Dispute Resolution Flashcards
complete
1
Q
What are the two main forms of ADR?
A
- Mediation
- Arbitration
2
Q
What is the most common form of dispute resolution?
A
Litigation
3
Q
Term meaning correspondence as part of negotiations cannot be referred to in court
A
Without prejudice
4
Q
Term for formal negotiations where parties try to agree settlement following disclosure
A
Round-table discussions (or joint settlement meetings)
5
Q
What can a court do to a party that unreasonably refuses ADR?
A
Penalise legal costs recoverable
6
Q
In what case can parties contractually obligated to solve disputes by arbitration not have to use arbitration?
A
If both parties agree to use another form of dispute resolution
7
Q
What should the defendant do if the claimant issues a claim form after the limitation period has passed?
A
Raise the passage of the limitation period as a defence to have the claim struck out
8
Q
What can the court do during litigation to allow more time for parties to pursue ADR?
A
Grant a stay (suspend court timetable)
9
Q
Which form of ADR?
- Without prejudice
- Informal
- Strict rules of evidence do not apply
- Neutral third party has no interest
- Non-binding until a final written agreement has been signed
A
Mediation
10
Q
Failure to commence a legal action within the strict time limits set out in the Limitation Act 1980 result in the claim being…
A
Statute barred
11
Q
Longstop for latent defects
A
15 years
12
Q
Limitation period for claims for breach of contract
A
6 years
13
Q
Limitation period for most claims in tort
A
6 years
14
Q
Limitation period for claims for personal injury
A
3 years
15
Q
Limitation period for fatal accident claims
A
3 years
16
Q
Limitation period for claims for defamation
A
1 year
17
Q
Limitation period for claims for unfair dismissal
A
3 months
18
Q
What are the two ways of deciding when a limitation period begins?
A
- Accrual - from the occurance of the action, e.g. car accident
- When claimant first gains knowledge - e.g. injuries appear later
19
Q
What is the date of knowledge?
A
Point at which claimant had knowledge of all the facts establishing all essential elements of the claim
20
Q
In clinical injury claims, what occurs when the claimant is aware of the following:
- That the injury was significant
- That it was attributable to negligence, nuisance or breach of duty
- Defendant’s identity
A
Date of knowledge
21
Q
What is the limitation period if the injured party dies within three years of the accrual date?
A
- Three years from the date of death; or
- Three years from the date of knowledge of the deceased’s personal representative
22
Q
What is the date of accrual in a contract action?
A
Date the breach occurred
23
Q
Which takes precedence?
- Make good clause
- Limitation period
A
Limitation period
24
Q
The Latent Damage Act 1986 extends limitation periods for negligence claims for latent defects if the defect was not apparent at time of completion.
What are the limitation periods under the Act?
A
- Six years from the date of accrual of the cause of action; or
- Three years from the earliest date the claimant knew, or ought to have known, material facts necessary to bring an action alleging negligence
(whichever is later)
25
When does time stop for limitation purposes?
When the claimant delivers the properly completed claim form to the court office with a request to issue together with correct fee
26
When does time start for limitation purposes following the cause of action?
The day after the day the cause of action arose
27
When does the limitation clock start to run when claimant is a minor?
On their 18th birthday
28
When does the limitation clock start to run when claimant lacks capacity at point of accrual?
Until certification that the claimant is of sound mind
29
Post-litigation, the court will examine the pre-action conduct of the parties, what can failure to comply result in?
Adverse costs consequences for the non-compliant pary
30
What is the first step set out in the Practice Direction on Pre-Action Conduct and Protocols?
Claimant should write to the defendant with concise details of the claim
31
How quickly should the defendant respond in the Practice Direction on Pre-Action Conduct and Protocols?
Straightforward v Complex
- Within a reasonable time
14 days in a straightforward case
- No more than 3 months in a complex claim
32
What is required before parties can rely on expert evidence in the Practice Direction on Pre-Action Conduct and Protocols?
Court permission
33
What are the below examples of
- Template letters
- Guidelines for exchange of information and document disclosure
- Encouragement to instruct a single joint expert
- Consider ADR
- Proposed time limit for investigation and agreeing period before commencing proceedings
Common features of Pre-Action Conduct and Protocols
34
Which track should personal injury protocol primarily be used in and which type of disputes are excluded?
