Costs Flashcards
Describe the main civil courts in England and Wales.
The main civil courts in England and Wales include the County Court, High Court, Court of Appeal, and Supreme Court, along with Magistrate’s Court and various tribunals.
How do the County Court and High Court function in the civil court system?
Both the County Court and High Court are courts of first instance where claims can be initiated and appeals can also take place.
Define the criteria for issuing a personal injury claim in the County Court.
A personal injury claim should be issued in the County Court if it is worth less than £50,000.
How does the financial value of a claim influence the choice of court for issuing a claim?
If the claim is a personal injury claim worth less than £50,000, it should be issued in the County Court. For non-personal injury claims, if the value is £100,000 or less, it also goes to the County Court.
Where should non-personal injury claims worth more than £100,000 be issued?
High Court.
Explain the significance of the complexity of legal issues in determining the court for a claim.
The complexity of legal issues can justify issuing a claim in the High Court, as more complex cases may require the resources and expertise available in that court.
How does the importance of a case to the public affect the court choice for issuing a claim?
If a case is deemed important to the public, it may warrant being issued in the High Court, regardless of the financial value of the claim.
What are the three divisions of the High Court?
The High Court is divided into three divisions: Chancery Division, King’s Bench Division, and Family Division.
What is the focus of the King’s Bench Division in the High Court?
The King’s Bench Division deals with a variety of claims, including personal injury and contract disputes.
Describe the King’s Bench Division.
The King’s Bench Division is a part of the High Court of Justice in England and Wales that deals with civil cases, including personal injury, negligence, and breach of contract.
Define the Chancery Division.
The Chancery Division is a division of the High Court that handles cases related to equity, trusts, estates, and intellectual property.
What types of claims can be brought before the King’s Bench Division?
Claims for damages in respect of personal injury, professional negligence, breach of contract, non-payment of debt, and other general matters.
How does the Financial List differ from the General KBD list?
The Financial List specifically addresses high-value financial disputes requiring specialized knowledge, while the General KBD list covers a broader range of cases.
Describe the hierarchy of judges in the UK.
The hierarchy of judges in the UK includes Recorders (part-time Circuit Judges), District Judges, Circuit Judges, High Court Judges, Judges of the Court of Appeal, Deputy District Judges (part-time District Judges), Justices of the Supreme Court, and High Court Masters.
Define the term used to address a High Court Judge.
High Court Judges are addressed as ‘My Lord’ or ‘My Lady’.
How are Circuit Judges referred to in court?
Circuit Judges are referred to as ‘Your Honour’.
Identify the title used for judges in the County Court.
Judges in the County Court are simply referred to as ‘Judge’.
Define the position of Master of the Rolls.
The Master of the Rolls is the President of the Civil Division of the Court of Appeal, a judge of the Court of Appeal, and is second in judicial importance to the Lord Chief Justice.
What types of courts can solicitors carry out advocacy in?
Solicitors can carry out advocacy in the Magistrate’s Court, County Court, Tribunal, and Upper Tribunal.
Describe conditional fee agreements.
Conditional fee agreements are arrangements where a lawyer’s fees are contingent upon winning the case, meaning the client only pays if the case is successful.
How does professional funding work in legal contexts?
Professional funding involves financial support from legal professionals or firms to cover the costs of legal proceedings, often in exchange for a share of the proceeds.
Explain after the event insurance.
After the event insurance is a type of insurance that covers the legal costs incurred after a legal dispute has arisen, protecting the insured from having to pay the opponent’s costs if they lose.
What is third party funding in legal cases?
Third party funding is when an external party provides financial resources to a litigant to cover legal costs, typically in exchange for a portion of the settlement or judgment.
Describe before the event insurance.
Before the event insurance is a policy taken out before any legal dispute arises, providing coverage for potential legal costs if a claim is made.
Define damages based agreements.
Damages based agreements are arrangements where a lawyer’s fees are contingent on the amount of damages awarded to the client, typically a percentage of the recovery.
What is the Community Legal Service?
The Community Legal Service is a program that provides legal advice and assistance to individuals, often funded by the government to ensure access to justice.
