Civ lit and Evidence Flashcards
Stages of litigation
1) pre action protocol
2) claim form and POC
3) acknowledgment of service, defence , counterclaim
4) allocation to track and case management
5) disclosure
6) witness statements
7) expert reports
8) trial
Limitation period for contract
6 years
Limitation period for tort
6 years
Limitation period for personal injury
3 years
Which part of CPR to commence claim
Either part 7 or part 8
What’s the difference between part 7 and part 8
No defence needs to be filed
No POC
Default judgment not available ie judgment without merits being heard or response from D
Allocated to multi track
Not usually oral evidence
When would part 8 be used
If case is not likely to involve substantial dispute on fact or
Enactment says use part 8
What is a calderbank offer
An offer without prejudice save as to costs
Why use calderbank
Could be used to give more flexibility than part 36 and may therefore edit the cost rules that party accepting offer will pay the costs
When is the deemed service date for a claim form
The second business day
How long after serving claim form served can particulars of claim be served
Within 14 days
What is the max period after issue of claim form that it will become invalid if not served
4 months on the Calendar day - different to the other rules where you do not include the first day
When is the deadline for defence to be filed upon receiving POC
Within 14 days
What does date of knowledge mean for the purposes of limitation act ?
1- significant injury
2- attributable wholly or partly to act or omission
3- identity of d
What is the limitation period for negligence not involving PI
15 years
When must c have a disability for section 28 limitation act and what does disability cover
At time cause of action accrued
Mental capacity act 2005
Below 18
When must a defence be served and what should happen with counter claim
Within 14 days of POC service
Include counterclaim with defence
What is the deemed service dates for non instant methods
The second day providing it’s a business day
What is the deemed service date for instant methods
If before 4:30 then on that date , if not then the next business day
What court do you commence proceedings in if personal injury claim above 50,000
Either the high court or county court
What court do you commence proceedings in if personal injury claim below 50,000
County court
What court do you commence proceedings in if it is a non personal injury claim up to 100,000
County court
When should you pick the high court over county court
Some element of public importance
Complex
Financial value ie the more over 100,000 the more likely and more over 50,000 for PI
What are the main statements of case
Claim form
Particulars of claim
Defence
Reply
Defence and counter claim
Reply and defence to counterclaim
What are the different tracks and values for each track
Small claims track which is below 10,000
Fast track is 10,000-25,000
Intermediate track 25,000-100,000
Multi track 25,000 or more but very complicated claims only
List Methods of service
Personally on defendant
Leaving document at permitted address
Electronic eg email
Fax
First class post
What options does the defendant have when responding to POC
Can
1) file an admission
2) file a defence
3) file an acknowledgement of service - use this if need longer ie extra 14 days or dispute jurisdiction
In the defence what options does defendant have in responding to allegations
Can either
Admit
Deny
Require proof
What’s the process for requesting further information
Ask the other party in writing and give them a reasonable amount of time before applying to the court under CPR 18.1
What is a default judgment
This procedural firstly
A claimant may apply for default judgment if the defendant has not responded to the POC within the time period.
For counting time… is the day on which the period begins included
No
For counting time … are days on which the period ends included ?
