Dispute Resolution Flashcards
1
Q
What is the process of litigation?
A
The process of taking legal action using the court system. Normally used when other attempts to resolve a claim have failed.
2
Q
At what time can negotiations take place?
A
Any time either pre or post litigation.
3
Q
What is different about the negotiation process to other forms of resolution?
A
The conversations or correspondence is made without prejudice.
4
Q
What does without prejudice mean?
A
They cannot be relied upon by the other party or referred to in court.
5
Q
What is ADR?
A
A collective description of methods of resolving disputes otherwise than through the normal trial process.
6
Q
When should ADR be considered?
A
Court of Appeal has confirmed this should be routinely considered to encourage parties to settle disputes at an early stage without proceeding to costly negotiations.
7
Q
What is a lawyers obligation regarding informing the client of ADR?
A
Need to make sure clients understand the availability and purpose of ADR and provide advice in appropriate situations.
8
Q
Is consent required for ADR?
A
Yes, it is a voluntary process.
9
Q
Can a party refuse to engage in ADR?
A
Yes, however the courts have made it clear it is unacceptable to respond to a request for ADR. If a party believes ADR is inappropriate they should state this in their response. The court can penalise a party in respect of legal costs if they do not agree to participate in ADR even if their claim is successful.
10
Q
Who would usually use arbitration?
A
Parties to large value, complicated contracts and international commercial agreements.
11
Q
What is the procedure of arbitration?
A
The parties appoint a arbitrator, usually a solicitor or barrister or other professional such as architect or surveyor. The professional will discuss the case indivudually with each party and provide a timetable for resolution. After consideration of all of the evidence, the arbitrator will make a final decision known as a final award.
12
Q
Is a final award in arbitration legally binding?
A
Yes.
13
Q
What evidence is usually supplied in arbitration?
A
Parties will normally be required to make written submissions and produce relevant documentation.
14
Q
What is mediation?
A
An informal, confidential and voluntary process in which a neutral third party assist disputing parties in reaching a resolution.
15
Q
Who is likely to be appointed as a mediator?
A
Anyone, usually a third party with no personal interest in the outcome.
16
Q
Is a decision in mediation binding?
A
Yes, once the final written agreement has been signed.
17
Q
Can a party withdraw from arbitration?
A
No, once parties agree to arbitrate they must follow this process unless both parties agree to use another method of dispute resolution.
18
Q
Can parties withdraw from mediation?
A
Yes, they are free to walk away at any time.
19
Q
What is the procedure in mediation?
A
The parties appoint a neutral mediator and the parties meet at an agreed venue on a specific date where the mediator will spend the day assisting the attendees to find common ground. If the parties reach an agreement, a settlement agreement is drawn up.
20
Q
What is the role of a mediator?
A
They do not rule on the merits of the claim nor suggest or impose settlement terms.
21
Q
Who pays the mediator?
A
Each party contributes jointly.
22
Q
What is early neutral evaluation?
A
A ‘neutral’ is appointed to hear each side’s case and to render the opinion of the probate outcome at trial, with the view to encourage settlement of the claim.
23
Q
How would the ombudsman be used to settle disputes?
A
A person is appointed to investigate claims against public organisations or certain private services.
24
Q
What will be the outcome if a person attempts to make a claim after the limitation period has ended?
A
The defendant can raise the passage of the limitation period as a defence and try and have the claim struck out.
25
What is the outcome if a solicitor raises a claim which is statute barred?
It will be deemed negligent and not acting in the clients best interests.
26
What effect does the Limitation Act 1980 have on claims?
Lays down the limitation period for various types of claims.
27
What does it mean when a claim is statute barred?
Legal action has not been commenced within the time limits allowed.
28
What is the limitation period for latent defects?
15 years
29
What is the limitation period for breach of contract?
6 years
30
What is the limitation period for most claims in tort?
6 years
31
What is the limitation period for claims in person injury?
3 years
32
What is the limitation period for fatal accident claims?
3 years
33
What is the limitation period for defamation claims?
1 year
34
What is the limitation period for unfair dismissal?
3 months
35
What date does the limitation period start?
The date of accrual action.
36
When is the date of accrual action?
When the relevant tortious act occurs or if this would not be fair, from the date the claimant first gains knowledge that they have a claim.
36
When is the date of accrual action?
When the relevant tortious act occurs or if this would not be fair, from the date the claimant first gains knowledge that they have a claim.
37
When would the claimant be classed as gaining knowledge of a claim?
When they have sufficient information to commence investigations into a potential claim against the defendant.
37
When would the claimant be classed as gaining knowledge of a claim?
When they have sufficient information to commence investigations into a potential claim against the defendant.
38
When is the accrual date for a breach of contract claim?
On the date of breach.
39
What change has the Latent Damage Act 1986 brought?
Introduced an additional limitation period for claims which the limitation period may expire before a party is aware that a claim exists.
40
In what circumstances would the Latent Damage Act be available?
Negligence claims for latent defects (defect in a property caused by a fault in design, materials or workmanship) that existed at the time of construction but not apparent at that time.
41
When would the time limit be under the Latent Damage Act?
Later of the following:
- 6 years from the date of accrual (cause of action)
- 3 years from the earliest date on which the potential claimant knew, or reasonable ought to have known, they had the necessary facts to bring a claim.
However there is a 15 years longstop date for all claims.
42
Are clauses in a construction contract excluding liability after the agree limitation period valid?
The courts will consider them under the reasonable test.
43
If a claim is served, when does the limitation period end?
When the claimant delivers the properly completed form to the court office with a request to issue together and the correct fee. ALL elements must be provided.
44
Can any changes to the claim be made after the limitation period?
The name of the defendant can be altered only if they have been mistakenly named however if a new party is to be added, the limitation period would still apply.
45
When will the limitation period begin for a minor?
Their 18th Birthday.
46
When will the limitation period begin for a claimant who lacks capacity?
When certification is issued that the claimant is of sound mind however if the claimant had capacity when the action accrues, the clock will not stop running even if the claimant loses capacity during this time.
47
When does the limitation period begin when their is fraud or concealment?
From the date the claimant discovers the fraud or concealment or should have done so with reasonable diligence. It will not run whilst a relevant fact has been deliberately concealed by the defendant.
48
When does the limitation period begin for claims where there is mistake?
Time does not start to run until the mistake has been discovered or could have been discovered with reasonable diligence.
49
What is the purpose of the Pre-action Protocols?
To focus the parties trying to settle the dispute without litigation.
50
How do the pre-action protocols aid settlement?
Enable the parties to obtain the information they need to engage in negotiation.
51
How do the pre-action protocols used to aid settlement?
Lay the groundwork for proceedings.
52
How will the pre-action conduct be considered post-litigation?
The court will examine the conduct of the parties and any failure to comply is likely to have adverse cost consequences for the non-compliant party.
53
Is there one protocol?
No, more common types of claims have their own protocols which is to be followed.
54
What will be followed when there is no specific protocol?
