Chapter 1- Introduction To Civil Litigation And Pre Action Considerations

Question 1

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

Answer 1

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

Question 2

Aims of the pre-action protocols?

Answer 2

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

Question 3

Consequences of non-compliance with the pre action protocols?

Answer 3

Likely to relate to costs and interest

May make a stay of proceedings

Question 4

When are proceedings commenced?

Answer 4

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

Question 5

When must the claim form be served by?

Answer 5

Within 4 months

Question 6

When is CPR 8 used?

Answer 6

• 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

Question 7

What are the particulars of claim (CPR 16)?

Answer 7

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

Question 8

How can the particulars of claim be dealt?

Answer 8

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)

Question 9

How can D respond to a claim?

Answer 9

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

Question 10

What must a defence include?

Answer 10

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

Question 11

What is the result of D failing to respond?

Answer 11

Judgement in default (CPR 12)

Question 12

When can a counterclaim be filed?

Answer 12

Can be filed with defence without the courts permission

Question 13

What can C do in response to D?

Answer 13

File a reply (CPR 15)

Question 14

What must further information/ clarification be?

Answer 14

CPR 18

Reasonably necessary and proportionate

Question 15

What is allocation?

Answer 15

Where the court starts managing the case

Question 16

What is a case management conference?

Answer 16

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

Question 17

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

Answer 17

Disclosure

Each party tells the other what they have

Question 18

What does disclosure in fast track entail?

Answer 18

Disclosure of a list of documents

Question 19

Disclosure 14 days before case management conference

Answer 19

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

Question 20

What follows disclosure and inspection?

Answer 20

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

Question 21

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

Answer 21

Court order

Question 22

What is a Part 36 offer?

Answer 22

Settlement at any point before or during proceedings

May have an impact on costs if offer rejected

Question 23

Act governing the High Court

Answer 23

Senior Courts Act

Question 24

Act governing the County Courts

Answer 24

County Courts Act 1984

Question 25

3 divisions of the High Court

Answer 25

- Chancery Division - Queen’s Bench Division - Family Division

Question 26

What does the Chancery Division deal with?

Answer 26

``` Land Mortgage Trusts Administration of estates Bankruptcy Partnership ```

Question 27

What does the Queen’s Bench Division del with?

Answer 27

Most contract and tort Commercial matters Admiralty Judicial review

Question 28

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

Answer 28

- Jurisdiction - Rules governing commencement - Rules governing transfer

Question 29

What are the rules governing commencement?

Answer 29

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

Question 30

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

Answer 30

Pay costs of transfer | Other sanctions may be imposed

Question 31

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

Answer 31

Enquiry agents Registers Company searches

Question 32

What’s the aim of the first letter?

Answer 32

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

Question 33

What is a case theory?

Answer 33

- What needs to be proved? - What evidence is there to prove it? - Is that evidence admissible?

Question 34

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

Answer 34

- Formal admissions - Presumptions - Inferences of fact

Question 35

What evidence can be used to prove facts?

Answer 35

- Testimony - Documents - Real evidence

Question 36

Benefits of litigation

Answer 36

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

Question 37

Issues with litigation

Answer 37

Solution imposed Inflexible No choice of judge

Question 38

Benefits of arbitration

Answer 38

Easier to enforce abroad | Parties have more control

Question 39

Issues with arbitration

Answer 39

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

Question 40

Benefits of mediation

Answer 40

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

Question 41

Issues with mediation

Answer 41

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

Question 42

What’s included in solicitor/ client costs?

Answer 42

Profit costs | Disbursement’s

Question 43

Principle the court follows in awarding costs

Answer 43

‘Costs follow the event’ | Unlikely to give 100%