- Fast track
- Clinical negligence disputes
35
What is the following included in
- Clear summary of facts
- Details of injuries sustained and impact on claimant's day-to-day life
- Hospital attended and reference number
- Indication of financial losses
Letter of claim in Personal Injury Protocol
36
When must the defendant respond to claimant's letter of claim under Personal Injury Protocol?
21 days
37
Personal Injury Protocol: What happens if the defendant disagrees with the claimant's list of suggested experts?
Each party can instruct their own
38
Personal Injury Protocol: How long does the defendant have to disagree to the claimant's list of suggested experts?
14 days
39
Personal Injury Protocol: If the protocol fails to achieve settlement, what should the claimant send to the defendant?
- Medical report
- Schedule of past and future expenses
40
Personal Injury Protocol:
How long must the claimant wait after protocol fails to achieve settlement before commencing proceedings to allow for an offer (unless limitation is imminent)?
21 days
41
How can the relevant protocol be dis-applied?
By agreement
42
Two likely consequences of failure to comply with Protocol
- Sanctions
- Stay in proceedings to allow protocol to be complied with
43
What sanctions can the court order for non-compliance with protocol?
If claimant/defendant
- Ordering non-compliant party to pay other side's costs
- If claimant, deprive of or restrict interest on damages
- If defendant, increase interest
44
Three situations court unlikely to criticise non-compliance with protocol?
- Limitation period is close
- Court order required to protect or preserve evidence or assets
- Where there is concern defendant may issue proceedings in another country
45
Pre-action applications are not usually required as part of the pre-action protocol process.
Which 2 pre-action applications can be made?
- Pre-Action Disclosure
- Pre-Action Inspection of Property
46
Which courts issue claims arising out of disputes in England and Wales?
High Court and County Court
47
Minimum value of claim to be issued (started) in High Court
- £100,000
- £50,000 in personal injury cases
48
Where can a claim for £100,000 be started?
High Court or County Court
49
Three reasons to file a claim in High Court
- Value of claim in dispute
- Complex facts, remedies or procedures
- Importance of outcome to public interest
50
What two actions can the court take if it determines claim has been started in wrong court?
- Exercise powers of management to transfer the claim
- Strike out the claim
51
How many county courts and county court hearing centres are there?
- One
- 400
52
Who issues money claims up to £100,000 and where?
County Court Money Claims Centre in Salford, Manchester
53
Following receipt of a defence or admission, where will the county court hearing centre transfer the claim?
Hearing centre local to defendant's home address (if indvidual) or claimant's preferred hearing centre (if business)
54
What is the High Court known as in and outside London?
- Royal Courts of Justice
- District Registries
55
Which High Court division typically deals with the following
- Defamation
- Breach of Contract
- Negligence
- Personal injury
- Land possession
- Non-payment of debts
King's Bench Division
56
What are two specialty courts within the Business and Property Courts within the King's Bench Division?
- The Technology and Construction Court
- The Commercial Court
57
What is the minimum claim value in The Technology and Construction Court?
£250,000
58
Which High Court division deals with the following
- Equity and trusts
- Commercial fraud
- Tax
- Intellectual property
- Land
- Business disputes
- Contentious probate
- Regulatory work
- Bankruptcy
- Professional negligence
Chancery Division
59
What are two specialist courts within the Chancery Division?
- Bankruptcy court
- Companies court
60
What is the following included in
- Names and addresses of parties
- Details of claim
- Remedy claimed
- Value
- Claimant's preferred court for hearings
- Particulars of claim (can be sent separately)
- Statement of truth
Claim form
61
Three monetary categories of value of damages
- Less than £10,000
- More than £10,000 (or in a PI case, not more than £10,000 but including PI claim over £1,000)
- More than £25,000
62
What type of claim does a damages claim always fall under even if damages itemised?