Court expects litigants to follow the guidelines set out in the Practice Direction on Pre-Action conduct and protocols.
55
What are the 6 parts to the Practice Direction?
1. Claimant should write to the defendant with concise details of the claim
2. Defendant should respond within a reasonable time (protocol suggested 14 days however no more than 3 months depending on the complexity of the case)
3. Parties should disclose key documents relevant to issues in the dispute
4. Parties should be aware that the court must give permission before they can rely on expert evidence, and the court can limit fees recoverable
5. Parties should consider ADR
6. If not possible to resolve the issue within the pre-action process, the parties are encouraged
56
When is a personal injury protocol used?
For claims in fast track but does not apply to clinical negligence disputes or most low value, road traffic accident personal injury claims.
57
What is a letter of claim to include in a personal injury claim?
- Clear summary of facts
- Details of injuries sustained and the impact they have on the claimant's day-to-day life
- The hospital attended with any reference number
- Indication of financial losses (known at that stage)
58
What should be included in the letter of claim in addition to the basic items?
An indication as to whether a police report is available. List of documents the claimant proposes to disclose and seeks from the defendant and make is clear they expect a response within 21 days.
59
What are the requirements for a defendant's response in a personal injury claim?
Must respond within 21 days If there is no response the claimant can start proceedings. If a response is received, the defendant has 3 months to investigate the claim, after which they can admit or deny liability.
Where there is denial, reasons must be given and the letter of denial should contain a list of documents likely to be disclosed at proceedings.
60
What is a disclosure of documents list?
This is to be sent with the claim form confirming the list of documents expected to be required for the claim.
61
What should a claimant do if they wish to instruct an expert?
The protocol provides that the claimant should strive to choose that expert jointly with the defendant. The claimant is to send a list of suggested experts to the defendant, who then has 14 days to disagree. If the defendant disagrees, each party can instruct their own.
62
What happens if the protocol fails to reach a settlement?
The claimant can then issue proceedings. The defendants insurer will normally nominate solicitors to accept the service.
63
What happens if the protocol reaches a settlement?
The claimant should then send the medical report that they rely on and a schedule of past and future expenses with as much detail as possible
64
What does the construction and engineering protocol apply to?
Construction and engineering disputes.
65
What are the consequences for failing to comply with the practice direction or protocols?
The court will consider non compliance when giving directions for the management of proceedings or when making order for costs.
66
In disputes against who would the Construction and Engineering protocol be issued against?
Architects, engineers and quantity surveyors.
67
What are possible consequences of failing to comply with the practice direction?
Sanctions, a stay of proceedings to allow the Practice Direction or step in the particular protocol to be complied with.
68
What sanctions can be applied if any party breaches the practice direction or protocol?
Ordering the non-compliant party to pay the costs of the other party, of the non-compliant party is the claimant, the court may deprive the claimant of interest or restrict the rate or period of interest.
69
When might it be appropriate to issue proceedings?
There are certain options when there is no option but to issue court proceedings or where the court is unlikely to criticise if an action is commenced before compliance with a protocol.
70
Is a court application required?
Not usually however there are some situations where an application may be appropriate before commencing proceedings.
71
When would it be required for a party to make a pre-action disclosure?
If it felt disclosure of documents held by the party are necessary to investigate a potential claim fully.
72
What can be sought from a non-party?
An application for pre-action disclosure is possible against someone who is not a party, but only if it will support there claim or adversely affect the opponents case and is necessary to dispose of the matter fairly or to save costs.
73
What must the applicant show if a claimant wants to make an application for a pre-action inspection of property?
- The property is, or may become, the subject matter of proceedings
- The property is relevant to the issues that will arise in those proceedings
74
How does a claim start?
A claimant completes a blank form and send it together with the appropriate fee to the appropriate court with the request to issue the claim form.
75
What types of claims would be heard in the High Court or County Court?
The choice of Court depends on the value of the Court.
76
What are the restrictions on a High Court jurisdiction?
Proceedings cannot start in teh High Court unless the total value is more than £100,000 except for person injury claims which is £50,000.
77
Can a claim worth more than £100,000 be heard in the County Court?
Yes.
78
What are the requirements for a claim to be filed in the High court?
Financial value of claima nd amount in dispute
Complexity of facts, legal issues, remedies or procedures involved
Importance of the outcome of the claim to the public in general, the claimant believes that the claim ought to be dealt with by a High Court Judge
79
Can a case be transferred from the High Court to the County Court?
If a claim is started in the High Courtand the court feels that the County Court is an appropriate venue, it can exercise its powers of management to transfer or strike out the claim.
80
What are the 2 County Court Centres?
County Court Claims Centre
| County Court Hearing Centres
81
What cases will be heard in the County Court Money Claims Centre?
Claims over £100,000
82
What is the procedure for applying to the County Court Money Claims Centre?
The claimant should complete a money claim forn which will be issued by the CCMCC in Manchester. Unless special procedures apply, all County Court claims should be issued out of the CCMCC,.
83
What are the 3 divisions of the High Court?
Chancery
Family
Queens Bench
84
Where and what is the High Court?
Located in London, also known as the RCJ however it has a number of district registries in most large towns or cities.
85
What district will the claim be heard in?
The claimaint indicates where they want the claim to be heard.
86
What types of claim are heard in the Queen's Bench Division?
```
Defamation
Breach of Contract
Negligence
Personal Injury
Land Possession
Non-payment of debts
```
87
What cases will be heard in the Chancery Division?
```
Equity and Trusts
Commercial fraud
Tax
Intellectual fraud
Land
Business disputes
Contentious probate
Regulatory work
Bankruptcy
Professional negligence
```
88
What does a claimant start legal proceedings?
By completing a blank claim form setting out brief details of the claim. The claim form is then issued by the court and served on the defendant either by the court or claimant's solicitor.
89
What is the name of the claim form to be used?
N1
90
What are the 4 main points to be put on the claim form?
Name and address of parties
Details of the claim
Remedy claimed
Value
91
How must a persons name show on the claim form?
A persons full name as 'a person's unabbreviated name (an if they are carrying out business then that name too), the full name of a partnership and every partner and the registered name of a registered limited liability partnership or company.
92
How must the details of the claim be contained on the claim form?
A concise statement of the nature of the claim. It should provide brief details so that the court can see what the claim is about and general terms.
93
How must the remedy claimed by noted on the claim form?
The form should state the remedy sought by the claimant e.g. injunction or damages.
94
How must the details of the value be included on the claim form?
Must contain a statement of value, partly to enable the court to determine which track the court should be allocated to.
95
What is a claim for a specified sum called?
Debt claim.
96
What is a claim for an unspecified sum?
if the court must assess the damages awarded, the claim form should state how much the claimant expects to recover.
97
What additional part must the claimant put in the claim form if the claim is for the High Court?
A statement that the claimant expects to recover more than £100,000 or details of the enactment that provides that the claim may be commenced in the High Court
98
How would a court value a claim?
