Dispute Resolution Flashcards
Litigation
Using the courts to progress a claim, eventually to trial if it can’t be resolved first
Benefits of litigation
- Certainty of outcome
- Merits assessed by a judge
- Create a binding precedent
Disadvantages of litigation
- Exepense
- Restrictions on remedies
- Antagonistic
Alternative dispute resolution (ADR)
Mediation, negotiation and arbitration
Mediation and negotiation can be a standalone alternative to litigation or part of litigation when parties take time out to settle dispute
Arbitration is only an alternative to litigation
Alternative dispute resolution (ADR)
Mediation, negotiation and arbitration
Mediation and negotiation can be a standalone alternative to litigation or part of litigation when parties take time out to settle dispute
Arbitration is only an alternative to litigation
Refusal to engage in ADR
Courts has no power to order parties to engage in ADR
BUT the court can restrict the costs of the party that unreasonably refused to engage in ADR e.g. defendant may not have to pay any costs that arose after the proposed mediation which the claimant refused to engage in and potentially the claimant may have to pay the defendants costs over that period
Litigation general rule: unsuccessful party must pay the successful party’s legal costs
Arbitration
Parties agree by contract to appoint one neutral third party (arbitrator) to resolve the dispute (can agree to be more than one arbitrator)
Parties agree to the rules that the arbitration will follow in terms of (the arbitration clause):
- How the arbitrator should be appointed, - Where the hearing will take place
- The rules of evidences
Arbitrator determines matters of fact and law in accordance with the rules agreed between the parties
A party can request the court to not progress the claim (granting a stay) on the basis the parties have entered a binding agreement to arbitrate BUT both parties can agree to dispense with arbitration and use litigation
Mediation
Mediator is appointed by the parties as a neutral whose role it is to help the parties come to an agreement
Mediator = facilator
No requirement for mediator to be legally qualified and don’t need to have any technical knowledge of the area in dispute
Mediator has licence to explore issues that a judge or arbitrator does not e.g. how one party’s behaviour has made the other feels
Overriding objective of CPR
Deal with cases fairly and proportionately
Pre-action considerations: limitation periods
Breach of contract claims: 6 years
Construction claims (based on building defects after 6 year contract period has lapsed): 3 years from date claimant knew or ought to have known material facts to bring a claim against the builder BUT no claims after 15 years (long stop date)
Tort claims for personal injury and death: 3 years
All other tort claims: 6 years
Defamation claims: 1 year
Unfair dismissal claims: 3 months
When does the time period starts and stops for the purposes of calculating limitation periods?
Tort claims:
Start: day after the tortious act occurred or the day after the date of knowledge Stop: day claimant delivers claim form to the court
Exception: clinical negligence - time period begins on the claimant’s date of knowledge
Contract claims:
Start: day after the date of breach
Stop: day claimant delivers claim form to the court
Once the limitation period expires the claimant cannot make amendments to their claim such as adding a new defendant but minor amendments to reflect incorrect spelling of names is allowed
Limitation periods: special cases
Minors: begins on 18th birthday
Mental incapacity: begins when incapacity is removed
Fraud or concealment: begins when discovered or when should have been discovered
Mistake; begins when discovered or when should have been discovered
Purpose of pre-action protocol
To obtain information to:
- Negotiate
- Settle
-Lay ground for proceedings if settlement is not achievable
Practice direction on pre-action conduct and protocols (standard)
Steps:
1. Claimant: write to defendant with concise details of claim
2. Defendant responds in reasonable time (14 days for straightforward case/ 3 months max in complex case)
3. Disclosure of key documents
4. Court permission required for expert evidence (parties should consider a single joint expert if expert necessary)
5. Parties consider alternative dispute resolution
6. Take stock of positions before court action e.g. in best interests to commence proceedings
Specific protocols
Personal injury protocol
- Applies to claims up to £25,000 and excludes low value road traffic accidents (less than £25,000)
Specific steps in additional to the standard protocol :
1.Letter of claim must identify hospital and request details of defendant’s insurer
2. Parties should jointly select an expert who will prepare a report for the claimant which they must disclose to the defendant
Key differences from standard protocol:
- Parties can disapply protocol by agreement BUT need to show good reason
- Claimant needs to indicate in letter of claim if they wish to appoint protocol referee
- Parties should meet within 21 days of defendants response to narrow issues
Construction and engineering protocol includes residential building work e.g. new bath fitted
Failure to comply with protocol
- Sanctions
a. Adverse cost consequences once case is concluded e.g. may not be allowed to recover costs if claim is successful but refused defendants offer of ADR
BUT in certain cases it is justified to issue a claim without following the pre-action protocol
Pre-action applications
- Pre-action disclosure: request for relevant documents in the control of another party MUST be shown disclosure is necessary to investigate claim properly
- Pre-action inspection of property: must be shown that the property is relevant to the issues in the proceedings
Costs
Unsuccessful party pays for successful party’s costs - applies to costs incurred following the pre-action protocol
