4a. Disputes Flashcards
Methods of dispute resolution
What are the four processes for resolving disputes?
- Litigation
- Negotiation
- Arbitration
- Mediation
Methods of dispute resolution
What does the fact negotiations are without prejudice mean?
Conversations cannot be relied on by parties or referred to in courts
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?
- Lawyers should make their clients aware of it
- Possibility of ADR should be considered throughout a proceeding
Methods of dispute resolution
If a party considers ADR inappropriate, but does not set out their reasons, what can the court do?
Penalise the party in respect of legal costs that they can recover, or an order making them pay costs incurred by the other side as a result of the conduct
This applies to failure to follow Civ Pro rules generally
Methods of dispute resolution
What are the three key features of mediation?
- Parties can walk away at any time
- Strict rules of evidence do not apply
- Mediation is non-binding until final written agreement is signed
Pre-action considerations: limitation
What is the outcome where a solicitor incurs costs advancing a claim which is statute-barred?
They will be deemed negligent and not acting in client’s best interests
Pre-action considerations: limitation
What is the limitation period for:
(1) breach of contract and most claims in tort;
(2) personal injury and fatal accident claims;
(3) defamation claims;
(4) unfair dismissal claims?
- Six years
- Three years
- One year
- Three months
Pre-action considerations: limitation
What is the long stop limitation for latent defects?
Fifteen years
Pre-action considerations: limitation
In a tort action, when does the limitation period begin running?
Generally, from the date the cause of action accrues, i.e. when the tort occurs
Pre-action considerations: limitation
In a tort action where the claimant’s injury is not apparent, when does the limitation period begin running?
When the claimant first gains knowledge that they have a claim
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?
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
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?
- That the injury is significant
- That it is attributable in whole or part to the act or omission alleged
- Knowledge of the defendant
- 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
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?
Three years from:
- Date of death, or
- Date of knowledge of the deceased’s personal representative
Pre-action considerations: limitation
In a contract action, when does the limitation period begin running?
On the date of breach
Pre-action considerations: limitation
What is a make good clause in a contract and can they be used to override statutory limitation periods?
They are clauses, typically in construction contracts, that the construction company will make good on any defects for a period, usually 1-2 years, after construction.
They are irrelevant to statutory limitation periods, unless they expressly limit the period and are reasonable per Unfair Contract Terms Act 1977.
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?
Three years from the earliest date on which the claimant knew or ought reasonably to have known material facts necessary to bring an action
Pre-action considerations: limitation
Is it possible to expressly shorten a limitation period in a contract?
Yes, but this will be subject to reasonableness requirements under the Unfair Contract Terms Act 1977 (see contract law slides on exclusion causes)
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?
- The day after the date of accrual
- When the claimant delivers the properly completed claim form to the court with a request to issue together with the appropriate fee
Pre-action considerations: limitation
What occurs if the limitation period expires on a day when the court office is closed?
The action will still be on time as long as the documents/fee are filed on the next business day
Pre-action considerations: limitation
Is it possible to add a new party to proceedings after the limitation period has expired?
No, unless an application to disapply the limitation period is made to the court
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?
Yes
Pre-action considerations: limitation
When does the limitation period begin to run where a claimant is a minor?
On their 18th birthday
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?
When they are certified as being of sound mind
The clock is not paused
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
When the claimant discovers the fraud/concealment or mistake, or could have done so with reasonable diligence
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?
To focus the parties on trying to settle the dispute without litigation
No, protocols are not rules
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?
Practice Direction on Pre-Action Conduct and Protocols
- Claimant should write to defendant with concise details of claim
- Defendant should respond within a reasonable time (14 days if straightforward case; no more than 3 months if complex)
- Parties should disclose key documents
- Court must give permission before an expert can be relied on
Pre-action considerations: protocols and applications
What four things should a letter of claim under the Personal Injury Protocol include?
What claims does the Personal Injury Protocol not apply to?
- Summary of facts
- Details of injuries and impact on day to day life
- Hospital attended, with reference number
- Indication of financial losses as known at this stage
Clinical negligence
Pre-action considerations: protocols and applications
Within what timeframe must a defendant respond to a letter of claim under the Personal Injury Protocol?
What is the purpose of this timeframe, and in what situation is it waived, meaning the claimant can issue proceedings within the timeframe?