They would disregard interest, costs, contributory negligence and any counterclaim together with any sums repayable to the Compensation Recover Unit.
99
How is the court fee calculated?
Depends on the amount of damages claimed. If the claim exceeds, £10,000 but less than £200,000 the fee is 5% of the value of the claim. For claims exceeding £200,000 the fee is set at £10,000.
100
What is a particulars of claim form?
A formal written statement setting out the nature of the claimant's case.
101
When will a particulars of claim be filed?
Sometimes with the claim form however no later than 14 days following service of the claim form.
102
What is a statement of truth and where would it be served?
A claim form must include a signed statement of truth. A declaration by the claimant that the facts stated within the claim form are true.
103
Can a statement of truth be signed by a solicitor?
Only in very rare circumstances.
104
What must be sent to the court with the claim form?
Enough copies of the claim form for service on each defendant, together with a copy for the court file
If the claimant wishes the court to serve the proceedings and proposes the Particulars of Claim are served at the same time.
Where the claimant is proceeding via a Litigation Friend (where claimant is under 18 or lacks capacity)
If the court is serving, a notice of funding should be attached, confirming how the claimant's claim is funded.
The court fee is to be enclosed.
105
What does the court do with the documents and claim form when received?
The court issues proceedings by sealing the claim form and allocating a claim number to the case. The court then issues a Notice of Issue to the claimant, confirmign the date the court issued the claim.
106
When would a Part 8 Claim form be issued?
When there is no substantial dispute of fact.
107
What must a part 8 claim form state?
That Part 8 applies
The questions that the claimant wants the court to decide or the remedy sought and the legal basis for the claim
Details of the claim being made
The capacity of the representative if applicable.
108
When can witness evidence be served?
With the claim form and the form should be included in the particulars of claim form. Any evidence in support must contain a statement of truth.
109
How must the defendant respond to a part 8 claim?
Does not make a formal defence, the fiule their witness evidence with their acknowledgement of service and the court treats the claim as if allocated to the multi-track.
110
What are the consequences of failing to respond to a part 8 claim?
If the defendant does not respond, they cannot take part in the hearing unless the court gives permission.
111
What are the time limits for the service of the claim form?
The claim form must be served on the defendants within 4 months of the date of issue.
112
What is the exception to when the claim form needs to be served within 4 months?
Where the defendant is out of the jurisdiction, this must be served within 6 months.
113
Who will serve the claim form?
The court unless the claimant specifically asks them not to do so.
114
How will the court serve the claim form?
First Class Post.
115
What are the documents included in the service?
The court will include the claim form, particulars of claim (if provided), any medical report, and schedule of past and future loss and expense, notice of funding, any certificate of suitability of a Litigation Friend. The court will also serve a defendants response pack,
116
What is the defendants response pack?
A form the defendant is to send back to the court containing an acknowledgement of service and an indication of whether the defendant will defend or contest the jurisdiction.
117
What happens if the claimant asks the court not to serve the claim form?
The court will return the form to them and it becomes the responsibility of the claimant to ensure they serve proceedings on time and that all the relevant documents are included.
118
What happens if the claim form is not served on time or there is missing documents in the claim form?
The service will not be deemed effective.
119
What are the other methods of service?
1. Service on Defendant's nominated solicitors
2. Personal Service
3. Handed to the individual being served
4. Fax
5. DX
6. Email
120
What is the process of service on a defendant's nominated solicitors?
If the defendant has nominated solicitors to accept service, the proceedings usually must be served on the nominee, unless the contract provides otherwise.
121
What is the process of personal service?
If hte defendant has not niminated solicitos, a claimant must serve on the defendant personally. This can be leaving the proceedings with the individual directly or a person in a senior position of the Company or a partner of a firm.
122
What is the process of service being handed to the individual being served?
Requires the individual being served to take hold of the papers. If the individual bins or hands back the papers, this is still deemed served as long as the process server has explained the nature of the documents.
123
What is the process of service by fax?
Can only take place if the party has indicated in writing they accept service by fax and tghe party has given the fax number to which they should receive documents.
124
What is the process of service by DX?
Can be served if the party's address for service includes a DX, the DX number is on the party's writing paper and there has been no explicit indication that service will not be accepted in this method.
125
What is the process of service by email?
Only if there is exprerss consent to such service and the party has given the email address to which the party must transmit documents.
126
Does an email address on a party's letter headed paper allow service to be done via email?
No.
127
When is a claimant deemed to be served?
A claimant needs to know when service has occurred in order to ensure taking the next step of proceedings on time. The claim form is deemed served on the second business day after the step (email post) etc has occured.
128
What is the process of serving if the defendant's whereabouts in unknown?
The claimant must take reasonable steps and make reasonable enquiries to ascertain the defendant's current address. Otherwise, it should be safe to serve on the defendant's last known address.
129
What is the process of serving if the defendant is in prison?
The claimant should serve on the defendant in prison.
130
What does a defendant need to do if they do not think the service was valid?
They need to indicate as such on the acknowledgement of service and make an application within 14 days.
131
What is a certificate of service?
If the court serves the claim form, they will send a certificate of service form and send it to the claimant.
132
What happens if the proceedings are undelivered?
The court will notify the claimant.
133
What happens if notice of claim is required outside of the jurisdiction?
Might require permission of the court.
134
When will permission not be required for service outside the jurisdiction?
If the defendant resides in Scotland or Northern Ireland or in other situations in which the defendant is resident in the UK.
135
When is permission required for service outside the jurisdiction?
If a court in England and Wales can be shown as the most appropriate forum for resolution of the claim, a party can make an application for permission to serve a claim form on the defendant out of the jurisdiction.
136
What happens if service can not be achieved within the validity period of the claim form?
The court might permit service be an alternative method if they can show a good reason for the order.
137
What time does a defendant have to respond to a claim?
14 days within date of deemed service of the Particulars of Claim.
138
What are the ways in which a defendant can respond to a claim?
Admit the claim
File and serve a defence to the claim
Acknowledge service and indicate that the propose to defend the claim
139
What happens if the defendant does not respond within 14 days of the deemed date of service?
The claimant can obtain a judgement from the court
140
Can an extension to the time a defendant can respond to a claim be granted?
If agreed by all parties. but only for a further 28 days from the deemed date of service of the Particulars of Claim. The defendant must inform the court.
141
What happens if the defendant admits the claim in whole?
The amount of hte claim is a specfied sum, the court will issue a judgement order to include accrued interest and fixed costs, which the defendant is then required to pay.
142
What happens if the defendant requests further time to pay?
They need to provide details of assets, income and outgoings. The claimant can either accept or raise objections to the request. If the claimant objects, the court will determine the appropriate level of instalments, or alternatively list for a hearing to decide.
143
What happens if the defendant admits the claim for an unspecified amount?
The court wll stay the case and will set the case down for a disposal hearing, to enable the court to determine the appropriate level of damages.
144
What happens if the defendant admits the claim however is a minor or protected party?