What types of legal work are often funded privately?
Common types of legal work funded privately include residential conveyancing and preparing a will.
Describe how legal work can be funded for union members.
Legal work for union members might be funded by a trade union or professional organization, which may have their own legal representatives or agreements with law firms to provide legal services.
Define the role of trade unions in providing legal services.
Trade unions may provide legal services to their members either through in-house legal representatives or by partnering with law firms to offer legal assistance.
Describe Before the Event (BTE) insurance.
BTE insurance is taken out before the need for legal work arises, covering legal costs if needed, including disbursements, depending on the policy terms.
How does BTE insurance typically work with other insurance policies?
BTE insurance is often sold alongside other insurance policies, such as household or motor insurance, to cover legal costs related to disputes.
Define the financial limits associated with BTE insurance policies.
BTE insurance policies often have a financial limit on the cover provided or may only cover a stated proportion of the costs incurred.
What is a common characteristic of BTE insurance premiums?
BTE premiums tend to be relatively low, often less than 1% of the insurance cover sought, because most policyholders do not use this part of their policy.
Explain the recoverability of BTE premiums in successful litigation.
BTE premiums are not generally recoverable from the other side if the policyholder is successful in litigation.
What is the relationship between CLS funding and legal representation?
CLS funding can include actual representation of the client in legal proceedings.
What is the significance of the merits of a client’s position in relation to civil CLS funding?
A client’s position must be sufficiently meritorious; if it is not, they will not receive CLS funded assistance.
Do companies qualify for civil CLS funding?
Civil CLS funding is very rarely available to companies; it is primarily intended for individuals.
How can one assess the eligibility for civil CLS funding?
Eligibility can be assessed by considering the type of claim, the client’s status as an individual or legal person, their income, capital, and the merits of their position.
Describe the purpose of a conditional fee agreement (CFA) in civil litigation.
A conditional fee agreement (CFA) is a type of funding arrangement in civil litigation where the solicitor is paid only if the case is successful, operating on a ‘no win, no fee’ basis.
How does a success fee work in a conditional fee agreement?
A success fee is an additional charge that a solicitor can claim if the case is won, typically up to 100% of the normal fee, which is added to the basic fee.
Define the limitations on success fees in personal injury cases.
In personal injury cases, the success fee charged by a lawyer must not exceed 25% of the general damages awarded for pain, suffering, and loss of amenity, as well as damages for pecuniary loss, excluding future losses.
Explain the court’s stance on recovering success fees from an opponent.
The court does not allow a party to recover the success fee from an opponent, meaning that if a claimant wins, the success fee is deducted from their damages.
Describe the purpose of a Conditional Fee Agreement (CFA).
A CFA is a means of funding the solicitor’s costs in legal cases, but it does not cover expert fees, court fees, or other disbursements.
What is the significance of future losses in calculating the success fee under a CFA?
Future losses are excluded from the calculation of the success fee cap, which is based only on damages awarded excluding future losses.
How is the maximum recovery amount for a lawyer under a DBA determined in personal injury cases?
In personal injury cases, the maximum amount a lawyer can recover under a DBA is capped at 25% of the damages awarded, excluding damages for future care and loss.
What is the maximum percentage a lawyer can recover in employment tribunal cases under a DBA?
In employment tribunal cases, the maximum percentage a lawyer can recover under a DBA is 35% of the damages awarded.
Explain the limitations of a regarding costs.
A DBA does not cover disbursements or the opponent’s costs requiring separate funding arrangements for these expenses.
How does a DBA differ from a conditional fee agreement (CFA)?
A DBA differs from a CFA in that under a DBA, the solicitor’s payment is a percentage the damages awarded, while a CFA typically involves the solicitor charging their fees plus a success fee.
What is the maximum percentage a lawyer can recover in cases other than personal injury and employment tribunal under a DBA?
In cases other than personal injury and employment tribunal, the maximum percentage a lawyer can recover under a DBA is 50% of the damages awarded.
How does ATE insurance work in relation to civil litigation costs?