21 days
It allows defendant to make a settlement offer, and is waived if the limitation period will expire within the 21 days
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?
What is the claimant’s option if the defendant does not respond to the letter of claim within 21 days?
Three months
Claimant can issue proceedings
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?
What is the situation if no joint expert can be agreed upon?
14 days
Each party can instruct their own expert
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?
- Stay the proceedings to allow the Practice Direction or a step in a protocol to be complied with
- Order the non-compliant party to pay costs, or pay higher interest on damages
- If the non-compliant party is the claimant, limit the amount of interest on the claim
Yes
Pre-action considerations: protocols and applications
What are three situations where the court is unlikely to criticise issuing proceedings without following a protocol?
- Where the end of the limitation period is close
- Where a court order is required to protect or preserve evidence or assets
- Where there is concern the defendant may seek to issue proceedings in another country
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?
What is required for pre-action disclosure from a non-party?
- The documents would be disclosed under standard disclosure rules
- Disclosure now would assist in disposing the claim without proceedings
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
Pre-action considerations: protocols and applications
One of what two criteria must be satisfied for pre-action disclosure of property?
The property is:
- Or may become the subject matter of proceedings
- Relevant to the issues that will arise in proceedings
Starting proceedings: choice of court
How are proceedings commenced?
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
If court is to serve, claimant must include one copy of the complaint for each defendant and one for the court
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?
Personal injury: £50,000
All other cases: £100,000
Although a claim exceeding £100,000 could be started in the County Court
Starting proceedings: choice of court
What are three reasons why a claim might be best suited to the High Court?
- Financial value/amount in dispute
- Complexity of the case
- 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
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?
Complete a money claim form which will be issued by the (now called) Civil National Business Centre (CNBC) in Northampton.
Threshold is £100,000
The Civil National Business Centre in Northampton is where most other claims will also begin
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?
Defendant is individual: Hearing centre closest to D’s home
Defendant is company: Claimant’s preferred hearing centre
Issuing proceedings
What seven things must a claim form contain?
- Names/addresses of parties
- Details of claim
- Value of claim and remedy sought (if specified claim, specify the amount of the debt)
- Claimant’s preferred court
- Fees and costs
- Particulars of claim (optional as can be served on its own within 14 days of service of the claim form)
- Statement of truth
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?
- Individual: Full unabbreviated name
- Individual carrying on business: Full unabbreviated name with their trading as name
- General partnership: Full name of partnership with “(a firm)”
- LLP/company: Registered name
Issuing proceedings
What will a claim for damages always be, even if the claimant is able to itemise their loss in great detail?
An unspecified claim
Issuing proceedings
If the claim is for damages, what must the claimant state on the claim form?
Why?
What range they expect to recover in
For the purposes of and using the same ranges as allocating to a track
Issuing proceedings
In estimating value of a claim, what should the claimant focus on and what should they disregard?
Focus on: What the claimant is claiming for damages
Disregard: Interest, costs, contributory negligence, any counterclaim
Issuing proceedings
What are the two court fees and what are the thresholds for each to apply?
Case over £10,000 but less than £200,000: 5% of claim value
Claims over £200,000: Fixed fee of £10,000
Issuing proceedings
What are the two options for including the Particulars of Claim?
- Include on back of claim form, or
- Produce as a separate document and either serve with claim form, or within 14 days following service
Issuing proceedings
Who usually signs the statement of truth?
The claimant, but the solicitor may sign it
Issuing proceedings
What is a Part 8 claim?
A claim which does not involve a substantial dispute of the facts
Issuing proceedings
What four things must a Part 8 claim state?
- That Part 8 applies
- Questions the claimant wants the court to decide
- Details of the claim being made
- Capacity of the representative if claim is made in a representative capacity
Issuing proceedings
What two things must be served with a Part 8 claim form?
- Witness evidence, supported by a statement of truth
- Particulars of claim
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
Issuing proceedings
What are the consequences for a defendant who fails to respond to a Part 8 claim?
They cannot take part in the hearing, unless the court gives permission
Service of proceedings
Why is service of a claim a critical step?
Because it triggers the defendant’s obligation to respond
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?
What is this period known as?
In the UK: Four months
Outside the UK: Six months
It is known as the claim form validity period
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?
Only in what circumstances will the court grant it?
Application must be made within the original validity period
Exceptional circumstances
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?
The response pack
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?
