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Civil Litigation > case management > Flashcards

case management Flashcards

1
Q

what is an interim payment

A

advanced payment of any damages, debts or other sum (not costs) that D may be liable to pay

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2
Q

why would you apply for an interim payment

A

if there will be a delay in assessment of damages

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3
Q

how much will be paid when an interim payment is made

A

a reasonable portion of the likely amount of the final judgement

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4
Q

what should you do before applying for interim payment

A

talk to D and try to obtain voluntary payment

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5
Q

how soon can you apply for interim payment

A

once acknowledgement of service deadline has passed

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6
Q

can you make more than one interim payment application

A

yes

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7
Q

what must be considered when determining how much will be awarded when an interim payment is made

A

counter claim

contributory negligence

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8
Q

does the trial judge know an interim payment or voluntary payment has been made

A

not until after they decide al issues - unless D consents

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9
Q

when must the application for interim payment be served

A

14 days before the hearing

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10
Q

how soon should evidence for interim application be served

A

respondent - 7 days before hearing

applicant - 3 days before hearing

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11
Q

requirements that must be met for an interim payment to be made

A

part 25:
D has admitted liability
C has judgement against D for damages or sum of money
at trial C would obtain substantial money (other than costs)

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12
Q

overriding objective

A

deal justly and at proportionate cost

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13
Q

how are cases allocated to a track

A

provisional allocation when defence is filed
court served on parties notice of proposed allocation
then complete directions questionnaire to confirm allocation and directions

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14
Q

alongside questionnaire what else must parties prepare if case is provisionally allocated to multi track

A

case summary, disclosure report, cost budget and report

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15
Q

small claims track

A

less than £10K
personal injury damages for pain, suffering and loss of amenity max £1k
disclosure, inspection, evidence and expert rules don’t apply
simple directions
can’t normally recover costs
can be paper based if parties agree

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16
Q

fast track

A 
10k-25k 
trial more than one day 
court will give standard directions
summary assessment of costs
written evidence not oral 
one joint expert unless good reason to have 2
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17
Q

can parties agree to vary standard directions

A

yes but must also be approved by court

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18
Q

can parties agree to vary deadlines

A

yes but not trial date or date for returning pre-trial checklist

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19
Q

what if party doesn’t file their questionnaire

A

if CC money claim - 7 days notice requiring compliance then struck out
other cases - court can make any order appropriate
one party can apply for order for compliance

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20
Q

multi track

A

over 25k

give directions and set timetable or if more complex then fix CMC

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21
Q

what claims are excluded from obligation to file cost budget and report

A

claims over £10m

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22
Q

what must parties file to help manage costs (unless case is over 10m)

A

cost budget and cost report

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23
Q

how long do you have to file cost budget

A

21 days before CMC

unless case is worth 50k plus then with questionnaire

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24
Q

how long to file cost report

A

7 days before CMC

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25
Q

what will judge do when they receive cost budge and report

A

review to check reasonable and proportionate

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26
Q

once budget is agreed can it be changed

A

only if there has been significant developments

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27
Q

how to vary an agreed budget

A

file a budget variation summary sheet

must show there has been significant developments

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28
Q

impact of filling costs budget late or not at all

A

treated as having only filled court fees and cannot recover any other costs

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29
Q

what is an unless order

A

an order where a conditional sanction is attached to an order requiring performance of a specified act by particular date

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30
Q

when will a cost management order be imposed

A

if cannot deal with case justly and at proportionate cost

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31
Q

what is a cost management order

A

record agreed or approved costs

when costs awarded on standard basis won’t depart from budget unless good reason

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32
Q

where there is no cost management order can you recover more than the costs set out in the budget

A

if there’s a difference of 20% or more between costs claimed and costs in budget the receiving party must provide a statement for reasons for difference. the court then decides if extra cost can be recovered

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33
Q

when a costs management order is made can you depart from the budget

A

when costs awarded on standard basis won’t depart from budget unless good reason

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34
Q

when will relief from a sanction be granted (excluding sanctions relating to costs)

A

Denton Factors
is the failure serious or significant - if not then grant relief
consider why failure occurs
evaluate all circumstances to allow it to be dealt with justly and proportionate

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35
Q

how to get relief from sanctions relating to costs

A

appeal against the order

not seeking relief using denton factors

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36
Q

how to dispute privillege

A

apply to court

court can require doc, representations and then decide whether to order disclosure

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37
Q

who can the court request representations from when privillege is disputed (should document be disclosed)

A

anyone - even someone who is not a party to the case

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38
Q

is there a right/obligation to pre-action disclosure

A

no - can request it but no obligation to provide, would have to apply for an order

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39
Q

when will an order for cpre-action disclosure be made

A

proceedings are likely
and
docs sought are within standard disclosure
and
disclosure desirable to help resolution or save costs

