Dispute Resolution

Question 1

What is the aim of pre-action protocols?

Answer 1

1. Encouraging the parties to focus on resolving the dispute without involving the courts.
2. Enabling the parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity.
3. Lay the foundations for expeditious conduct of proceedings.

Question 2

What is the consequence of non-compliance with pre-action protocols?

Answer 2

1. Cost and interest.
2. Court may stay the proceedings until the relevant steps are taken.

Question 3

When can non-compliance of the pre-action protocol be justified?

Answer 3

1. Where a limitation period is about to expire.
2. Another reason for urgent proceedings or for the element of surprise. (destroying evidence etc.)

Question 4

When does the Pre-action Protocol for Personal Injury Claims apply?

Answer 4

1. Personal injury claims…
2. Which do not fall within another pre-action protocol.
3. Case which are likely to be allocated to the fast-track (a value of up to £25,000 - the ‘spirit’’ of the protocol should also be followed in higher value claims).

Question 5

When does the general Practice Direction apply?

Answer 5

1. All cases.
2. Where a specific protocol applies, the provisions of that specific protocol override any conflicting provisions of the Practice Direction.

Question 6

What are the steps of the Pre-Action Protocol for PI claims?

Answer 6

1. Claimant should write Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer.
2. Parties consider any rehabilitation needs (ie any ongoing medical and care needs) and how to address them.
3. Claimant should write to defendant to give full details of the claim (Letter of Claim)
4. Defendant to acknowledge Letter of Claim within 21 days.
5. Defendant to investigate and send full Letter of Response within 3 months of Letter Acknowledging Claim. If the defendant denies liability or quantum (or both) then…
6. The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses.
7. Joint selection of quantum expert (ie medical expert), or claimant discloses report and defendant sends written questions.

Question 7

What are the steps of the Practice Direction?

Answer 7

1. Claimant should write to potential defendant to give details of the claim (Letter of Claim).
2. Within a reasonable period (depends on complexity of claim (14 days - 3 months)), defendant should send a response letter. Response letter must either…
   3.1 Accept the claim
   3.2 Reject the claim (in whole or in part) - giving reasons
3. The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement.

Question 8

What is the High Court and County Courts’ approach to allocation in PI claims?

Answer 8

High Court = £50,000 or more (either court)
County Court = Less than £50,000 must be in County Court.

Question 9

What is the High Court and County Courts’ approach to allocation in non-PI claims?

Answer 9

High Court = over £100,000 can be in either court.
County Court = up to £100,000 must be in County Court.

Question 10

What is disregarded to the value of a claim (financial worth)?

Answer 10

1. Interest
2. Costs;
3. Any Counterclaim;
4. Any contributory negligence; and
5. Any deduction of social security benefits.

Question 11

What is the approach to allocation if there is a choice?

Answer 11

1. financial value
2. Complexity
3. Importance of the outcome of the claim to the public in general.
4. the claimant believes that the claim ought to be dealt with by a High Court judge.

Question 12

What can the court dissatisfied with the claimant’s choice do and what are the consequences of incorrect allocation?

Answer 12

The court may consider whether it should remain in the court of issue. The court may transfer cases between the HC and CC.

Additional factors may be considered by the court.
- Specialist judge will be available and the facilities at court for disabled witness or parties.

The consequences of wrong allocation is:
1. The court may transfer the case and order the claimant to pay the costs of the transfer.
2. If the matter continues in the HC, there is a separate sanction for wrongly beginning a matter in the HC when it should have been issued in the CC. The penalty is that any costs awarded in the claim can be deducted by up to 25% (court’s discretion).

Question 13

What does the claimant’s solicitor need to do to bring a claim?

Answer 13

1. file copies of the claim form (Form N1)
   - one copy of the completed claim form to be kept on the court file;
   - one copy for every defendant; and
   - One copy for the claimant to keep on its own file.
2. Court issue fee.

Question 14

If the claim is for money, which County Court should the claim be filed in?

Answer 14

County Court Money Claims Centre or ‘Money Claim Online’ (value up to £100,000 against no more than two defendants).

Question 15

Who will effect service of the claim form?

Answer 15

The claim form may be served either:
(a) by the court (first class post; notice of issue/notice of non-service); or
(b) by the claimant/claimant’s solicitor (notify the court; claimant’s solicitor must then file a certificate of service at court within 21 days of service).

Question 16

How should service of the claim form be effected?

Answer 16

1. Personally on the defendant;
2. Leaving the document at permitted address;
3. First class post;
4. Document exchange (DX)
5. Fax (only permitted if the defendant/its solicitor has indicated)
6. Other electronic methods (e.g. email) (only permitted if the defendant/its solicitor has indicated)
7. Any other method authorised by the court.

Question 17

What are the places of service for the claim form?

Answer 17

Individual = Usual or last residence.

Individual being sued in the name of a business = Usual or last known residence of the individual; or principal or last known place of business.

Individuals being sued in the business name of a partnership = Usual or last known residence of the individual; or principal or last known place of business of the partnership.

Limited liability partnership/company registered in EW = Principal office of the partnership/company; or any place of business of the partnership/company within the jurisdiction which has a real connection with the claim.

Question 18

What is the time limit for service of the claim form?

Answer 18

Claim forms do not remain ‘valid’ indefinitely after they are issued. Where the claim form is being served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Personal service/leaving the document at a relevant place = Leaving the claim form with the defendant.

FC Post/DX = Posting the claim form/leaving it with DX service.

Fax = Completing the transmission

Electronic method = Sending the email or other electronic transmission.

Question 19

Under which circumstances can an extension of time to serve the claim form be granted?

Answer 19

If it is not possible to serve within the time limit, the claimant may consider applying to the court for an extension of time under CPR 7.6

1. The application should be made within the four month period of validity of the claim form, and the claimant will need to show good reasons for the extension.
2. If the application is made after the deadline for service of the claim form has already passed, then the court will grant an extension only if:
   - it is the court that failed to serve the claim form; or
   - the claimant has taken all reasonable steps to comply; and
   - either way, the application has been made promptly.
   Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension in these circumstances.

Question 20

What is the time limit where the particulars of claim is contained in or served with the claim form?

Answer 20

14 days

The response pack (Form N9) contains:
1. form for admission;
2. form for defending; and
3. form for acknowledging service.

Question 21

What is the time limit where the particulars of claim is not contained in or served with the claim form?

Answer 21

must be served within 14 days of service of the claim form, and also within the period of validity of the claim form, i.e. within 4 months of issue.

Question 22

When is a claim form deemed to be served?

Answer 22

On the second business day after completion of the ‘relevant step’.

‘Business day’ means any day except Saturdays, Sundays, bank holiday, Good Friday or Christmas day.

Question 23

What is the deemed date of service of documents other than the claim form?

Answer 23

Depending on the method of service.

Instant methods:
- personal service, fax, email, delivering/leaving at a permitted address.
- If done before 4.30 pm on a business day: deemed served the same day.
- Otherwise: deemed served the next business day.

Not-instant methods:
- Post/DX
- Deemed served the second day after posting/giving to DX provider, if a business day.
- Otherwise: deemed served the next business day.

Question 24

What is the purpose of statements of case?

Answer 24

1. It informs the parties of each other’s case(s);
2. It enables the parties and the court to identify the points of dispute (the factual matters in issue) between them.
3. It provides the judge with a concise statement of each party’s case.

Question 25

What are the rules applicable to all statements of case.

Answer 25

Every statement of case must contain:
1. Numbered paragraphs.
2. Pages numbered consecutively;
3. All number and dates in figures
4. Reference in the margin to every document mentioned that has already been filed at court;
5. The name of the person who drafted the document.
6. A statement of truth.

Question 26

What are the consequences of breaching a statement of truth?

Answer 26

Contempt of court proceedings may be brought against the person signing.
1. fines; and/or
2. Imprisonment.

Question 27

How are sole traders referred to in a Form N1?

Answer 27

[Name] (trading as [name of company].

Question 28

What are the three ways to respond to proceedings?

Answer 28

1. file or serve an admission;
2. file a defence; and
3. file an acknowledgement of service. (unable to file a defence within time limits or wishes to dispute jurisdiction).

Question 29

What form is used to acknowledge service?

Answer 29

Form N9

Question 30

What is the effect of filing an acknowledgement of service?

Answer 30

The acknowledgement of service extends the deadline for serving the defence to 28 days after the deemed date of service of the particulars of claim.

Question 31

What and when must a defendant contesting a claim file a defence?

Answer 31

A defence must be filed at court and served on all parties within the prescribed time limits, as set out above.

In certain circumstances, a longer period for filing a defence might apply:
1. where the claim form has been served out of the jurisdiction.
2. application disputing the court’s jurisdiction.
3. claimant applies for summary judgment, the defendant need not file a defence before the hearing of that application.
4. agent of a principal who is overseas.

Question 32

For how long can the defendant and claimant extend the time to serve a defence?

Answer 32

by 28 days without application to the court (written notice)

Defendant can apply for an extension at court’s discretion.

Question 33

What is the procedure to respond to a claim for ‘money paid’?

Answer 33

The defendant will respond to the claim with a defence which states that the debt has already been paid.

The ‘simple procedure’.
1. When the court receives this type of defence, it sends a notice to the claimant which, in effect asks the claimant whether the defence is correct.
2. The claimant must respond within 28 days and the claim is stayed if they do not do so.
3. Whatever their response, the claimant must serve a copy of it on the defendant.
4. If the claimant does not wish to continue that is the end of the case.
5. If the claimant does wish to continue the claim will proceed as a defendant claim.

Question 34

What form is used for a claim for specified amount?

Answer 34

Form N9A

Question 35

What form is used for a claim for unspecified amount, non-money or return of goods?

Answer 35

Form N9C

Question 36

What are the four Rules of counting time?

Answer 36

Rule 1 = any reference to a number of days in CPR are ‘clear days’. The day which a period begins is never included.

Rule 2 = end of period defined by reference to an event. The day on which that event occurs is not included.

Rule 3 = days which do not count. where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days, or Good Fridays in the time period do not count.

Rule 4 = a) Where a deadline relates to doing any act at the court office (such as filing a document at court); and
b) Applying the first three rules explained in this element, the deadline for doing that act ends on a day on which the court office is closed.
The act is treated as on time if done on the next day on which the court office is open.

Question 36

What are the four Rules of counting time?

Answer 36

Rule 1 = any reference to a number of days in CPR are ‘clear days’. The day which a period begins is never included.

Rule 2 = end of period defined by reference to an event. The day on which that event occurs is not included.

Rule 3 = days which do not count. where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days, or Good Fridays in the time period do not count.

Rule 4 = a) Where a deadline relates to doing any act at the court office (such as filing a document at court); and
b) Applying the first three rules explained in this element, the deadline for doing that act ends on a day on which the court office is closed.
The act is treated as on time if done on the next day on which the court office is open.

Question 37

What is the purpose of defence?

Answer 37

1. React to every point or allegation in the claimant’s particulars of claim; and
2. State full details of the defendant’s own case.

Question 38

What can a defendant do to respond to the claimant’s allegations?

Answer 38

1. Admit the allegation;
2. Deny the allegation; or
3. Require proof of the allegation.

Question 39

What is the consequences of not admitting something that is not disputed or non-controversial?