Unspecified claim
63
Minimum expected damages for cases started in the High Court
- £100,000
- £50,000 for PI cases
64
What is the court fee for a claim with damages between £10,000 and £200,000
5% of the value of the claim
65
What is the court fee for a claim with damages above £200,000
£10,000
66
What does the court send to the claimant after receiving claim form, sealing it, and assigning claim number to the case
Notice of Issue
67
Type of claims that do not involve substantial dispute of fact
Part 8 claims
68
What must a Part 8 claim state?
- That Part 8 applies
- The question the court is to decide or remedy sought
- Details of claim
- Capacity of representative (if applicable)
69
What documents must be and should be included with the claim form?
- Witness evidence
- Particulars of claim
70
Within what period must the claim form be served on the defendant(s) following date of issue?
- 4 months
- 6 months if outside jurisdiction
71
How does a defendant respond to the claim form and relevant documents being served on them?
By filling and returning response pack
72
In the case of a partnership being sued in the firm name, who can be served?
Partner or person who at time of service has control or management of business
73
When can a claim be served by email?
When express consent has been given
74
Within what period must the Particulars of Claim be served after the claim form (if not served together)?
14 days
75
When is the claim form deemed to be served to defendant?
On the second business day after the necessary step (e.g. leaving with individual/partner, posting) has occurred
76
Where should claim be sent if defendant cannot be found?
Last known address
77
How would a defendant argue service of proceedings was invalid?
Indicate as such in acknowledgement of service and make an application within 14 days
78
When is permission to serve claim form not required when defendant lives outside jurisdiction?
If they live in Scotland or Northern Ireland
79
When must the defendant respond to a claim by after the date of service of the Particulars of Claim?
14 days
80
Three ways a defendant can respond to service of proceedings
- Admit the claim
- File and serve defence (possibly with counterclaim)
- Acknowledge service and indicate intention to defend claim
81
What is the maximum extension that can be agreed between parties following date of service of Particulars of Claim?
Further 28 days (56 days total)
82
If defendant admits claim during the protocol, they will be bound by the admission in claims worth up to...
£25,000
83
When would a defendant provide details of assets, income and outgoings?
When asking for more time to pay or to pay in instalments
84
What will the court do following admission of an unspecified claim?
Stay the case and set the case down for a disposal hearing where damages will be determined
85
What must the court do if an admission to a claim is made by a minor/protected party?
Approve the admission or offer to pay
(Not automatically granted as if ordinary adult admission)
86
What must a defendant do after filing a partial submission to a claim?
File a defence to the part in dispute
87
Who must give permission and receive reasons for withdrawal of admission?
The court
88
When must a defendant file Acknowledgement of Service by, and how long does it extend the deadline to file defence?
- Within 14 days of deemed service of Particulars of Claim
- Extends by 14 days (to 28 days)
89
Which document can do the following
- Indicate intention to dispute but seek extra time to file defence
- Admit some of the claim but ask for more time to pay
- Dispute jurisdiction of court
Acknowledgement of Service
90
When is the defence due date calculated from?
Date of deemed service of the claim form or Particulars of Claim
91
What is likely to happen if defendant's Acknowledgement disputes court juridiction AND files defence?
Negates the challenge to jurisdiction
Must file Acknowledgement with jurisdiction dispute only and wait for court response
92
What can the claimant obtain if defendant does not file Acknowledgment of Service or defence in time?
Judgement in default (of trial)
93
What two things must the defendant prove to the court to set aside default judgement?
- Defendant has real prospect of successfully defending claim
- There is a good reason why judgement should be set aside
94
How can a claim be concluded
- By the claimant unilaterally
- By the claimant and defendant together
- Discontinuance (claimant files Notice of Discontinuance)
- Settlement
95
Who must a defendant serve their defence on?
Every other party to the claim
96
What *type* of defence is concerned with issues such as lack of jurisdiction or expiration of the limitation period?
Procedural
97
What are the three ways a defendant can respond to each paragraph in Particulars of Claim?
- Admission
- Denial
- Non-admission
98
Why would a defendant respond to a Particulars of Claim paragraph with a non-admission?
Not responding is considered admission, responding with non-admission means the claimant must prove the argument in the paragraph
99
What are the defendant's options in responding to the claimant's personal injury claim medical report?