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40
Q

what can you do if you’re not happy with the other party’s disclosure efforts

A

apply for order for disclosure

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41
Q

can legally privlleged docs be withheld from disclosure

A

yes but must still be included in list - just cannot inspect them and describe in more general way

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42
Q

can without privilege docs be withheld from disclosure

A

no - these must be included in disclosure

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43
Q

which part of CPR governs disclosure

A

part 31 (except small claims track)

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44
Q

what docs should be disclosed

A

only those that have an impact on the case

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45
Q

how to disclose docs

A

make a list - state it exists or did exist

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46
Q

what is a document (re disclosure)

A

anything in which info is recorded

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47
Q

disclosure at small claims

A

at least 14 days before final hearing parties file and serve on all other parties copies of all docs incl expert evidence report on which they intend to reply

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48
Q

disclosure at fast track

A

standard disclosure

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49
Q

multi track disclosure

A

standard disclosure
disclosure report 14 days before CMC
then 7 days before CMC parties seek to agree disclosure
file agreed proposal at court

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50
Q

which CPR rule sets out standard disclosure

A

r31.6

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51
Q

standard disclosure in r31.6

A

docs you rely on
docs adverse to your case
support other party
adverse to other party

52
Q

duty to disclose is limited to docs in your control - what does this mean

A

either was or are in their physical possession
they have a right to possess or
they have a right to inspect

53
Q

which parties are subject to a duty to disclose

A

all parties

54
Q

what sort of search must be made for docs

A

reasonable and proportionate

55
Q

what is a reasonable search (disclosure)

A

depends on number, nature, complexity of proceedings, ease and expense of retrieval and significance of doc

56
Q

can search for docs be limited (disclosure)

A

can limit search by date, specifying place to search or limiting categories of doc - any limitation must be justified
if search is limited must specify this in list of docs

57
Q

when electric docs are deleted do they still need to be disclosed

A

yes if they are on back up system

58
Q

special rules re disclosure of electronic docs

A

parties should agree categories of electronic docs to be disclosed, how to exchange and format and limit - due to volume

59
Q

when must electronic doc disclosure be agreed

A

before directions are given

60
Q

3 parts of disclosure list

A

part 1 - docs in party’s control which they happy to be inspected and description of these
part 2 - docs in their control but object to them being inspected
part 3 - docs no longer in their control and what happened to them

61
Q

name of list used for disclosure

A

N265

62
Q

what if you find new docs after you have provided disclosure list

A

continuing obligation so must disclose them

63
Q

can you rely on documents that aren’t included in disclosure statement (eg if you locate them after you made disclosure statement)

A

only if other party agrees

if other party doesn’t agree then would need court permission to rely on it

64
Q

can legal rep sign disclosure statement on behalf of client

A

no must be client

65
Q

what to do if you have not searched for some docs or not included some docs

A

include this in disclosure statement

66
Q

disclosure statement

A

extent of search and compliance with duty

67
Q

can a non-party be ordered to disclose documents

A

yes if it is necessary to dispose of hearing fairly and docs are likely to support or hinder case

68
Q

what sort of directions re evidence can the court give

A

specify the issues it requires evidence on, the nature of the evidence is requires, number of witnesses allowed, if evidence should be oral or written, if evidence regarding particular issue shouldn’t be excluded due to lack of importance

69
Q

what is an affidavit

A

sworn statement of evidence

70
Q

exceptions to the general rule that C has the burden of proof

A

when D has been convicted of an offence the burden is on D to prove they shouldn’t have been convicted
also contributory negligence - D must prove that Cs failure to take care contributed to the damage suffered

71
Q

general rule regarding facts that a party intends to rely on

A

any facts that a party wishes to rely on must be proved at trial by oral evidence

72
Q

can a witness statement be drafted in witnesses own language

A

yes but include date and details of translation in statement

73
Q

can a witness add to their statement at trial

A

no - would need court permission and would have to be a good reason why it’s not in the statement

74
Q

what info can be included in a witness statement

A

must be relevant

75
Q

meaning of relevant facts

A

those in dispute and which have to be proved by party calling witness

76
Q

what is hearsay

A

statement made outside court which is repeated inside court to prove the truth of the matter stated - must be used as evidence

77
Q

when is hearsay admissible

A

when it is relevant

78
Q

what format should hearsay be in

A

oral, written, docs, witnesses

79
Q

what if a party doesn’t comply with notice requirements re hearsay

A

still admissible but might affect weight given to it or the costs at the end of the trial

80
Q

are out of court statements made by oath or affirmatin

A

no

81
Q

notice requirements for hearsay

A

serve statement on other party if you will call the witness whose statement contains hearsay
other party can then decide to cross examine or serve notice of intention to attack credibility of hearsay
serve statement and notice of hearsay if you will rely on statement but not call witness for oral evidence

82
Q

what does a hearsay notice explain

A

why you are relying on the statement but not calling the witness for oral evidence

83
Q

impact of relying on a witness statement but not calling the witness for oral evidence