If parties resolve dispute during pre-action protocol period it is up to parties to agree costs as part of settlement
If parties can’t agree how to resolve dispute during pre-action protocol stage but claimant decides not to issue claim the defendant can’t recover their costs incurred in complying with protocol
Starting a claim
- Complete claim form and send to court
- Court issues claim - this stops time for limitation purposes
Selecting the correct court
High court: claims of £100,000+ or £50,000+ for personal injury cases OR if claim ought to be dealt with by High Court judge
Reasons to start claim in high court:
1. Value of claim/amount in dispute
2. Complexity of facts, legal issues, remedies or procedures involved
3. Importance of outcome to public in general
Simple claims even if £100,000+ won’t be suitable for issue in High Court
All other cases heard in county court (most)
Exceptions:
Claims of significant public interest even if below £100,000 may be issued in the High Court and vice versa
Types of county court claims and their processes
Claim for debts owed (specified claims) are issued by completing an online claim form (money claim form) which are then issued by a virtual court (County Court Money Claims Centre)
Claims for damages (unspecified claims) are issued by completing a standard claims form (N1), defendant files defence statement, claim issued in the county court closest to the defendants home address or if defendant is a company then the claimants nearest county court
High Court
Outside London, high court centres are known as District Registries
Divisions of High Court:
1. Family Division
1. King’s Bench Division
- Defamation
- Breach of contract
- Negligence
- Personal injury
- Land possession
- Non-payment of debts
2. Chancery Division
3. Family Division
High Court
Outside London, high court centres are known as District Registries
Divisions of High Court:
1. Family Division
2. King’s Bench Division
- Defamation
- Breach of contract
- Negligence
- Personal injury
- Land possession
- Non-payment of debts
2a. Technology and construction court (TCC): only claims of £250,000+
2b. Commercial court: only complex cases (mainly international)
3. Chancery Division
- Equity and trusts
- Commercial fraud
- Tax
- Intellectual property
- Land
- Business disputes
- Contentious probate
- Regulatory work
- Bankruptcy
- Professional negligence
3a. Bankruptcy court
3b. Companies court: technical applications made under the Companies Act
Issuing and serving the claim form
- Complete claim form
- Name court and parties
Claim form contents
- Nature of claim
- Remedies sought
- Statement of value (how much expects to recover in damages but disregard interest, costs and contributory negligence) e.g. amount of debt if a specified sum
3a. County court amount statements
- Not more than £10,000
- More than £10,000
- More than £25,000
3b. High court amount statements
- More than £100,000 for non-personal injury claims
- £50,000 or more for personal injury claims
Court fees
Claims between £10,000 to £200,000 = fee 5% of the value of the claim
Claims of more than £200,000 = £10,000 fee
Particulars of claim
Formal written statement setting out in detail the nature of the claimants case
Statement of truth
Declaration that the facts stated within the claim form are true
Issuing of the claim form stops time running for limitation purposes and starts time running for service
Part 7 claim form
Claimant must send enough copies to serve each defendant and a copy for the court file
The claimant can choose to serve the defendant or request to court to do so
If the court is serving the claim form a notice of funding should be attached to confirm how the claim is being funded
Litigation friend
Used if a claimant is under 18 or lacks capacity
A certificate of the suitability of the litigation friend must be included with the claim form
Part 8 claim
Reserved for situations where parties don’t dispute facts but require claim to be brought before court e.g. court must approve settlement on behalf of someone under 18
Claimants solicitor must state:
- Why part 8 applies
- The questions/remedies the claimant wants the courts to decide
- Legal basis to claim
- Capacity for representative if claim made in a representative capacity
Claimant must serve witness evidence with claim form
Claim form should include particulars fo claim
Any statements in support must contain a statement of truth
Serving the claim form
When?
- Within England and Wales: 4 months
- Outside England and Wales: 6 months
- Application for an extension can be made but must be within these time frames
Who? Solicitor or court
What?
- Claim form
- Particulars of claim
- Medical reports,
- Schedules of past and future losses and expenses
- Notice of funding
- Litigation friend certificate of suitability
- Response pack (acknowledgement of service, defend or contest jurisdiction)
How?
- Court = first class post
- Solicitor = variety of methods:
1. Service on solicitor: required if solicitor representing defendant - personal service not allowed if represented
2. Personal service on either:
a. Individual
b. Company = senior personnel (chairman, CEO, managing director or company director)
c. Firm = partner or person in charge of partnerships officer
- The individual served must physically take hold of the papers
3. Service at company’s registered officer: leaving it at or sending by post - allowed even if solicitors nominated to accept service (exception to rule for personal service)
4. Fax
5. Document exchange (DX)
6. Email: only if by express consent given
7. Post: current or last known address
If necessary claimant can apply to court for service by an alternative method or at alternative place (can be made retrospectively once service is made by claimant) e.g. by email even where express consent from defendant hasn’t been given
When is service deemed complete?