Yes unless period ends on an event
For counting time … do weekends count
Yes unless period is 5 days or less
For counting time , what happens if court office closes on day period ends
In time if done on next open day
What % of costs can you expect to recover on standard basis
60%
What % of costs can you expect to recover on indemnity basis
70-80%
How long to comply with an order for costs
14 days
Do costs have to be proportionate on standard basis
Yes
Do costs have to be proportionate on indemnity basis
No but must be reasonable
When must a with notice interim application be served
A soon a is reasonably practical after filing
Not within 3 days of hearing application
What must accompany an interim application
Any supporting written evidence
A draft order
How long do you get to set aside an interim application without notice or vary it
7 days
What is the overriding objective
The overriding objective is to Deal with cases justly at a proportionate cost
Do the parties have a duty in relation to the overriding objective
Yes they must help to further it
Otherwise may be penalised in costs
When may a statement of case be struck out
A) the statement of case discloses no reasonable grounds for brining or defending the claim
B) the statement of case is an abuse of the court process
C) failure to comply with rule, practice direction or court order
When do proceedings start
When Claim form issued
When can a solicitor be served
Where the defendant notifies or defendants solicitors notifies that solicitor can accept service
Can you serve via email if the email is merely set out in writing
No must be accompanied by express statement saying can be served
What positions are deemed to be of senior position for servicing a company
Director, treasurer, secretary, chief executive, manager or other officer
Is filing an acknowledgment of service compulsory for part 8 claim
Yes d must state whether he contests the claim
This must be done within 14 days after service of claim form
What must children and protected parties have for litigation
A litigation friend
Can children and protected parties apply against having a litigation friend
Only children can
Who may be a litigation friend
A) can fairly and competent conduct proceedings on their behalf
B) have no interest adverse to the them
C) undertake to pay costs subject to right to take from their assets
Do you need court approval for settlements and compromises in claims involving children and protected parties
Yes, must always have court approval
If making an application , what is the process
Must file an application notice
This must be served on other party as soon as is reasonably practicable and Atleast 3 days before hearing
Consequences of applications made completely without merit
Court must record that fact and
Consider whether to make a civil restraint order
Can you serve a POC after a claim form would have expired ie after the 4 months
No the 4 months is also the cut off for POC
Can a contract provide for method of service in event of litigation
Yes
What are the steps if no address for service provided
1) c must take reasonable steps to ascertain address
2) if cannot ascertain then c must consider if there is an alternative place or alternative method which service may be effected
3) if find a way then must apply to court under CPR 6.15
4) if not then serve at last known residence
If claim form served on Friday when is the deemed day of service
The following Tuesday because it’s the second business day and Friday is not included
If POC is served on a Friday when is the deemed date of service
Depends on the method ie if instant method - before 4:30 would be Friday
If non instant then it would be Monday because it is the second day aslong as is business day
When may a consent order be used
When recording a simple agreement or judgment for payment of money
Equally consent order may be appropriate for dismissal of proceedings or agreeing a stay whilst settlement talks take place
When can a claimant obtain default judgment
If defendant has not filed an acknowledgement of service within the time period or defence
It’s procedural
Difference between summary judgment and strike out
Summary judgment is when there is no real prospect of succeeding or defending the claim (considers evidence aswell )
Strike out is when a statement of case discloses no reasonable grounds for bringing or defending the claim ( only statements of case)
Does default judgment apply for counterclaims
Yes
Do u need court permission to file counterclaim
Only if separate to defence
What are the grounds for summary judgment
No real prospect of succeeding on claim , defence or issue and
No other compelling reason why the case should be disposed of at trial
What does no real prospect of succeeding actually mean
Not realistic
Must be more than merely arguable
How much notice do you need to provide other party for summary judgment hearing
14 days
What is a Conditional order
Will usually require a party to make a payment into court
If respondent wishes to serve evidence for summary judgment, when must it be done
Not within 7 days of hearing
If applicant of a summary judgment wants to serve further evidence after the respondent did, Whne must it be done
Not within 3 days of hearing
What rule does summary judgment follow in relation to when things should be served
14-7-3 rule
A cheque has its own contract- will there be any defences in law for dishonouring a cheque
No there are no defences even if goods not satisfactory
When will costs be assessed on summary assessment
Hearings that are not longer than 1 day must be assessed on a summary assessment ie at end of hearing / trial
What is a costs throw away order