The court must approve an admission or any offer to pay.
145
What happens if the defendant partly admits the claim?
The defendant will need to file a defence to the party that is in dispute.
146
What happens if the claimant admits liability but disputes quantum?
They canaccept responsibilty for the breach however not the injury or damage caused by the claimant.
147
What happens if the defendant wants to withdraw an admission?
This must be done with the permission of the court.
148
What will the court consider when deciding whether to accept a withdrawal of an admission?
Prejudice to the parties
The reasons why the admission was made
The stress that a party was under when they made the admission
Interests of the public
Time when the application to withdraw the admission was made
149
What must a defence contain?
Set out the reasons they disputed the claim and put forward an alternative version to persuade the court the claimant's case is unproven. The defence may refute the claim in its entirety or it may simply deny causation.
150
What does an acknowledgment of service allow?
An additional 28 days to respond to the claim
Indicate intention to dispute the claim
Admit some of the claim but ask for time to pay
Dispute the jurisdiction of the court
151
When can a summary judgement be applied for?
Once the defendant files an acknowledgement of service and if they can show the defendant has not realistic defence to the action.
152
What happens if a default judgment is granted?
The defendant is not permitted to defend the claim further and is required to pay the specified amount or to pay a sum in damages to be decided by the court.
153
When can an application to set aside a default judgement be successful?
The court must be satisfied that
The defendant has a real prospect of successfully defending the claim
There is some other good reason why the judgement should be set aside and the defendant allowed to defend the claim.
154
What are the time requirements for the request to set aside a judgement?
Whether the defendant acted promptly when requesting the judgement be set aside.
155
What happens if the court agrees to set aside the judgement?
Can impose conditions on the defendant.
156
When can a claimant discontinue a claim?
At any stage.
157
How does a party discontinue their claim?
Filing a Notice of Discontinuance, giving formal notice to the defendant that they do not intend to proceed with their claim.
158
Can a defendant claim costs if the claimant discontinues the claim?
They can argue they should recover the costs they have incurred in defending the claim, as the claim has not been successful.
159
When can a settlement be agreed between the parties?
Any stage.
160
When will a settlement be legally binding? /
When it is embodied by the court order setting out the terms of the agreement and specifying the time for payment.
161
What is the overriding objective?
Identifying the issues in the case early in order to decide what justifies court time and to enable them to give direction to ensure that the trial can proceed promptly, fairly and proportionately.
162
What are the purpose of the statements of case?
Provide an outline of a party's case on liability, causation and quantum.
163
What is the aim of the particulars of a case?
To provide the parties and the judge with enough information to identify the issues in the case early and to enable the judge to give directions to ensure that the trial can proceed promptly, fairly and proportionate.
164
When a claimant is claiming interest on damages what must they do?
State the basis of the claim
If the claim is for a specified sum, state the percentage rate at which interest is claimed, the date from which interest is claimed, the date the claim fo rinterest ends, the total amount of interest claimed and the daily rate at which interest accures after that date.
165
How must a defence be served?
Prepare a defence and serve it on every party to the claim.
166
If the defendant fails to respond to a particular paragraph in the Particulars of Claim, what is the effect?
Deemed to be admitted.
167
What must be contained in a defence if the defendant is to deny part or all of the claim?
State the reasons for doing so and set out an alternative versions of events, which is often referred to as the defendant's positive case.
168
What is the effect if a defendant denies the claim?
The claimant must prove it.
169
What is the effect if the claim is neither admitted or denied in the defence?
The claimant must prove it.
170
What happens if a limitation period is raised regarding the defence?
The defence should state the date on which the alleged limitation period expires, with reasons why, as limitation arguments need to be specifically pleaded.
171
What is the defence of setting off?
Where the defendant is owed money, they can seek to reduce the amount that they have to pay the claimant by the amount the claimant owes them.
172
What is a reply?
A statement of case that a party may send in response to a defence.
173
What is a Part 20 claim?
Defendants who bring claims against third parties who might be liable to the claimant or the defendant under the facts relating to the claimant's claim. This can also make counter claims against the claimant.
174
What are the key features of a counter claim?
Brought by an existing defendant against the claimant
Arises out of the same or substantially the same facts as the claimant's claim against the defendant
Is a monetary claim in its own right
Is not a defence.
175
When must permission from the court be requested for counterclaim?
When the counter claim is being brought at a seperate time to filing their defence.
176
When must a defence to a counterclaim be served?
Within 14 days.
177
What can be requested in a request for further information?
Clarification of any matter in dispute
| Additional information in relation to any such matter
178
To whom must a request for information be submitted?
To the other party.
179
What should happen if the other party does not provide the requested information?
The requesting party can make an application to the court.
180
Can a party object to providing further information?
Yes, however they must state why.
181
What are grounds for objecting to provide information?
Request is unnecessary, irrelevasnt or improper
Responding party is unable to provide the information
Party requesting information gave an insufficient time to repy
Expense of complying with the request would be disproportionate to the claim or contrary to the overriding objectives of the CPR
The responding party is protected from answering by existing privilege.
182
Can a statement of case be amended?
Yes, at any time before serving. After serving, they need written consent from all parties to amend.
183
When can a party be added to the claim?
It is desirable to add the new party so that the court can resolve all matters in dispute in the proceedings
There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve the issue.
184
Can a party be removed from the claim?
Yes, the court can order a person to cease to be a party if it is not desirable for them to be a party in the proceedings.
185
Can a party be substituted into a party?
Yes, if:
The existing party's interest or liability has passed to the new party
It is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings
186
What is the aim of the overriding objective?
Ensure that the parties are on an equal footing
Save expense
Deal with cases in ways that are proportionate with the money involved
Ensure the case is dealt with expedisiously and fairly
Allot the appropriate share of the court resource
Enforce compliance with rules, practice directions and ordered
187
What is the importance of the need for justice?
The courts have a duty to:
Encourage co-operation
Identify issues early
Decide promptly which issues need full investigation and trail and summarily disposing of others
Decide the order in which issues need to resolved
Encourage and help to the parties to settle
Fix timetables
188
What are the 3 tracks?
Small claims track
Fast track
Multi-track
189
What are the principles the court will consider when deciding the track allocation?
```
Financial value of the claim
Remedy sought
Complexity of the case
Value of any counterclaim
Number of parties
Amount of oral evidence
Importance of the claim to non-parties
Circumstances of the parties
```
190
When determining the value of the claim, what will the court not take into account?
Any sums not in dispute, interests, costs and contributory negligence.
191
What cases would be heard in the small claims track?
Most straightforward claims.
192
What is the value limit for small claims track?
£10,000 although will transfer higher value cases there if parties agree. £1,000 for personal injury cases
193
What costs are recoverable under the small claims track?
Fixed costs adn reasonable expenses for attending and expert fees in the total sum of £750. However, court can award more if the party has behaved reasonably.
194
When can a decision in the small claims court be set aside?
If a party was not in attendance to the hearing.
