case management Flashcards
what is an interim payment
advanced payment of any damages, debts or other sum (not costs) that D may be liable to pay
why would you apply for an interim payment
if there will be a delay in assessment of damages
how much will be paid when an interim payment is made
a reasonable portion of the likely amount of the final judgement
what should you do before applying for interim payment
talk to D and try to obtain voluntary payment
how soon can you apply for interim payment
once acknowledgement of service deadline has passed
can you make more than one interim payment application
yes
what must be considered when determining how much will be awarded when an interim payment is made
counter claim
contributory negligence
does the trial judge know an interim payment or voluntary payment has been made
not until after they decide al issues - unless D consents
when must the application for interim payment be served
14 days before the hearing
how soon should evidence for interim application be served
respondent - 7 days before hearing
applicant - 3 days before hearing
requirements that must be met for an interim payment to be made
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)
overriding objective
deal justly and at proportionate cost
how are cases allocated to a track
provisional allocation when defence is filed
court served on parties notice of proposed allocation
then complete directions questionnaire to confirm allocation and directions
alongside questionnaire what else must parties prepare if case is provisionally allocated to multi track
case summary, disclosure report, cost budget and report
small claims track
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
fast track
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
can parties agree to vary standard directions
yes but must also be approved by court
can parties agree to vary deadlines
yes but not trial date or date for returning pre-trial checklist
what if party doesn’t file their questionnaire
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
multi track
over 25k
give directions and set timetable or if more complex then fix CMC
what claims are excluded from obligation to file cost budget and report
claims over £10m
what must parties file to help manage costs (unless case is over 10m)
cost budget and cost report
how long do you have to file cost budget
21 days before CMC
unless case is worth 50k plus then with questionnaire
how long to file cost report
7 days before CMC
what will judge do when they receive cost budge and report
review to check reasonable and proportionate
once budget is agreed can it be changed
only if there has been significant developments
how to vary an agreed budget
file a budget variation summary sheet
must show there has been significant developments
impact of filling costs budget late or not at all
treated as having only filled court fees and cannot recover any other costs
what is an unless order
an order where a conditional sanction is attached to an order requiring performance of a specified act by particular date
when will a cost management order be imposed
if cannot deal with case justly and at proportionate cost
what is a cost management order
record agreed or approved costs
when costs awarded on standard basis won’t depart from budget unless good reason
where there is no cost management order can you recover more than the costs set out in the budget
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
when a costs management order is made can you depart from the budget
when costs awarded on standard basis won’t depart from budget unless good reason
when will relief from a sanction be granted (excluding sanctions relating to costs)
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
how to get relief from sanctions relating to costs
appeal against the order
not seeking relief using denton factors
how to dispute privillege
apply to court
court can require doc, representations and then decide whether to order disclosure
who can the court request representations from when privillege is disputed (should document be disclosed)
anyone - even someone who is not a party to the case
is there a right/obligation to pre-action disclosure
no - can request it but no obligation to provide, would have to apply for an order
when will an order for cpre-action disclosure be made
proceedings are likely
and
docs sought are within standard disclosure
and
disclosure desirable to help resolution or save costs
what can you do if you’re not happy with the other party’s disclosure efforts
apply for order for disclosure
can legally privlleged docs be withheld from disclosure
yes but must still be included in list - just cannot inspect them and describe in more general way
can without privilege docs be withheld from disclosure
no - these must be included in disclosure
which part of CPR governs disclosure
part 31 (except small claims track)
what docs should be disclosed
only those that have an impact on the case
how to disclose docs
make a list - state it exists or did exist
what is a document (re disclosure)
anything in which info is recorded
disclosure at small claims
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
disclosure at fast track
standard disclosure
multi track disclosure
standard disclosure
disclosure report 14 days before CMC
then 7 days before CMC parties seek to agree disclosure
file agreed proposal at court
which CPR rule sets out standard disclosure
r31.6
standard disclosure in r31.6
docs you rely on
docs adverse to your case
support other party
adverse to other party
duty to disclose is limited to docs in your control - what does this mean
either was or are in their physical possession
they have a right to possess or
they have a right to inspect
which parties are subject to a duty to disclose
all parties
what sort of search must be made for docs
reasonable and proportionate
what is a reasonable search (disclosure)
depends on number, nature, complexity of proceedings, ease and expense of retrieval and significance of doc
can search for docs be limited (disclosure)
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
when electric docs are deleted do they still need to be disclosed
yes if they are on back up system
special rules re disclosure of electronic docs
parties should agree categories of electronic docs to be disclosed, how to exchange and format and limit - due to volume
when must electronic doc disclosure be agreed
before directions are given
3 parts of disclosure list
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
name of list used for disclosure
N265