What is allowed if the defendant has not nominated solicitors to accept service?
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
If the defendant has not nominated solicitors to accept service, the claimant may serve the defendant personally
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?
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
Service of proceedings
What are the three requirements for service to be sent by fax?
- Express consent in writing, even if already communicating by fax
- Party has given a fax number to be contacted on
- Fax number is within the jurisdiction
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
Service of proceedings
What are the two requirements for service to be sent by email?
- Express consent, even if already communicating by email
- Party has given an email address to be contacted on
Service of proceedings
What are the three requirements for service to be sent by DX?
- Party’s address for service contains a DX number
- DX number is on the party’s writing paper
- No express indication that service by DX is not acceptable
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?
- Post or DX: post, or leave with service provider
- Fax: complete fax transmission
- Other electronic method: send email or transmission
Service of proceedings
When is the claim form deemed to be served, and does this depend on the method used?
Irrespective of method used, the claim form is deemed served on the second business day after the step required to effectuate service
Service of proceedings
As an aside, what is a business day per the Civil Procedure Rules?
Any day other than Saturday, Sunday, a bank holiday, Good Friday, or Christmas Day
Service of proceedings
What should a claimant do if they believe a defendant no longer lives at an address?
After these steps, what can the claimant do?
Take reasonable steps and make reasonable enquiries to ascertain the defendant’s current address
If they still cannot ascertain, claimant can serve on the defendant’s last known address
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?
Indicate on acknowledgement of service, and make an application to set aside service within 14 days.
Service of proceedings
If the claimant’s solicitor is serving proceedings, within what time period must they file a certificate of service?
21 days
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?
Good reason for the order, e.g. service might not be achieved within the validity period
This order can be retrospective and serve to greenlight previous steps taken to serve
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?
The Particulars of Claim must be served within the validity period
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?
14 days
Claimant can obtain judgment in default if defendant does not respond by this time
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?
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
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?
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
Responding to a claim
What are the three things a defendant can do in their response?
- Admit part or all of the claim
- File and serve a defence to the claim, and possibly a counterclaim
- Acknowledge service and indicate they propose to defend the claim
Admissions can be withdrawn with court permission
Responding to a claim
If the defendant files an acknowledgement of service, how much additional time from the filing are they given to respond?
14 more days
14 days to respond acknowledging service, plus 14 days additional
Responding to a claim
How can this possible 28 day time limit to respond be extended, and what is the maximum extension?
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
Responding to a claim
When will a defendant not have to file an Acknowledgement of Service?
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
Responding to a claim
What three things can the defendant achieve on the Acknowledgement of Service form?
- Indicate intention to dispute, but claim additional 14 days
- Admit some of the claim but ask for time to pay
- Dispute the jurisdiction of the court
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.
Responding to a claim
What can the claimant do when the defendant files an acknowledgement of service?
Make an application for summary judgment or apply for an interim payment
Summary judgment: defendant has no real prospect of defending the claim
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?
Make an application for default judgment
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?
- They have a real prospect of successfully defending the claim, or
- Some other good reason why the judgment should be set aside
Responding to a claim
What are the four ways in which a default judgment could have been wrongly entered?
- Judgment entered before time limit expired
- Application for judgment came after an application by defendant to strike out/dismiss the claim, and this application hasn’t yet been considered
- Claim already paid or settled
- Defendant already submitted a request to pay which has not yet been considered
Responding to a claim
What happens if the defendant admits the whole claim, and the amount at issue is a specified sum?
The court will issue a judgment for the amount
Admissions under £25,000 are binding
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?
£25,000
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?
- Prejudice to the parties
- Reasons the admission was made
- Stress the party was under when they made the admission
- Interests of the public
- The timing of the application of the application to withdraw
Statements of case
What is the purpose of the Particulars and what must it provide to be adequate?
Provide an outline of the party’s case on liability, causation, and quantum to allow the judge to give proper directions
Statements of case
What should the particulars include in a contract claim?
- Parties to the agreement
- Nature of the agreement
- Terms that claimant alleges the defendant breached
- Facts showing breach and loss
Statements of case
What should the particulars include in a negligence claim (1) generally and (2) arising from a road traffic accident?
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
Statements of case
What should the particulars include in an employers’ liability claim in tort?
- 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
Statements of case
What must a claimaint do when they are claiming interest on damages?
