CDI Flashcards
Against whom does the injunction operate – the foreign court, or the claimant?
The foreign court and the claimant
The claimant
The foreign court
The foreign court or the claimant (whichever the court orders)
The claimant
Correct. See Paragraph 19 of Armco and earlier in this element.
For the purposes of an anti-suit injunction, the courts of England and Wales have jurisdiction over the respondent if…
…the respondent is in the jurisdiction.
…the parties have agreed that the courts of England and Wales have jurisdiction.
… the respondent can be served with proceedings.
… the respondent can be served with proceedings.
Correct
Correct. See Paragraph 21 of Armco and earlier in this element, and note that RSC Order 11 is the predecessor of the current rules permitting service out of the jurisdiction.
When will a court grant an anti-suit injunction in support of an exclusive jurisdiction clause?
Sometimes.
Ordinarily.
Rarely.
Generally.
Ordinarily.
Correct
Correct – see para 24 of Armco, but note that the court can refuse to grant the anti-suit injunction on the basis of unconscionable conduct or other ‘strong reasons’.
A clause giving England and Wales exclusive jurisdiction in relation to a dispute is often accompanied by a clause providing for a party to appoint solicitors within the jurisdiction to accept service of proceedings primarily because this…
… makes compliance with pre action requirements easier.
… avoids the practical challenges associated with serving proceedings abroad.
… provides a basis for serving proceedings out of the jurisdiction without the permission of the court.
… ensures that England and Wales have jurisdiction over the dispute.
… avoids the practical challenges associated with serving proceedings abroad.
Correct. Well done!
Rome I Regulation and Rome II Regulations both permit the parties to choose which country’s laws govern the dispute, subject primarily to…
…the agreement being recorded in writing.
…provisions which aim to protect a weaker party from the negative impact of such a choice.
…the choice of law being entered into before the dispute arises.
Correct
…provisions which aim to protect a weaker party from the negative impact of such a choice.
Correct. See for example the provisions in the Rome I Regulation in relation to employees.
Caution should be exercised before agreeing to a clause which requires proceedings against Party A to be commenced in a named jurisdiction but which does not impose the same restriction in relation to claims against Party B. The primary reason caution needs to be exercised is…
… the courts of England and Wales may not enforce such an agreement.
… a foreign jurisdiction may not enforce such an agreement.
… the clause will not be enforced if it creates a significant imbalance between the parties.
… a foreign jurisdiction may not enforce such an agreement.
Correct. Whilst an English / Welsh Court will generally uphold such an agreement, the same is not true of all foreign jurisdictions.
Where the foreign law is not proved…
…the claimant has failed to make out that part of its case.
…it is assumed to be the same as English law
…the court will direct how evidence of foreign law should be obtained.
…it will be assumed to be as pleaded by the claimant.
…it is assumed to be the same as English law
An English court must not carry out its own research into the foreign law.
True
False
True
An English court must not review for itself the sources of law upon which an expert on foreign law has based their evidence.
False
True
False
An English company is entering into a contract with a French company. The contract includes a clause providing that “The Courts of England and Wales have exclusive jurisdiction to determine any dispute between the parties”. What additional might benefit might the following clause present for the English company?
“[The French company] may be served by sending proceedings by first class post to Smith & Co Solicitors of London at 143 Pokémon Court, Sandhill, SW3 9FK”.
It avoids the practical challenges of serving proceedings abroad.
It avoids the need to seek the court’s permission to serve proceedings abroad.
It increases the prospects of the Courts of England and Wales having jurisdiction to determine the matter.
It increases the prospects of an anti-suit injunction being available to the English company if proceedings are commenced outside of England and Wales.
It avoids the practical challenges of serving proceedings abroad.
Correct. The exclusive jurisdiction clause is already very likely to give the Courts of England and Wales jurisdiction to determine the dispute, avoids the need for the court’s permission to serve abroad, and increases the prospect of obtaining an anti-suit injunction (if one is needed). What this additional clause adds is the practical benefit of being able to serve in England rather than France.
In proceedings before the courts of England and Wales, the parties are in agreement that Russian Law applies, but disagree on what the applicable Russian law provides.
How should each party primarily seek to demonstrate to the trial judge that its position in relation to Russian law is correct?