Answer 39

cost consequences of not admitting something when you should have done so or if the defendant denies an allegation it must give reasons.

Question 40

What are the consequences if the defendant fails to deal with an allegation?

Answer 40

1. If the defendant omits to deal with any allegation made by the claimant the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation in which case it will be deemed not to admit it, i.e. to require the claimant to prove it.
2. In a money claim, however, it will always be understood that the amount claimed is not admitted unless the defendant specifically admits it. It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.

Question 41

What are matter that must be included in the defence?

Answer 41

1. Limitation
2. Disputing the statement of value
3. In PI claims, the defendant must state whether it agrees, disputes or has no knowledge of the matters in the schedule of past and future expenses and losses, and any medical report included with the particulars, giving reasons and its own counter-schedule and medical evidence.

This includes mitigation or reduction of damages.
4. Set-off
5. Other defences
6. Any human rights arguments.

Question 42

What is the purpose of a ‘reply’ and when must they be filed?

Answer 42

A reply is an optional statement of case served by the claimant to allege facts in answer to the defence which were not included in the claim.

Replies should be filed with the directions questionnaire (the directions questionnaire is a case management document that the court directs should be filed after a claim is defended. Parties are given at least 14 days’ notice of the deadline for doing this.

Question 43

What is default judgment?

Answer 43

Applying for judgment to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by either serving an acknowledgement of service or defence within the prescribed time limits.

Question 44

What must the claimant show to obtain default judgment?

Answer 44

CPR 12.3:
1. At the date on which judgment is entered, time has expired for filing an acknowledgement of service (and the defendant has not filed either an acknowledgement of service or a defence) or time has expired for filing a defence (where the defendant has filed an acknowledgement of service but not a defence).
2. The claim has not been admitted or satisfied by the defendant.
3. No application for summary judgment or strike out has been made by the defendant.

Question 45

What are two types of cases for setting aside default judgment?

Answer 45

1. Cases where the court must set aside judgment (if judgment was wrongly entered.
   - The time limit for acknowledging service or serving a defence has not, in fact, expired when judgment was entered; or
   - An acknowledgment of service or defence had, in fact, been filed on time; or
   - Summary judgment or strike out had been applied for before judgment was entered; or
   - The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.
2. Cases where the court may set aside judgment (if judgment was correctly entered)
   - The defendant has a real prospect of successfully defending the claim; or
   - it appears to the court that there is some other good reason why judgment should be set aside or varied or the defendant should be allowed to defend.

Question 46

What is the role of ‘delays’ in applying for setting aside default judgments?

Answer 46

The court must also consider how promptly the defendant made its application to set the judgment aside. The need to comply with time limits and to act promptly is an important feature of the CPRs.

Question 47

What is the time limit for serving a defence to a counterclaim?

Answer 47

A claimant’s defence to a counterclaim must be filed and served within 14 days after service of the counterclaim.

A claimant wishing to defend a counterclaim fails to serve a defence within the requisite time limit, a judgment in default might be entered by the defendant.

Question 48

What is the function of CPR 17 and how can it be used?

Answer 48

CPR 17 is used to make amendments to statement of case. Any new causes of action, counterclaims and additional claims.
- Changes in the parties’ knowledge of a case or even simple drafting errors.
- if a factual mistake has been made in the originally drafted and served particulars of claim.

1. A party may amend a statement of case at any time before it is served (CPR 17.1(1)). However, the court retains the power to disallow such amendments under CPR 17.2.
2. Any statement of case can be amended at any time with the written consent of all the other parties. (the party applying for the amendment will bear the costs of and arising from the amendment)
3. Amending with the court’s permission. The party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case. The application can be dealt with at a hearing or, where all parties consent, without a hearing on written submissions. (in any event, should be filed within 14 days of the date of the order granting amendment unless the court orders otherwise).

Question 49

What are the function of CPR 20.4 and when can it be filed?

Answer 49

It is a classic counterclaim against the claimant brought by the defendant.

If filed at any other time.

The defence and the counterclaim should normally form one single document, with the counterclaim following on from the defence.

Question 50

What is the function of CPR 20.5 and when can it be filed?

Answer 50

It is a counterclaim against a person other than the claimant.

The counterclaim must be against the claimant and the third party together.

Permission is always required.

Question 51

What is the function of CPR 20.6 and when can it be filed?

Answer 51

When a defendant who has acknowledged service of a claim or who has served a defence may make an additional claim for contribution or indemnity against an existing party (most likely a co-defendant) by filing a contribution notice with the court and serving that notice on the other party.

If filed at any other time.

Form PF22, if done in circumstances when the court’s permission is not required, the notice is filed and served with the defence.

If the court’s permission is required, the court will give directions as to when the notice should be served.

Question 52

What is the function of CPR 20.7 and when can it be filed?

Answer 52

Claim for a contribution or indemnity from someone not already an existing party, i.e. a third party.

If filed at any other time.

Question 53

What is the function of CPR 19?

Answer 53

Governs amendments which remove, add or substitute a party.

CPR 19
- does not include any specific provisions about costs but the court will ensure that other parties are safeguarded in costs. Upon giving an order to substitute or add a party the court generally makes an order for costs against the party seeking the change.

Question 54

When will the court consider granting permission to amend?

Answer 54

General principle is that the court is required to give effect to the overriding objective of dealing with cases justly and at proportionate cost.

Need to show some prospects of success. An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success.

Question 55

What is the court’s approach with regard to late amendments?

Answer 55

Swain-Mason and ors v Mills & Reeve [2011]
1. The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.
2. A heavy onus lies on the party seeking a late amendment to justify it, not only as regards its own position, but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage.
3. The party seeking the late amendment must satisfy the full requirements of preparing a proper pleading. In other words, the part cannot say that deficiencies can be rectified by way of further information or evidence in due course.

Question 56

When can CPR 19 (claimant’s) amendment to add, remove or substitute parties be used?

Answer 56

The main test is that the amendment is ‘desirable’. In considering this test the court will have in mind the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case, and the overriding objective.

Adding parties to a claim increases the complexity and case management decisions required, which will add to the cost and the time the particular matter might take so the court will have this in mind when exercising their discretion here.

No one can be added as a claimant without his or her consent, with the consent being filed at court. If someone refuses to be added as a claimant, they can instead be added as a defendant. Finally, the court’s permission is always required to add, remove or substitute a party, unless the claim form has not yet been served.

Question 57

What is the general rule about post-limitation amendments of particulars of claim and what are the exceptions?

Answer 57

The starting point is s 35 Limitations Act 1980 and the usual rule is that such amendments will not be allowed.

S 33 Limitation Act (Personal injury)
- injuries not be apparent within the stand 3 years limitation period))
- new cause of action is an original set-off or counterclaim.
- The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim.

CPR 17.4 the court’s discretion
- An amendment adding a new duty or obligation on the part of a defendant(or possibly even a claimant) will usually raise a new cause of action so this will be a new claim.
- An amendment adding additional facts or particulars which clarify a duty or obligation which has already been called, will not normally be interpreted as raising a new cause action.

Question 58

What are the exceptions governing adding parties post limitation?

Answer 58

CPR 17.4(3) = Correcting mistake as to the name of a party.

CPR 17.4(4) = changing the capacity of a party.

CPR 19.5 = Changing the identity of a defendant. (‘necessary’)
- CPR 19.5(3)(a) the new party is to be substituted for one that was named in claim form in mistake for new party; or
- CPR 19.5(3)(b) cannot properly be carried on/by/against the original party unless the new party is added or substituted; or
- CPR 19.5(3)(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

Question 59

What is the difference in applying CPR 17.4(3) and CPR 19.5(3)(a)?

Answer 59

CPR 17.4(3) applies where the intended party was named in the claim form but there was a genuine mistake such as causes no reasonable doubt as to the identity of the party in question.

CPR 19.5(3)(a) applies where the mistake is more fundamental and the situation can only be made right by the new party being substituted. So here, a new person will be joining the action, however, their identity will have been known already.

Sardinia Sulcis [1991]
- Has the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’?
- If yes, it is a mistake of the type covered by CPR 19.5(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment.

Question 60

What is the format of the amended statement of case?

Answer 60

The format of the statement of case once it has been agreed or ordered that they may be amended is governed by 17 PD 2.

1. There is no need for the amended statement oof case to show the original text, unless the court orders otherwise (17 PD 2.2)
2. Amendments are to be shown by either: (I) using coloured amendments; or (ii) by using a numerical code (17 PD 2.2).
3. If colour coding is used, the order of colour for successive amendments is (1) red (2) green (3) violet) and (4) yellow.
4. The amended statement of case should contain the appropriate endorsement (see 17 PD 2.1) and be verified by a statement of truth (CPR 22.1(2)).

Question 61

What is the conditions for granting a request of information?

Answer 61

18 PD 1 - party expected to seek information from the other party on a voluntary basis first and should only make an application to the court if the request cannot be resolved.

Written request on the other party stating a date for a response (with reasonable time).

Request should be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand the opponent’s case.

Question 62

How can a party respond to a request?

Answer 62

18 PD 2 = must be written, dated and signed by the party or its legal representative and include a statement of truth.

The response must be sent to the other party and filed at court.

If a party objects to providing a request, 18 PD 4 confirms that it must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request.

Question 63

What are the conditions for making a request to the court for further information under CPR 18.1?

Answer 63

The court can order a party to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter where or not the matter is contained or referred to in a statement of case.

An application to the court would be appropriate where the other party has not responded or has responded with an objection to provide the information (18 PD 1.1).

The application should be made as an interim application under CPR 23 (18 PD 5). If the other party has not responded after 14 days have passed, the application can be made without notice to the opponent and the court can deal with the application without hearing.

Question 64

What are the four requirements to make an application notice (Form N244)?

Answer 64

1. Who is making the application
2. What order does the applicant want.
3. Why the applicant is asking for that order.
4. What information the applicant relies on in support of the application.

(+court fee)

Question 65

What are the three ways evidence can be included in an interim application?

Answer 65

1. In the application notice itself.
2. By referring to the existing statements of case.
3. In a witness statement (or, if required, affidavit).

(should also file a draft order)

Question 66

What is the standard procedure and time limit for interim applications?

Answer 66

1. Issue:
   - Application notice (Form N244)
   - Supporting evidence
   - Draft order
   - Fee
2. Service: (as soon as practicable but not less than 3 clear day)
   - Application notice
   - Supporting evidence
   - Draft order
   - Notice of hearing date.
3. Further evidence
   - Respondent files at court and serves on the applicant evidence as soon as possible.
   - Applicant files at court and serves on the respondent evidence in reply as soon as possible.
4. Hearing
   - Both parties file and exchange statements of costs not less than 24 hours before hearing.

Question 67

Under which circumstances is a without notice interim application allowed?

Answer 67

1. Exceptional urgency;
2. overriding objective;
3. all parties consent;
4. the court gives permission;
5. a court order, rule or practice direction permits;
6. a date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice.

Question 68

What is the procedure and the time limits for without notice applications?

Answer 68

1. The application must explain why no notice is given;
2. The applicant must draw to the court’s attention arguments and evidence in support of the (absent) respondent’s position.
3. The applicant must serve the respondent as soon as possible after the hearing whether or not the court has granted the relief sought. The documents the applicant must serve on the respondent are:
   - The application notice
   - The evidence in support.
4. The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any application to set aside must be made within 7 days of the order being served on the other party.

