Civil case studies

Question 1

Halsey

Answer 1

Refusing alternative dispute resolution

the court stated that they can deprive a successful litigant of some or all of his costs on the grounds that he had refused to agree to ADR.

This is an exception to the general rule that costs should “follow the event”, namely that the unsuccessful party should pay to the successful party his costs of the action.

The judgment emphasises that the burden is on the unsuccessful party to show why there should be a departure from the general rule. Such a departure is not justified unless the unsuccessful party shows that the successful party acted UNREASONABLY in refusing to agree to ADR.

Question 2

Denton

Answer 2

Relief from sanctions from failure to comply with 3.9 (failure to comply with any rule or practice direction)

three-stage approach to addressing applications for relief from sanctions:

a) The court should identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order;
b) The court should consider why the default occurred;
c) The court should evaluate all of the circumstances of the case so as to deal with the case justly.

Question 3

Norwich pharmacal

page 146 of revision book

Answer 3

A Norwich Pharmacal order (NPO) requires a respondent ( a non-party) to disclose certain documents or information to the applicant for the identity so a claim can be made

An application for an NPO should ONLY be made against a party who is:
Not likely to be a party in any subsequent claim
Mixed up in, or is involved in the wrongdoing, whether innocently or not
Not a “mere witness” - needs to be a facilitator (can be little)

A key component of the test is that the person who is required to disclose must have FACILITATED whether unwillingly or not, the wrongdoing of others

not limited to disclosure of documents, can be answering questions
if you know the identity of the wrongdoer you don’t need a NPO

usually applicant has to pay for the application

Question 4

American cynamid

Answer 4

to establish whether an applicant has an adequate case for the granting of an interim injunction

American Cyanamid Principles
You can think of this as something of a checklist:

1. Is there a ‘serious’ (as opposed to silly) question to be tried?
2. Are damages an adequate remedy for the claimant?
3. Is the defendant adequately protected by the claimant’s undertaking in damages in case the injunction is wrongly granted?
4. Other factors weighing into the ‘balance of convenience.’ Most applications ‘tip’ at this stage. If not:
   How best to preserve the status quo
5. Any special factors (if not considered at step 4)
6. Last resort: substantive merits

Question 5

Calderbank

Answer 5

A Calderbank offer is a settlement offer written “without prejudice save as to costs”. This means that, if the offer is not accepted, it cannot be referred to during the course of the legal proceedings relating to the claim itself, but it can be referred to the court on the question of costs.

A Calderbank offer can be used as a mechanism for including settlement terms which are not permitted
under the Part 36 regime and is more flexible

Part 36 rules do not apply
to small claims track or to arbitration proceedings so calderbank is the only option for these

Question 6

Sanderson

Answer 6

Sanderson costs order -

the court ordered the unsuccessful defendant to pay the successful defendant’s costs

the successful defendant, who was sued in the alternative to another defendant, recovers its costs directly from its unsuccessful co-defendant rather than from the claimant

C – sD recovers costs due from C, from usD

DIRECT METHOD

Question 7

Bullock

Answer 7

Bullock costs order -

the court ordered the claimant to pay the successful defendant’s costs, but permitted the claimant to add those costs to the costs the claimant was to recover from the unsuccessful defendant

the successful defendant, who is sued in the alternative to another defendant, can recover its costs from the claimant, and the claimant then recovers the value of the successful defendant’s costs from the unsuccessful defendant as part of the claimant’s own costs of the claim

C had to pay sD but does so by claiming from usD

INDIRECT METHOD