A

the whole statement becomes hearsay

84
Q

can you always call in an expert

A

no need permission must be necessary to decide the issue

85
Q

to whom does an expert owe a duty

A

to court and instructing party but duty to court overriding

86
Q

what if an expert report doesn’t take the right form

A

may not be able to rely on it or may just impact weight given to it

87
Q

can the court require 2 experts to work together

A

yes can order an without prejudice discussion

88
Q

are the instructions you give to your expert privilleged

A

no - these will be set out in the experts report and may be scrutinised by the court

89
Q

when will the court direct the use of a single expert

A

when not proportionate to have 2 experts - consider if there is likely to be varied opinion on the topic

90
Q

what if parties cannot agree on one expert

A

the court will select one

91
Q

can you have seperate experts in the fast track

A

would usually have one joint expert unless there’s a good reason not to share

92
Q

do experts give oral evidence

A

usually only in multi track - presumption written report will be enough

93
Q

proceedure where there are several experts

A

separate reports exchanged by deadline
each party may ask written questions to the expert for clarification and answers are treated as part of the report (within 28 days)

94
Q

how long do you have to ask written questions of the other party’s expert

A

28 days

95
Q

what happens at a discussion between experts

A

not to settle case but to narrow issues, identify areas of agreement and disagreement
following discussion a written joint statement must be prepared for the court and signed by the experts stating issue on which they agree, disagree and reasons.

96
Q

where do fast track and multi track cases take place

A

CC hearing centre

97
Q

what type of questions can be asked at examination in chief and re-examination

A

open questions only

98
Q

when the court orders a payment of money (including costs) how long do you have to pay it

A

14 days

99
Q

if witness has forgotten facts or now interprets it differently what can you do?

A

nothing

100
Q

if witness is unwilling to support the party who called them eg refuse to answer or tell lies so evidence difference from statement what can you do

A

ask judge to declare them hostile so you can now attack their credibility or cross examine them as if they’re a witness for the other side

101
Q

when to give details of witness avaliability

A

questionnaire and checklist

102
Q

do you need court permission to summon a witness

A

yes

103
Q

when to serve witness summons

A

7 days before hearing

104
Q

requirements for witness summons to be valid

A

must pay their travel and compensation for loss of time

105
Q

when must completed pre trial checklist be filed with court

A

8 weeks before trial

106
Q

listing hearing

A

judge reviews checklist and may decide to give further directions - fast track

107
Q

pre-trial review

A

judge reviews checklist and may decide to give further directions - multi track

108
Q

what if neither party complete checklist

A

order 7 days to complete or will be struck out

109
Q

what if only one party complete checklist

A

hearing to ensure ready for trial

110
Q

when may the judge decide to hold a pre-trial review

A

if trial is likely to last more than 10 days

111
Q

when should trial bundle be filed

A

7-3 days before start of trial

112
Q

when costs are on standard basis will the last approved budget be departed from

A

only if there is a good reason eg costs weren’t incurred at all or much less than expected

113
Q

costs on small claims track

A

not usually recoverable - only disbursements

114
Q

costs on fast track

A

summary assessment
fixed cost for advocate who prepares and appears at trial but not normally applicable to cost of brining the claim and pursuing it

115
Q

costs on multi track

A

detailed assessment of costs

116
Q

what is a summary assessment of costs

A

court determines amount payable at end of hearing
parties must file and serve a statement of costs (detailed breakdown of costs) no less than 2 days before a fast track trial and at least 24 hours before interim hearing

117
Q

when are costs summarily assessed

A

fast track and any other hearing that didn’t last more than 1 day - unless good reason not to

118
Q

when is permission to appeal a civil case given

A

when theres a real prospect of success or there is some other compelling reason why it should be heard - must be realistic prospect of success
if appealing to C of A or SC the case must also raise an important point of principle or practice

119
Q

how long do you have to appeal a civil case

A

21 days to appeal against CC or HC decision and 28 days to apply for leave to appeal C of A to SC`

120
Q

when to request permission to appeal a civil case

A

at end of trial or can apply to appeal court

121
Q

which courts/judges to appeal from and to

A

district judge at CC - circuit judge at CC
master or district judge at HC - HC judge
circuit judge - HC judge
HC judge - C of A
C of A - SC

122
Q

is permission to appeal dealt with on the paper

A

yes except C of A where an oral hearing will be listed within 14 days if it cannot be fairly decided without the parties

123
Q

when will an appeal leapfrog CC - C of A or HC - SC

A

raises important point of principle or practice or there is some other compelling reasons - must be urgent or exceptional

124
Q

2 stage process to go straight from HC to SC

A

grant of leapfrog certificate by trial judge and grant of permission to appeal by SC

125
Q

when will an appeal court grant an appeal (civil)

A

if decision of lower court was either wrong in fact, law, discretion or procedure

Civil Litigation (11 decks)

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