State the:
1. Basis for the interest claim, i.e., contract, statute
2. % interest rate if the claim is for a specified sum
Statements of case
What eight things must a claimant include in the Particulars if they wish to rely on them?
- Allegations of fraud
- Illegality
- Misrepresentation
- Breach of trust
- Knowledge of a fact
- Unsoundness of mind or undue influence
- Willful deceit
- Defendant’s failure to mitigate loss
Statements of case
If a defendant wishes to defend a claim, on whom must they serve the defence?
Every other party to the claim
Statements of case
What are the three ways in which a defendant can respond to each of the paragraphs in the particulars?
- Admit
- Deny
- 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
Statements of case
What must a defendant do if they deny a paragraph?
State reasons for doing so, or set out an alternate version of events
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.
Statements of case
When may a defendant neither admit nor deny a paragraph?
When the facts alleged in the paragraph are outside the defendant’s knowledge
Statements of case
What happens when the defendant admits damages but denies liability?
They are admitting a damages sum, but it will only be payable if the court finds the claim is proved
Statements of case
What must the defendant do if they raise a limitation issue in the defence?
State the date on which the defendant alleges the limitation period expired, with the reasons why
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 reply is an optional response sent by claimant to defendant, 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
Statements of case
What are the four types of claim available to a defendant under Part 20?
- Counterclaim
- Claim against a third party
- Claim seeking contribution or indemnity
- Counterclaim against a third party
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?
- Brought by existing defendant against the claimant within the same proceedings
- Arises out of the same or substantially the same facts as the claimant’s claim against defendant
- Monetary claim in its own right
- Is not a defence
Permission not required if counterclaim is filed with defence. Permission required after this time.
Statements of case
What is a claim against a third party under Part 20, and what are three features?
Defendant claims a person who is not a party to the case has caused the claimant’s losses
- New party will be called a third party
- Application can be made without notice, unless directed otherwise
- 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
Statements of case
What is a claim seeking contribution or indemnity under Part 20?
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)
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
Statements of case
What is always required for a counterclaim against a third party under Part 20?
Court permission
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?
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
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?
Within 14 days of service of the counterclaim. Failing that, the original defendant can obtain default judgment on the counterclaim
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?
- File a defence, if already a party
- File an acknowledgement and/or defence, if not already a party
Same rules apply to them as the original defendant at the beginning
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?
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
Statements of case
What are five grounds for objecting to a request for information?
- Unnecessary, irrelevant, or improper
- Unable to provide information/clarification
- Insufficient time to reply
- Disproportionately expensive to reply
- Privilege
Something is relevant if it relates to matters which are disputed by the parties
Statements of case
What is required to amend a Statement of Case before it has been served, and after it has been served?
Before: Can be amended at any time without permission
After: Written consent of all parties or court permission required
Statements of case
What must the court be convinced of to add a party to a case?
Adding the party will allow the court to resolve all the matters in the case or resolve a connected matter
Statements of case
What are the two requirements which must be satisfied for a court to grant an application substituting a party?
- Existing party’s interest or liability has passed to the new party (e.g. assignment, merger) and
- Desirable to substitute the new party, so the court can resolve all matters in dispute
Statements of case
What is required to add or substitute a party after the limitation period has expired?
- Relevant limitation period must have been live when proceedings were started, and
- 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
Case management
In determining the value of the claim, what four things will the court ignore?
- Sums not in dispute
- Interest
- Costs
- Contributory negligence
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?
- £10k
- £5k
- £5k
- £1k
Case management
When might the court allocate claims with a higher value than the small claims track threshold, to the small claims track?
Parties agree, or less than £10,000 is actually in dispute even if the claim is for more
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?
Fixed costs and reasonable expenses.
Expert fees limited to £750.
Case management
What are the range/threshold on the fast track for:
(1) claims generally
(2) road traffic accidents, and
(3) personal injury generally?
What is the other category of case which can be dealt with on the fast track?
- £10k - 25k
- £5k - 25k
- £1k - 25k
Cases with no monetary value
Case management
If a case is allocated to the fast track, within what time limit must the trial take place?
30 weeks
Case management
In what two ways is evidence restricted on the fast track?
- Court prefers written rather than oral evidence
- 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
Case management
In the fast track, what must costs be in order to be recoverable?