ATE insurance usually covers the client’s own disbursements and their opponent’s costs and disbursements in the event of losing their case.
Define the relationship between ATE insurance and CFA or DBA.
ATE insurance is often used in conjunction with a CFA or DBA, where the CFA/DBA covers the client’s own solicitor’s costs, and ATE covers disbursements and opponent’s costs.
How does the cost of ATE insurance compare to BTE insurance?
ATE insurance is generally a more expensive method of providing cover for legal costs than BTE insurance.
What is a notable characteristic of ATE insurance premiums?
ATE premiums can exceed 25% of the insurance cover sought and are not recoverable from the other party, except for clinical negligence expert reports.
How is third-party funding currently applied in civil litigation?
Third-party funding is primarily used in high-value commercial cases and is not yet suitable for consumer cases, personal injury cases, or claims with low damages.
Define fixed fees in the context of legal services.
Fixed fees are a predetermined amount agreed upon by the solicitor and client for a specific item of work, commonly used for tasks like residential conveyancing or drafting a will.
What are the benefits of unbundled legal services?
Unbundled legal services help keep costs down by allowing clients to pay only for specific tasks rather than full representation.
Who bears the burden of proof regarding incapacity in legal claims?
The burden of proving incapacity rests with whoever asserts that a person lacks capacity.
How does the Court of Protection manage investments for protected parties?
The Court of Protection may direct that the money recovered on behalf of a protected party is invested or dealt with in a specific manner.
What happens when a protected party regains capacity under the Mental Capacity Act 2005?
An application for payment out of funds being administered by the Court of Protection must be made to the Court of Protection.
How does the timing of a settlement impact the court’s approval process?
Settlements reached unexpectedly at trial may face challenges in court approval, especially if not all necessary evidence is provided.
How does the court’s ability to approve a settlement affect unexpected agreements reached at trial?
The court may be unlikely to approve a settlement reached unexpectedly at trial unless all relevant medical reports, schedules of loss, and lay evidence regarding the child’s or protected party’s medical condition are available.
How does CPR 21.10 ensure the relevance of medical evidence in personal injury claims?
CPR 21.10 requires that only medical and quantum reports pertinent to the opinion on quantum are filed, ensuring that the evidence is relevant to the case.
List the types of information that must be included in the claim for court approval of a settlement.
The claim must include details of the claim, terms of the settlement, defendant’s admission of liability, age and occupation of the child or protected party, litigation friend’s approval, and any financial advice on the settlement.
Do settlements for children require any specific legal process?
Yes, settlements for children or protected parties require court approval, which varies based on whether the settlement was reached before or after legal proceedings.
How should a protected party be represented in legal documents according to CPR 21.2?
A protected party should be referred to in the claim form as being represented by their litigation friend.
How is a litigation friend typically appointed without a court order?
Appointments for a litigation friend are made by filing and serving a certificate of suitability that demonstrates the friend meets the criteria in CPR 21.4(3).
Define a litigation friend.
A litigation friend is a person who represents children and protected parties in civil proceedings, whether they are commencing or defending the proceedings.
How important is the assessment of a party’s capacity in legal proceedings?
The assessment of a party’s capacity is crucial as it ensures that individuals can adequately understand and engage in the legal process, make informed decisions, and effectively communicate their needs and choices.
What steps might legal advisors take if there are concerns about a client’s legal capacity?
If there are concerns about a client’s legal capacity, legal advisors may seek an assessment and report from the client’s GP, and if necessary, consult with a psychologist or psychiatrist. The court may also require personal evidence from solicitors or the client’s family and friends.
Describe the role of legal advisors in assessing a party’s capacity during legal proceedings.
Legal advisors must ensure that a party can understand the issues at hand, with proper explanations from legal advisers or experts if necessary. They assess whether the party can recognize problems, explain them clearly, understand and evaluate advice, and comprehend the consequences of their decisions.
Describe the conditions under which claims can be brought against a partnership.
Claims can be brought against a partnership when there are two or more people who were partners and carried on the partnership business at the time the cause of action accrued.
Describe the legal capacity of claimants in relation to children and protected parties.