It’s a cost order made before trial which means a party gets preparation costs usually for setting aside ie default judgment
What is a costs in the case costs in the application order
Order made before trial where by it is ordered that whoever wins at trial will also get costs for interim application
What is a costs of and caused by order
Cost order made before trial whereby costs will be awarded to a party if they have needed to amend due to the other party
How long to apply to set aside an order made without notice
Within 7 days of the date Whne order served
When may an application be made without notice
Where there is exceptional urgency
Overriding objective is best furthered
Permission of court
If cannot give 3 days notice for application, what’s the next best
Give informal notice ie less than 3 days
When can you apply for an interim remedy
At anytime but if a claim form has not been served then there must be urgency and desirable in Interests of justice
Who can apply for a security of Costs order and why
CPR 25.12
A defendant to a claim may apply in order to protect themselves from getting a Costs and not being able to enforce
Who can apply for a security of Costs order and why
A defendant to a claim may apply in order to protect themselves from getting a Costs and not being able to enforce
What are the conditions for When a court may make an order for security for costs
C is a company and reason to believe it will be unable to pay d costs
C changed address since claim commenced with view of evading litigation consequences
C taken steps in relation to his assets that may make costs hard to enforce
Claimant is acting as litigant in person and reason to believe unable to pay d costs
When should you file and exchange a costs budget
Not less than 21 days before first case management Conference
When should an agreed budget discussion report me served
No later than 7 days before first case management hearing
Do you need courts permission to make an additional claim
Yes unless defendant filed with defence
What must an application for an additional claim include
Supported by evidence stating
Stage proceedings are at
Nature of additional claim
Summary of facts of additional claim
Name and address of party
Explanation for delay
Do you need courts permission to amend statement of case
CPR 17.1 = yes if it has already been served or unless get parties agreement
Application must be made in accordance with CPR 19.4
What are the general principles for court to grant amendment of statement of case
Furthers overriding objective
Balance injustices between parties
Is case advanced by amendment
Can you make amendments to statements of case of limitation period has expired
Yes but only if new claim arises out of same facts or
To correct mistake of parties name
Or
Alters the capacity of which to claim
If application is successful for an amendment how long too amend
Within 14 days
Who will be responsible for the costs of amendment
Generally the applicant and court will award respondent costs by way of a costs of and caused by order
When may the court add a new party
CPR 19.2 may order a person to be added if it is
A) desirable to add the new party to resolve matters in dispute or
B) there’s is an issue involving existing party and new party that needs resolving
Can you add or substitute parties if limitation period has ran out
Yes but only if
A) new part is being substituted for party who was named as a mistake
B) the claim cannot properly be carried on unless new party put in
C) liability has passed to another party
What is the Sardinia sulcis test for mistake
If the defendant gets the right description but wrong name then substitution allowed
What is the difference between CPR 17.4 and CPR 19.6
17.4 is where none of the parties are being changed.
The court will allow amendments to statements of case after the end of limitation period if
- bring a New claim arising out of same facts
- correct mistake as to name of party ie Adam instead of adan
- changing capacity ie beneficiary instead of executive
19.6- is where parties are being substituted
- New party is to be substituted for a party who was named by mistake (description must have been correct tho )
- claim cannot properly be carried on unless substitution happens
- liability has passed eg a death of original claimant
What rule will most additional claims be brought under ? (Bucket provision)
CPR 20.7
Do u need a new claim form for rule 20.7 ie additional claim
Yes but not 20.5 ie counterclaim or 20.6 contribution or indemnity
When must claim form be served for an additional claim
Within 14 days of date of issue
What is a Norwich pharmacal order
A court order for disclosure of documents or info that is available within the uk. It is granted against third parties who have become mixed up in the wrong doing - can compel them to disclose identity of wrongdoer or docs
What is a directions questionnaire
A document produced by the parties to provide information about the claim to help with case management , particularly allocation of track
When should directions questionnaire be filed
What must the value be below for small claims track
10,000
What cases go into fast track re
Value
Length
Oral or written evidence from expert
Less than 25,000
No longer than 1 day trial
Only an oral expert
What cases fall into intermediate track
Re value
Length
Number of experts
Less than 100,000
Trial last no longer than 3 days
Max of 2 experts per party
What cases fall into multi track
100,000 plus
What are the steps for case allocation to track after defence filed
1) notice of proposed allocation sent by court officer
2) parties file directions questionnaire
3) proposed directions
4) notice of allocation
When must directions questionnaire be filed and served?