Proportionate to the amount in dispute
Parties must submit cost schedules ahead of the costs hearing
Case management
What is the monetary threshold and what is the time threshold for a case to be put in the multi-track?
- Claim exceeds £25k, or
- Lesser value but trial will last more than one day
Case management
What is the Directions Questionnaire, and what does it ask?
Within what time limit must the parties complete and return it?
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
28 days of receiving the Notice of Allocation, and cannot be extended
Case management
At what stage is a Directions Order made?
What does it set out?
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.
Case management
What are two notable directions which will be given on the small claims track?
- Documents to be exchanged 14 days before hearing
- No expert may be used without express permission
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?
14 days
Make an immediate application to the court for an unless order
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?
- Disclosure report: 14 days
- Cost budget: 7 days
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?
The court will make an unless order, which specifies a penalty which will be imposed unless the party complies with the direction
Case management
Where a party has defaulted on directions, what are three other options available to the court?
- Impose a costs order, including indemnity costs, or increased interest
- Require the defaulting party to pay money into court
- Debar a party from relying on evidence
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?
- Seriousness of the breach, and
- Reasons for the breach
Interim applications
What is an interim application?
How soon should they be made?
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
Interim applications
What is true of an interim application if there is already another hearing listed in the matter?
It should be raised at that hearing, if possible
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?
What is an example of a good reason?
- Three clear days
- Five clear days
Notice would provide the other party an opportunity to dispose of evidence or assets
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?
- Freezing injunction
- Search order
Evidence explaining the good reason
Interim applications
What three things must be served on the non-applicant party if an order is granted based on
a without-notice application?
- The order
- Application notice
- Supporting evidence
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?
7 days
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 wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application
Interim applications
What should be true of evidence relied on in support of an interim injunction?
It should be in writing and filed at court within the relevant time limit
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?
- Case summary
- Proposed draft order
Interim applications
What is the difference between default judgment and summary judgment?
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
Interim applications
What are the two criteria which the applicant must satisfy when applying for summary judgment?
Before when can the claimant not make an application for summary judgment?
- Other party has no reasonable prospect of success, either their claim or defence, and
- No other compelling reason why the case should proceed
Before defendant receives particulars and serves either an acknowledgement or defence, i.e. claim must be live from defendant’s point of view
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)?
- 14 days
- 7 days
- 3 days
Same for interim payments
Interim applications
What is the difference between an application to strike and summary judgment?
Application to strike: goes to procedure
Summary judgment: goes to merits
Interim applications
What are three things for which the court will grant an application to strike?
- Statement of case discloses no reasonable grounds for bringing/defending claim
- Statement of case is an abuse of court process
- Failure to comply with a rule, practice direction, or order
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?
- Defendant has admitted liability
- Claimant has obtained judgment but the sum to be paid is not yet assessed; or
- 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)
Discretionary, and the court will not grant one if it would cause an injustice
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?
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
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?
- Sum of money sought
- Items and matters in respect of which payment is sought
- 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
Interim applications
In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?
Yes
Interim applications
What is an injunction?
What are the two types?
When is an injunction considered interim, and when is it considered final?
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
Interim applications
In the context of an injunction application, what is an undertaking in damages?
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
Interim applications
How can a party apply to have the injunction discharged?
By applying on notice to a judge of the division where the claim is proceeding
Interim applications
What are the three grounds that can be argued in support of an application to discharge an injunction?
- Applicant did not disclose all information when applying, or did not comply with its terms, or failed to prosecute claim with speed
- Relief is oppressive, or not justified
- Material change in circumstances
Interim applications
What is a freezing injunction?
To whom must an application for one be made?
A type of prohibitory injunction designed to freeze the assets of the defendant
A High Court judge only
Interim applications
What are the three requirements of which a court must be satisfied before granting a freezing injunction?
- Strong case on the merits
- Defendant has assets within the jurisdiction
- Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced
Interim applications
What two things must be true of a freezing injunction?
When will a freezing injunction bind third parties?
- The assets frozen should not exceed the maximum amount of the claim, and
- The order must state the period of time it will be in effect
When they have knowledge of it
Interim applications
What must a defendant offer in order to apply for discharge of a freezing injunction?
Security for the value of the claim
Interim applications
What is a search order?
To whom must an application for one be made?
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
A High Court judge only; same as freezing injunction
Interim applications
What are the three requirements of which a court must be satisfied before granting a search order?