By witness evidence.
By argument in skeleton arguments (and at trial if necessary).
By referring the judge to the relevant Russian legislation / judicial decisions (translated into English).
By the use of expert evidence.
By the use of expert evidence.
Correct
Well done. Evidence of foreign law must be provided by a person suitably qualified to do so on account of his knowledge or experience of the law, and this is treated as a form of expert evidence. See the element relating to proof of foreign law.
A supplier considers that it has a debt claim against a manufacturer. The supplier is based in France. The manufacturer is based in England. In the absence of any agreement between the parties, please assume that the French courts have jurisdiction to determine the dispute. The contract between the parties contains a clause stating that “any proceedings arising out of this contract may be commenced in the courts of England and Wales”. The supplier commences proceedings in France against the manufacturer. The manufacturer wishes to seek an anti-suit injunction to prevent the supplier pursuing the claim in France.
Which of the following best summarises how the court will approach the question of whether to grant such an injunction?
The court will not grant an injunction in support of a clause of this nature.
The court will ordinarily grant an anti-suit jurisdiction in these circumstances.
The injunction cannot be granted because the proceedings have already been commenced.
The court will not grant the injunction unless pursuing the claim in France is vexatious / oppressive.
The court will not grant the injunction unless pursuing the claim in France is vexatious / oppressive.
Correct
Well done. The clause in the contract is not an exclusive jurisdiction clause. It does not state that the courts of France do not have jurisdiction. So the court will only grant an anti-suit injunction if satisfied that the proceedings in France are vexatious / oppressive (there are additional requirements too).
Success in the context of a CFA means…
Recovery of any amount.
Whatever the agreement indicates it means.
Recovery of any amount at trial.
Recovery of the amount claimed.
Whatever the agreement indicates it means.
Correct. Of course there are more and less common definitions, but ultimately it depends on what the agreement says.
A client enters into a CFA with its solicitors providing for an uplift of 25% in the event of success. Success is defined as a court ordering the opponent to pay any amount or the opponent agreeing to pay any amount (other than an amount relating solely to costs). At trial, the court orders the opponent to pay £300,000 for damages and £125,000 for costs (including disbursements of £45,000). The client’s costs to trial (before uplift) were in fact £120,000 for solicitor’s costs and £60,000 for disbursements. Assuming the opponent pays everything it has been ordered to pay, how much will client end up with after paying its solicitors?
£215,000
£268,750
£300,000
£265,000
£215,000
Correct. The simplest way to calculate this is:
Calculate the amount of money coming into the client = £300,000 + £125,000 = £425,000.
Calculate the amount of money the client must pay out = £120,000 for solicitor’s costs + £30,000 (uplift) + £60,000 = £210,000
Subtract 2 from 1: £425,000 - £210,000 = £215,000.
A client funds litigation on the following terms:
a. a CFA with its solicitors in relation to 50% of their charges, with an uplift of 100%.
b. third party funding providing for a potential facility of £2.5 million
c. in the event of success at trial, the third party funder to be repaid any sums actually paid by it, plus a ‘profit share’ of 250% of the total potential facility;
d. ATE insurance with a premium of £1 million, deferred and contingent upon success.
Success is defined the same way in all arrangements – any award in the client’s favour at trial.
The client succeeds at trial, and is awarded £12 million. The solicitor’s charges are £3 million, half of which have been paid using the third-party funding facility. Disbursements are another £0.5 million, paid with the same facility.
How much does the client need to pay to the solicitors, funder and insurer combined (not including anything already paid to them)? Express your answer using numbers (rather than words), without any commas or currency symbols.
£12.25 million
Correct
Correct - £12.25 million. The solicitors charges are £3million. Half of this has already been paid by the litigation funder. The other half was on a CFA with 100% uplift, so this is £1.5 million plus 100% ie £3 million. The third party funder needs to be paid: a. the sums it already paid, being half the solicitor’s fees (£1.5million) plus the disbursements (£0.5 million) plus 250% of the total facility (2.5x £2.5 million = £6.25 million), plus the insurance premium of £1million = £12.25 million.
A case summary should not normally exceed [how many words?] in length.
1,000
250
500
5,000
1,500
500
Correct. See 29 PD 5.7.
