications What is a search order? ## Footnote To whom must an application for one be made?

Answer 153

A last resort order applied for without notice by the applicant if it is clear the defendant will not obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant to search for and potentially seize this evidence ## Footnote A High Court judge only; same as freezing injunction

Question 154

# Interim applications What are the three requirements of which a court must be satisfied before granting a search order?

Answer 154

1. Strong case on the merits 2. Defendant's activities cause very serious potential or actual harm to the claimant's interest, and 3. Clear evidence that the property and documents are in the defendant's possession **and** there is a real possibility the material may be destroyed

Question 155

# Interim applications What three things will the **independent supervising solicitor** who oversees execution of a search order undertake to do?

Answer 155

1. Offer to **explain the meaning and effect** of the order to the defendant 2. Inform the defendant of their **right to seek legal advice** and **right to apply to vary or discharge** the order, and 3. Prepare a written report on execution and provide it to the claimant's solicitor and the court

Question 156

# Interim applications In the context of a search order, what three things will the **claimant's solicitor** undertake to do?

Answer 156

1. Return original documents to the defendant within **two days** 2. Deliver property in dispute to defendant's solicitors, and 3. Retain all other property securely until the court directs otherwise

Question 157

# Disclosure What does **disclosure** mean? ## Footnote For how long does the duty to disclose run and when does it terminate?

Answer 157

Clearly identify and inform the other side of **the existence** of a **relevant** document ## Footnote Continues through the whole case and concludes when the case is over

Question 158

# Disclosure What two types of documents must be disclosed? ## Footnote What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?

Answer 158

Documents which: 1. Support your case 2. Are adverse to your case ## Footnote Cease to act

Question 159

# Disclosure How far does the obligation to disclose go? ## Footnote Does a party need to have possession?

Answer 159

A party's obligation to disclose extends to any document within the party's **control** ## Footnote No, a right to control is sufficient

Question 160

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

Answer 160

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

Question 161

# Disclosure What is the obligation when a document is unavailable or has been destroyed? ## Footnote Can the court draw an adverse inference from this?

Answer 161

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

Question 162

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

Answer 162

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

Question 163

# 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?

Answer 163

1. Documents a party controls that they **do not object** to the other party inspecting 2. Documents a party controls that they **do object** to the other party inspecting *(along with reasons)* 3. Documents that are no longer in a party's control

Question 164

# Disclosure Who signs the disclosure statement detailing the extent of the search made? ## Footnote What is declared in the disclosure statement?

Answer 164

The party, not their solicitor ## Footnote 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

Question 165

# Disclosure Under standard directions, within what time limit from that point must the disclosure lists be served? ## Footnote Within what time limit should inspection occur?

Answer 165

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

Question 166

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

Answer 166

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 ## Footnote 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

Question 167

# Disclosure Unless challenged, what does disclosure of a document provide?

Answer 167

An automatic right to inspect it

Question 168

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

Answer 168

1. Privilege 2. Document no longer in party's control 3. Disproportionate to allow inspection

Question 169

# Disclosure Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track? ## Footnote Within what time limit of what event must this be filed?

Answer 169

Disclosure **report** ## Footnote At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.

Question 170

# Disclosure Must a document which is privileged still be **disclosed**?

Answer 170

Yes, but it can be withheld from **inspection**

Question 171

# Disclosure What are the four types of privilege and the one immunity which functions like a privilege? ## Footnote Only whom can waive privilege?

Answer 171

1. Legal advice privilege 2. Litigation privilege 3. Common interest privilege 4. Without prejudice privilege 5. Public interest *immunity* ## Footnote The client

Question 172

# Disclosure What does legal advice privilege protect?

Answer 172

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

Question 173

# Disclosure What does litigation privilege protect? ## Footnote Who bears the burden of proving litigation privilege?

Answer 173

Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation ## Footnote The party seeking to assert it

Question 174

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

Answer 174

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

Question 175

# Disclosure What is the one requirement of the common interest for *common interest privilege* to apply? ## Footnote Does common interest privilege subsist if there is a subsequent breakdown in the parties' relationship?