- Strong case on the merits
- Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
- Clear evidence that the property and documents are in the defendant’s possession and there is a real possibility the material may be destroyed
Interim applications
What three things will the independent supervising solicitor who oversees execution of a search order undertake to do?
- Offer to explain the meaning and effect of the order to the defendant
- Inform the defendant of their right to seek legal advice and right to apply to vary or discharge the order, and
- Prepare a written report on execution and provide it to the claimant’s solicitor and the court
Interim applications
In the context of a search order, what three things will the claimant’s solicitor undertake to do?
- Return original documents to the defendant within two days
- Deliver property in dispute to defendant’s solicitors, and
- Retain all other property securely until the court directs otherwise
Disclosure
What does disclosure mean?
For how long does the duty to disclose run and when does it terminate?
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
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?
Documents which:
1. Support your case
2. Are adverse to your case
Cease to act
Disclosure
How far does the obligation to disclose go?
Does a party need to have possession?
A party’s obligation to disclose extends to any document within the party’s control
No, a right to control is sufficient
Disclosure
What three criteria, one of which is enough, will determine if a party has control of a document?
- Physical possession
- Right to take possession, inspect or take copies, or
- Had the document in their possession but no longer
Disclosure
What is the obligation when a document is unavailable or has been destroyed?
Can the court draw an adverse inference from this?
Notify the court and other party of its existence, and provide reasons
Yes
Disclosure
What is standard that the court will expect a search for documents to meet?
The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance
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?
- Documents a party controls that they do not object to the other party inspecting
- Documents a party controls that they do object to the other party inspecting (along with reasons)
- Documents that are no longer in a party’s control
Disclosure
Who signs the disclosure statement detailing the extent of the search made?
What is declared in the disclosure statement?
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
Disclosure
Under standard directions, within what time limit from that point must the disclosure lists be served?
Within what time limit should inspection occur?
28 days
7 days, for which the party seeking inspection must notify the party with the document
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?
Triggered by a party believing certain documents have not been disclosed.
Court must be convinced the party has documents that may:
- Contain information that would assist the applicant’s case or damage the respondent’s case; or
- 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
Disclosure
Unless challenged, what does disclosure of a document provide?
An automatic right to inspect it
Disclosure
What are the three grounds for refusing inspection of a disclosed document?
- Privilege
- Document no longer in party’s control
- Disproportionate to allow inspection
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?
Disclosure report
At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.
Disclosure
Must a document which is privileged still be disclosed?
Yes, but it can be withheld from inspection
Disclosure
What are the four types of privilege and the one immunity which functions like a privilege?
Only whom can waive privilege?
- Legal advice privilege
- Litigation privilege
- Common interest privilege
- Without prejudice privilege
- Public interest immunity
The client
Disclosure
What does legal advice privilege protect?
Communication between a lawyer and a client in which advice is given or requested within a legal context
Disclosure
What does litigation privilege protect?
Who bears the burden of proving litigation privilege?
Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation
The party seeking to assert it
Disclosure
If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?
Only if the court decides the dominant purpose is to prepare for litigation
Disclosure
What is the one requirement of the common interest for common interest privilege to apply?
Does common interest privilege subsist if there is a subsequent breakdown in the parties’ relationship?
The common interest must have been present at the time of disclosure between the parties
Yes
Disclosure
If a solicitor accidentally sends a privileged documents to the other side, what is required for the other side to use the information?
Court permission
Witness evidence
What are the two types of witness evidence?
- Direct
- Circumstantial
Witness evidence
What is the general rule for what a witness must have done to be able to give evidence at trial?
Signed a previous witness statement setting out their evidence, which is endorsed by a statement of truth and served on the other party
Witness evidence
What is possible if a witness statement cannot be obtained?
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
Witness evidence
What happens if a witness statement is not served, and what is a way around this?
Party cannot call that witness, unless they receive court permission by showing good reason for the failure to serve
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?
7 days
Summons must contain conduct money or it is ineffective
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?
Other party can refer to the statement, but the court will treat this as hearsay
Witness evidence
Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?
- Statement must have been made out of court
- Statement must be used to prove the truth of what is being stated
Witness evidence
When will the contents of a witness statement cease to be hearsay?
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
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?
- Reasonable/practicable to force witness to attend?
- Original statement made contemporaneous with the event?
- Single or multiple hearsay?
