Chapter 1- Introduction To Civil Litigation And Pre Action Considerations Flashcards

1
Q

What is the overriding objective of the CPR? (CPR 1.1)

A

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

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2
Q

Aims of the pre-action protocols?

A

More cards on the table
Focus on resolving the dispute without the courts
Lay the foundations for court proceedings

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3
Q

Consequences of non-compliance with the pre action protocols?

A

Likely to relate to costs and interest

May make a stay of proceedings

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4
Q

When are proceedings commenced?

A

A claim form is issued by the court at the request of C

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5
Q

When must the claim form be served by?

A

Within 4 months

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6
Q

When is CPR 8 used?

A
  • When the court is being asked to reach a decision in a matter which is unlikely to involve a substantial dispute of fact
  • A rule or practice direction requires
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7
Q

What are the particulars of claim (CPR 16)?

A

The statement of case which contains full details of C’s claim

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8
Q

How can the particulars of claim be dealt?

A
  1. Included on the claim form
  2. Separate document but served with the claim form
  3. Served 14 days after claim form (although must still be within the 4 month rule)
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9
Q

How can D respond to a claim?

A
  • File an acknowledgement of service (CPR 10)
  • File an admission (CPR 14)
  • File a defence (CPR 15 and 16)
    WITHIN 14 DAYS
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10
Q

What must a defence include?

A
  • Allegations which are denied
  • Allegations which he can neither confirm or deny
  • Allegations he admits
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11
Q

What is the result of D failing to respond?

A

Judgement in default (CPR 12)

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12
Q

When can a counterclaim be filed?

A

Can be filed with defence without the courts permission

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13
Q

What can C do in response to D?

A

File a reply (CPR 15)

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14
Q

What must further information/ clarification be?

A

CPR 18

Reasonably necessary and proportionate

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15
Q

What is allocation?

A

Where the court starts managing the case

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16
Q

What is a case management conference?

A

Takes place after allocation
Attended by both sides solicitors
CPR 26-29

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17
Q

If the parties haven’t requested a stay, what’s the first thing the court will order?

A

Disclosure

Each party tells the other what they have

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18
Q

What does disclosure in fast track entail?

A

Disclosure of a list of documents

19
Q

Disclosure 14 days before case management conference

A

What documents exist
Where the documents are located
How they are stored if electronic
Costs that could be involved in disclosure

20
Q

What follows disclosure and inspection?

A
Witness statements (CPR 32)
How facts of the dispute are put before the court
21
Q

What is needed to adduce expert evidence (CPR 35)?

A

Court order

22
Q

What is a Part 36 offer?

A

Settlement at any point before or during proceedings

May have an impact on costs if offer rejected

23
Q

Act governing the High Court

A

Senior Courts Act

24
Q

Act governing the County Courts

A

County Courts Act 1984

25
Q

3 divisions of the High Court

A
  • Chancery Division
  • Queen’s Bench Division
  • Family Division
26
Q

What does the Chancery Division deal with?

A
Land 
Mortgage 
Trusts
Administration of estates
Bankruptcy
Partnership
27
Q

What does the Queen’s Bench Division del with?

A

Most contract and tort
Commercial matters
Admiralty
Judicial review

28
Q

What factors are considered when determining County Court v High Court?

A
  • Jurisdiction
  • Rules governing commencement
  • Rules governing transfer
29
Q

What are the rules governing commencement?

A

< £100,000- County Court
Unless personal injury (£50,000)
Sufficiently complex, in the public interest

30
Q

What happens if the case is brought before the wrong court?

A

Pay costs of transfer

Other sanctions may be imposed

31
Q

How can you find out about the other parties side, around the time of the first interview?

A

Enquiry agents
Registers
Company searches

32
Q

What’s the aim of the first letter?

A

Summarise the main points covered in the first interview
Document the retainer
May include client care letter

33
Q

What is a case theory?

A
  • What needs to be proved?
  • What evidence is there to prove it?
  • Is that evidence admissible?
34
Q

In what circumstances may a court treat matters as established without evidence?

A
  • Formal admissions
  • Presumptions
  • Inferences of fact
35
Q

What evidence can be used to prove facts?

A
  • Testimony
  • Documents
  • Real evidence
36
Q

Benefits of litigation

A
Legally correct solution
Precedent value 
Wide power 
Process is tried and tested 
Solution guaranteed 
Not voluntary
37
Q

Issues with litigation

A

Solution imposed
Inflexible
No choice of judge

38
Q

Benefits of arbitration

A

Easier to enforce abroad

Parties have more control

39
Q

Issues with arbitration

A

Limited rights of appeal
Not appropriate in all cases
Can’t join 3rd parties to proceedings without their consent

40
Q

Benefits of mediation

A

Allows active involvement of the parties
Preserves commercial relationships
Commercially realistic solutions

41
Q

Issues with mediation

A
Mediator lacks powers 
Voluntary 
Solution not binding 
Legally correct solution less likely 
Not appropriate in all cases
42
Q

What’s included in solicitor/ client costs?

A

Profit costs

Disbursement’s

43
Q

Principle the court follows in awarding costs

A

‘Costs follow the event’

Unlikely to give 100%