Answer 175

The common interest **must have been present** at the time of disclosure between the parties ## Footnote Yes

Question 176

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

Answer 176

Court permission

Question 177

# Witness evidence What are the two types of witness evidence?

Answer 177

1. Direct 2. Circumstantial

Question 178

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

Answer 178

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

Question 179

# Witness evidence What is possible if a witness statement cannot be obtained?

Answer 179

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

Question 180

# Witness evidence What happens if a witness statement is not served, and what is a way around this?

Answer 180

Party cannot call that witness, *unless they receive court permission by showing **good reason for the failure to serve***

Question 181

# 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?

Answer 181

7 days ## Footnote Summons must contain conduct money or it is ineffective

Question 182

# 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?

Answer 182

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

Question 183

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

Answer 183

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

Question 184

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

Answer 184

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

Question 185

# Witness evidence What six factors will the court consider when determining the weight to apply to a witness statement entered as evidence where the witness does not come to court?

Answer 185

1. Reasonable/practicable to force witness to attend? 2. Original statement made contemporaneous with the event? 3. Single or multiple hearsay? 4. Motive to misrepresent facts? 5. Was original statement edited? 6. Does the situation suggest attempt to prevent proper evaluation of evidence?

Question 186

# 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? ## Footnote 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?

Answer 186

Must serve notice on the other side. If the witness is attending court, **the witness statement itself constitutes notice**. ## Footnote 14 days

Question 187

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

Answer 187

Details of a criminal conviction arising from the same events

Question 188

# Witness evidence What are four types of evidence that is **inadmissible**? ## Footnote Does the court have discretion to disallow evidence which would otherwise be admissible?

Answer 188

1. Opinion evidence, *except from experts* 2. Evidence that is privileged or protected by public interest immunity 3. Communications that are without prejudice 4. Any evidence which is irrelevant ## Footnote Yes

Question 189

# 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?

Answer 189

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

Question 190

# Witness evidence One of what three things must occur for a party to have their own witness declared as **hostile** by the court? ## Footnote What is the effect of a witness being declared hostile?

Answer 190

1. Witness is unfavourable to the side who called them 2. Lack of cooperation to tell the truth on behalf of party who called them, or 3. Evidence is entirely inconsistent with their witness statement ## Footnote They can be cross-examined by the party who called them

Question 191

# Witness evidence What is similar fact evidence? ## Footnote What must it be to be admissible?

Answer 191

Evidence of previous incidents or conduct as evidence of similar conduct in the case in question*, e.g. a driver having nine points on their license for three separate instances of running red lights is evidence that, on balance of probabilities, they ran the red light in this case* ## Footnote Must be **relevant** to be admissible

Question 192

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

Answer 192

1. They must be qualified to give the opinion 2. Their expert evidence must be *reasonably required* to resolve proceedings ## Footnote Qualified does not mean a formal degree is needed; experience is sufficient

Question 193

# Expert evidence If expert evidence is allowed, what are the three conditions it is still subject to?

Answer 193

1. Opinion must stem from **special knowledge, skill, or training** that is **not within the ordinary experience of a judge** 2. Expert must be **reasonably certain** of their opinion 3. Expert must demonstrate the basis of their opinion and conclusions ## Footnote Judge will ultimately determine if the witness is truly an expert

Question 194

# Expert evidence What is the duty owed to the court by an expert?

Answer 194

To exercise **independence**, **integrity**, and **impartiality** ## Footnote This overrides their obligation to the person who instructed/paid them

Question 195

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

Answer 195

No, the default is a written report

Question 196

# 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?

Answer 196

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

Question 197

# Expert evidence What is the difference between an **agreed expert** in a personal injury case, and a **single joint expert** generally?

Answer 197

An **agreed expert** is one chosen by a claimant in a personal injury case. The defendant does not have to agree to jointly instruct an agreed expert and the defendant retains the right to instruct their own. 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.