what if you find new docs after you have provided disclosure list
continuing obligation so must disclose them
can you rely on documents that aren’t included in disclosure statement (eg if you locate them after you made disclosure statement)
only if other party agrees
if other party doesn’t agree then would need court permission to rely on it
can legal rep sign disclosure statement on behalf of client
no must be client
what to do if you have not searched for some docs or not included some docs
include this in disclosure statement
disclosure statement
extent of search and compliance with duty
can a non-party be ordered to disclose documents
yes if it is necessary to dispose of hearing fairly and docs are likely to support or hinder case
what sort of directions re evidence can the court give
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
what is an affidavit
sworn statement of evidence
exceptions to the general rule that C has the burden of proof
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
general rule regarding facts that a party intends to rely on
any facts that a party wishes to rely on must be proved at trial by oral evidence
can a witness statement be drafted in witnesses own language
yes but include date and details of translation in statement
can a witness add to their statement at trial
no - would need court permission and would have to be a good reason why it’s not in the statement
what info can be included in a witness statement
must be relevant
meaning of relevant facts
those in dispute and which have to be proved by party calling witness
what is hearsay
statement made outside court which is repeated inside court to prove the truth of the matter stated - must be used as evidence
when is hearsay admissible
when it is relevant
what format should hearsay be in
oral, written, docs, witnesses
what if a party doesn’t comply with notice requirements re hearsay
still admissible but might affect weight given to it or the costs at the end of the trial
are out of court statements made by oath or affirmatin
no
notice requirements for hearsay
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
what does a hearsay notice explain
why you are relying on the statement but not calling the witness for oral evidence
impact of relying on a witness statement but not calling the witness for oral evidence
the whole statement becomes hearsay
can you always call in an expert
no need permission must be necessary to decide the issue
to whom does an expert owe a duty
to court and instructing party but duty to court overriding
what if an expert report doesn’t take the right form
may not be able to rely on it or may just impact weight given to it
can the court require 2 experts to work together
yes can order an without prejudice discussion
are the instructions you give to your expert privilleged
no - these will be set out in the experts report and may be scrutinised by the court
when will the court direct the use of a single expert
when not proportionate to have 2 experts - consider if there is likely to be varied opinion on the topic
what if parties cannot agree on one expert
the court will select one
can you have seperate experts in the fast track
would usually have one joint expert unless there’s a good reason not to share
do experts give oral evidence
usually only in multi track - presumption written report will be enough
proceedure where there are several experts
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)
how long do you have to ask written questions of the other party’s expert
28 days
what happens at a discussion between experts
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.
where do fast track and multi track cases take place
CC hearing centre
what type of questions can be asked at examination in chief and re-examination
open questions only
when the court orders a payment of money (including costs) how long do you have to pay it
14 days
if witness has forgotten facts or now interprets it differently what can you do?
nothing
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
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
when to give details of witness avaliability
questionnaire and checklist
do you need court permission to summon a witness
yes
when to serve witness summons
7 days before hearing
requirements for witness summons to be valid
must pay their travel and compensation for loss of time
when must completed pre trial checklist be filed with court
8 weeks before trial
listing hearing
judge reviews checklist and may decide to give further directions - fast track
pre-trial review
judge reviews checklist and may decide to give further directions - multi track
what if neither party complete checklist
order 7 days to complete or will be struck out
what if only one party complete checklist
hearing to ensure ready for trial
when may the judge decide to hold a pre-trial review
if trial is likely to last more than 10 days
when should trial bundle be filed
7-3 days before start of trial
when costs are on standard basis will the last approved budget be departed from
only if there is a good reason eg costs weren’t incurred at all or much less than expected
costs on small claims track
not usually recoverable - only disbursements
costs on fast track
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
costs on multi track
detailed assessment of costs
what is a summary assessment of costs
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
when are costs summarily assessed
fast track and any other hearing that didn’t last more than 1 day - unless good reason not to
when is permission to appeal a civil case given
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
how long do you have to appeal a civil case
21 days to appeal against CC or HC decision and 28 days to apply for leave to appeal C of A to SC`
when to request permission to appeal a civil case
at end of trial or can apply to appeal court
which courts/judges to appeal from and to
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
is permission to appeal dealt with on the paper
yes except C of A where an oral hearing will be listed within 14 days if it cannot be fairly decided without the parties
when will an appeal leapfrog CC - C of A or HC - SC
raises important point of principle or practice or there is some other compelling reasons - must be urgent or exceptional
2 stage process to go straight from HC to SC
grant of leapfrog certificate by trial judge and grant of permission to appeal by SC
when will an appeal court grant an appeal (civil)
if decision of lower court was either wrong in fact, law, discretion or procedure