Claim form: Indisuptuable presumption that the claim form was served on the SECOND BUSINESS DAY AFTER the relevant step required for service has occurred
All other documents: deemed served only on a business day i.e. received on a Sunday would not be deemed served until Monday
If claim form is served with particulars of claim to follow the particulars of claim need to be served within 14 days of service of the claim form
Service outside of jurisdiction
Courts permission is required for service of a claim form outside of the jurisdiction EXCEPT for Scotland, Northern Ireland and all other locations in the United Kingdom
A claimant can make a without notice application to serve a claim form on a defendant outside the jurisdiction
The limitation period for fatal accident claims are measured from the date of death
Non-specified claims for damages are issued out of the County Court Money Claims Centre (a few exceptions)
All County Court damages claims are issued in the CCMCC
Defendant’s response to claim
14 days after date of deemed service of particulars of claim
Defendant’s response to proceedings
- Admit claim
or - File and serve a defence
or - File acknowledgement of service: effect of this extends time to serve defence to 28 days or if complex ask for extension from claimant by agreement or court i.e. 58 days to file defence
Specified claim = debt
Unspecified claim = damages
Admitting a specified claim
Pay, if within 14 days, judgement is NOT recorded e.g. won’t affect credit rating if debt paid in 14 days
Ask for time to pay or to pay in instalments
Admitting an unspecified claim
- Case is stayed i.e. hearing set
- Court will determine damages
Calculating due date of defence
Clear day
When period is referencing an event the day of the event is not included i.e date of deemed service would be the day after the date of deemed service
Weekends and bank holidays don’t count
Claimant’s actions after acknowledgement filed
- Application for summary judgement
- Application for interim payment
When the defendant disputes court’s jurisdiction
Typically happens when defendant believes parties have already agreed contractually to a different forum e.g. courts of a different jurisdiction or arbitration
Steps:
1. Tick box on acknowledgement of service
- Within 14 days make an application supported with written evidence
- Defence need not be filed if jurisdiction is disputed as it could waive jurisdiction argument
Default judgement
Consequence of defendant failing to file a defence within the specified period
Effects of default judgment:
1. Defendant not permitted to defend claim
2. Must pay specified claim amount or damages awarded by the court in an unspecified claim
Setting aside default judgement
On application court will decide if:
- Defendant has a real prospect of success
AND - Defendant has a good reason for the default e.g. key member of staff was away when defence was due to be served and acted promptly once realised mistake
AND - Defendant must have acted diligently to have the default set aside
Court can impose conditions on defendant to set-aside e.g. pay a fee to court
Statements of case
- Particulars of claim
- Defence
- Reply
Statements of case
Provides outline of party’s case on liability, causation and quantum (sets out facts and not conclusions of law)
Within power of court to strike out an inadequate statement of case if it doesn’t adequately address above points
Particulars of claim must include: breach of contract claim
- Facts showing contract
- Facts showing breach
- Statement of damages sought
- Statement of truth
Claims for interest
Breach of contract claims:
- Interest assessed from date of breach (pursuant to particular clause in contract)
- Statutory interest provided by court - not fixed - at courts discretion (if contract doesn’t provide for interest)
- Late Payment of Commercial Debts Act
Types of defences
- Procedural
- Lack of jurisdiction
- Arbitration agreement
- Expiration of limitation period - Denial of element of claim
- Damages
Any allegation in particulars of claim not responded to is deemed admitted
Defendants responses to allegations
- Admit to allegation
- Deny the allegations - state reason and set out alternative version of events
(defendant’s positive case) - Neither admit nor deny if outside their knowledge
Defendant can admit damages while denying liability - defendant pays only if court finds claim proved
Defence of set off: if defendant claims claimant owes money they can file a defence seeking to reduce amount owed to claimant
Reply
Claimant may respond to defence
Part 20 claims
- Third party claim: allows defendants to bring claims against other parties who the defendant says are liable for the claimants loss - either part or all of the claim
- Counter-claim: allows defendant to make claims against the claimant
- Claim for contribution (some): claim served against another party requesting that they contribute to damages that the defendant is ordered to pay the claimant
- Claim for indemnity (all): claim served against another party requesting that they contribute to damages that the defendant is ordered to pay the claimant
A third party can only be added by order of the court
Serving and responding to Part 20 Claims
Part 20 claims are regarded as separate claims to original claim
No court permission required if done with defence - if made later requires court permission
A fee is payable as if Part 20 claim is a fresh claim
Defendant doesn’t have to give notice to claimant in order to bring in a third party or to seek contribution or indemnity unless ordered by court to do so
Particulars of Part 20 must be contained in or served with additional claim
A Part 20 made where permission isn’t necessary must be served on each party to the claim when the defence is filed or if a Part 20 claim is made later it must be served on the person against whom it’s made within 14 days of issue
Defence to counter-claim must be served within 14 days of date of service - failing which the defendant can obtain judgement on the counter-claim
A defendant may serve a reply on defence to counter-claim to address issues which require a response or were not dealt with in the particulars of claim
Additional claims bought by defendant: additional party must serve a defence if already a party - if additional party fails to acknowledge or defend claim they are deemed to admit main action and are bound by outcome
New party must file an acknowledgement and/or defence and if not they are deemed to admit main action and are bound by outcome
Requests for further information
Any party can make a request to clarify any matter in dispute or for further information
Request should be reasonably necessary and proportionate
Process:
1. Make formal request to other party
2. If no response, then application to court - court can consider matter without a hearing
If the party refuses to provide additional information they should state why - court will list a hearing to consider request
Amendment to a statement of case
Before served it can be amended at any time
BUT adding or removing a party requires court permission
Substituting a defendant
When is it necessary?