Question 198

# Expert evidence In what four instances may the court allow parties to have their *own expert*?

Answer 198

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

Question 199

# Expert evidence Is an expert's report privileged?

Answer 199

Until disclosed ## Footnote Expert's report need only be disclosed if the party intends to rely on it

Question 200

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

Answer 200

28 days

Question 201

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

Answer 201

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

Question 202

# Trial What is the usual order used to record settlement? ## Footnote What is the consequence of not using an order?

Answer 202

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

Question 203

# Trial What are the two parts of a Tomlin Order? ## Footnote What happens if a party defaults?

Answer 203

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** ## Footnote Proceedings can recommence

Question 204

# Trial What is the maximum word count for the case summary filed before the pre-trial review hearing, and what three things should it specify?

Answer 204

Case summary must not exceed **500 words** and should specify: 1. Issues of fact 2. What is in dispute 3. Synopsis of the evidence

Question 205

# Trial How many trial bundles should the claimant's solicitor prepare, and who bears the expense of this? ## Footnote Within what time period before trial should the trial bundles be filed?

Answer 205

The claimant's solicitor must prepare one bundle each for each party and witness, and the claimant bears the expense of this ## Footnote Between 3 and 7 days before trial

Question 206

# Trial In what two circumstances will court permission be required to discontinue a case? ## Footnote What is the costs consequence for the claimant of discontinuing a case?

Answer 206

1. Court has granted an interim injunction 2. Claimant has received an interim payment (unless paying party consents) ## Footnote Claimant liable to pay the defendant's costs up until that point *(subject to cost shifting applicable to personal injury)*

Question 207

# 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? ## Footnote Is there an automatic right to appeal in civil cases?

Answer 207

1. Circuit Judge 2. High Court Judge 3. High Court Judge 4. Lord Justice of Appeal 5. Justice of Supreme Court ## Footnote No

Question 208

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

Answer 208

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

Question 209

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

Answer 209

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

Question 210

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

Answer 210

Within **21 days** of the date the judgment or order they are seeking to appeal was *handed down* ## Footnote Appeals can be made orally immediately after the judge makes the decision to be appealed

Question 211

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

Answer 211

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

Question 212

# Appeals In the case of not seeking permission from a lower court, and not requesting a time extension, such that application is barred, to what court can a party make a special case that permission should be applied retrospectively? ## Footnote How will this court treat the application?

Answer 212

Court of Appeal ## Footnote As a relief from sanctions, requiring the applicant to show good reason for the breach and that relief is reasonable in the circumstances

Question 213

# Appeals What is an appeal hearing limited to? ## Footnote Can a party rely on evidence that was not available in the original hearing?

Answer 213

A review of the decision of the lower court ## Footnote Not without permission

Question 214

# Costs What does the indemnity **principle** provide?

Answer 214

A party can not recover more from an opponent than they are liable to pay their own legal representative

Question 215

# Costs What are the two bases of costs assessment?

Answer 215

1. Standard basis 2. Indemnity basis

Question 216

# Costs What occurs under the standard basis of costs assessment?

Answer 216

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

Question 217

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

Answer 217

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**.

Question 218

# Costs What are the two ways a party can file their costs budget on the multi-track, depending on the value of the case? ## Footnote What is the possible consequence of not filing a budget?

Answer 218

1. **£50,000 and below**: filed with Directions Questionnaire 2. **Over £50,000**: filed 21 days before Case Management Conference ## Footnote Costs may not be recoverable, beyond court fees

Question 219

# Costs What are inter-partes costs?

Answer 219

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

Question 220

# 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?

Answer 220

1. 24 hours 2. Two days

Question 221

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

Answer 221

The receiving party prepares a **bill of costs** and serves within **three months** of judgment or order ## Footnote 21 days

Question 222

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

Answer 222

14 days

Question 223

Who is the only party that can apply for a security of costs order, and what is the logic being precluding the other party?

Answer 223

**Defendant**, as they cannot stop the claimant bringing proceedings, but the claimant is free to continually assess whether the defendant is worth suing

Question 224

# 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?

Answer 224

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

Question 225

# Costs What is qualified one-way costs shifting in personal injury claims, and what are the three situations where it will not apply? ## Footnote When is qualified one-way costs shifting not available?