Question 69

What are the grounds for summary judgment?

Answer 69

1. Claimant has no real prospect of succeeding on the claim or issue; or
   The defendant has no real prospect of successfully defending the claim or issue.
2. There is no other compelling reason why the case or issue should be disposed of at trial.
   - More time
   - Expert evidence
   - Right to trial by jury
   - Multi-party litigation
   - Scrutiny of key documents

Question 70

Who can apply for summary judgment and when?

Answer 70

Claimant:
- After the defendant has filed an acknowledgement of service or defence (or earlier with the court’s permission)

Defendant:
- Can apply anytime after proceedings have commenced.

Court:
- Can fix hearing of its own initiative.

Question 71

What is the process and time limit for an application for summary judgment?

Answer 71

1. Issue
   - Application notice (form N244)
   - Supporting evidence
   - Draft order
   - Fee
2. Service
   - Application notice (Form N244)
   - Supporting evidence
   - Draft order
   - Notice of hearing date.
3. Further evidence
   - Respondent files at court and serves on the applicant evidence at least 7 days before hearing.
   - Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing.
4. Hearing
   - Both parties file and exchange statements of costs not less than 24 hours before hearing.

Question 72

What are the different potential orders at the summary judgment hearing?

Answer 72

1. Dismissal of application
2. Dismissal of the claim
3. Judgment on the claim
4. Conditional order

Question 73

What is the purpose of interim payment?

Answer 73

An interim payment is a payment on account of damages, debt or other sum (except costs) which is a defendant may be held liable to pay to a claimant.

Question 74

What are the conditions to apply for interim payment?

Answer 74

Any of the following:
- D admits liability to pay damages
- C obtained judgment against that defendant for damages to be assessed.
- it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a ”substantial amount of money” against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.

Question 75

What are the types of evidence that must be submitted alongside an application for Interim payment?

Answer 75

• The reasons for making the interim payment application
• Sum of money for which final judgment is likely to be given;
• The sum of money sought by way of an interim payment;
• The items or matters in respect of which the interim payment is sought;
• Any other relevant matters;
• Claims for personal injuries, details of special damages and past and future loss; and
• in claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.
• Any documents in support of the application should be exhibited, including medical reports etc.

Question 76

What is the procedure for interim payment?

Answer 76

1. Request for a voluntary payment from the defendant first.
2. the claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgment of service.
3. Unless the defendant agrees, an interim payment made by a defendant in the course of the proceedings (whether voluntarily or by court order) will not be disclosed to the trial judge until all questions of liability and quantum have been decided.

Question 77

What is the purpose of security for costs?

Answer 77

Security for costs is an application made by a person in the position of defendant.

Question 78

What are the grounds for security for costs?

Answer 78

1. Having regard to all the circumstances of the case, it is just to make an order.
2. One or more of the prescribed conditions in the rules are satisfied.
   - The claimant is resident out of jurisction (but is not resident in a State bound by the 2005 Hague Convention).
   - The claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
   - The claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult.
   - (the claimant has changed address since claim was commenced with a view to evading the consequences of the litigation.
   - The claimant failed to give an address in the claim form.
   - Claimant is acting as a nominal claimant and there is reason to believe it will unable to pay the defendant’s costs if ordered to do so.

Question 79

How is the amount of security determined?

Answer 79

The amount is entirely within the court’s discretion and the court will fix a sum it thinks just:
1. The amount of the defendant’s likely costs.
2. The security can be for the whole action or up to a point in time
3. The amount can cover costs incurred (including pre-action) and future costs.
4. A deduction can be made upon assessment of costs or the possibility of settling.
5. Other factors e.g. delays may mean that security is not given for costs already incurred but is given for future costs.

Question 80

What are the three types of interim injunctions?

Answer 80

1. Prohibitory injunction:
   - Requires the respondent to refrain from doing an act.
2. Mandatory injunction:
   - Requires the respondent to do a specific act.
3. Quia timet injunction:
   - Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed.

Question 81

What is the American Cyanamid guidelines?

Answer 81

1. Is there a serious question to be tried?
2. Would damages be an adequate remedy for a prty injured by the court’s grant of, or failure to grant, an injunction?
   - damages for the applicant?
   - damages for the respondent?
3. Where does the balance of convenience lie?

Question 82

What are the additional procedural considerations for interim injunctions?

Answer 82

1. Cross undertaking in damages.
2. Without notice safeguards
   - If application is made without notice and the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date’. The respondent will be given notice of that hearing and the opportunirty to attend it to make representations, and at that second hearing, the court can make the following orders:
   - Maintain order;
   - Discharge the injunction vary the terms of the injunction.
   - Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
   - Accept an undertaking by the respondent not to do the acts in question.

The applicant must make full and frank disclosure of all matters of fact or law relevant to the applciation - including those hwich are or may be adverse to the applicant.

3. Applications before a claim is issued.
   - The court will only grant an interim remedy efore a claim has been issued if the matter is:
   i) urgent; or
   ii) it is otherwise desirable to do so in the interests of justice.

Question 83

What is the court’s powers to determine costs?

Answer 83

1. whether cots are payable by one party to another;
2. The amount of those costs; and
3. When they are to be paid.

Question 84

What is the general rule with regard to costs?

Answer 84

The unsuccessful party pays the costs of the successful party.

Question 85

What is the standard cost basis?

Answer 85

1. reasonably incurred;
2. Proportionate; and
3. Any doubt is resolved in favour of the paying party.

Question 86

What is the indemnity cost basis?

Answer 86

1. Have been reasonably incurred ; and
2. are reasonable in amount; and
3. any doubt is resolved in favour of the receiving party.

Question 87

What is meant by proportionate?

Answer 87

1. The sums in issue in the proceedings;
2. The value of any non-monetary relief in issue in the proceedings;
3. The complexity of the litigation;
4. Any additional work generated by the conduct of the paying party; and
5. Any wider factors involved in the proceedings, such as reputation or public importance.

Question 88

What is the time limit to comply with an order for costs?

Answer 88

within 14 days of:
- the date of the judgment or order if it states the amount of costs;
- if the amount of those costs (or part of them) is decided later, the date of the
certificate which states the amount; or

Question 89

When does Qualified one way costs shifting (QOCS) apply?

Answer 89

1. if the claimant wins the case or any aspect of it, they may recover and enforce costs orders obtainedd in the usual way; and
2. If the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awardedd to the claimant.

Question 90

What are the exceptions to Qualified one way costs shifting?

Answer 90

1. claimant has disclosed no reasonable grounds for bringing a claim;
2. The proceedings are an abuse of the courts’ process; and/or
3. The conduct of the claimant or someone acting on the claimant’s behalf with the claimant’s knowledge of such conduct is likely to obstruct the just disposal of proceedings.

Question 90

What are the exceptions to Qualified one way costs shifting?

Answer 90

1. claimant has disclosed no reasonable grounds for bringing a claim;
2. The proceedings are an abuse of the courts’ process; and/or
3. The conduct of the claimant or someone acting on the claimant’s behalf with the claimant’s knowledge of such conduct is likely to obstruct the just disposal of proceedings.

(note the exception where a claim is found on the balance of probabilities to be ‘fundamentally dishonest’. (court’s permission is required to enforce a costs order to its full extent against the claimant.)

Question 91

What is meant by ‘Fixed Costs’?

Answer 91

Fixed costs are costs scheduled in CPR 45.

Mostly apply in:
1. Uncontested disputes;
2. Enforcement proceedings; and
3. Small claims.

Only applies ‘unless the court orders otherwise’ CPR 45.1.

Question 92

What is meant by ‘Fixed Costs’?

Answer 92

Fixed costs are costs scheduled in CPR 45.

Mostly apply in:
1. Uncontested disputes;
2. Enforcement proceedings; and
3. Small claims.

Only applies ‘unless the court orders otherwise’ CPR 45.1.

Question 93

What is meant by ‘Fixed Costs’?

Answer 93

Fixed costs are costs scheduled in CPR 45.

Mostly apply in:
1. Uncontested disputes;
2. Enforcement proceedings; and
3. Small claims.

Only applies ‘unless the court orders otherwise’ CPR 45.1.

Question 94

What is meant by ‘Assessed costs’?

Answer 94

Used when the fixed costs regime is disapplied.

There are two types of assessment:
1. Summary Assessment; and
2. Detailed Assessment.

Question 95

How and when is the Summary Assessment used to determine costs?

Answer 95

Using the standard form N260 (44 PD 1.2) and file and serve them on each party not less than 24 hours before the time fixed for the hearing.

Summary assessment is used (at court’s discretion)
- In fast track cases at the end of the trial.
- At the end of a hearing of an interim application or matter which has not lasted more than a day.

Question 96

What is the procedure for ‘Detailed Assessment’?

Answer 96

1. The court, on deciding that one party should pay the other party’s costs, order that htey be subject to detailed assessment (if not agreed). At thtat point, the court makes no attempt to set a figure on them.
2. To commence the detailed assessment proceedings, the receiving party serves a notice of commencement and a copy of its bill of costs (a more detailed statement of costs than used in summary assessment) on the paying party.
3. Points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party within 21 days of service of the notice of commencement.
4. If the parties cannot reach agreement, the receiving party should then file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.

Question 97

What are the types of costs orders?

Answer 97

1. Costs in any event (and summary assessment of costs);
2. Costs in the case;
3. Costs reserved;
4. Claimant or Defendant’s costs in the case;
5. Costs thrown away;
6. Costs of and caused by;
7. costs here and below;
8. No order for costs (or if no order is made).

Question 98

What are the court’s general case management powers?

Answer 98

The court has a number of powers to manage cases and costs (CPR 3.1(2))

Examples (CPR 3.1(2)):
1. Extend/shorten the time for compliance with any rule, practice direction or court order;
2. Adjourn hearings or bring them forward.
3. Require a party or their legal representative to attend court;
4. Stay the whole or part of the proceedings or judgment either generally or until a specified event; or
5. Order any party to file and serve a costs budget.

Question 99

What are the grounds for court’s power to strike out?

Answer 99

1. The statement of case discloses no reasonable ground for bringing or defending the claim.
2. The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings.
3. There has been a failure to comply with a rule, practice direction or court order.

Question 100

What are the sanctions that the court can impose?

Answer 100

1. Interest
2. Striking out a statement of case.
3. Costs

The court may either impose:
1. impose a sanction immediately; or
2. Make an unless order. (unless order which provides for an automatic sanction in the event of non-compliance with the order. The unless order must specify the date and time within which the act must be done (CPR 2.9)).

Question 101

What are the automatic sanctions imposed by the CPR?

Answer 101

1. failure to disclose an expert report prevents a party from using that report at trial (CPR 35.13).
2. failure to file a costs budget will be treated as only filing a costs budget of applicable fees (CPR 3.14).

Question 102

What is the effect of a written agreement on sanctions and time limits?

Answer 102

The general rule is that the time specified by a CPR or court order for a party to do any act may be varied by the written agreement of the parties, unless arule or practice direction provides otherwise or the court orders otherwise.