Claimants who are children (under 18 years) or protected parties (those lacking capacity as defined by the Mental Capacity Act 2005) are legally incapable of pursuing claims on their own behalf.
What must a claimant do if they wish to bring a claim against a deceased person’s estate without a grant of probate?
The claimant must apply to the court for an order to appoint a person to represent the estate of the deceased.
Explain the implications of a grant of probate on claims against deceased persons.
If a grant of probate has been made, claims must be brought against the personal representatives of the deceased.
Describe the procedure when a person with an interest in a claim has died and has no personal representative under CPR 19.12(1).
The court may order either for the claim to proceed in the absence of a representative for the deceased’s estate or for a person to be appointed to represent the estate.
Define the role of beneficiaries in a trust claim.
Beneficiaries do not need to be added as parties to the claim, but any order made is binding on them unless the court orders otherwise.
What is an example of a company name that includes a suffix?
An example of a company name that includes a suffix is ‘Rockstone Limited’.
How can a company be represented at trial?
A company may be represented at trial by an employee if the employee has been authorized by the company and the court gives permission.
Describe the legal identity of a sole trader in claims.
A sole trader is identified by both the individual’s name and the trading name, such as John Flagstone (trading as John’s Café).
Explain the implications of a partnership dissolving before legal proceedings.
If a partnership dissolves before proceedings are issued, the claim is made against the former partners in the name of the dissolved firm.
How should a partnership’s name be presented in legal claims?
The full name of the partnership should be used where partners are being sued in the name of the partnership, or the full unabbreviated names of each partner where they are being sued as individuals.
What are examples of situations where it may be inappropriate to use a partnership name in claims?
It may be inappropriate to use a partnership name in claims if there have been multiple changes of the partnership name or multiple mergers, making it clearer to identify the partners by their individual names.
Define the requirements for naming a partnership in legal claims.
Claims against a partnership must be brought against the name under which the partnership carried on business at the time the cause of action accrued, unless it is inappropriate to do so.
What are some possible costs orders the court can make aside from the general rule?
The court can order the successful party to pay the unsuccessful party’s costs, have each party bear their own costs, or specify a period for which one party pays the other’s costs.
Describe the court’s power regarding costs at the end of a trial.
The court has the power to determine by whom and to what extent costs are to be paid at the end of any interim hearing or at the end of trial.
How does QOCS affect the enforcement of costs orders against claimants?
QOCS restricts the defendant’s ability to enforce a costs order against the claimant, providing protection for claimants in personal injury and death claims.
What happens if the amount of costs is determined after the judgment or order?
If the amount of costs is decided later, compliance must occur within 14 days of the date of the certificate that states the amount.
Define detailed assessment of costs.
The process of deciding the amount of costs at a later time is called detailed assessment of costs.
Describe the time frame for complying with an order for costs as per court discretion.
A party must comply with an order for the payment of costs within 14 days of the date of the judgment or order if it states the amount of costs, or from the date of the certificate which states the amount if it is decided later.
How does the last approved or agreed budget affect cost determination?
The receiving party’s last approved or agreed budget is taken into account by the court when assessing the actual amount of costs.
Define the role of budgets in the court’s costs management process.
Budgets are part of the court’s costs management process and are considered when determining the amount of costs.
How much of the legal costs is typically recovered by the receiving party from the paying party?
It is common for the receiving party to recover 70% to 80% of its legal costs from the paying party.
Describe the general principle behind indemnity costs in legal cases.
Indemnity costs are awarded when a party’s conduct in a case warrants some level of disapproval.
What is the significance of the Indemnity basis in cost assessments?
The Indemnity basis allows for a broader recovery of costs, focusing on whether the costs were reasonably incurred without the same level of scrutiny as the Standard basis.
What is the significance of the Standard basis in cost assessments?
The Standard basis applies general principles to determine the reasonableness and proportionality of costs.
How does the court determine the reasonableness of incurred costs?
The court allows costs that have been proportionately and reasonably incurred, and that are reasonable in amount.
Define the two bases of assessment for court costs.