When preparing a case summary for a hearing, a guiding drafting principle is to consider:
What is the value of the claim?
What questions need to be decided at that hearing?
What needs to be resolved at trial?
What issues are in dispute in the claim?
What questions need to be decided at that hearing?
Correct
Correct. See 29 PD 5.7(a).
Who usually prepares the case summary?
Each party prepares a case summary.
The claimant, with the agreement of the other parties.
The party ordered to prepare the case summary by the court.
The defendant, with the agreement of the other parties.
The claimant (agreed with the other parties if possible).
The claimant (agreed with the other parties if possible).
Correct
Correct. See 29 PD 5.7.
A case summary typically has which of the following, and in what order?
1 – Chronology of the claim
2 – Issues of fact which are agreed.
3 – Issue of fact which are in dispute.
4– Evidence needed to decide the latter
Your client is bringing a claim in breach of contract for £450,000. Your firm enters into a CFA with the client, with an uplift of 100% in the event of success (defined as recovery of any sum over £20,000). You agree not to pass on any disbursements to the client until the conclusion of the claim, and your client has obtained ATE insurance which will pay the disbursements in the event that the claim fails. In the event that the claim succeeds, an ATE insurance premium of £40,000 is payable.
By trial, your client has incurred costs with your firm of £100,000 (not including any uplift) and disbursements of £50,000). Your client is successful at trial and is awarded:
£400,000 damages
£60,0000 in relation to costs (excluding disbursements)
£40,000 in relation to disbursements.
Assuming the opponent pays everything it has been ordered to pay, how much will the client end up with?
£260,000
£250,000
£230,000
£210,000
£210,000
Correct
Correct. The simplest way to calculate this is:
Calculate the amount of money coming into the client = £400,000 + £60,000 + £40,000 = £500,000.
Calculate the amount of money the client must pay out = £100,000 for solicitor’s costs + £100,000 (uplift) + £50,000 disbursements + £40,000 ATE premium = £290,000
Subtract 2 from 1: £210,000. See the element relating to funding.
Your client is a firm of planners facing a negligence claim in relation to advice given two years ago. Proceedings have not yet been issued but your client has received a letter of claim in accordance with the applicable pre-action protocol. You have identified from the planners’ files that the individual with conduct of the matter on behalf of the planners was Ellen Brado. When should you make enquiries to establish the suitability of Ellen Brado to be a witness for your client?
Before filing your client’s directions questionnaire.
Before proceedings are issued.
Before responding to the letter of claim.
Before the first case management conference.
Before responding to the letter of claim.
Correct. Identifying available witness evidence is a crucial part of case analysis. If Ellen is not available, not willing to help, or not likely to be a good witness, this might have an impact on how your client responds to the letter of claim eg whether to make a settlement offer. See the element relating to case management and witnesses.
In a multi-track dispute, a costs management order is made. In relation to witness evidence, the CMO notes in relation to the defendant that costs of £1,000 have already been incurred and a figure of £9,000 is approved for future costs. The defendant succeeds at trial and a costs order is made in the defendant’s favour in relation to the whole claim on the standard basis. In relation to costs, the defendant claims £1,000 in relation to the costs shown as incurred in the approved budget and £11,000 in relation to costs shown as estimated on the budget. On the basis of these facts, which of the following best summarises how the court is likely to approach assessment of costs in relation to witness evidence?
Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £9,000.
Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.
Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £10,000.
Award £10,000 unless there is a good reason not to do so.
Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.
Correct
Correct. The costs management order does not impact on the sum of £1,000, which will need to be assessed in the ordinary manner. In relation to the remainder, the court will not depart from the budget figure of £9,000 unless there is good reason to do so – CPR 3.18. See the Workshop 2 Consolidate Task and the case of Utting. Remember that you can be assessed on material you have been asked to read (such as Utting).
The BPC disclosure regime applies….
In the Business and Property Courts, County Court only
In the Business and Property Courts, High Court and County Court
In the Business and Property Courts, High Court only
In the Business and Property Courts, High Court only
Correct
Correct. Well done.
To whom must a party give written confirmation that it has complied with its obligations in relation to the preservation of documents:
The court
Its legal representatives
Nobody
The other parties
Its legal representatives
Correct. See 57AD PD 4.