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Civil Litigation > costs > Flashcards

costs Flashcards

1
Q

can a non-party be ordered to pay costs

A

yes if real interested party in the litigation or they were responsible for bringing the proceedings
would need to add as party to proceedings before making order

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2
Q

does a third party need to have acted improperly to make a non-party costs order

A

no

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3
Q

which cases are eligible for qualified one-way cost shifting

A

personal injury only

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4
Q

what is qualified one-way cost shifting

A

when C is unsuccessful and ordered to pay Ds costs but D cannot enforce this without permission of the court

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5
Q

when is qualified one-way cost shifting used

A

when judge thinks that the claim was fundamentally dishonest

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6
Q

If C wins can qualified one-way cost shifting apply

A

no - D would still be required to pay Cs costs

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7
Q

process for detailed assessment of costs

A

within 3 months of judgement receiving party must serve notice of commencement of detailed assessment
paying party has 21 days to serve dispute
receiving party has 21 days to reply
receiving party must file request for hearing within 3 months of end of period for commencing proceedings (6 months from judgement)
if costs claimed are less than £75K provisional assessment decides what costs are allowed
if either party unhappy with provisional assessment can request hearing but unless 20% change in their favour they pay costs

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8
Q

how are costs assessed in interim proceedings

A

summary assessment

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9
Q

requirements of costs awarded on standard basis

A

proportionate, reasonable incurred and reasonable in amount

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10
Q

when are costs proportionate

A

bear a reasonable relationship to the sums in issue,
the value of any non-monetary relief in issue
complexity of litigation
any extra work generated by conduct of paying party
any wider factors

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11
Q

what happens if the cost is not reasonable in amount

A

recovered but reduced

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12
Q

what happens if the cost is not reasonably incurred

A

disallowed so cannot recover it

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13
Q

what happens if the cost is not proportionate

A

may be disallowed or reduced

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14
Q

difference between indemnity basis and standard basis

A

standard - doubt resolved in favour of paying party and costs must be proportionate
indemnity - doubt resolved in favour of receiving party and NO proportionality requirement

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15
Q

requirements of costs awarded on indemnity basis

A

must be reasonably incurred and reasonable in amount but NO proportionality test

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16
Q

when would a party seek security for costs

A

sought by D if they’re worried about costs

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17
Q

requirements for an order for security of costs

A

just and part 25 condition met

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18
Q

part 25 conditions for security for costs order

A

C outside EU
C is an impecunious company (reason to believe C won’t be able to pay Ds costs if ordered)
C taken steps to make recovery / enforcement difficult

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19
Q

factors considered when determining if it would be just to make a security for costs order

A 
strength of claim and defence
C's ability to provide security 
causes of Cs impecuniousity 
property within jurisdiction
timing of application
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20
Q

requirements to be met if a part 36 offer is to be valid

A 
written 
make clear it is part 36 offer
set out relevant period
if it is whole/part claim
if it takes account of counter claim
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21
Q

what happens when a part 36 offer is accepted

A

proceedings are stayed to allow for payment

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22
Q

what is the relevant period

A

min 21 days during which if part 36 offer is accepted D will pay Cs costs

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23
Q

when is a part 36 offer made

A

when it is served on the other party

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24
Q

is a part 36 offer inclusive of interest

A

only until day 21

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25
Q

is part 36 offer without prejudice

A

without prejudice save as to costs - so it only impacts costs

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26
Q

when can you accept a part 36 offer

A

any time even after expiry of relevant period unless a withdrawal notice has been served

27
Q

impact of part 36 offer on costs

C offers and D accepts within RP

A

D pays Cs costs until acceptance on standard basis

28
Q

impact of part 36 offer on costs

C offers and D accepts outside of RP

A

D pays Cs costs until acceptance on standard basis

29
Q

impact of part 36 offer on costs

D offers and C accepts within RP

A

D pays Cs costs until acceptance on standard basis

30
Q

impact of part 36 offer on costs

D offers and C accepts outside RP

A

D pays Cs costs until day 21
from day 22 until acceptance C pays Ds costs
on standard basis

31
Q

impact of part 36 offer on costs

D offers and C equals or beats offer

A

D pays Cs costs in usual way on standard basis

32
Q

impact of part 36 offer on costs

D offers and C fails to beat

A

D pays Cs costs until day 21
C pays Ds costs from day 22 until judgement plus interest
on standard basis