The two bases of assessment are the Standard basis and the Indemnity basis.
How does Alternative Dispute Resolution (ADR) relate to costs in legal proceedings?
The parties’ conduct regarding ADR and offers to settle can influence the court’s decision on costs.
Define the outcome if a judge does not make a costs order.
If the judge does not make an order as to costs, or states that there is ‘no order as to costs’, each party will simply pay its own costs.
Explain the implications of a party succeeding on only some issues in a claim.
If a party succeeds on only some issues, the court may adjust the costs order accordingly.
Define the term ‘costs follow the event’ in legal context.
It refers to the principle that the losing party in a legal case pays the costs of the winning party.
Explain the nature of costs orders against non-parties.
Costs orders against non-parties are considered exceptional, and the court’s ultimate question is whether making such an order is just.
What principle applies when a non-party funds and controls litigation?
If a non-party funds and substantially controls the litigation or stands to benefit from it, justice typically requires that they pay the successful party’s costs if the proceedings fail.
Define the term ‘non-party costs’ in the context of court proceedings.
Non-party costs refer to the costs that a court can require a person who is not involved in the proceedings to pay towards the costs of the litigation.
How are inter-party costs determined in court?
Inter-party costs are determined by the court and represent the actual costs one party is ordered to pay to another party.
What are inter-party costs?
Inter-party costs refer to the actual figure for costs awarded by the court that one party must pay to the other party.
Explain the indemnity principle in relation to solicitor-client costs.
The indemnity principle states that a party cannot recover a sum greater than their liability to their own solicitor.
Describe the relationship between solicitor-client costs and litigation success.
If a party is successful in litigation, they may seek an order from the court for the other party to pay the legal costs incurred, but there may be a shortfall between what is recovered and what the client owes to the solicitor.
Define solicitor-client costs.
Solicitor-client costs are the costs payable by the client to the solicitor under the contract of retainer, with the client primarily responsible for these costs.
What happens at the end of an interim hearing regarding costs?
At the end of any interim hearing, the court may consider making a costs order.
How can costs be incurred before formal proceedings begin?
Costs can be incurred before formal proceedings through compliance with pre-action protocols and during negotiations related to the pending litigation.
Explain the court’s jurisdiction regarding costs orders.
The court has the jurisdiction to order costs, determining who is responsible for paying them and to what extent, based on the specifics of the case.
What factors does the court consider when making a costs order?
The court considers the types of litigation costs and the circumstances surrounding the proceedings, including actions taken prior to the formal start of litigation.
In which cases should the court use the summary assessment procedure?
The court should use the summary assessment procedure in fast track cases at the end of the trial and at the end of a hearing of an interim application or matter lasting no more than a day.
Explain the significance of costs management orders.
Costs management orders are significant as they formally set out the budgets for parties, guiding the court in assessing costs and ensuring that expenses are controlled.
How do budgets impact the assessment of costs in court?
Budgets can affect the evaluation of costs by providing a framework for what expenses are reasonable and necessary, influencing the final cost determination.
Define costs management procedure in relation to court orders.
The costs management procedure involves the planning and controlling of legal costs, ensuring that budgets are considered in the assessment of costs.
Explain what happens if the parties reach an agreement on costs.
If the parties reach an agreement on costs, there is no need for a detailed assessment hearing.
When must the paying party serve points of dispute regarding any item in the bill of costs
The paying party must serve points of dispute regarding any item in the bill of costs on the receiving party within 21 days.
Define the role of the costs officer in the detailed assessment process.
The costs officer is responsible for determining the sum to be paid during the detailed assessment hearing if the parties cannot reach an agreement.
How does a party initiate the detailed assessment process?
The receiving party initiates the detailed assessment process by serving a notice of commencement and a copy of its bill of costs to the paying party.
Describe the procedure for detailed assessment of costs in court.
The procedure involves several steps: 1. The court orders detailed assessment if one party should pay the other’s costs, without setting a figure. 2. The receiving party serves a notice of commencement and a bill of costs to the paying party. 3. The paying party must serve points of dispute within 21 days. 4. If no agreement is reached, the receiving party files a request for a detailed assessment hearing.
