Analysis of merits of claim or defence

Question 1

What claims are issued in the High Court

Answer 1

PI of £50,000 or more; non-PI of £100,000 or more; or where justified on the ground of financial value, complexity facts/legal issues/remedies/procedures, or importance to the public

Question 2

Three divisions of the High Court

Answer 2

Chancery, King’s Bench, Family

Question 3

Specialist courts within KBD

Answer 3

Administrative; Planning; Commercial; Circuit Commercial; Technology and Construction; Admiralty

Question 4

What is the overriding objective of the CPR

Answer 4

To enable the court to deal with cases justly and at proportionate cost

Question 5

What does meeting the overriding objective of the CPR involve

Answer 5

• Ensuring the parties are on an equal footing;
• saving expense;
• dealing with the case proportionately to the amount of money involved/complexity/importance/ financial positions of the parties;
  -ensuring the case is dealt with expeditiously and fairly;
• allotting an appropriate share of the court’s resources;
  -enforcing compliance with rules, practice directions and orders

Question 6

Who must give effect to the overriding objective

Answer 6

The court will actively manage the case to do so and the parties are required to help the court further the overriding objective

Question 7

Practical ways the court might further the overriding objective

Answer 7

if C is spending a lot of money on a claim which is straightforward and low value…
the court may limit the recoverability of these costs

Question 8

Practical ways the court might further the overriding objective

Answer 8

• if a claimant’s solicitor are acting aggressively, e.g. making numerous tactical applications without notice…
  The court may punish this such as with costs sanctions

Question 9

Examples of ways the court can facilitate participation of a vulnerable party or witness

Answer 9

Giving extra time to comply; putting in place support at a hearing; giving appropriate directors as to how advocates should conduct themselves

Question 10

Where the Welsh language is to be used by any party or witness (and the court is informed), the court will ensure so far as practicable…

Answer 10

the case is before a Welsh speaking judge; in a court with translation facilities; witnesses may be sworn in Welsh or English; any document placed before the court may be in English or Welsh

Question 11

if costs are incurred because has failed to comply with the PD relating to the use of the Welsh language…

Answer 11

a costs order may be made against them

Question 12

Costs - the Court has a broad discretion to determine… (2 things)

Answer 12

Whether one party should pay the other party’s costs; if so how much should be paid

Question 13

Costs - the general rule (and CPR provision)

Answer 13

The unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.2(2))

Question 14

Costs - limit on recovery - general rule

Answer 14

The court will only allow a reasonable and proportionate sum to be recovered

Question 15

Factors the court might take into account in considering costs

Answer 15

The conduct of the parties; whether a party has succeeded on all of its case or only part

Question 16

Overview of how the court approaches inter-partes costs (3 steps)

Answer 16

1. Identify the successful party; 2. Is there a reason to make a different order; 3. Only allow recovery of reasonable and proportionate costs

Question 17

In addition to the specific pre-action protocols, there is also…

Answer 17

a Practice Direction - Pre-Action Conduct and Protocols

Question 18

When does the Practice Direction - Pre-Action Conduct and Protocols apply

Answer 18

All cases, whether or not a specific pre-action protocol

Question 19

Which takes priority, the Practice Direction or a specific pre-action protocol

Answer 19

A specific pre-action protocol

Question 20

What are the pre-action protocols designed to do?

Answer 20

Keep the parties out of court where possible; enable the parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity, or if not achievable, lay the foundation for expeditious conduct of proceedings

Question 21

What overarching ideas about liability flow from the existence of pre-action protocols

Answer 21

That if the defendant intends to admit liability, it should so early and clearly; if the defendant intends to dispute liability it should so clearly and with reasons

Question 22

What does the Practice Direction state the court may do if there is non-compliance

Answer 22

Stay the proceedings until the relevant steps (which have not been complied with) are taken

Question 23

What in response to an opponent’s suggestion of ADR can be deemed unreasonable conduct

Answer 23

Silence

Question 24

How should the parties not proceed in issuing proceedings

Answer 24

By pressing ahead in a mechanical manner

Question 25

What would be likely to happen if the claimant wrote to the defendant setting out its claim; the defendant does not respond; and then the claimant issue proceedings but later discontinues them

Answer 25

The normal rule in relation to cost upon discontinuance would not apply and the court may order the defendant to pay the claimant’s costs for part of the proceedings instead

Question 26

Example of when it might be acceptable issue proceedings before all pre-action requirements are complied with

Answer 26

If there is a limitation period about the expire

Question 27

What would the court do if proceedings issued before all pre-action requirements complied with, and there is are legitimate circumstances justifying such

Answer 27

Stay the proceedings after issue in order that pre-action procedure can be followed

Question 28

When might it be justified not to write to the other side before an application

Answer 28

If the application is for an order requiring an element of surprise

Question 29

When does the Pre-action Protocol for Personal Injury Claims apply

Answer 29

Person injury claims, which do not fall within another pre-action protocol and which are likely to be allocated to the fast track with a value of up to £25,000

Question 30

What relevance does the Pre-action Protocol for Personal Injury Claims have to cases above £25,000

Answer 30

The ‘spirit’ of the protocol should be followed