1. Mistake in naming
2. Claim can’t be properly carried on by or against the original party unless new party is added or substituted as claimant or defendant
3. Original party has died or has bankruptcy order made against them and their liability has passed to new party
Case management
Court allocates case to the relevant track
- Small claims
- Fast track
- Multiple track
Court ignores any sums not in dispute, interest, costs and contributory negligence for the purposes of allocation
Case management
Court allocates case to the relevant track
- Small claims
- Fast track
- Multiple track
Court ignores any sums not in dispute, interest, costs and contributory negligence for the purposes of allocation
Small claims track
Trial
- Less formal procedure
- District judge hears case
- Hearing may take place without parties in attendance
- Recoverable costs restricted to fixed costs and reasonable costs
- Expert fees usually restricted to £725
- Costs are lower in this court
- Easier for party to represent themselves
- Application can be made to set aside a decision by a party not in attendance - within 14 days of service of Order - must prove they had good reason for not attending - party’s claim or defence must have reasonable prospects of success
Small claims track
Trial
- Less formal procedure
- District judge hears case
- Hearing may take place without parties in attendance
- Recoverable costs restricted to fixed costs and reasonable costs
- Expert fees usually restricted to £725
- Costs are lower in this court
- Easier for party to represent themselves
- Application can be made to set aside a decision by a party not in attendance - within 14 days of service of Order - must prove they had good reason for not attending - party’s claim or defence must have reasonable prospects of success
Fast track
£10,000 to £25,000
PI: more than £1,000
Tight time management of claims - must be heard within 30 weeks of allocation to track
Types of cases where the costs are fixed according to the amount the claimant recovers:
- Personal injury road traffic accident
- Employer’s liability
- Public liability fast track cases
Expert evidence is restricted
Joint experts are encouraged
Emphasis on written rather than oral evidence
Directions are standardised
Cost schedules are required
Level of costs recoverable are restricted
Multi-track
Claims more than £25,000 or complex cases where trial will last more than one day
Can be issued in High Court if value is more than £100,000
Court expects parties to discuss and agree to directions
Greater flexibility for judge to make decisions compared with small claims and fast track
Stays for ADR are encouraged
Flexibility for experts
Costs budgets must be filed before initial directions hearing - CCMC
Commercial court or technology and construction court assign a judge who deals with all CCMC and pre-trial reviews for consistency
Costs and case management conference (CCMC)
Recoverable costs must be proportional to amount in dispute and the parties’ approach to the claim must be reasonable
Case summaries and skeleton arguments may be required
Directions questionnaire
Parties must return in 28 days
Can’t agree extensions
Used for the purposes of allocating the claim to the relevant track and make relevant directions
Matters addressed:
- Stay for ADR
- Whether parties have complied with pre-action protocol
- Whether experts are required
- Names of witnesses and issues to which their evidence relates
- Estimate of length of trial
- Anticipated costs of proceedings
Case management directions (don’t need to memorise)
Small claims - standard directions:
- Documents to be exchanged 14 days before hearing
- Documents to be filed or brought to court
- Provisions for final hearing date
- Encouragement to agree claim
- Experts require express permission
Fast track - standard directions:
- Disclosure of required information in 4 weeks
- Exchange of witness statements in 10 weeks
- Exchange of expert reports within 14 weeks
- Pre-trial checklist to be sent at 20 weeks to be returned by 22 week
- Date of trial within 30 weeks
Parties can seek to vary any directions but must do so within 14 days of when court gave the directions
No standard directions for multi-track cases as they will vary depending on complexity of case
Case management conference (CMC)
(don’t need to memorise)
Court will:
- Review steps taken to progress claim
- Review compliance with directions already given
- Consider further directions
- Encourage agreement where possible
Multi-track specific:
- Whether there is a need to clarify the points at issue
- Whether cost management order is appropriate
- What should be the scope of disclosure and inspection
- Whether there should be a stay for ADR
- Provision for exchange of witness statements and expert evidence
- Whether a split trial is appropriate
- How soon the trial can take place and sets trial period
Split trial
Consider liability issue first before expenses are incurred on valuing the claim
Non-compliance with directions
If a party doesn’t comply with the courts direction the court may:
- Strike out the claim, defence or counter-claim (drastic remedy unless the non-defaulting party has applied for an unless order which is granted)
- Order costs
- Award indemnity costs
- Increase interest
- Order defaulting party to pay money into court
- Bar a party from relying on evidence
- Restrict the number of witnesses a party can call
- Disallow evidence
Sanctions are discretionary with judge
Unless order
Directs the party to comply within a specific timescale and specifies the penalty unless order is complies with
Relief from sanctions of compliance
Court will consider:
- Seriousness of breach
- Why the breach occurred
- Circumstances of case
- Litigation must be conducted efficiently and proportionately
Interim applications
Application for a judicial application e.g. to set aside a default judgement or for an Unless Order
General procedure for interim applications
- In writing in application notice form
- On notice i.e. served on other side prior to hearing
- As soon as practicable