Describe the concept of fixed costs in legal proceedings.
Fixed costs are predetermined amounts that a party can recover in legal proceedings, as established by rules such as CPR 45.
How must parties prepare for a summary assessment hearing? (Ordering costs immediately at end of trial)
Parties must prepare statements of costs, preferably on the standard form N260, and file and serve them on each party not less than 24 hours before the hearing.
What happens if costs fall outside the fixed costs regime?
If costs fall outside the fixed costs regime, the court will need to be involved in the decision and calculation of costs.
Do parties need to agree on costs for assessment to occur?
No, assessment occurs when the parties are unable to agree on the amount of costs.
Explain the two alternative procedures for cost assessment.
The two alternative procedures for cost assessment are summary assessment and detailed assessment.
Define the circumstances under which cost assessment occurs.
Cost assessment generally occurs when the parties are unable to agree on the amount of costs one should pay to the other.
Do fixed costs apply to all types of legal cases?
No, fixed costs specifically apply to small claims, fast track, and intermediate track cases, as outlined in CPR 45.
What determines the amount of fixed costs recoverable in fast track cases?
The amount of fixed costs recoverable in fast track cases is determined by the complexity band assigned and the stage at which the case is concluded, referenced in table 12 of PD45.
How do fixed costs apply to small claims as of October 1, 2023?
From October 1, 2023, fixed costs apply to all small claims under CPR 27.14.
How does the court typically assess costs if determined to be paid by one party to another?
The court will normally summarily assess the amount of costs, assuming the hearing of the interim application lasted not more than a day.
Explain when the court considers making a costs order.
The court considers making a costs order at the end of any interim hearing as well as at the end of the trial.
Describe the effect of a ‘Costs in any event’ order.
The party in whose favour this order is made is awarded its costs of the interim hearing from the other party regardless of who eventually wins at trial.
Define ‘Costs in the case’ in the context of interim costs orders.
The party who eventually gets its costs at trial (usually the winner) will recover its costs of the interim hearing from the other party.
How does a ‘Costs reserved’ order function in interim hearings?
The decision about who pays the costs of the interim hearing is postponed to a later occasion, and if no decision is made later, the costs will be in the case.
How are costs handled if the defendant is awarded costs at trial?
If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of the interim application.
Define ‘costs thrown away’ in the context of a judgment being set aside.
Costs thrown away refer to the costs incurred as a result of a judgment or order being set aside, including the hearings related to both the original order and the order being set aside.
What is the rationale behind awarding costs when a judgment is set aside?
The rationale is that the judgment or order should never have been made, so the party at fault is punished by having to pay the costs associated with it being made and subsequently set aside.
How does a party incur costs from actions taken by another party?
A party must pay the costs resulting from actions it has taken, such as costs incurred by the defendant due to a claimant amending its particulars of claim.
How does a costs order affect appeals from a Divisional Court?
In the case of an appeal from a Divisional Court, the party is not entitled to any costs incurred in any court below the Divisional Court.
Define the outcome when no order for costs is made.
When no order for costs is made, each party will bear its own costs of the hearing.
What happens to costs in lower courts when a costs order is issued?
The party in whose favor the costs order is made is entitled to their costs in respect of the proceedings in any lower court.
Explain the implications of a costs order for the winning party.
The winning party is entitled to recover their costs from the proceedings and any related lower court proceedings, except in specific cases like appeals from a Divisional Court.
Describe a situation where a judge might order costs in any event.
A judge might order costs in any event if the defendant’s application to extend the time for serving its defence is deemed to be frivolous or without merit, indicating that the defendant is not acting in good faith.
How might a judge decide to make no order as to costs?
A judge might decide to make no order as to costs if both parties have acted reasonably and the circumstances of the case do not warrant a costs order, indicating that neither party should bear the financial burden of the other’s legal expenses.
Describe the order ‘No order as to costs’ in a legal context.
This order is appropriate when a judge allows a short extension but criticizes both parties’ conduct, deeming neither party worthy of recovering their costs now or at the final hearing.