By the date stated in the proposed allocation notice
Can you request a stay for settlement talks in directions questionnaire ?
Yes
How long will a stay for settlement talks usually be
PD 26 says 4 weeks
What is the case management steps for fast track
Notice of allocation
Directions dealing with :
- Disclosure
- service of witness statements
- expert evidence
- trial date given
What is the case management steps for intermediate track
Notice of allocation
Give directions or CMC
If CMC then file agreed directions Atleast 7 days before
Directions must deal with :
- disclosure
- witness statements
- experts
- pre trial review
- give trial date
What are the case and costs management steps for multi track case
Notice of allocation
Directions or CCMC (do not need to give trial date)
File and serve cost budgets Atleast 21 days before CCMC
file disclosure report Atleast 14 days before CCMC
File proposed directions Atleast 7 days before CCMC
File budget discussion report Atleast 7 days before CCMC
What is the consequence of failing to file a cost budget report in multi track case
Treated as automatically filing one which only allows for applicable court costs - draconian
What is the act of disclosure
Stating that the doc exists
There is a right to inspect a disclosed document except if
1) document not in parties control
2) party has a right to withhold
3) disproportionate
What’s the time frame for when a disclosure report must be filed and served before a CMC
14 days before CMC
What must a disclosure report set out
1) which relevant documents exist
2)where the docs are located
3) estimates costs of giving standard disclosure or searching for docs
What does standard disclosure require a party to do
1) disclose the documents he relies on
2) disclose the documents which
A) adversely affect his case
B) adversely affect another persons case or
C) support another persons case
A party must conduct a reasonable search when standard disclosure is ordered. What factors are to be considered for a reasonable search
- number of docs
- nature and complexity of proceedings
- ease and expense of retrieving particular docs
- significance of any doc likely to be located from search
How does a party disclose the documents for a standard disclosure order
Create a list also indicating which docs there is a right to withhold or which are no longer in parties control
Also include a disclosure statement setting out extent of search and understands duty to disclose
What is an order for specific disclosure or inspection
Allows party to seek disclosure or inspection of specific docs
Once notice of inspection is given when must inspection be permitted
No later than 7 days after notice received
If a party wants expert evidence what must they do
Apply
What questions does the court ask when deciding whether to give permission for expert evidence
Is expert evidence necessary ?
Is expert evidence generally written or oral
Written generally
May a party put questions to an expert and within what time frame must they be put
Yes and within 28 days of report being served
Can a party get their own expert if unhappy with single joint expert evidence
Yes but court will consider if questions would help
Value of claim and
Cannot be for fanciful reason
Who may rely on an expert report
Any party
Can the court order a discussion between experts
Yes
Is hearsay admissible
Yes all of it civil evidence act s1
What is the difference between a consent order and a Tomlin order
A tomlin order is a type of consent order
That includes confidential part
Halsey case
When must a witness summary be served
With witness statements
How much notice for telephone hearing
5 days before hearing.
Can a party rely on inadvertently disclosed documents
Only with court permission
Can a party inspect doc referred to in statement of case
Yes… any that are referred too
If you are appealing a high court master , which court will you appeal too ?
High court
Successive amendments colour order
Red,green,violet, yellow
What should a party do if disputes authenticity of a document
Serve a notice requiring party to prove at trial
Serve notice by latest date witness statements should be exchanged or within 7 days of disclosure
Whatever is later
Are witness statements open to inspection during the course of trial
Yes
What could you do if witness statement does not include everything witness wanted go say
With permission of court amplify
Or
Serve supplemental statement
Where to appeal high court master
High court
When can you get an extention of limitation period
Disabled at time of cause of action or
A child
Or there is fraud, concealment or mistake
When can you apply to have limitation period disapplied
For PI OR DEATH
When will there be knowledge for limitation
1) injury is significant
2) injury caused by act or omission of D
3) knows D identity
What is a significant injury for limitation
An injury is significant if it is sufficiently serious to justify bringing a claim against d who would not dispute liability and could satisfy judgment
Can a party inspect any doc referred to in statement of case
Yes