- 3 clear days before hearing
- No notice if it would interfere with purpose of the interim application - State what order is being sort and why
A party has 7 days from when an order was made against them to have it set aside or varied
Application for summary judgement
A device which allows the court to decide a claim or a particular issue in a claim without a trial
Either party can make application on basis:
- No real prospect of success and no other compelling reason to succeed
Written evidence must be served by:
- Applicant at least 14 days before hearing
- Respondent at least 7 days before hearing
- Applicant’s reply to respondents evidence at least 3 days before hearing
Burden of proof on applicant - two tests must be satisfied:
1. Other party has no real prospect of prevailing
2. No other compelling reason case should proceed
If defendant is successful claim is struck out
If claimant successful summary judgement will be ordered
Application for interim payment
Court has discretion to order interim payment in certain circumstances - examples:
1. When defendant has admitted liability
2. When claimant has obtained judgment but final sum not yet assessed e.g. split trial
Can’t be made until the time for filing the acknowledgement of service has expired
Application must be supported by evidence filed and served with application including:
- Sum of money sought
- Items and matters for which payment is sought
- Estimate of a final judgement
- In PI case medical reports and schedule of loss
Must be served as soon as practicable but no less than 14 days before the hearing
Defendant must respond with written evidence no less than 7 days before hearing
Applicant can reply up to 3 days before the hearing
Applicant seeking an interim payment order should seek payment from the respondent first before making an application for payment
Injunction
Requires a party to do or to stop doing something
Mandatory: order to do something
Prohibitory: order to refrain from doing something
Examples:
1. Freezing order: prevents removal of assets
2. Search order: order to permit applicant on to premises to preserve evidence
Can obtain an interim injunction within 48-72 hours of making the application
Applications can be made by telephone and out of hours
Application must show:
- Matter is urgent
- It is desirable in the interests of justice
Injunctions are discretionary
Injunction will not be granted if damages would be an adequate remedy
Undertaking is sometimes required so defendant is compensated if injunction should not have been granted
Grounds for discharging injunction
- Material non-disclosure: not all relevant information was provided by applicant when seeking injunction
- Failure of claimant to comply with terms on which injunction was granted
- Facts do not justify injunctive relief
- Injunction was oppressive
- Material change in circumstances
- Failure of claimant to prosecute claim with due speed
Freezing injunctions
Always made without notice as risk defendant may dispose of subject assets or remove them from jurisdiction before claim proceeds to trial
Application must be to High Court judge
Applicant must lodge (at least 2 hours before hearing):
- Application notice
- Statements of case
- Copies of affidavits and exhibits
- Any previous orders issued in the case
- Skeleton argument or summary
Granted if:
- Justifiable cause of action
- Defendant has assets within jurisdiction
- Real risk defendant may dispose of assets before judgement can be enforced
Freezing order, search orders and preservation order MUST be made to a High Court judge
Search order
Three basic grounds:
1. Strong prima facie case for underlying claim
- Defendant’s activities must cause very serious potential or actual harm to the claimant’s interests
- Clear evidence that property or documents are in the defendant’s possession and may be destroyed
Freezing orders: an independent supervising solicitor must oversea execution of the order
Freezing orders - the overseeing solicitor must:
- Offer to explain meaning and effect of order to defendant
- Inform defendant of rights to seek legal advice and to apply to vary or discharge order
- Prepare written report and provide it to claimant’s solicitor and the court
Freezing orders - claimant’s solicitor must:
- Return original documents to defendant within 2 days
- Deliver any property in dispute to defendant’s solicitors
- Retain securely all other property until court directs otherwise
A party in breach of an order can be held in contempt of court
When a claimant issues proceedings after the limitation period has expired, the defendant would need to allege in the defence that the claimant has issued after the relevant limitation period has expired. It is then incumbent upon the claimant to make an application to the court to dis-apply limitation.
A claimant who wishes to make an application for summary judgment may do so as soon as the defendant acknowledges the claim
Disclosure
Clearly identifying and informing the other side of the existence of documents
Disclosure doesn’t mean the documents are actually disclosed but rather a generic description informing the other party of the existence of the documents and what it’s about
What documents must be disclosed?
Any documents which the party relies AND documents that adversely affect its case
Inspection
Enabling other side to view the disclosed documents
Standard disclosure
In fast track and some multi-track case the Court will usually make an order for standard disclosure it usually requires each side to disclose
Requirement:
- Documents on which a party relies
- Documents that adversely affect a party’s case
- Documents that adversely affect the other party’s case or support the other party’s case
Obligation to disclose
A party must disclose all documents in its control including:
- Documents parties possess
- Documents parties have a right to possess
- Documents parties may inspect or copy
- Documents parties no longer have
If a client refuses to disclose adverse documents a solicitor can’t continue to represent them
How disclosure is made?