However, by way of exception to this rule, where a rule, practice direction or court order –
1. Requires a party to do something within a specified time; and
2. Specifies the consequences for failure to comply.

The time for doing the act may not be extended by agreement between the parties except that the parties can agree an extension of time prior written agreement for a maximum of 28 days provided this does not affect the hearing date.

Question 103

When can the court grant relief from sanctions?

Answer 103

On an application for relief from sanctions, the court will consider all the circumstances of the case so as to enable it to deal justly with the application:
1. For litigation to be conducted efficiently and at a proportionate cost.
2. To enforce compliance with rules, practice directions and orders.

Denton and others v TH White Ltd.
1. Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted.
2. If the breach is serious or significant, consider why the default occurred.
3. Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly, but with particular weight to be given to the requirements under CPR 3.9 that:
(1)(a) litigation must be conducted efficiently and at a proportionate cost; and
(1)(b) the court must enforce compliance with rules, practice directions and orders.

Question 104

What are the three types of tracks?

Answer 104

Small claims track (CPR 27)
- This is the normal track for cases with a value of not more than £10,000 and also claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than £1,000.

Fast track (CPR 28)
- The fast track is the normal track fro claims (other than those for which the small claims track is the normal track) up to £25,000.
1. The trial is likely to last no longer than one day (five hours); and
2. There will only be oral expert evidence from one expert per party in each of no more than two expert fields (CPR 26.6(4) and (5)).

Multi-track (CPR 29)
- The multi-track is the normal track for all other types of case.

Question 105

What are the track-rules about personal injury claims?

Answer 105

1. In relation to road traffic claims where the accident occurred before 31 May 2021, or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages for the PI are valued at not more than £1,000.
2. In relation to other road traffic claims, the damages for the PI are valued at not more than £5,000.
3. In any other personal injury claim (not road traffic claims), the damages for the PI are valued at not more than £1,000.

Question 106

What is the notice of proposed allocation and what will the notice compel the parties to do?

Answer 106

A court officer will provisionally decide the track which appears to be most suitable for the claim and then serve on each party a notice of a proposed allocation (CPR 26.3(1)).

It will also require the parties to:
1. File and serve a directions questionnaire;
2. On the fast track or multi-track, file proposed directions; and
3. For claims under the costs management regime, file and serve a costs budget and an agreed budget discussion report (the costs management regime is not addressed in this element).

Question 107

What is the purpose and function of directions questionnaire?

Answer 107

Contains a number of questions to help the court decide which track is the most appropriate for the case. (Small claims (N180); and fast-track and multi-track cases (Form N181))

1. Pre-action protocol
2. Settlement
3. Disclosure
4. Witnesses
5. Expert evidence
6. Trial
7. Costs
8. Directions
9. Other matters
   (a) Which court the claim should be heard in;
   (b) Which track the parties think the case should be allocated to;
   (c) Whether the parties have already made any interim applications and whether they intend to make any in the future; and
   (d) Any other facts or documents the parties wish the judge to consider on allocation.

Question 108

What are the criteria for allocation?

Answer 108

1. The financial value of the claim;
2. The nature of the remedy sought;
3. The likely complexity of the facts, law or evidence;
4. The number of parties or likely parties;
5. The value of any counterclaim or other Part 20 claim (the court will not aggregate claims but will look at the value of the largest claim);
6. The amount of oral evidence which may be required;
7. The importance of the claim to any persons who are not parties;
8. The views expressed by the parties; and
9. The circumstances of the parties.

Question 109

How is the correct track determined?

Answer 109

1. Identify the normal track for the claim.
   - courts considers primarily the value of the claim.
2. Consider whether the claim should be allocated to a track other than the normal track.
   - Court considers the broader list of factors (CPR 26.8(1)).
3. Allocate to track.

Question 110

What are the features of small claims track?

Answer 110

Hears a wide variety of cases - often less than £1,500

• Limited costs recovery (the court will rarely order one party to pay any costs to the other party, other than very limited fixed costs (and court fees and witness expenses).
• Fewer ‘Formalities’
• Abbreviated directions.

In summary:
(a) Parties to file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing.
(b) Original documents to be brought to the hearing;
(c) Notice of the hearing date (at least 21 days’ notice will usually be given) and time allowed for the hearing (CPR 27.4(2)); and
(d) That the court must be informed if, by agreement between the parties, the case settles.

Question 111

What are the features of the fast track?

Answer 111

The court will usually give directions on the basis of the directions questionnaire but occasionally hold a hearing (28 PD 2). (Weeks) (hearing often do not last longer than one day).

1. Disclosures (4)
2. Exchange of witness statements (10)
3. Exchange of experts’ reports (with associated directions for questions etc) (14)
4. Filing pre-trial checklists at court (22)
5. Trial date/period fixed or trial (30)

Question 112

What happens after the notice of allocation of a multi-track case?

Answer 112

The next steps are either (CPR 29.2):
1. The court giving directions (simple cases/where parties have agreed directions at the time of filing their directions questionnaires); OR
2. Convening a case management conference (CMC).

Question 113

What are the issues considered at a CMC?

Answer 113

At a CMC, the court is likely to consider (29 PD 5.3):
1. Whether the claim is clear;
2. Whether any statements of case need to be amended;
3. What disclosure is required, if any;
4. What expert evidence is required, and how and when it should be obtained;
5. What factual evidence (e.g. witness statements) should be provided for;
6. Whether any further information is required; and
7. Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Question 114

Who should attend the CMC?

Answer 114

Any legal representative attending a CMC must (CPR 29.3(2)):
1. Be familiar with the case; and
2. Have sufficient authority to deal with any issues likely to arise (like discussing directions/identifying issues).

If such a representative does not attend and the CMC is postponed as a consequence, it is likely to result in a wasted costs order (a costs order payable by the solicitor as opposed to by the client). The court can also order the client to attend the CMC.

Question 115

What is the disclosure report and what must it contain?

Answer 115

Both parties must produce a disclosure report in readiness for the CMC (CPR 31.5.(3)-(8)). Not less than 14 days before the first CMC, each party must file and serve a report verified by a statement of truth that:

Form N263 (electronic documents use the Electronic Documents Questionnaire (EDQ) in Form N264.

(a) Briefly describes what documents exist, or may exist, that are, or may be, relevant to the matters in issue in the case;
(b) Describes where, and with whom, those documents are, or may be, located;
(c) Describes how any electronic documents are stored;
(d) Estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
(e) States which of the disclosure directions are to be sought.

Question 116

When must a budget be filed?

Answer 116

CPR 3.13(1)(b)
- Stated value of the claim is less than £50,000 = with the parties’ directions questionnaires.
- Any other case = 21 days before the first CMC.

Question 117

What is the purpose and prescribed form for the costs budget?

Answer 117

Precedent H (3E PD 4)

Where the monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000, the parties must only use the first page of Precedent H (3E PD 4(b)).

Question 118

What is the purpose and prescribed form of the budget discussion report?

Answer 118

A budget discussion report must be filed and exchanged no later than seven days before the first CMC (CPR 3.13(2)).

By the Budget Discussion Report (Precedent R), the parties indicate:
1. The figures which are agreed and not agreed for each phase of the litigation; and
2. A brief summary of the grounds of dispute.

Question 119

What are the two main consequences of the case management hearing?

Answer 119

1. Case management decisions
   - When the court is making any case management decision, it is to have regard to any available costs budgets and the costs involved in each procedural step of the litigation (CPR 3.17).
2. Costs management orders
   - The court may, at any time, make a Costs Management Order (‘CMO’)
   - The court will consider whether the budgeted costs fall within the range of reasonable and proportionate costs, and then the CMO will:
   (a) Record the extent to which the costs budgets are agreed between the parties.
   (b) Where the figures are not agreed, ‘record the court’s approval of a costs budget after making appropriate revisions’.

3, Assessment if no costs management order
- If no costs management is made, then the position is less ‘strict’.

Question 120

Under which circumstances can a cost budget be revised?

Answer 120

If significant developments in the litigation warrant a revision to a party’s budget (upwards or downwards), then:
1. An amended budget should be submitted to the other parties for agreement if possible (Precedent T (3E PD)).
2. The amended budget then needs to be submitted to court for consideration.

Question 121

What is the consequence of failing to file a budget?

Answer 121

Any party that fails to file a costs budget, when required to do so, will be automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court orders otherwise (CPR 3.14).

Question 122

How does the court arrive at one of the disclosure orders?

Answer 122

Small claims = 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing (CPR 27.4(1) and (3)).

Fast track = directions on allocation. the typical direction is ‘standard disclosure’.

Multi-track
- Multi-track cases (other than PI) the parties must:
1. complete a disclosure report to be filed and served not less than 14 days before the first CMC (CPR 31.5(3)).
2. Not less than seven days before the first case management conference, consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make. The proposal should meet the overriding objective to conduct litigation at proportionate cost and to limit disclosure to that which is necessary to deal with the case justly (CPR 31.5.(5)).

Question 123

What is a disclosure report?

Answer 123

The disclosure report (Form N263)
(a) what relevant documents exist, or may exist;
(b) where, and with whom, they are;
(c) how any electronic documents are stored;
(d) estimate the broad range of costs that could be involved in giving standard disclosure in the case;
(e) states which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought (CPR 31.5(7) and (8).

parties should consider also using the Electronic Documents Questionnaire (EDQ Form N264).

Question 124

Does a party need to disclose every copy of a document?

Answer 124

In summary, copies of documents need only be disclosed if:
1. They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or
2. The party has never had the original or no longer has the original in its control.

Question 125

What is the standard rule about subsequent disclosures of documents and are there any exceptions?

Answer 125

A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose e.g. in other proceedings (CPR 31.22(1)).

Exceptions include:
1. The document has been read to or referred to by the court at a hearing held in public (‘read’ includes pre-read and referred to in skeleton arguments);
2. The court gives permission; or
3. The party who disclosed the document and the person to whom the document belongs agree.

Question 126

What are the three tests to determine if documents is standard disclosure?

Answer 126

1. Is it a document (CPR 31.4).
2. Is/was it in the party’s control (CPR 31.8).
3. Does it fall within standard disclosure (CPR 31.6).

Question 127

What are documents for the purposes of CPR 31.4?

Answer 127

1. Digital recording
2. Emails
3. Photographs
4. Text messages
5. Voicemails
6. Meta data (information about the file)

Question 128

What is the test for control under CPR 31.8?

Answer 128

1. document is (or was) in the physical possession of the party; or
2. the party has (or has had) a right to possession of the document (e.g. documents held by the party’s agent, such as documents a party sent to its own accountant); or
3. The party has (or has had) a right to inspect or take copies of the document (e.g. a party has a right to inspect their own medical records).

Question 129

What are documents considered part of standard disclosure (CPR 31.6)?

Answer 129

1. It relies on;
2. Adversely affect its own case;
3. Adversely affect another party’s case;
4. Support another party’s case; or
5. It is required to disclose by a relevant practice direction (e.g. practice direction to the pre-action protocols).

Question 130

What is the purpose of a disclosure list and what information is contained in it?

Answer 130

The disclosure list is a list of the required documents that is served on the opposing party (CPR 31.10). The normal direction is for lists to be exchanged simultaneously.