Answer 225

In an unsuccessful personal injury claim, the claimant does not pay the defendant's costs *unless*: 1. Claim was fundamentally dishonest 2. Claim was made for the financial benefit of another, or 3. Claim was struck out for disclosing no cause of action, or abuse ## Footnote Where a claimant refused a Part 36 offer to settle and fails to beat that amount at trial, the defendant can recover costs up to the level of damages awarded

Question 226

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

Answer 226

1. Conduct caused **unnecessary cost**, and 2. It is **just** to make the order ## Footnote 7 days

Question 227

# Part 36 offers What is a Part 36 offer? ## Footnote Who can make a Part 36 offer and what must they specify in the offer?

Answer 227

A formal, without prejudice offer, to settle a claim ## Footnote Either party can make a Part 36 offer, and they must specify the amount they would be prepared to pay/accept to settle

Question 228

# 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?

Answer 228

Pre-issue costs that they incurred

Question 229

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?

Answer 229

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

Question 230

# Part 36 offers Can a Part 36 offer be withdrawn?

Answer 230

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

Question 231

# 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?

Answer 231

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)

Question 232

# 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?

Answer 232

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

Question 233

# Part 36 offers How must a Part 36 offer be accepted?

Answer 233

In **writing**

Question 234

# Part 36 offers When can a Part 36 offer be accepted?

Answer 234

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

Question 235

# 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?

Answer 235

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

Question 236

# 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?

Answer 236

Until the end of the relevant period

Question 237

# Part 36 offers What is required to accept a Part 36 offer from a single defendant in a case with multiple defendants?

Answer 237

Court permission

Question 238

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

Answer 238

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

Question 239

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

Answer 239

1. Claimant rejects defendant's offer and beats it 2. Defendant rejects claimant's offer and the claimant is awarded less

Question 240

# Part 36 offers Where a claimant rejects a defendant's offer and fails to beat the offer, what is the consequence?

Answer 240

Defendant will have costs awarded on a standard basis from the date when the relevant period of acceptance expired ## Footnote Defendant will usually still have to pay costs up to the expiry of the relevant period

Question 241

# 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?

Answer 241

**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.

Question 242

# 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?

Answer 242

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

Question 243

# 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?

Answer 243

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

Question 244

# Enforcement of money judgments What is the monetary threshold in County Court, under which interest will not be payable, and what is the exception to this? ## Footnote What is the interest rate on County Court judgments above this threshold?

Answer 244

£5,000, except for when the dispute is based in contract, and the contract provides for interest ## Footnote 8%, the same as the High Court

Question 245

# Enforcement of money judgments What is the lower limit for a County Court judgment to be **enforceable** in the High Court?

Answer 245

£600 ## Footnote £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

Question 246

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

Answer 246

14 days ## Footnote Affidavit providing details of service and how much remains unpaid

Question 247

# Enforcement of money judgments What is a writ of control?

Answer 247

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 ## Footnote A warrant of control is the County Court version

Question 248

# Enforcement of money judgments If the creditor wishes to take control of debtor's goods, how much notice must they give? ## Footnote Within what period of serving must they take control?

Answer 248

Seven days ## Footnote 12 months

Question 249

# Enforcement of money judgments Where only can the creditor's agent enter? ## Footnote What must they do regarding goods seized?

Answer 249

Can only enter the address stated ## Footnote Must provide an inventory of the goods, and sell them within **7 days** and use the proceeds to discharge the debt and enforcement costs.

Question 250

# Enforcement of money judgments What two categories of items can the creditor **not** seize?

Answer 250

1. Equipment for use in the debtor's trade 2. Household items necessary for basic domestic needs

Question 251

# Enforcement of money judgments What is a controlled goods agreement?

Answer 251

An agreement whereby the debtor retains **custody** of the goods on the understanding that the **enforcement officer is taking control**, but the debtor agrees not to dispose of them before the debt is paid

Question 252

# Enforcement of money judgments What is a charging order on land?

Answer 252

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

Question 253

# Enforcement of money judgments What is an attachment of earnings order?

Answer 253

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 ## Footnote Must be sought in County Court