195
When does the application to set aside a small claims decision need to be made?
Within 14 days of the order.
196
What needs to be shown if a party is seeking to set aside a small claims decision?
They had a good reason for not attending
| Their claim or defence has reasonable prospects of success
197
What cases would be heard in the fast track?
Cases with a value between £10,000 and £25,000 or £1,000 in personal injury cases.
198
What is the time limits within the fast track?
Must take place within 30 weeks of allocation to the track.
199
What costs can be recovered under the fast track?
Must be proportional to the amount in dispute and the parties' approach in bringing and defending the claim must have been reasonable.
200
What is the restriction on evidence in the fast track?
Courts restrict expert evidence and the emphasis is on written rather than oral evidence. The use of single joint experts is encouraged.
201
What are the key features of the fast track?
Witness evidence will stand as evidence in chief
A party seeking to rely on expert evidence will need to provide justification and provide an estimate of the likely cost
Trial timetables, bundles and case summaries required as standard
Usually heard by district judge or circuit judge
202
What claims are likely to be allocated to the Multi-track?
Claims will a value in excess of £25,000 or where the claim may have lesser value but trial will last more than 1 day.
203
What is the directions questionnaire?
To help manage the case and make appropriate directions in accourdance with the overriding objective.
204
What are the points within the directions questionnaire?
Whether the parties have complied with the pre-action protocol
Case management information and any amendments required to statements of case
Whether experts are required and if so, their identities and fields of expertise
The names of witnesses and the issues to which their evidence relates
An estimate of the length of the trial
Details of the anticipated costs of the proceedings
Trial periods and pre-trial checklist.
205
What is the time limit for filing the Directions Questionnaire?
28 days of the date of service of the order.
206
What are case management directions?
Directions from the court to the parties concerning how the case is to proceed.
207
What do the directions in the small claims track usually include?
Documents to be exchanged within 14 days before the hearing
Documents to be filed or originals brought to court
Provision for the final hearing date
Encouragement to try and agree the claim
That no expert may be used without express permission
208
What is the standard directions time limit for disclosure in the fast track?
4 Weeks
209
What is the standard directions time limit for witness statement exchange in the fast track?
10 weeks
210
What is the standard directions time limit for expert report exchange in the fast track?
14 weeks
211
What is the standard directions time limit for pre-trial checklist in the fast track?
20 weeks
212
What is the standard directions time limit for pre-trial checklist returned in the fast track?
22 weeks
213
What is the standard directions time limit for date of trial in the fast track?
30 weeks
214
Can the directiosn given by the court be varied?
Yes, however a party must apply to the court to vary them.
215
What is the purpose of the pre-trial checklist?
Check that the parties have complied with directions and consider what else may be required to prepare the case for trial.
216
What is the purpose of filing a case summary?
Brief synopsis of the claim for the judge's benefit, setting out the main issues in the case
217
What is the Case Management Conference?
An opportunity for the court to take stock of the case and consider the further steps that may be necessary to prepare the matter for trial.
218
What will the court do at the Case Management Conference?
Review steps taken to progress the claim
Consider how far the parties have complied with directions previously given
Consider any further directions or orders that may be necessary
Encourage agreement on issues, directions or future conduct of the claim
Consider any other relevant preliminary issues raised by the parties
219
What are the consequence of non-compliance with orders?
May lead to the court striking out the claim, defence or counter claim.
Impose a costs order on the party
Restrict the number of witnesses a party can call or disallow evidence
220
What is the criteria for relief from sanctions?
If a party has a good reason for non-compliance.
221
What is an interim application?
Any application made to the court that requires a judicial decision.
222
What is the procedure for making an interim application?
Should be made as soon as it is apparent it is necessary
Should be made and heard any hearing already listed
Apply ti the court where the action is proceeding
223
How much notice should a party give to the other party of the interim application?
3 days
224
Who hears an interim application?
Most applications come before a Master, if the claim has been issued in the High Court RCL or District Judge in order cases.
225
When is notice necessary for an interim application?
Search orders and freezing orders as it gives the other party time to hide or dispose of possessions.
226
If the interim application is to proceed without notice, what must be included in addition to the application?
Reasons why notice was not given.
227
What are examples of an interim application?
Setting aside a default judgement
Summary judgement
Application for an interim payment
228
When can a party apply to set aside a default judgement?
When a defendant fails to acknowledge service or file a defence on time.
229
What is a summary judgement?
Askes the court to enter judgement for the application without proceeding to trial.
230
What must the applicant show when applying for a summary judgement?
The other party has no real prospect of success and there is no other compelling reasons why the case should proceed.
231
When can an application for a summary judgement be requested?
Not until the defendant has served the Particulars of Claim and the defendant has served the acknowledgement or defence.
232
What will happen if the claimant is successful for their application for summary judgement?
The court will order a summary judgement on the claim.
233
What will happen if the defendant is successful on their application for summary judgement?
The claim will be struck out.
234
What happens if the application for a summary judgement fails?
The judge will probably give directions for te future conduct of the claim.
235
What is an application for an interim payment?
An application for the court to order some payment before the court has given a final determination on the claim.
236
What are the grounds for an interim payment order?
Defendant has admitted liability
Claimant has obtained judgement but the sum to be paid is not yet assessed
Court is satisfied that if the action proceeded to trial, the claimant would obtain a substantial sum
237
When should an application for an interim payment be made?
Before making an application. Cannot make the application until the time for filing the acknowledgement of service has expired.
238
What must support the application for an interim payment?
Evidence, filed and served with the application.
239
When must the evidence supporting an application for interim payment be made?
Not less than 14 days before the hearing
240
What must the written evidence for an interim payment contain?
Sum of money sought
Items and amattes in respect of which the payment is sought
An estimate of the final judgement, attaching medical reports in a personal injury case
241
How much would the court grant as a interim payment?
Not more than is reasonable of the likely amount of the final judgement.
242
What defence can be used by a defendant of an interim payment application?
Contributory negligence - might reduce the payment if this is taken into account.
243
What is an injunction?
A court order that requires a party to do or stop doing something.
244
When granted when will an injunction come into effect?
Immediately
245
When would a court not grant an injunction as a remedy?
If damages would be adequate.
246
How would a party apply for an injunction?
Applying to the court, often without notice to the other party.
247
How long does the injunction remain in force?
Until the 'return date' which is a hearing listed to take place within days of the original hearing.
248
What are the 2 types of injunction?
Prohibitory
| Mandatory
249
What is a prohibitory injunction?
Prevents someone from taking action
250
What is a mandatory injunction?
Requires someone to take action.
251
What is the timescale for obtaining an injunction?
Usually between 48 - 72 hours.
252
What is an undertaking in damages by the applicant?
An undertaking that the claimant will compensate the defendant for any loss suffered becuase of the injunction if the court later determines the injunction should not have been granted,.
253
What are the grounds for discharge of an injunction?
Material non-disclosure
Failure of the applicant to comply with the terms on which the injunction was granted.