Filing with court and serving on other party a disclosure list by direction deadline
Standard form has three sections:
1. Documents in party’s control that it doesn’t object to other party inspecting
2. Document’s in party’s control that it does object to other party inspecting
3. Documents no longer in party’s control stating when they were last in their control and where they are now
The research for documents necessary for disclosure must be reasonable and proportionate
Inspection
Automatic inspection: arty has an automatic right to inspect all documents within the other party’s control and which there are no objections to disclosure
Party wishing to inspect must give notice to other party and other party must permit inspection within 7 DAYS of receiving notice
If requesting party takes vies that disclosure is inadequate (i.e. clearly missing documents the) then they should request in writing to other party to voluntarily disclose but if refused can make application fro specific disclosure
Specific disclosure:
Privilege
- Legal advice privilege between solicitor and client
- Litigation privilege relates to preparation for contemplated of actual litigation e.g. between barrister or experts
- Common interest privilege
- Without prejudice privilege: communication to another party with a view to settling the claim
- Public interest doctrine - public interest immunity (PII): inspection would harm the nation or administration of justice
In multi-track cases the parties are required to complete an electronic documents questionnaire and the disclosure list
Privilege belongs to the client and not the solicitor so the client can waive their right to privilege but this can’t later be revoked
In multi-track cases the parties are required to complete an electronic documents questionnaire and the disclosure list
A party should disclose all privileged documents in their disclosure statement but assert a claim of privilege to prevent inspection
Witness evidence
Witness can’t be called to testify unless BEFORE trial they provided a statement
Must be served by date of direction unless court grants permission
Elements:
- Tittle of case
- Indicate on whose behalf the statement was made
- Name and initials of witness
- Whether they are a party or employed by a party
- Statement of truth
Witness summary
Identify witness and summarise factual issues their statement will cover
If unable to obtain a witness statement before date of exchange in directions order
Permission from court must be obtained before serving a witness summary
Affidvaits
Written statement confirmed by oath - sworn statement
Sworn before a solicitor who will endorse the statement to confirm the maker swore the contents of the statement were true
Applications for freezing orders require affidavits
Hearsay
A statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence on matters stated
Statement made outside of court
Hearsay is generally admissible in a civil case
Less weight may be placed on hearsay
A written witness statement = hearsay BUT no longer hearsay when the witness gives oral evidence in proceedings
Witness statement in case in chief
If the witness is in court then they are not required to give oral evidence and the witness statement can stand as their evidence in chief
In court the witness will swear that they will give true evidence and be asked if their signature on statement THEN the witness statement is no longer hearsay and instead evidence in chief
Not subject to cross-examination but can be
If witness can’t attend trail
Party relying on statement:
- Must serve notice of intention to rely on hearsay evidence
- If witness statement is served the statement comprises notice but must explain why witness can’t give evidence
- If no statement served, party must serve notice identifying hearsay evidence and explaining why witness won’t be called
Party served:
- Can make application to have witness attend WITHIN 14 DAYS of receiving notice
- Can serve notice to attack credibility of witness WITHIN 14 DAYS of being served by showing bias or untrustworthiness
Trial judge will decide how much weight to give to hearsay - generally less weight given as other side can’t cross examine
Notice to admit facts
Effect of admission or lack of admission:
- If facts are admitted, no need to prove them
- If not admitted and proved at trial, the recipient of the notice to admit may be ordered to bear the costs of proving the fact
Inadmissible evidence
- Opinion evidence: inadmissible unless from expert witness directed by court
- Without prejudice correspondence: offers to settle can’t be used at trial
Expert evidence
A person who has been instructed to give or prepare expert evidence for the purpose of proceedings
A professional qualification is preferred but not essential
Experience can make someone an expert
A lay person can’t express an opinion that goes beyond everyday life or first hand observation BUT and expert can
Restrictions on expert evidence
- Not within the ordinary experience of the judge i.e. legal expert
- Expert must have true expertise in the field
- Expert must give evidence to a reasonable degree of certainty
- Expert must demonstrate basis of opinion and conclusions
Ethical obligations of expert
Duty to court not party who instructed them
Must provide a full appraisal of their opinion in their report and must support views by reference to scientific and technical data
Objective
Ensure their integrity and independence are preserved
Ensure the court doesn’t
Expert witnesses do not owe a duty to those who instruct them. Instead, they owe the court a duty of integrity and independence
Content of expert report
- Experts academic and professional qualifications
- Written and oral instructions given to expert
- All material provided
- Who carried out any necessary measurements, tests etc.
- Extracts of literature referred to
- Statement that expert has complied with duties to the court
- Statement of truth
Default is expert will not attend proceedings unless directed otherwise
Experts can respond within written answers to the parties questions and this can be deemed part of the expert’s evidence
Reasons for expert to give oral evidence
- Evidence must be likely to impact outcome
- Evidence must assist the judge
- Risk of injustice if expert evidence if not tested
- Cost of expert attending is not disproportionate
Hot tubbing
When claimant’s expert and defendant’s expert give evidence at. the same time
Direction of expert
- Usually single joint expert
- Multi-track experts can instruct their own experts if justified to judge at case management conference
Both the instructions to an expert and the report itself are protected by litigation privilege
There is no obligation to disclose report in which a party does not intend to rely on
Parties can ask questions of a joint expert or the opposing party’s expert WITHIN 28 DAYS of the expert sending the report but can be extended for. a good reason
If the parties are allowed to instruct their own expert there will likely be a requirement that the experts hold a without prejudice meeting to identify issues and agree as many issues as possible
Without prejudice meeting
A solicitor should not attend an expert’s without prejudice meeting
When settling, the parties should:
- Record the terms of the agreement
- Prepare a consent order (no automatic right to payment without order)
Tomlin order
Formalises the parties’ settlement by recording its terms and having the court issue the settlement as a consent order.