The list into three parts:
1. ‘I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
2. ‘I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’
3. ‘I have had the documents numbered and listed below, but they are no longer in my control.’

Question 131

What can the opposing party do to challenge the disclosing party’s assertion of privilege?

Answer 131

Apply to the court challenging the alleged privilege (CPR 31.19(5)).

Question 132

What is the purpose of the disclosure statement?

Answer 132

It is a part of the disclosure list that sets out:
1. sets out the extent of the search made (i.e. that the search was reasonable an proportionate and also what was not searched for.
2. certifies the party understands its duty to disclose the documents; and
3. certifies that, to the best of the party’s knowledge, it has carried out that duty.

The disclosure statement must include details of any documents the inspection of which the party considers disproportionate (CPR 31.3(2)).

Question 133

What are the solicitor’s duties with regard to duty of disclosure?

Answer 133

The solicitor should ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure (31A PD 4.4).

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21)

Proceedings for contempt of court may be brought against a person if he makes, or cause to be made, a false disclosure statement, without an honest belief in its truth (CPR 31.23).

Question 134

What is the right to inspect a document that has been disclosed except where?

Answer 134

1. The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
2. Allowing inspection would be disproportionate (CPR 31.3(2)); or
3. The disclosing party has a right or duty to withhold inspection, i.e. it is privileged (CPR 31.3(1)(b)).

A party has a right to inspect a disclosed document except where:
1. No longer in control; or
2. Disproportionate; or
3. Right/duty to withhold inspection (e.g. privilege).

Question 135

What the three main types of privileges?

Answer 135

1. Legal advice privilege;
2. Litigation privilege; and
3. Without prejudice communication.

Question 136

When can information be redacted and withheld from inspection?

Answer 136

1. Clear and distinct part of a document which does attract privilege, but the remainder does not, then the privileged part can be redacted to avoid waiving privilege.
2. If the information is totally irrelevant to the dispute, it can be redacted. So information which confidential/commercially sensitive and irrelevant is generally redacted.

Question 137

What is the purpose of a waiver and when is it used?

Answer 137

1. Waiver of privilege in part of a wholly-privileged document will lead waiver of privilege over the remainder of the document, unless it deals with an entirely different subject matter: a party cannot ‘cherry pick’ certain parts of privileged documents to reveal to the other side/the court. (Great Atlantic Insurance v Home Insurance); or
2. Waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court/opponent too.
3. ‘Once privileged, always privileged’
4. Burden of proof

Question 138

What is the procedure for inspection?

Answer 138

A party wishing to inspect documents must send a written notice of its wish to do so to the other side and the other side must allow inspection within seven days of receipt of notice (CPR 31.15(a) and (b)). The court’s directions may vary these time limits.

It is possible to ask for copies instead or as well, with an undertaking to pay reasonable photocopying charges (CPR 31.15(c)). Copies must provided within 7 days of receipt of the request.

Question 139

What is the definition of Legal Advice Privilege and the test?

Answer 139

Definition:
‘A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice.’
1. Communication between a lawyer and a client. (Parry v Newsgroup)
2. Dominant purpose
- ‘continuum of communication’ - Balabel v Air India
- advice through ‘legal spectacles’ - Three Rivers v Governor
- Repetition of lawyer’s advice - Nova Scotia v Hellenic

Question 140

What is the definition of litigation privilege and the test?

Answer 140

1. Confidential communication between the lawyer and his client;
   - Confidential
   - Communication between lawyer and client.
2. Between one of them and a third party
   - Communication between lawyer and third party.
   - Communication between client and third party.
3. Dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation.
   - The dominant purpose is to obtain evidence/advice for litigation in reasonable contemplation. (Waugh v BRB)
4. At the time reasonably in prospect.
   - Litigation reasonably in prospect (real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient. (USA v Philip Morris)

Question 141

What is the definition of ‘without prejudice’ communication and the test?

Answer 141

‘A document whose purpose is genuine attempt to settle a dispute.’

Substance not form:
- The court will look to substance rather than form (Rush v GLC)

(Note ‘without prejudice save as to costs’ = court will not see the document’s content unless it is considering the costs of the action or a particular issue.

Question 142

What is specific disclosure and when should the application be submitted?

Answer 142

And order that a party must:
1. Disclose documents/classes of documents specified in the order;
2. Carry out a search to the extent stated in the order; and
3. Disclose any documents located as a result of that search.

The court has the jurisdiction to make an order for specific disclosure and/or inspection at any time after proceedings have been issued.

Question 143

What is the test to apply for specific disclosure?

Answer 143

The rules contain three proposition that helps us formulate a persuasive application and/or predict the outcome of an application (31A PD 5.4):
1. The court will take into account all the circumstances of the case;
2. The court will take account of the overriding objective;
3. If the court decides that the party against whom specific disclosure is sought has ‘failed adequately to comply with the obligations imposed by an order for disclosure’, the court ‘will usually make such order as is necessary to ensure that those obligations are properly complied with’.

Question 144

What is the procedure to apply for specific disclosure?

Answer 144

The application must:
1. Specify the order sought, including listing the documents sought in a schedule to the order. The more specific the list, the more likely the application is to succeed; and
2. Be supported by evidence (CPR 31A PD 5.2 and 5.3)

(typical form of a witness statement made by the party itself or by the party’s solicitor)

Question 145

What is pre-action disclosure and when will it be granted?

Answer 145

The court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced (CPR 31.16)

The court may make an order for pre-action disclosure where:
1. The respondent is likely to be a party to subsequent proceedings; and
2. The applicant is also likely to be a party to those proceedings; and
3. If the proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks; and
4. Pre-action disclosure is desirable in order to (I) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

The procedure:
As with an application for specific disclosure (CPR 31.12):
1. specify the order sought, including listing the documents sought;
2. Be supported by evidence; and
3. require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.16(4)).

(note: applicant for pre-action disclosure (a type of anticipated proceedings) will generally have to pay the respondent’s costs).

Question 146

What is non-party disclosure and what is the procedure?

Answer 146

The court’s power to order a person who is not a party to the proceedings to disclose documents (CPR 31.17).
1. Documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings; and
2. Disclosure is necessary in order to dispose fairly of the claim or to save costs.

(Note: can only be used once proceedings have been issued)

The procedure:
1. specify the order sought, including listing the documents sought;
2. be supported by evidence;
3. require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.17(4)).

• The application notice must be served on the respondent and any other party to the proceedings (CPR 23.4(1)).
• Presumption is that the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence. (can be rebutted (CPR 46.1(3)).

Question 147

What is a Norwich Pharmacal order and when will the court grant an application?

Answer 147

When the defendant is unknown - it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant.

The procedure:
1. a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer;
2. there must be the need for an order to enable action to be brought against the ultimate wrongdoer; the person against whom the order is sought must (i) be more than a mere witness/bystander and (ii) be able to (or likely to be able to) provide the information necessary to enable the ultimate wrongdoer to be sued.

(A Norwich Pharmacal order must be necessary and proportionate in all the circumstances of the case (Ashworth Hospital Authority v MGN).

Question 148

What is the rule about witness statement exchange?

Answer 148

If a party has served a witness statement of a witness and wishes to rely on it, the party must call the witness to give oral evidence at trial or put in the statements as hearsay evidence in accordance with the procedure required by the rules (CPR 33).

If the witness statement (or witness summary) for trial is not served within the time specified by the court, the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10).

Question 149

Under which circumstances and for how long can the parties agree to an extension?

Answer 149

The parties can agree in writing of an extension of up to 28 days for serving of witness statements without the need for court approval - does not put a hearing at risk (CPR 28.4 and 29.5).

1. In the event that an extension of time is agreed before witness statements are due to be served which does have an effect on a subsequent key date, an application should be made to the court for the extension under CPR 3 to avoid the risk of the court not approving the agreement at trial.
2. If no extension is agreed and witness statements are served late, an application would need to be made for relief from sanctions (CPR 3.9). In other words, an application for relief from the sanction that the witness may not be called to give evidence (CPR 32.10). The rules contain circumstances the court is required to take into account when deciding whether to include the witness evidence.

Question 150

What is the court powers retains discretion on the presentation of evidence at trial?

Answer 150

1. A giving oral evidence at trial may, with the permission of the court, amplify the witness statement or give evidence in relation to new matters which have arisen since the witness statement was served (CPR 32.5(3)).
2. The court may limit cross-examination (CPR 32.1(3)).

Question 151

What is the general rule about witness statements for interim applications?

Answer 151

any fact which needs to be proved by evidence of witnesses other than for trial is to be proved by their evidence in writing (CPR 32.2.(1)(b))

(note any party may apply for permission to cross-examine the person giving the evidence (CPR 32.7)).

Question 152

What should a witness statement contain?

Answer 152

Way of deciding on relevant content is to ask:
1. What is the argument?
2. What is the legal basis for the argument?
3. What are the facts that this witness can speak about that support the legal argument? These are what should be set out in the witness evidence.

Question 153

What is the position on the admissibility of opinion evidence?

Answer 153

Opinions of witnesses are not admissible.

There are two exceptions:
1. Perceived facts; and
2. Expert opinion.

Question 154

What is the function of Civil Evidence Act 1972?

Answer 154

Section 3:

(Admissibility of expert evidence)
(1)… where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(Admissibility of perceived facts)
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence , if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3) In this section ‘relevant matter’ includes an issue in the proceedings in question.

Question 155

What does a witness statement need to contain?

Answer 155

1. Heading (with endorsement);
2. Opening paragraphs (32 PD 18.1)
   a) Witness name
   b) Witness home address (or position, employer name and address if made in business capacity)
   c) Occupation;
   d) Fact that witness is party/employee of a party;
   e) Process through which the statement was prepared.
3. Information and belief paragraph (32 PD 18.2)
4. Where witness refers to documents, use: ‘I refer to the [description of exhibit] marked [reference]’ (32 PD 18.3-18.6).
5. Witness statement ends with this form of statement of truth, and is always signed by the witness themself (32 PD 20.1-20.3)

Question 156

What are the addditional requirements for witness statements in the Business and Property Courts?

Answer 156

1. The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement;
2. As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.
3. The statement must include confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Question 157

What is the structure and content of an affidavit?

Answer 157

Reference to ‘affidavit’ instead of ‘witness statement’.

Introduction includes: ‘state on oath’ is specific to affidavits.

Exhibit wording is different (‘There is now shown to me marked “CH2” the detailed schedule of these faults).

Affidavit must contain a ‘jurat’.
- It is a statement at the end of the document which authenticates the affidavit:
1. be signed by all deponents
2. be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be reprinted beneath)
3. contain the full address of the person before whom the affidavit was sworn.
4. Follow immediately on from the text and not be put on a separate page.

Question 158

What is the position of the court on hearsay evidence and what is the definition?

Answer 158

Hearsay evidence is admissible (meaning it can be used) in civil proceedings (s 1, Civil Evidence Act 1995)

Definition:
- An oral or written statement;
- Made out of court; and
- Which is being adduced in court to prove the truth of the matter stated.

Question 159

What is the procedure to rely on hearsay evidence?

Answer 159

1. If the evidence is in a witness statement of a person who is to give oral evidence at trial, no formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party; not separate communication is required.
2. If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.
3. In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.