The facts do not justify interim injunction relief
The injunction is oppressive
There has been a material change in circumstances of the parties or in the law
The claimant has failed to prosecute the claim with due speed
254
What are freezing injunctions?
A type of prohibitory injunction designed to freeze the assets of the defendant.
255
When are freezing injunctions likely to be granted?
If there is a risk that the defendant may dispose of the subject assets or remove them from the jurisdiction before the claim proceeds to trial
256
Who must make an application for a freezing injunction be made?
High Court Judge
257
What are the grounds necessary to grant a freezing injunction?
The court must be satisfied that:
- There was a justifiable cause of action
- The claimant has a good, arguable case
- The defendant has assets within the jurisdiction
- There is a real risk that the defendant might dispose of those assets before judgement can be enforced
258
Does a freezing injunction bind third parties?
Only those who have had knowledge of it
259
What are the grounds for discharge of a freezing injunction?
If they offer other security for the claimant's claim or show the claimant is guilty of material non-disclosure.
260
What is a search order?
Type of mandatory injunction and if it clear the defendant will not obey the rules relation to this disclosure, the other party can ask the court to make a search order requiring the defendant to search for and potentially seize evidence that the defendant may destroy.
261
What are the grounds necessary to grant a search order?
Must be a strong prima facie case on the merits of an underlying claim
The defendant's activities must cause very serious potential or actual harm to the claimant's interests
There must be clear evidence that the property or documents are in the defendant's possession and there is a real possibility that the material may be destroyed before an application can be made on notice.
262
What is disclosure?
To clearly identify and inform the other side of the existence of a document.
263
What is inspection?
Enables the other side to view certain of the documents disclosed.
264
What is the duty to disclose?
The parties have to disclose and permit inspection of certain documents ensuring that each party knows the case has to meet.
265
What documents must be disclosed?
Any document in which it replies and any document which adversely affects the case.
266
What is the scope of 'documents' to be disclosed?
Anything that has information recorded on it.
267
What is standard disclosure?
An order requiring each party to disclose any documents that:
Affect their case adversely
Affect the other party's case adversely
Support the other party's case
268
If a client is not willing to comply with their duty of disclosurem how must a solicitor act?
They must cease to act.
269
What happens if a document is removed or destroyed during disclosure?
The representative must infrm the court and the other party of its existence, together with the reason for its destruction.
270
When is a party deemed to have control of a document?
Physical possession of the document
Right to possession, right to inspect or right to take copies
Had the document in their possession but no longer have it
271
What level of search must be undertaken for relevant documents?
Reasonable and proportionate search
272
How must a party confirm the disclosed documents?
The party signs a disclosure list confirming they have made a reasonable search for relevant documents.
273
What is a disclosure statement/
Each party is required to make a disclosure statement which details the extent of the search made and sign confirming they have carried out that duty to the best of their knowledge.
274
What are the time limits for disclosure?
28 days from the date the directions order
275
What are reasons not to disclose?
A very good reason e.g. where it is within the public interest to retain the document.
276
If a party is not content with the other parties disclosure, what can they do?
Challenge it.
277
When can a party apply for specific disclosure?
If an opponent continues to disregard their obligations under CPR.
278
What is an automatic right to inspection?
When a document is disclosed, all parties are entitled to inspect this document.
279
What are the grounds for refusing inspection of a document?
Privilege
The document is no longer in the parties control
It would be disproportionate to allow inspection
280
Can documents be redacted?
Yes, which overcomes the problem that a party must disclose the whole document, not just the party which are revelant to the proceedings.
281
When must the disclosure list be filed on a multi-track case?
At least 14 days before the first Case Management Conference
282
What is a order for specific disclosure?
Requires a party to disclose or search for and disclose documents that
- it has reason to believe may contain information which will assist the applicant's case or damage the respondent's case
May lead to a train of enquiry which has either of the consequences.
283
What are the terms of a specific disclosure order?
May require the respondent to:
- Disclose certain documents or classes of document specified in the order
- Prepare a supplemental list of documents
- Carry out a search to the extent specified in the order
- Disclose any documents located by the search
284
What is privilege?
Entitles a party to withhold evidence from production - to a third party, their opponent or the court.
285
If a document is privileged, does its existence need to be disclosed?
Yes however can be withheld from inspection.
286
What are the 4 types of privilege?
Legal Advice Privilege
Litigation Privilege
Common Interest Privilege
Without Prejudice Privilege
287
What is legal advice privilege?
Relates to communications between client and solicitor. Protects legal advice given in a relevant legal context. Only a solicitor-client relationship and not other professionals.
288
What is litigation privlege?
Relates to communications with third parties relating to the preparation of pending or contemplated litigation.
289
What is common interest privilege?
May apply where there are multiple defendants or group actions.
290
What is without prejudice privilege?
Discussions and statements made regarding potential settlement and may recreate documents with a view to achieving this.
291
What is public interest immunity?
A party can withhold disclosure of a document on the grounds of public interest immunity if disclosure may harm the nation or the adminstration of justice.
292
When can a privilege be lost?
May be waived by the client.
293
What are the 2 types of evidence?
Direct
| Circumstantial
294
What is direct evidence?
Oral evidence of a witness who percieved the facts
295
What is circumstantial evidence?
Evidence that does not directly establish a fact but allows the court to decide whether a particular fact existed/.
296
What is the general rule regarding evidence at trial?
Should be given by a witness who have provided a signed statement setting out their evidence.
297
What is the process of giving evidence?
Witness statement taken and supported by a statement of truth.
Witness will then attend court and be questioned and cross-examined.
298
What is the effect of failure to serve the witness statement?
A party cannot call that witness to give evidence unless the court gives permission.
299
What can a party do if they have failed to serve a witness statement in time?
Apply to adduce the evidence despite the failure to serve on time if they can demonstrate a good reason for the failure.
300
What are the requirements for a witness?
Must be competent to give evidence.
301
Can a witness be compelled to give evidence?
Yes, by serving a witness summons on the witness.
302
What is the effect of a witness summons?
Compels a witness to give evidence.
303
When does a witness summons need to be served?
At least 7 days before the hearing.
304
What happens if a party does not call a witness whose statement has been served?
The other party can refer to the statement, which the court will treat as hearsay evidence.
305
What is a witness statement?
Sets out in detail the evidence the witness will give on oath to the judge in court.
306
What is the exchange of witness statements?
The parties must be a certain date exchange witness statements of those witnesses on whose evidence they intend to rely on at trial.
307
What is a witness summary?
If it is not possible to obtain a statement before the date for exchange in the directions order. Identifies the witness and sumarises the facual issues that their evidence will cover.
308
Are there any requirements for a witness summary to be served?
Must obtain permission of the court.
309
What is an affidavit?
A written statement confirmed by oath of affirmation, predominantly for use as evidence in court.
310
What is hearsay evidence?
A statement made otherwise by a person while given oral evidence in proceedings which tendered as evidence of matters stated. (Statements made outside of court).