33
Q

impact of part 36 offer on costs

C looses

A

C pays Ds costs and may have to pay interest from day 22 to interest

34
Q

impact of part 36 offer on costs

C offers and equals or beats the offer

A

damages plus 10% up to 500k and 5% from 500k-1m up to 75k
D pays Cs costs up to day 21 on standard basis
D pays Cs costs from day 22 to judgement on indemnity basis plus interest on damages and costs

35
Q

impact of part 36 offer on costs

C offers and doesn’t beat the offer

A

no penalty

36
Q

what is an order to obtain info

A

order to get info from debtor on financial situation. they must attend court to answer questions on their financial situation

37
Q

what kind of property can a charging order be made against

A

land or securities (stocks and shares)

38
Q

can you make a charging order in respect of land the debtor owns jointly with another

A

yes but the order is charged on the debtor’s beneficial interest rather than on the land itself

39
Q

how to register a charging order

A

registered land - register it at land registry

unregistered land - register at land charges department

40
Q

in which court is a charging order made

A

if debt is more than 5k it can be made in either HC or CC

if made in CC submit application to CC money claims centre

41
Q

3 steps to getting a charging order

A

interim charging order - notice within 21 days and debtor has 14 days to request review
final charging order - object within 28 days of service of ICO
order for sale - need to commence fresh proceedings to enforce sale

42
Q

do you need a writ of enforcement or warrant of enforcement for taking control of goods

A

warrant if CC

Writ of HC

43
Q

how can the debtor get extra time to pay when enforcement officer is taking control of goods

A

control of goods agreement

44
Q

what is a control of goods agreement

A

gives debtor a few extra days to pay - then if they still haven’t goods are sold at auction

45
Q

is taking control of goods order issued in CC or HC

A

if judgement was obtained in HC get writ issued in HC
if judgement was obtained in CC depends on amount
less than £600 - CC
600-5k - CC or HC
over 5k - HC

46
Q

how are taking control of goods orders issued in CC

A

file for warrant of control at CC hearing centre. Warrant is executed by enforcement officer

47
Q

how are taking control of goods orders issued in HC

A

creditor delivers Praecipe (request) and 2 copies of writ of control to court with judgement
court seals writ and returns to creditor
creditor forwards to enforcement officer

48
Q

can entry be forced into premises to take control of goods

A

cannot forced entry into debtors home but can use reasonable force to enter business premises if they believed debtor’s goods are inside

49
Q

what goods can be seized when taking control of goods

A

usual content of home or business
necessary items cannot be seized from individuals
clothes, bedding, furniture and household items reasaonably required for needs of debtor and family cannot be taken
nether can work tools and equitpment necessary for work or study up to £1350
goods belonging to others eg spouse or hire purchase cannot be taken

50
Q

max value of items necessary for work or study that cannot be taken when seizing goods

A

£1350

51
Q

what is a third party debt order

A

when debtor is owed money by third party court can order it to be paid to creditor

52
Q

can a third party debt order be used if the money is owed to the debtor and another person jointly

A

no - the debt must belong to the judgement debtor solely and beneficially

53
Q

in which court should a third party debt order be sought

A

the court which made the original judgement unless the case has subsequently been transferred to another court

54
Q

when applying for a third party debt order must the creditor give notice to the debtor

A

no - apply to the court without notice to the debtor

55
Q

what does the court do if they decide to make a third party debt order

A

they freeze the bank account or funds held by third party
hearing listed no less than 28 days later
unless there’s a good reason not to do so the order is made final requiring third party to pay money to credito

56
Q

how to enforce a judgement in scotland and NI

A

obtain certificate, register judgement within 6 months, enforce using local methods

57
Q

how to enforce a judgement in the commonweallth

A

register within 12 months

58
Q

how to enforce a judgement outside EU / commonwealth

A

fresh proceedings and local lawyers

59
Q

how to enforce a judgement in an EU country

A

register judgement, enforce in same way as local judgement, debtor could apply for refusal of recognition of the judgement but this is rare

60
Q

what is an attachment of earnings order

A

compels debtors employer to make regular deductions from earnings and pay them into court

61
Q

which court should you apply too for an attachment of earnings order

A

CC money claims centre
HC has no power to make these orders - if judgement was obtained at HC it will have to be transferred to CC before order can made

62
Q

can employers deduct their own admin costs when administrating an attachement of earnings order

A

yes

63
Q

what happens when you apply for an attachement of earnings order

A

court informs debtor of application an requires either payment or a statement of means. order made specifies normal deduction rate and protected earnings rate. order sent to party’s employer with instructions

64
Q

can an attachement of earnings order be appealed

A

if either party objects to the order they can apply for reconsideration by district judge at a hearing

Civil Litigation (11 decks)

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