4 possible options on receipt of a notice of intention (s 2 CEA 1995):
1. Request particulars of hearsay (s 2);
2. Call for cross-examination (s 3);
3. Challenge the weight of hearsay evidence (s 4);
4. Attack credibility on an absent witness (s 5)

Question 160

What is the function of s 11 Civil Evidence Act 1968?

Answer 160

(a) he shall be taken to have committed that offence unless the contrary is proved; and
(b) the content of any document which is admissible as evidence of the conviction (and person in question was convicted), complaint, indictment or charge-sheet on which the person in question was convicted), shall be admissible in evidence for the purpose of identifying the facts which the conviction was based.

Question 161

What is the procedure to rely on expert evidence?

Answer 161

The parties may wish to adduce expert evidence at trial, they can only do so with the court’s permission (CPR 35.4)

When parties apply for permission, they must:
1. Provide an estimate of the cots of the proposed expert evidence;
2. Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert (CPR 35.4(2)).

Question 162

What is the duty of experts?

Answer 162

The duty of experts is to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert (CPR 35.3)

Ikarian Reefer Guidelines:
1. independent and uninfluenced;
2. unbiased opinion;
3. state the facts or assumptions (not omit any material facts)
4. Outside their expertise?
5. If not properly researched - stated with an indication that the opinion is provisional.
6. Change of view should be communicated to the other party;
7. Other documents (photographs, plans, surveys) must be provided to the other side at the same time as the exchange of reports.

Question 163

Is a letter of instruction to an expert privileged from inspection?

Answer 163

No, CPR 35.10(4).

Question 164

What is the prescribed form of the report?

Answer 164

The report must be in the form required by the rules and must:
1. addressed to the court, not the instructing party;
2. expert’s qualifications;
3. details on any materials relied on;
4. substance of all facts and instructions;
5. facts stated in the report are within the expert’s own knowledge;
6. give the qualifications of that person and say whether this was under the expert’s supervision;
7. range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion;
8. summary of the conclusions reached by the expert;
9. If the expert is unable to give an opinion without qualifications, state the qualification.
10. contain a statement that the expert understands their duty to the court and has complied with it, and is aware of CPR 35, 35 PD and the Guidance for the Instruction of Experts.

Question 165

What is the consequence of the failure to exchange expert evidence?

Answer 165

Failure to exchange in accordance with the given directions means that the evidence cannot be used unless the court gives permission (CPR 35.13).

Question 166

What is the procedure with Single joint experts?

Answer 166

Single joint experts should be copied in to all relevant correspondence. If each party gives separate instructions to the expert, it must send a copy to the other instructing party (CPR 35.8).

Where appropriate the parties to agree directions on the multi track that provide for the use of a single joint expert (29 PD 4).

Court to give directions for a single joint expert on the fast track unless there is good reason not to do so (28 PD 3.9).

Question 167

What are the rules about putting questions to parties?

Answer 167

1. Only once;
2. purpose must be to clarify report;
3. submitted to the expert within 28 days of service of the report;
4. copy of the questions must be sent to the other party;
5. no time limit within which the expert must answer questions unless ordered by the court;
6. questions become part of the report;
7. If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and/or cannot recover the expert’s fees from the other party.

Question 168

When can expert submit written requests for direction to the court to help them carry out their task?

Answer 168

CPR 35.14
1. provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
2. provide a copy to all other parties at least 4 before filing it at court.

To assist expert, where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert (35 PD 8). The claimant must serve the order on the single joint expert.

Question 169

What can a party do if they receive an unfavourable report from an expert instructed by that party or from a single joint expert?

Answer 169

1. Put questions to expert (CPR 35.6)
2. Seek advice from another expert advisor
   - If the expert’s advice differs substantially from what a party was expecting, the party may seek permission to call another expert, but this is difficult and costly.
   - If a party is not given permission to call another expert, that party can use the expert advisor to assist in preparing questions for cross-examination.
3. If there is not a direction for the expert to give oral evidence, seek such a direction from the court.

If a party decides that it would prefer to call a different expert witness, it must seek the court’s permission to do so (CPR 35.4). If a party seeks to adduce the evidence of a second expert, the court will often only allow this on the condition that the first report be disclosed.

If a party decides it does not intend to rely on its expert’s report once that report has been disclosed, the other party may still rely on the report at trial (CPR 35.11).

Question 170

What is the different between Part 36 and a Calderbank offer?

Answer 170

Part 36 = prevents a party from making an offer in whatever way it chooses.

Calderbank offer = An offer, usually communicated in writing, and written ‘without prejudice save as to costs’, such that it cannot be referred to the judge until costs are considered after trial, but at point can be relied upon. Such an offer does not need to comply with Part 36.

Question 171

How is a valid Part 36 offer made?

Answer 171

1. Be in writing;
2. Make clear it is made pursuant to Part 36;
3. Specify period of not less than 21 days (‘relevant period’);
4. relates to the whole or part of the claim; and
5. State whether it takes into account any counterclaim;

Also in case Part 36 is made by the defendant:
1. With limited exceptions, a PArt 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money;
2. A defendant’s offer that includes an offer to pay all or part of the sum at ta date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Question 172

What is the prescribed form of Part 36?

Answer 172

Any written format or in N242A.

Question 173

What is the purpose and time limit for a Part 36 clarification?

Answer 173

Clarification of the terms of the offer (breakdown of the components of the offer).

Within 7 days of service (CPR 36.8).

Question 174

What are the rules about withdrawal of a Part 36 offer?

Answer 174

If the offer has already been accepted = it cannot be withdrawn, or its terms changed (CPR 36.9(1))

If the trial has already started = other court’s permission is required to withdraw the offer.

If the relevant period has expired.

YES = The offer can be withdrawn or its terms changed without the court’s permission. The offer can also be withdrawn automatically if its terms state so. This allows the offeror to make an offer that is time limited (CPR 36.9(3)).

No = Any notice of withdrawal/change during the relevant period (CPR 36.10) will take effect at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period, if the offeree does not serve notice of acceptance during the relevant period.
- This must be done within 7 days of the notice of acceptance or if earlier before the first day of the trial. The court my give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interest of justice to give permission.

Question 175

What are the two consequences of a Part 36 offer?

Answer 175

If a Part 36 offer has been made and it is not withdrawn, two things can happen:
1. It is accepted - you then need to know the consequences of the acceptance;
2. It is not accepted - you then need to know whether the court will impose a ‘penalty’ after trial because the offeree did not accept the offer, and if so, what that penalty will/might be.

Question 176

How do you accept a Part 36 offer?

Answer 176

1. Serve written notice of acceptance on the offeror (CPR 36.11(1));
2. If the case is issued the acceptance also needs to be filed at court.

(no prescribed form)

An offer remains open for acceptance unless it has been withdrawn (CPR 36.11(2)). This remains the case even after the relevant period has expired, unless the offer is expressed to be withdrawn automatically at the end of the relevant period.

Question 177

What are the consequences of accepting a Part 36 offer?

Answer 177

Stay = will not continue to trial (CPR 36.14(1))

Settlement sum = An offer to pay/accept a single sum of money, the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing (CPR 36.14(6)), failing which the claimant can enter judgment against the defendant (CPR 36.14(7)).

If the Part 36 offer does not include an offer to pay/accept a single sum of money, then in the event that a party fails to comply with whatever was agreed, the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings (CPR 36.14(8)).

Costs = The cost consequences of acceptance depend on when the offer was accepted, as shown on the next pages.

Question 178

What is the cost consequence of acceptance in the relevant period?

Answer 178

If accepted before the expiry of the relevant period, the claimant is entitled to its costs of the proceedings up the date the notice of acceptance was served on the offeror (CPR 36.13(1)).

The rationale for this cost consequence of accepting an offer is that the claimant will receive a sum of money in settlement and has therefore ‘won’ its claim and so should be entitled to its costs of the proceedings. This is the case regardless of which party made the offer to settle.

Question 179

What are the cost consequences of acceptance outside the relevant period?

Answer 179

If accepted after exiry of the relevant period, then (see CPR 36.13(4)):
1. The court will determine liability for costs unless the parties agree them; unless
2. The court must, unless it considers it unjust to do so, order that –
- The claimant be awarded costs up to the date the relevant period
expired;
- the offeree do pay the offer’s costs for the period from the date of
expiry of the relevant period to the date of acceptance.

The rationale is that the claimant has ‘won’ its claim in the sense that the defendant is making a payment to the claimant, and so the claimant should have its costs up to the end of the relevant period. However, from the end of the relevant period up to when the offer was accepted, the offeree (which could be the claimant or the defendant) should pay the costs as a punishment for not accepting within the relevant period when it had the chance.

Question 180

What are the cost consequences if the offer was made less than 21 days before trial?

Answer 180

Different rules apply where an offeree accepts an offer but the offer was made less than 21 days before trial. In this situation, if the parties do not agree liability for costs the court must determine liability (CPR 36.13(4)).

Question 181

What is the effect of Part 36 on a part of a claim only?

Answer 181

CPR 36.5(1)(d)
1. If, at the time of acceptance, the claimant abandons the remainder of the claim
- the claimant will only be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders otherwise (CPR 36.13(2)).

2. If, at the time of acceptance, the claimant does not abandon the remainder of the claim
   - the liability for costs will be determined by the court, unless the parties can reach an agreement about the liability (CPR 36.13(4)).

Question 182

What is the consequence of a defendant’s part 36 offer - not accepted?

Answer 182

1. Trigger: ‘A claimant fails to obtain a judgment more advantageous than a defendant’s part 36 offer’.
2. Consequences:
   a) the claimant pays the defendant’s costs from the date the relevant period expired; and
   b) Interest on those costs;

Question 183

What is the consequence of a claimant’s part 36 offer - not accepted?

Answer 183

1. Trigger: ‘Judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s part 36 offer’.
2. Consequences:
   a) indemnity costs (from the end of relevant period);
   b) Interest on those costs up to 10% above base rate;
   c) Interest on damages up to 10% above base rate (from end of relevant period); and
   d) An additional amount (in this case) of £75,000.

Unless unjust (CPR 36.17(4) and (5)).

Question 184

What is the test for ‘unless unjust to do so’?

Answer 184

1. terms of any Part 36 offer;
2. stage in the proceedings when the offer was made;
3. information available to the parties;
4. conduct of the parties in relation to giving/refusing information for the purpose of enabling the offer to be made/evaluated; and
5. Whether the offer was a genuine attempt to settle.

Question 184

What are the consequences when both the claimant’s and defendant’s offers are effective at the same time?

Answer 184

If the claimant has won the same or more than their offer, then part 36 will apply.

If the claimant has not won the some or more than their own offer. The defendant’s offer has no effect because the claimant has not won the same or less than the defendant’s offer. (normal cost allocation)

If the claimant has won less than the defendant’s offer, then the defendnat’s offer takes effect and Part 36 will apply.

Question 185

What are the different types of ADR?

Answer 185

1. Negotiation
2. Mediation
3. Arbitration
4. Med-arb
5. Early neutral evaluation/expert appraisal/expert evaluation.
6. expert determination
7. Conciliation

Question 186

What are the court’s powers (at the CMC) to encourage ADR?

Answer 186

1. order a stay in order that the parties can explore ADR;
2. direct the parties to consider ADR and require an explanation of the parties’ thinking in that regard.