Advantage:
- Parties can enforce the order in court if necessary
- No need to restart proceedings if a party fails to comply, can pick up proceedings where they left off
Attendance of witnesses
Witness summons to compel attendance:
- Penalty of contempt of court for non-attendance
- Witness summons must be served on party at least 7 days before trial
Procedure
- Send copy of summons to court
- Additional summons for witness
- Court fee
- Separate summons for each witness
- Party applying for summons must send an appropriate sum for the witnesses’ expenses in attending and compensating for loss of time (conduct money)
Conduct money
Sum paid to witness to compensate for their attendance
Covers loss of income
Maximum for a period exceeding 4 hours = £67
Additional sums payable for substinence and overnight stays
If conduct money is not paid the witness summons is not effective
Trial bundle
Claimants solicitor should prepare at least 6 bundles and they bare the cost of preparation
Conduct of trial
- Claimant makes opening submissions
- Defendant makes opening submissions
- Claimant presents witnesses (confirming their signature on witness statement) - adducing evidence in chief
- Defendant cross-examines claimant witness
- Claimant may re-examine
- Claimant presents experts (if any)
- Defendant’s case
- Claimant’s closing speech
- Defendant’s closing speech
Judgement
Usually handed down the same day
May be reserved where the matter is listed for a further hearing
Post-judgement matters
Parties may make submissions to the court in relation to any other matters that flow from the judgement including:
- Interest: rate
- Costs: losing party pays
- Time to pay
- Stay of execution: delay in enforcing the judgement - losing party may make if intend to appeal
- Permission to appeal
Under the Personal Injury Protocol, a claimant must send a letter of claim to the defendant, giving the defendant 21 days to respond. If the defendant responds to the letter within 21 days, the claimant must then give the defendant three months to investigate the claim. (If the defendant does not respond within 21 days, the claimant may then start proceedings.)
When valuing a damages claim (that is, a claim for an unspecified amount) for purposes of the claim form, the claimant should disregard interest, costs, contributory negligence, and counterclaims
The court has no power to force parties to consider ADR but the court may sanction parties if not considered or refused
Case mangement is by Masters, District Judges and Circuit Judges
Appeals
District judge in county court
Circuit judge in county court
High court judge
Court of appeal (Lord or Lady Justice of Appeal)
Appeal of civil cases
Permission required
- Judge whose decision is being appealed
- Court that would hear the appeal
Can be made orally after judgement is handed down or in writing later
Appeal of civil cases
Permission required
- Judge whose decision is being appealed
- Court that would hear the appeal
Can be made orally after judgement is handed down or in writing later
Grounds of appeal
- Wrong in fact, law or exercise of discretion
- Unjust because of procedural errors
Wrong in fact: judge records incorrect facts from witness
Wrong in law: applied. law incorrectly
Error in exercise of court’s discretion: judge’s discretion is not absolute and can be reviewed
Parties have 21 days after judgement is handed down to submit a notice and written application for permission to appeal setting out grounds
Court has discretion to extend deadline
Permission to appeal
Application considered without hearing OR if written application refused appellant has 7 days to request an oral hearing AND if not granted party has 21 days to make written application BUT if out of time can apply to court of appeal for retrospective permission
If granted will be listed for hearing for appeal to be heard
Standard of review of appeals
- Not a rehearing
- No new evidence (without permission)
Costs
Solicitors fees incurred in the case and disbursements paid by solicitor on behalf of client e..g counsel fees, court fees
Loser pays costs
Costs are at discretion of court and they depart from general rule if:
- Party fails to comply with pre-action protocol
- Rejection of Part 36 offer
- Exaggeration of a claim
- Failure to succeed on whole claim
Parties should attempt to agree costs first but if they can’t hearing is held (assessment) to determine costs
Indemnity principle
Party can’t recover more costs from opponent that they are liable to pay their own legal representative i.e. costs are limited to actual costs
A rule with no exceptions
How court assesses costs?
- Standard basis:
- Default basis
- Recover proportionate costs only
- Benefit of doubt given to paying party - Indemnity basis:
- Generally used to sanction for misconduct e.g. unreasonable refusal to negotiate
- Proportionality not considered
- Benefit of doubt given to receiving party
Assessing costs/ costs management
Multi-track cases
- Budget must be filed with directions questionnaire if case is less than £50,000 OR 21 days before first CMC if value is £50,000 or more
- At CMC judge will make a costs management order
- Once order made costs budget should not be exceeded but 20% leeway
- If party exceeds order must apply for a new order
-
The requirement to file costs budgets applies only on the multi-track
Types of hearings for assessing costs
- Summary assessment hearing
- Detailed assessment hearing
Summary assessment hearings
In lower value cases and interim applications a statement of costs must be filed by each party 24 hours before a hearing or 2 days before a trial
Court makes judgement at conclusion of heairng
Costs usually payable in 14 days of hearing
Receiving party entitled. to interest from judgement until costs are paid
Detailed assessment hearing
Parties unable to agree costs
Receiving party prepares detailed bill of costs and serves on opponent within 3 months of judgement or order
Opponent files points of dispute within 21 days - if they fail to reply the receiving party can obtain. default costs certificate
Costs less than £75,000 will be provisionally assessed by costs judge
Security
A defendant may apply for security for costs order if concerned that if claimant loses they won’t be able to pay defendant’s costs
Order may make claimant pay money into court or secure a bond
Circumstances where security is ordered:
- Claimant is a company
- Reason to believe the claimant will be unable to pay defendant’s costs if ordered to do so
A security for costs order can only be made by the defendant
Exceptions to loser pays rule
Small claims: usually no order for payment of legal costs BUT winner can claim costs of claim form issue and fixed amount for time at trial
Fast track: costs for trial are fixed but costs for preparation of trial are not fixed and can be claimed in usual way
Personal injury: principle of qualified one-way costs shifting applies
Principle of qualified one-way costs shifting
Unsuccessful claimant will not be ordered to pay unless the claim was:
- Fundamentally dishonest
- Made for financial benefit of another
- Struck out for disclosing no cause of action or abuse
Claimant will lose the benefit of s qualified one-way costs shifting if it fails to beat a Part 36 offer made by the defendant
Defendant can claim costs up to level of damages awarded to claimant
Wasted costs order
Legal representative acted improperly, unreasonably or negligently
Which caused unnecessary costs
AND
It is just to make the order
Solicitor pays (not party)
Part 36 Offers
Formal mechanism for making an offer of settlement
Serious cost sanctions if party refuses offer
If the result at trial is less advantageous to the offeree than the offer was the judge may make the offeree pay some of the offeror’s costs
Rules of Part 36 offer
- In writing
- Clearly state it is made under Part 36
- Specify a period for acceptance (at least 21 days) - offer can’t be withdrawn during this period without court’s permission
- State whether relates to whole or part of claim
- State whether it takes into account any counterclaim
If accepted during relevant period the defendant will pay the costs up to the point of acceptance
If parties can’t agree costs they are paid on the standard basis
When can a part 36 claim be made?