311
How can hearsay evidence be given?
Orally or in writing.
312
If a witness cannot attend court however signs a statement of witness at trial, how will the witness be treated?
As hearsay evidence.
313
How will hearsay evidence be treated at court and why?
There will not be given as much weight as the other party cannot argue or cross-examine the witness.
314
What is the process if a party wishes to rely on hearsay evidence?
Must serve a notice on their opponent. If the witness will be attending the trail, service of the witness statement itself constitutes notice.
315
What are problem witnesses?
If a party changes their story or proves to be more unfavourable and shows a significant lack of cooperation to tell the truth on behalf of the party who called them it is possible to declare them a hostile witness.
316
If a witness has a conviction for an offence in the UK, what effect does this have on their evidence.
This would be admissible and must be specifically pleaded.
317
What is a Notice to Admit Facts?
If a party believes that certain facts are capable of agreement and admission the can serve a notice on their opponent.
318
When must a Notice to Admit Facts be served?
No later than 21 days before trial
319
If a party admit facts, what is the effect?
They are deemed established and need not be proved.
320
If a party serves a Notice to Admit Facts but then the facts are not admitted then proved correct in court, what is the effect?
The court may order the party who refused to admit to pay the costs associated with proving the facts at trial, regardless of the case outcome.
321
What is a notice to produce documents?
If a party believes a document produced by an opponent is not authentic, they can serve a notice to provide the document at trial.
322
What must a notice to produce document include?
Specify the document being challenged
323
When must a notice to produce documents be served?
Within 7 days of disclosure of the document.
324
If a party proves the document subject to a notice to produce documents is authentic, what is the effect?
The court may make a costs order against the party who served the notice.
325
What is a letter of request?
Used when a court in one jurisdiction asks the court in another jurisdiction to take evidence on its behalf.
326
Can the court disallow evidence?
Yes.
327
Can opinion evidence be given?
Not by a lay witness however can be by an expert witness.
328
What is the standard of proof in a civil dispute?
On the balance of probabilities that it is more likely than not.
329
Who is deemed as an expert?
A person who is instructed to give or prepare expert evidence for the purpose of proceedings. It can be anyone with knowlefge or experience of a particular field or discipline. A professional qualification is not essential.
330
Can experts give opinion evidence?
Yes, so long as the expert is qualified to give the opinion and the expert evidence is reasonably required to resolve the proceedings.
331
What are the conditions required for expert opinions?
- Must depend on special knowledge, skill or training that is not within the ordinary experience of the judge
- Expert must demonstrate that they can be regarded as a true expert in the particular field of expertise
- Expert must give evidence to a reasonable degree of certainty regarding their opinion, inference or conclusions
- Expert must be able to demonstrate the basis of their opinion and conclusions.
332
What are the duties of experts?
Must exercise independenence, integrity and impartiality and they owe a duty to the court on matters of their expertise.
333
What is the substance of an expert's report?
Should address the court rather than the party instructing the expert, unless the court directs otherwise.
334
How is expert witness evidence given?
They do not attend court unless the court directs oral evidence may be given.
335
When would an expert be required to give their evidence orally?
Expert oral evidence is likely to have an impact on the outcome
It will assist the judge
There is a risk of injustice if the expert evidence is not tested
The cost of the experts attending are not disproportionate.
336
How is an expert witness chosen?
Parties should try and agree a single joint expert. If not possible, the court will chose from a list provided by the parties.
337
Who is liable for the cost of an expert witness?
Parties share the fee until conclusion at which point the losing party assumes responsibilty.
338
What would be reasons for the court to allow an own expert?
Complex issue and high value
Parties already have their own experts from the pre-action phase and it is more cost effective for both to continue with their retained expert.
Number of different schools of thought in relation to a particular issue relevant to a claim
The issue that the experts are focusing on may have huge significance in the outcome of the action.
339
Can questions be asked to the expert?
Yes, within 28 days of the expert sending the report. The questions should only seek to clarify points in their report.
340
What is a trial?
Where the court will hear the evidence to determine the claim.
341
What is a tomlin order?
A written agreement recording the terms of an agreement.
342
What are the 2 parts of a tomlin order?
The order, which confirms that the parties have agreed settlement and that they have agreed that the case is stayed pending the terms of the settlement being carried out
A schedule confirming the amount to be paid, by whom, and what date this needs to be paid by.
343
When do pre-trial hearings take place?
Usually at least 10 weeks before the trial date.
344
What is the purpose of a pre-trial hearing?
To make sure everything is in place for the matter to be determined at trial, to ensure effective use of court time and to avoid the need for unnecessary delay or adjournment.
345
What orders are usually made at a pre-trial review?
Consider the extent to which the parties have complied with orders and directions
Set a trial timetable
Set the number of experts and witnesses that may give evidence at trial
346
What preparation is required for a pre-trial review?
The parties are required to file and serve an agreed case summary together with a list of issues.
347
How long must a case summary be?
No more than 500 words.
348
What should be contained within the case summary?
Specify the issues of fact agreed and what is in dispute and provide a synopsis of the evidence that the parties believe is required at trial.
349
What is the purpose of a witness summons?
Compel a witness to attend court to give evidence at the trial.
350
What is conduct money?
Funds paid to the witness to cover expenses. Must be sufficient to cover the cost of the witness getting to and from court and the amount they will lose by way of income.
351
What is the maximum amount of conduct money?
£67
352
What is the effect of serving a witness summons?
If the witness fails to attend, they will be in contempt of court.
353
When must a witness summons be served?
At least 7 days before trial.
354
How many trial bundles should be prepared?
6
355
Who should prepare the trial bundles?
Claimant's solicitor.
356
Who should bear the cost of the preparation of the trial bundles?
Claimant / claimants solicitor.
357
When should the trial bundles be filed?
Between 3-7 days before the trial is to take place.
358
What is the purpose of the trial timetable?
Set out what will happen on the day of the trial and in what order.
359
What is the standard trial format?
```
Claimant opening submissions
Defendant opening submissions
Consideration of preliminary issues
Claimants witness
Claimants expert
Defendant witness
Defendant expert
Claimant closing statements
Defendant closing statements
```
360
What is cross-examination?
Once a witness has given their evidence the advocate for the other party may cross-examine.
361
What is re-examination?
The process where the party's advocate asks their own witness questions on matters arising out of cross examination to try and restore the witness's creditibility on that point.
362
What ancillary matters might be raised after the judge has issued their judgement?
```
Interest
Costs
Time to pay
Stay of execution
Permission to appeal
```
363
If a party decides they want to discontinue a claim before trial, what is the process?
Must file and serve a notice of discontinuance.
364
What must a party do if they wish to appeal?
Apply for permission to appeal from either the court where the decision was made or the appeal court in notice.
365
What are the 2 grounds for appeal?
The decision is wrong in fact, law or exercise of the court's discretion.
The decision is unjust because of serious procedural or other irregularity in the proceedings.
366
What are the time limits for appeal?