The requirement to produce a witness statement creates a record of the situation so that the court can consider this when it comes to costs and encourages the identification of any obstacles to the adoption of ADR in order that they might be overcome (29 PD 4.10(9)).

Question 187

What is discontinuance?

Answer 187

The claimant is choosing not to pursue the claim (or part of claim) against the defendants (or one defendant) any further (CPR 38.2(1)).

Discontinuance has two major consequences:
1. It ends the proceedings in relation to the claim/part of claim discontinued (CPR 38.5(2));
2. The claimant is liable to pay the defendant’s costs up to the point of discontinuance unless the court order otherwise (if the claim is only discontinued in part, then the claimant is only liable for costs in relation to the part which is discontinued)

In exceptional circumstances, the court’s permission is needed to discontinue proceedings - generally when the claimant has already received some remedy such as an interim injunction or an interim payment (CPR 38.2(1)).

Question 188

What is the procedure for discontinuance?

Answer 188

1. File a notice of discontinuance at court (CPR 38.3(1)(a))
2. Serve a copy on every party (CPR 38.3(1)(b);
3. Discontinuance takes effect from the date of service (CPR 38.5(1));
4. Upon discontinuance, a costs order is deemed to have been made in the defendant’s favour on the standard basis (CPR 38.6 and 44.9(1)(c)).

Question 189

What is the court’s treatment of ADR clauses?

Answer 189

Difficult to enforce

Cable & Wireless PLC v IBM
- parties had identified a particular and well-known procedure from an experienced dispute resolution service provider, there was sufficient certainty for a court to ascertain whether the parties had complied with it.

Question 190

What are documents that form part of the mediation bundle?

Answer 190

1. Case summary;
2. Position statements;
3. Separate note might be prepared for the mediator.

Question 191

What are the three general principles contained in the Arbitration Act 1996?

Answer 191

Section 1:
- The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
- The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
- In matters governed by [the Act] the court should not intervene except as provided by [the Act].

Question 192

What can an applicant do to enforce a settlement agreement?

Answer 192

The settlement agreement can be incorporated into a ‘consent’ order and enforceable as a court order.

Question 193

What is the function of s 5 Arbitration Act 1996?

Answer 193

Makes an arbitration agreement or clause is a contract for the resolution of disputes between the parties by arbitration rather than by court proceedings. Must be in writing or evidenced in writing.

s 6 Arbitration Act 1996 defines an arbitration agreement as an agreement to submit to arbitration present or future disputes (which are defined in s 82 of the Act as including ‘any difference’).

Question 194

What can a party do to enforce an arbitration clause over legal proceedings?

Answer 194

The party seeking to enforce the arbitration clause may:
1. acknowledge service of the particulars of claim (to stop default judgment) and indicate that they are contesting the court’s jurisdiction.
2. apply to the court under CPR 62.8, asking the court to stay the proceedings pursuant to s 9 of the Arbitration Act 1996 so that the dispute can be dealt with by arbitration.

• An application notice;
• A draft order;
• Evidence in support (either in a witness statement or in the application notice itself).

The court is obliged to grant a stay unless it finds that the arbitration agreement is ‘null and void, inoperative or incapable of being performed’ (s 9(4) of the Arbitration Act 1996).

Question 195

What are the time limits for appointing an arbitrator?

Answer 195

Trigger: upon receiving a request for arbitration.

1 arbitrator = 21 days;
2 arbitrators = 14 days
3 or more = 14 days

Question 196

What are the court’s powers to make orders in Arbitration proceedings?

Answer 196

s 44 AA 1996:
1. taking evidence from witnesses and preserving evidence;
2. Inspecting, photographing, preserving, taking samples or experimenting on any property or goods involved in the proceedings and for the custody or detention of such property - including authorising any person to enter the premises of any party to do this;
3. Selling goods which are involved in the proceedings;
4. Interim injunctions;
5. appointing a receiver.

Question 197

What can the parties do to inform the court of commencing their claim?

Answer 197

File a Court Form N8 with the required contents of the arbitration claim form found in CPR 62.4.

(note: a party may also exclude court’s powers to intervene under s 44)

Question 198

What are the ways of challenging and appealing an award?

Answer 198

(Mandatory provisions)
1. section 67 = challenge on jurisdiction.
2. section 68 = challenge for serious irregularity.

(Non-mandatory)
1. Appeal on a point of law.

Question 199

How can a party enforcement of arbitration awards?

Answer 199

1. Domestic arbitration awards
   - ordinary civil claim the High court or by using summary procedure in section 66 of the Act to convert the arbitration award into a court judgment.
2. Cross-border enforcement
   - successful party enforcing the award through NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’) which provides an extensive enforcement regime for international arbitration awards.

Question 200

What is the function of consent orders?

Answer 200

This has the effect of a ‘normal’ court order but indicates that the parties agree the terms it sets out, so that there is no need for the court to hear arguments from both sides (CPR 40.6/40B PD 3)

1. consent order based on a contract
   - The consent order is evidence of the contract between the parties and, as such, will only rarely be interfered with by the court.
2. A consent order not based on contract
   - This consent order is not a contract but simply the parties agreeing terms of settlement in the claim.

Question 201

What is a Tomlin order?

Answer 201

Tomlin Order is generally used when:
1. the parties wish for the key settlement terms to be confidential; and/or
2. When the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.

A Tomlin Order is made up of 2 parts:
1. public part;
- contains actions to be taken by the court (enforceable by the court)
> Stay of proceedings
> Permission to apply
> Detailed assessment of costs.

2. confidential part;
   - contains terms of agreement - enforceable with a further court order.
   - Enables parties to include provisions beyond those a court could order.

Question 202

How can consent order be used in interim applications?

Answer 202

The claimant may need an extension of time for the exchange of up to 28 days without the need to apply to court (CPR 3.8(4)).
1. A consent order would be drawn up recording the agreement (an extension of 35 days) and both parties would indicate their agreement to this consent order;
2. The consent order would be filed at court - ideally when the application notice is filed, but later if necessary;
3. The applicant would usually invite the court to consider the application on paper and without a hearing.

Question 203

What is the purpose of a pre-trial checklist?

Answer 203

A pre-trial checklist is sent to each party at least 14 days before the due date for filing. The due date will be at least eight weeks prior to the trial date or the start of the trial period.

1. To confirm whether they have complied with the directions given;
2. specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions;
3. To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally);
4. To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed;
5. dates within the trial period when experts will not be available;
6. details of witnesses, their availability and any special facilities they require;
7. Details of who will present the case at trial and their availability within the trial period;
8. Estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).

Question 204

What guidance on directions the court must give on listing?

Answer 204

1. the court will fix the trial date (or confirm the date already given);
2. the court will give a time estimate for trial; and
3. the court will fix the place of trial.
4. Evidence (in particular that of experts or other special arrangements);
5. a trial timetable;
6. the preparation of trial bundles; and
7. any other matters required to prepare the case for trial.

Question 205

What is the time limit for preparation for trial?

Answer 205

It is the responsibility of the claimant to file the trial bundle with the court no more than seven days and no less than three days before the trial begins. Its content should be agreed where possible. If there are any areas of disagreement, a summary of the points in dispute should be included.

As well as filing a copy at court, the party filing the trial bundle should supply identical bundles to each of the parties to the proceedings and a further set for use by the witnesses while giving evidence (this ‘witness’ set is often filed at court too).

Question 206

What must be included in the trial bundle?

Answer 206

1. claim form and all statements of case;
2. case summary and/or chronology where appropriate;
3. requests for further information and responses to these;
4. all witness statements to be relied on as evidence;
5. any witness summaries;
6. any hearsay notices;
7. any notices of intention to rely on evidence which is not:
   a) contained in a witness statement, affidavit or expert’s report;
   b) being given orally at trial;
   c) hearsay evidence;
8. medical reports with responses to them;
9. experts’ reports, with responses to them;
10. any order giving directions for the conduct of the trial; and
11. other necessary documents.

Question 207

When and where is a reading list filing required?

Answer 207

In all High court cases in the Chancery Division and the Queen’s Bench Division.

Must set out the estimated reading time and estimated length of the hearing. (signed by all advocates.

Question 208

When and where must skeleton arguments be filed?

Answer 208

Skeleton arguments must be prepared for High Court trials, concisely summarising the submissions to be made and citing the authorities to be relied on.

Question 208

When and where must skeleton arguments be filed?

Answer 208

Skeleton arguments must be prepared for High Court trials, concisely summarising the submissions to be made and citing the authorities to be relied on.

Question 209

When and where must authorities list be filed?

Answer 209

If the case is in the High Court, list authorities must be submitted to the court by 5pm the day before the hearing, to enable copies of the relevant law report to be brought into court for the hearing the next day.

Question 210

What is the trial procedure and order?

Answer 210

1. Claimant’s opening speech
2. Claimant’s case:
   - Evidence in chief
   - Cross examination
   - Re-examination
3. Defendant’s case:
   - Evidence in chief
   - Cross-examination
   - Re-examination
4. Defendant’s closing speech
5. Claimant’s closing speech
6. Judgment and final orders.
   - Where this is the case, the judge can invite the parties’ legal representatives to give their views on how the judgment should be handed down. The judge will usually circulate the judgment in draft to the parties in advance of formally handing it down (by 4pm on the second working day before handing down) so parties can prepare costs submissions and provide the judge with details of obvious errors (types, incorrect references etc). The judge may do this by email to the parties’ representatives.

Question 211

What is a disposal hearing?

Answer 211

When the court decides to hold another trial or hearing to assess the level of damages (‘disposal hearing’).

Question 212

What is the drawing up and the time limit to service judgment/orders?

Answer 212

Drawing up = order in the formal document to be sealed by the court.

The order will be drawn up by the court.

If an order is to be drawn up by a party, the party drawing the order is required to file it no later than 7 days after becoming responsible for doing so, in order that the court can seal it.

They must also file sufficient copies for service on themselves and the other parties at the same time and, once sealedm the court will serve the sealed order on everyone (CPR 40.4).

Question 213

When does a judgment/order take effect?

Answer 213

A judgment or order is effective from the date it is given or made, not served (CPR 40.7)

1. Judgment will usually include an amount of interest which was awarded as part of the claim. Once judgment has been given and the claim is concluded, interest starts to run on the amount of the judgment debt from the date on which the judgment is given (CPR 40.8). The rate of interest on judgment debts is set at 8% per annum under section 17 Judgments Act 1838.
2. The parties have a time limit of 14 days in which to comply with a judgment or order for the payment of an amount of money, unless otherwise specified by the court (CPR 40.11). This means that payment of the judgment debt will be due within 14 days from the date of the order, plus the interest which will have been running during that time post judgment.
3. The court has discretion to allow a stay of execution of the judgment or order (i.e. more time to pay or take the steps ordered before enforcement is possible) on the grounds of matters which have occurred since the date of judgment or order on application by the party against whom the judgment or order has been made (CPR 40.8A).

Question 214

What is the purpose of Debt Respite Scheme?

Answer 214

Provides temporary protection from judgment/order for some judgment debtor.

60 days on the basis that they are unlikely to be able to repay their debts.

The judgment creditor must stop all enforcement action to recover the debt, stop any interest fees, penalties or charges for the debt, and not contact the debtor requesting payment.