- Motive to misrepresent facts?
- Was original statement edited?
- Does the situation suggest attempt to prevent proper evaluation of evidence?
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?
Must serve notice on the other side. If the witness is attending court, the witness statement itself constitutes notice.
14 days
Witness evidence
What is admissible in any civil case to prove the conduct occurred?
Details of a criminal conviction arising from the same events
Witness evidence
What are four types of evidence that is inadmissible?
Does the court have discretion to disallow evidence which would otherwise be admissible?
- Opinion evidence, except from experts
- Evidence that is privileged or protected by public interest immunity
- Communications that are without prejudice
- Any evidence which is irrelevant
Yes
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?
Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident
Witness evidence
One of what three things must occur for a party to have their own witness declared as hostile by the court?
What is the effect of a witness being declared hostile?
- Witness is unfavourable to the side who called them
- Lack of cooperation to tell the truth on behalf of party who called them, or
- Evidence is entirely inconsistent with their witness statement
They can be cross-examined by the party who called them
Witness evidence
What is similar fact evidence?
What must it be to be admissible?
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
Must be relevant to be admissible
Expert evidence
What are the two requirements for an expert to give evidence?
- They must be qualified to give the opinion
- Their expert evidence must be reasonably required to resolve proceedings
Qualified does not mean a formal degree is needed; experience is sufficient
Expert evidence
If expert evidence is allowed, what are the three conditions it is still subject to?
- Opinion must stem from special knowledge, skill, or training that is not within the ordinary experience of a judge
- Expert must be reasonably certain of their opinion
- Expert must demonstrate the basis of their opinion and conclusions
Judge will ultimately determine if the witness is truly an expert
Expert evidence
What is the duty owed to the court by an expert?
To exercise independence, integrity, and impartiality
This overrides their obligation to the person who instructed/paid them
Expert evidence
Is the default position that experts will attend court to give their evidence?
No, the default is a written report
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?
- Expert oral evidence likely to have an impact on the outcome
- It will assist the judge
- Risk of injustice if expert evidence is not tested, and
- Cost of the expert attending is not disproportionate
Expert evidence
What is the difference between an agreed expert in a personal injury case, and a single joint expert generally?
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.
Expert evidence
In what four instances may the court allow parties to have their own expert?
- Complex issues or high value case
- Parties already have their own expert from pre-action phase and most cost-effective to retain
- Number of different schools of thought concerning the issue requiring expert opinion
- Issue the experts are focusing on has huge significance to the outcome
Expert evidence
Is an expert’s report privileged?
Until disclosed
Expert’s report need only be disclosed if the party intends to rely on it
Expert evidence
What is the time limit from the expert sending the report that the parties can ask questions of the expert?
28 days
Trial
If a case is settled before trial, other than via a Part 36 Order, what must the parties do?
Record the terms of the agreement in writing in an appropriately worded consent order
Trial
What is the usual order used to record settlement?
What is the consequence of not using an order?
Tomlin Order
If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.
Trial
What are the two parts of a Tomlin Order?
What happens if a party defaults?
- The order, which confirms the parties have agreed settlement and that the case is stayed pending the settlement terms being carried out, and
- A schedule confirming the amount to be paid, by whom, and by what date
Proceedings can recommence
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?
Case summary must not exceed 500 words and should specify:
1. Issues of fact
2. What is in dispute
3. Synopsis of the evidence
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?
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
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?
- Court has granted an interim injunction
- Claimant has received an interim payment (unless paying party consents)
Claimant liable to pay the defendant’s costs up until that point (subject to cost shifting applicable to personal injury)
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?
- Circuit Judge
- High Court Judge
- High Court Judge
- Lord Justice of Appeal
- Justice of Supreme Court
No
Appeals
To where can a party make an application for permission to appeal?
- Lower court where the decision was made
- To the appeal court
Appeals
What are the two grounds to appeal a decision of a lower court?
- Decision is wrong in fact, law, or the exercise of the court’s discretion; and/or
- Decision is unjust due to serious procedural or other irregularity
Appeals
Within what time limit must a party appeal and when does this time begin to run?
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
Appeals
What is the consequence of not seeking permission from a lower court, and not requesting a time extension?
After 21 days, they can no longer make an application to the court for permission to appeal
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?
How will this court treat the application?