Within 21 days of the judgement or order that they are seeking to appeal.
367
Can an extension to appeal be provided?
Can be requested from the judge.
368
When is it decided whether an appeal will be granted?
Usually without hearing within 7 days however if refused, a appeallant may request an oral hearing so they can confirm why they should grant the permission.
369
If a party does not obtain permission and not request an extension within 21 days of the hearing, can they still appeal?
Yes, they may apply in an appropriate case to the court of appeal for permission retrospectively.
370
What is the process of appeal?
Must send an appeal form to the court together with a copy of the sealed order and the application notice.
371
What evidence cannot be relied upon in the appeal hearing?
Evidence that was not availabele at the original hearing, without permission.
372
What is the general rule in litigation regarding costs?
The loser pays the winners costs.
373
When might the court depart from usual costs?
Where there has been;
Failure to comply with preaction protocol
Failure to negotiate
Refusal to engage in ADR
Rejection of a part 36 offer
Exaggeration
Failure to succeed on the whole of the claim
374
What is the indemnity principle regarding costs?
A party cannot recover more from an opponent than they are liable to pay their own legal representative.
375
What are the 2 bases of costs assessment?
1. Standard Basis
| 2. Indemnity Basis
376
What is the standard basis when calculating costs?
Where the court allows only proportionate costs and exercises any doubt in favour of the paying party.
377
What is the indemnity basis regarding costs?
Used when the court has doubts in the receiving party's favour. The court does not consider proprotionality.
378
How are costs calculated?
How much time the various fee earners have spent on the case.
379
What are the types of costs order?
Stated amount for costs
Payment of costs up to a certain date
An order to pay only a proportion of the other party's costs
380
When would a budget be filed?
In a multi-track case with the Directions Questionnaire.
381
What is a costs management order?
Allows the budget to be department from.
382
What happens if a party exceeds a Costs Management Order?
Must apply to the court for a new order.
383
What happens if no budget is filed?
The risk is that no costs will be awarded, only the applicable court fees.
384
What are inter-party costs?
A party in the claim is awarded costs against another party.
385
What is a summary assessment?
Court considers the costs to be paid in the matter and the receiving party is entitled to interest from the time of judgement until costs are paid.
386
Can a party challenge the provisional assessment of costs?
Yes, if they believe the amount is not acceptable within 21 days,
387
When is a final costs certificate issued?
Once the parties agree or following assessment.
388
What happens if there are flucuations from the budget?
If the bill is over 20% more than the figures in the cost budget, the claimant must file a statement with reasons.
389
When should costs be paid?
Within 14 days of the final costs certificate.
390
What is a non-party cost order?
The court has jurisdiction to award costs in cases involving a non-party. Costs orders against non-parties are exceptional but, as costs are at the court's discretion, possible in situations where the non-party funds the proceedings and controls the benefits from them.
391
What is a wasted cost order?
Can be issued by the court when a solicitor's conduct has been improper, unreasonable or negligent.
392
What is a part 36 offer?
A formal offer to settle a claim.
393
Is a part 36 offer without prejudice?
Yes, it cannot be disclosed to the court until the question of costs is considered.
394
What are the requirements of a part 36 offer?
In writing
State clearly it is made pursuant to Part 36 CPR
Specify a period of not less than 21 days within which the offeree can accept
State whether the offer relates to the whole or part of the claim
State whether the offer takes into account any counterclaim
395
When can a part 36 offer be made?
In most types of claim and at any time during the proceedings.
396
How are costs assessed when a party makes a Part 36 offer and the parties settle prior to trial?
A court may award the offeror the pre-issue costs that they incurred.
397
How are costs assessed if a party makes a Part 36 offer but it is rejected and the party wins the case?
The court may allow the party to recover the cost of pre-action work in addition to the cost of litigation.
398
What can be done if the terms of the part 36 offer are unclear?
A request for clarification can be made within 7 days.
399
How can a part 36 offer be withdrawn before the expiry of the relevant period?
It takes effect upon expiry of the relevant period unless the offeree serves notice of acceptance before expiry of the relevant period.
400
How can a part 36 offer be withdrawn after acceptance?
The offeror can apply to the court for permission to withdraw the offer or change its terms within 7 days of the notice of acceptance.
401
How can a part 36 offer be withdrawn after expiry of the relevant period?
The offeror may withdraw or amend the offer without permission.
402
How must a part 36 offer be accepted?
In writing.
403
How can a part 36 offer be accepted during trial?
Only with permission of the judge.
404
How might the court consider costs when a claimant has rejected a part 36 offer and then beats the offer at court?
The defendant will be ordered to pay the claimant's costs of the entire proceedings.
405
How might the court consider costs when a claimant has rejected a part 36 offer and they fail to beat that at court?
Award the defendant their costs on the standard basis from the date when the relevant period for acceptance expired. The defendant may also be awarded interest on those costs.
406
How might the court consider costs when a defendant has rejected a part 36 offer and then the claimant beats that offer?
The Part 36 will have no effect. Who pays the cost of the action will be determined by whether the defendant has made a Part 36 offer and whether the claimant has beaten the offer.
407
How will costs be considered if the defendant has rejected a part 36 offer and the claimant fails to beat that offer?
The claimant is entitled to interest on the entirety of the claim at an enhanced rate up to 10% above base rate for the period of time after the acceptance expired. Costs for this period will be assessed on an indemnity basis.
408
What are damages only or mixed claims cost order?
The amount to be paid by the defendant will be calculated as a percentage of the damages awarded to the client.
409
What are non-monetary claims order?
The defendant must pay a percentage of the costs that the court has ordered the defendant to pay the claimant - subject to a cap of £75,000.
410
What interst is incurred in the High Court?
8% per annum running from the date of the judgement.
411
What is the interest payable on judgement in the County Court under £5,000?
No unterest is usually payable unless there is a contractual obilgation to do so.
412
What is the interest payable in County Court judgements for £5,000 and over?
Carries same interest as high court judgements (8% per annum)
413
What can a creditor not seize?
Equipment for use in the debtor's trade or household items necessary for basic domestic needs.
414
What is a controlled goods agreement?.
An agreement that permits the debtor to retain custody of the goods on the understanding that the enforcement officer is taking control of them and the debtor agrees not to dispose of them before the debt is paid.
415
What is a third party debt order?
Applies when there is a judgement against a debtor who has money in the bank.
416
What is a charging order on land?
If a judgement debtor has an interest in land, a creditors may obtain a charge on the property, which will rank as an equitable mortgage.
417
What is an attachment of earnings?
Compels the employer to make regular deductions from the debtor's earnings and then pay them to the court.
418
How would enforcement occur when the debtor is in an EU Country?
If a contract stipulates that England and Wales courts have jurisdictionm the creditor can issue a claim in the UK.
419
How would enforcement occur against a debtor outside of the EU?
If it is in a country that has a reciprocal agreements with the UK the creditor is permitted to trace the debtor and enforce the claim in that country.