Question 215

What are the grounds of appeal?

Answer 215

The appeal court will allow an appeal where the decision of the lower court was either:

1. wrong (CPR 52.21(3)(a));
   - error of law
   - error of fact
   - error in the exercise of the court’s discretion.
2. unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR 52.21(3)(b)).

Question 216

What is the test for permission (grounds of appeal)?

Answer 216

1. Apply for permission from the lower court at the time when the decision to be appeal is made;
   - done orally
   - does not prevent later application to the appeal court.
2. Make the application to the appeal court later;
   - Done in writing (Form N161
   - More time to prepare the application.

Question 217

What are the time limits and preferred procedure to make an application for permission?

Answer 217

The general rule is that an appeal (including the application for permission if this was not already been granted) must be made:
- within 21 days of the date of the lower court’s decision; and
- Form N161 ‘Appellant’s notice’.
- lower court may allow a extension.

Court of Appeal:
- In writing or in an oral hearing within 14 days of listing.

County or High Court:
- If that appeal court refuses the paper application for permission, the appellant may normally request (with 7 days after service of the notice refusing permission).

Question 218

What is the test for granting permission (first appeals)?

Answer 218

CPR 52.6:
- appeal would have a real prospect of success; or
- some other compelling reason why the appeal should be heard.

Question 219

What is the test for granting permission (second appeals)?

Answer 219

CPR 52.7
- appeal would have a real prospect of success and raise an important point of principle or practice; or
- some other compelling reason for the Court of Appeal to hear it.

Question 220

What is the effect of an appeal on the order of a lower court?

Answer 220

An appeal does not operate as a stay of execution on the order of the lower court.

High Court and the Court of Appeal do have the power to order a stay pending the outcome of any appeal process under CPR 52.16.

Question 221

What is the ‘route’ of an appeal?

Answer 221

Refers to which court/judge will be the appeal court for the lower court’s decision.

County Court District Judge = County Court Circuit Judge
County Court District Judge (non-insolvency proceedings) = High Court.
County Court Circuit Judge = High Court Judge.
High Court Maser = High Court Judge
High Court Judge = Court of Appeal.

Question 222

What orders can the appeal court make?

Answer 222

CPR 52.20(1)
1. affirm, set aside or vary any order or judgment made or given by the lower court;
2. refer any claim or issue for determination by the lower court;
3. order a new trial or hearing;
4. make orders for the payment of interest;
5. make a costs order.

Question 223

What are the three key questions related to jurisdiction?

Answer 223

1. Do the courts of England and Wales have jurisdiction to determine the claim?
2. Which country’s laws will apply to determine a dispute?
3. Will it be necessary to enforce the judgment abroad and how will this be done?

Question 224

What is the test to determine if England and Wales court can hear the claim?

Answer 224

1. Is the matter a civil or commercial matter?
2. It is an excluded matter?
3. Does the clause jurisdiction to a Contracting State?
4. Is jurisdiction given exclusively?
5. Is the agreement concluded/documented/evidenced in writing?
6. Is the agreement an ‘asymmetric’ one?

Question 225

What are the rules governing serving proceedings on the defendant in the jurisdiction?

Answer 225

variety of methods, including personal service (CPR 6.5)

a company not incorporated in England and Wales can be served at any place of business of the company within England and Wales (CPR 6.9(2)).

Question 226

What are the three matters that must be established to serve proceedings on the defendant outside of the jurisdiction?

Answer 226

1. The claimant needs to establish one of the grounds in 6B PD 3.1;
2. The claim must have reasonable prospect of success;
3. England and Wales must be the ‘proper place’ in which to bring the claim.

Question 227

What are the grounds in 6B PD 3.1?

Answer 227

(1) A claim is made for a remedy against a person domiciled within the jurisdiction.
(6) A claim is made in respect of a contract where the contract –
(a) was made within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.

(7) A claim is made in respect of a breach of contract committed within the jurisdiction.
(9) A claim is made in tort where:
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage sustained results from an act committed within the jurisdiction.

Question 228

What is the time limit for claim forms served out of jurisdiction?

Answer 228

Where a claim for has been validly issued, the period for service is six months where the claim form is to be served outside the jurisdiction (CPR 7.5(2)).

Question 229

What is the procedure to serve an English claim form abroad without permission?

Answer 229

Form N510.

Question 230

What is the procedure to serve an English claim form abroad with permission?

Answer 230

Usual application notice in Form N244.

Question 231

What are the methods of service for serving outside the UK?

Answer 231

1. Service in accordance with an agreed regulation, convention or treaty. Any regulation, convention or treaty in relation to service referred to in this element will only apply to whichever countries have contracted into it, along with the UK.
2. Service through the government of the destination country (if that government is willing to do this).
3. Service by any method permitted by the law of the destination country. In practice, it is often preferred to take local advice in the destination country and engage a local agent to effect service by a method which is permitted there.

Question 232

What are two alternative ways to serve the claim form out of jurisdiction?

Answer 232

1. An order for alternative service under CPR 6.15; or
2. An order dispensing with service under CPR 6.16.

Question 233

What can a party do to challenge England and Wales court’s jurisdiction to hear a dispute?

Answer 233

1. The claimant alleges that the court has jurisdiction pursuant to a convention such as the Hague Convention on Choice of Court Agreements but the defendant disputes this.
2. The claimant has obtained permission to serve proceedings out of the jurisdiction, but the defendant considers that none of the gateways for obtaining such permission in 6B PD 3.1 are satisfied and/or the courts of England and Wales are not the proper place for the claim to be heard.
3. The proceedings have been served on the defendant within jurisdiction, but there is another more appropriate forum.

Question 234

What is the procedure to dispute the court’s jurisdiction?

Answer 234

1. defendant must first file an acknowledgement of service (CPR 11(2))
2. defendant must then apply within 14 days after filing the acknowledgement of service, disputing the court’s jurisdiction.

Question 235

What is the position about the recovery of these pre-action costs in the event that the matter becomes litigated?

Answer 235

Any costs incurred prior to the start of proceedings are likely to be recoverable provided those costs are of and incidental to the proceedings and are reasonable and proportionate; this would not include consideration of options for funding the claim.

Question 236

What is the effect on the defendant if the court, by its own initiative, requires the defendant to file and serve its list of documents by a certain date?

Answer 236

Unless the defendant has filed and served its list of documents, the defence will be struck out.

When the court makes an unless order, it may specify the consequences of failure to comply with it which may mean a case will be struck out at a future date unless the party carries out a specific step by that date.

Question 237

Can a witness be cross-examined in interim applications?

Answer 237

Yes, the applicant may apply to the court for an order allowing him to cross-examine the applicant.

CPR 32.7(1) - ‘Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence’. So, cross-examination is possibility here given the contentious facts providing that the court gives permission.

Question 238

What should the claimant do to enforce the court’s unless order which the defendant has failed to comply with?

Answer 238

A request for judgment should be filed with the court stating that the right to enter judgment has arisen as the court’s order has not been complied with.

The defendant may obtain judgment and their costs by filing a request with the court (CPR 3.5).

Question 239

What happens if the client refuses to provide an undertaking for an interim injunction?

Answer 239

The court cannot compel the client to give an undertaking, but it can refuse to grant an injunction unless an undertaking is given.

Question 240

What is the function of CPR 31.20?

Answer 240

‘Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may us it or its contents only with the permission of the court.’

Question 241

Can a litigation friend accept at Part 36 offer wihtout the permission of the court?

Answer 241

No, CPR 21.10 ‘no settlement compromise or payment… shall be valid without hte approval of the court.’

Question 242

Under which circumstances can a party appeal an ordder made at the case management conference?

Answer 242

PD 52A, para 4.6
- ‘Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether the issue is of sufficient significance to justify the costs of an appeal; the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; it would be more convenient to determine the issue at or after trial.’

Question 243

What is the judgment rate interest currently set as?

Answer 243

8 %

Question 244

Why is the date of judgment important?

Answer 244

It is the reference point for the payment of judgment rate interest on any monetary award. Interest does not begin to run until judgment has been obtained in respect of damages.

(any judgment obtained in the County Court will attract interest at 8% but only if the judgment is for £5,000 or more.

Question 245

What is required to obtain information form judgment debtor?

Answer 245

Form N316 (individual) or Form N316A (Company)

1. The name and address of the judgment debtor;
2. the judgment or order sought to be enforced;
3. the amount then owed; and
4. any particular documents that the judgment debtor is to bring to court.

The court will issue a Form N39 that requires the judgment debtor to attend court at the specified time. The order (served personally) and not less than 14 days before the hearing:
1. showing the amount owed under the judgment that is outstanding; and
2. the given date and time ‘to provide information about the judgment debtor’s means and any other information needed to enforce the judgment or order’.

(Judgment debtor may claim reasonable travelling expenses)

Question 246

What are the consequences if the debtor fails to attend the debt hearing?

Answer 246

The order carries a penal notice. If the debtor fails to attend they may be committed to prison for contempt of court.

Question 247

What are the four methods of enforcement of judgment debt?

Answer 247

1. Taking control of goods;
2. Attachment of earnings order;
3. Third party debt order; and
4. Charging order.

Question 248

What can a debtor do to delay the collection in satisfaction of judgment debt?

Answer 248

Apply for a stay of execution (CPR 83.7).
- Written evidence
- Statement of means.
- payment in instalments?

Question 249

What is the significance of £5,000 threshold in enforcement of judgment debts?

Answer 249

‘a judgment or order of a county court for the payment of a sum of money which it is sought to enforce whiolly or partially by execution against goods shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more and the proceedings in which the judgment or order was obtained did not arise out of an agreement regulated by the Consumer Credit Act 1974.

Question 250

What must be considered in a writ of control (HC) or a warrant of control (CC)?

Answer 250

Form N323
1. Notice to the debtor of enforcement;
2. Suspension of the writ or warrant; and
3. Exempt goods.

Question 251

When and what conditions must be met to obtain an attachment to earnings order?

Answer 251

An attachment order is only applicable to person who have employed status.

(exclusive method of enforcement; no interest accrue on the debt).

1. Form N337 is completed by the judgment creditor.
2. Form N56 together with a notice is served by the court on the debtor to complete. (if the debtor does not complete the Form N56, the penal notice allows for the court to arrest and/or imprison the debtor for failing to comply with the notice).

Question 252

When should a third party order be used, and what must the applicant show to use the enforcement method?

Answer 252

The third-party order is used to enforce the debt against a party other than the judgment debtor.

The procedure is:
1. an interim order; and
The notice, verified with a statement of truth, should include the following information:
- the name and address of the judgment debtor;
- details of the judgment debt and the outstanding amount;
- instalments payable;
- name and address of the third party;
- confirmation that the third party is within jurisdiction.

• a final order.

Question 253

What is the purpose of a charging order and what conditions must be fulfilled?

Answer 253

The legal effect of a charging order is that the creditor obtains an equitable interest in the property by placing a charge on property owned by the judgment debtor which secured the amount of the debt.

• made in respect of land (Form N379) (or securities N380) owned (both solely and jointly) by the judgment debtor.

The procedure:
1. the interim order places a temporary charge on the property; and
2. the final order prevents sale of the property without the debt being discharged.