Court of Appeal
As a relief from sanctions, requiring the applicant to show good reason for the breach and that relief is reasonable in the circumstances
Appeals
What is an appeal hearing limited to?
Can a party rely on evidence that was not available in the original hearing?
A review of the decision of the lower court
Not without permission
Costs
What does the indemnity principle provide?
A party can not recover more from an opponent than they are liable to pay their own legal representative
Costs
What are the two bases of costs assessment?
- Standard basis
- Indemnity basis
Costs
What occurs under the standard basis of costs assessment?
Court allows only proportionate costs and exercises doubt in favour of the paying party
Costs
What triggers costs assessment on an indemnity basis, and what occurs under this?
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.
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?
- £50,000 and below: filed with Directions Questionnaire
- Over £50,000: filed 21 days before Case Management Conference
Costs may not be recoverable, beyond court fees
Costs
What are inter-partes costs?
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
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?
- 24 hours
- Two days
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?
The receiving party prepares a bill of costs and serves within three months of judgment or order
21 days
Costs
How soon after the issuance of a costs certificate by the court must costs be paid?
14 days
Who is the only party that can apply for a security of costs order, and what is the logic being precluding the other party?
Defendant, as they cannot stop the claimant bringing proceedings, but the claimant is free to continually assess whether the defendant is worth suing
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?
Claimant:
- Resides outside jurisdiction
- Has changed address since claim started with a view to evading consequences of litigation, or provided no/incorrect address on the claim form
- Is suing for the benefit of a third-party
- Is corporate entity and there is reason to believe they won’t be able to pay costs
- Has taken steps regarding their assets that would make it difficult to enforce a costs order, e.g. moving them outside the jurisdiction
Costs
What is qualified one-way costs shifting in personal injury claims, and what are the three situations where it will not apply?
When is qualified one-way costs shifting not available?
In an unsuccessful personal injury claim, the claimant does not pay the defendant’s costs unless:
- Claim was fundamentally dishonest
- Claim was made for the financial benefit of another, or
- Claim was struck out for disclosing no cause of action, or abuse
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
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?
- Conduct caused unnecessary cost, and
- It is just to make the order
7 days
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 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
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?
Pre-issue costs that they incurred
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?
Costs related to pre-action work, in addition to the costs of the litigation
Part 36 offers
Can a Part 36 offer be withdrawn?
After the expiry of the relevant period, as long as the offeree has not served notice of acceptance
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?
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)
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?
- Change of circumstances since the offer was made
- In the interests of justice to give permission
Part 36 offers
How must a Part 36 offer be accepted?
In writing
Part 36 offers
When can a Part 36 offer be accepted?
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
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?
The defendant will pay costs on the standard basis up to the point of acceptance
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?
Until the end of the relevant period
Part 36 offers
What is required to accept a Part 36 offer from a single defendant in a case with multiple defendants?
Court permission
Part 36 offers
What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?
- Claimant rejects defendant’s offer and fails to beat offer
- Defendant rejects claimant’s offer and claimant is awarded an amount equal to or greater than the offer
Part 36 offers
What are the two situations where a Part 36 offer might will not cause cost-related difficulty for a party?
- Claimant rejects defendant’s offer and beats it
- Defendant rejects claimant’s offer and the claimant is awarded less
Part 36 offers
Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?
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
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?
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.
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?
- Stage of proceedings when the offer was made
- Conduct of the parties
- Whether the offer was a genuine attempt to settle
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?
8%, from the date of judgment, in addition to the any punitive interest the court may award on the value of the claim
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?
What is the interest rate on County Court judgments above this threshold?
£5,000, except for when the dispute is based in contract, and the contract provides for interest
8%, the same as the High Court
Enforcement of money judgments
What is the lower limit for a County Court judgment to be enforceable in the High Court?
£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
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?
14 days
Affidavit providing details of service and how much remains unpaid
Enforcement of money judgments
What is a writ of control?
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
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?
Seven days
12 months
Enforcement of money judgments
Where only can the creditor’s agent enter?
What must they do regarding goods seized?
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.
Enforcement of money judgments
What two categories of items can the creditor not seize?
- Equipment for use in the debtor’s trade
- Household items necessary for basic domestic needs
Enforcement of money judgments
What is a controlled goods agreement?
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
Enforcement of money judgments
What is a charging order on land?
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
Enforcement of money judgments
What is an attachment of earnings order?
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