- All claims apart from small track
- Anytime including before proceedings are issued
If part 36 offer is unclear, offeree can request clarification within 7 days, if not can apply to court
Once offeree has filed notice of acceptance the part 36 offer can’t be withdrawn
Part 36 offer can be accepted at any time even after expiry of relevant period as long as not withdrawn
Part 36 offers are without prejudice so not used to show liability or damages BUT used to detemine costs
Part 36 sanction
Claimant pays costs on the standard basis from the date that the relevant period for acceptance expired and claimant pays own costs after the relevant period
When a claimant beats its own part 36 offer, the claimant is entitled to interest on the entirety of the claim at an enhanced rate of up to 10% above base rate for the time after the acceptance period expired. Costs for this period will be assessed on an indemnity basis (that is where the court gives any doubt whether costs were reasonable to the receiving party), with enhanced interest on those costs of up to 10% above base rate. The claimant may seek an additional amount of damages (generally 10% above the court award for amounts up to £500,000, and 5% for amounts above £500,000)
Court will not automatically enforce a judgement - successful must
Judgement creditor vs
judgement debtor
Enforcement of judgements
- Locate judgement debtor’s assets e.g. by instructing an inquiry agent who will find the judgement debtor’s assets OR process of oral examination
2.
Oral examination
Obtained by a court order
Judgement creditor must apply to the court and serve order personally on judgement debtor (no less than 14 days before hearing)
Judgement creditor files affidavit
- Detailing service of order
- Stating how much judgment debt remains unpaid
At hearing judgement debtor is questioned about assets on oath
Judge may make committal order if judgement debtor fails to attend
Interest on delay in payment of judgement
High court: 8% per annum from date of judgement
County court: not payable on judgement under £5,000 unless contractually obligated BUT if more than £5,000
Methods of enforcement
- Taking control of the goods
Taking control of goods
High court:
- judgement creditor files a request to execute the judgement
- Court issues writ of control
- Forwarded to High Court enforcement officer
County Court
- Judgement creditor certifies amount remaining
- Court seals the order
- Forwarded to certified enforcement agent
Judgement creditor must give judgment debtor no less than 7 days notice of creditor’s intention to take control of goods
Officer or agent provides an inventory of goods seized and then sells goods in 7 days
Trade equipment and basic household items are excluded from seizure
Controlled goods agreement
Judgement-debtor can avoid seizure by agreeing not to dispose of goods before debt is paid
Third-party debt order
Used to access judgement debtors money in bank - requires bank to pay judgement creditor
Commercial cases where judgement debtor is owed money by a third party paid directly to judgement creditor
Charge on property
Obtain a charge on the property (equitable mortgage) - gives judgment creditor right to apply for an oder for sale even if land is in joint ownership
Judgement debtor outside England and Wales
Reciprocal enforcement agreement is required
A claimant wishing to file a Notice to Admit Facts must serve the notice no later than 21 days before trial. If the defendant does not admit and the claimant proves the fact at trial, the defendant may be responsible for the costs of proving the fact regardless of the outcome of the case.
Litigation privilege protects communications between a solicitor and a third party (for example, an expert or a barrister) sent for purposes of preparation for trial. The privilege will apply so long as it was sent when there was a real likelihood of litigation (a mere possibility is insufficient)
If a document that should be disclosed has been removed or destroyed by a party, their solicitor is under a duty to inform the court and the other party of the existence of the document and the reason for the destruction or removal, and the court is entitled to draw an adverse inference from the fact that the party has failed to preserve a relevant document
A party who is not content with disclosure can apply for an order for specific disclosure by explaining why they think the document sought likely exists and that it is within the documents that must be disclosed
The court can order a person to cease to be a party if it is not desirable for them to be a party in the proceedings, and such removal does not depend on whether the limitation period has expired