- Agree
- Dispute and state reasons
- State they have no knowledge of the matters contained in the report
100
Term for defendant admitting the amount of damages claimed but denying liability - claimant recovers damages only if court finds the claim proved
| ADSL
Admission of damages subject to liability
101
Term for defendant claiming that the claimant owes them money and the claim amount should be reduced by the amount owed
Defence of set-off
102
What should the claimant's response to a defence address?
Any points raised in the defence that were not covered in the Particulars of Claim
(Reply can be incorporated into the defence to counterclaim)
103
Type of claim where defendant brings claim against third parties who might be liable to the claimant or defendant under the facts relating to the claimant's claim
Third parties (Part 20) claims
104
What are the below key features of?
- Brought by existing defendant against claimant
- Arises out of the same facts as the claimant's claim
- Is a monetary claim in its own right
- Is not a defence
Counterclaim
105
If a third party in a Part 20 claim wishes to blame someone else, what will that party be referred to as?
Fourth party
106
Term for notices sent by defendant within Part 20 that:
- Seek partial payment from a third party
- Seek full payment from a third party
- Contribution notice
- Indemnity notice
107
What are the four types of Part 20 claims?
- Counterclaim
- Claim against another person
- Claim seeking contribution or indemnity
- Counterclaim against another third party
108
When is court permission required in Part 20 claims?
- Counterclaim
- Claim against another person
- Claim seeking contribution or indemnity
- Counterclaim against another third party
- No permission if filed with defence
- No permission if filed with defence (unless court directs otherwise)
- No permission if filed with defence
- Court order required (& fee payable)
109
When must a defence to a counterclaim be made by and what happens if the deadline is missed?
14 days following date of deemed service of Particulars of Claim.
Defendant can obtain judgement on the counterclaim
110
What are the following grounds for:
- The request is unnecessary, irrelevant or improper
- The responding party is unable to provide the information or clarification
- The party requesting the information gave an insufficient time to reply
- The expense of complying with the request would be disproportionate to the claim
- The responding party is protected from answering by existing privilege
Grounds for objecting to a request for further information
111
Two general conditions for adding or substituting a party to a claim
- The original action was timely filed
- The substitution is necessary
112
What is the overriding objective of the CPR?
The court is to deal with cases justly and at a proportionate cost
113
What is usually the first case management steps a court takes?
Allocating the case to the appropriate court track by sending parties a notice of proposed track allocation with a Directions Questionnaire which the parties must complete and return within 28 days
114
Which type of sums as part of a claim does the court ignore?
Costs not in dispute
115
What are the value rules on small track allocation of road traffic accident personal injury claims?
Claim for personal injuries from road traffic accident must be £1,000 or less
116
What is the maximum expert fees in the small claims track?
£750
117
What can the court do if a party acts unreasonably?
Increase costs payable
118
What must a party demonstrate to the court if the case was set aside due to non-attendance and by when?
- They had good reason for not attending
- Their claim or defence has reasonable prospects of success
- Must make the application within 14 days of service of the order
119
What is the normal track for a claim that has value between £10,000 and £25,000
Fast track
120
When will a road traffic accident personal injury claim with value less than £5,000 be allocated to fast track? (3)
- Accident occurred on or after 1 May 2021
- Made by child or protected party, or person who was a child at start of claim
- Includes a claim for whiplash injury
121
Maximum length of fast track trial
1 day
122
What is the usual format of expert evidence given in court? (2)
- Written evidence (rather than oral)
- Single joint experts
123
What is witness evidence treated as in fast track?
Evidence in chief
(Testifying in court not necessary)
124
Types of judges that hear fast track claims
Circuit or District Judge
125
What must parties submit to court prior to trial in fast track?
Cost schedules
126
Which courts hear :
- Small track
- Fast track
- Multi-track
- County court
- County court
- County court and High court
127
Claim value for multi-track
More than £25,000
128
What type of stays are encouraged in multi-track cases?
Stays for Alternative Dispute Resolution
129
What is the purpose of the Directions Questionnaire?
To help the court manage the case and make appropriate directions in accordance with the overriding objective
130
When must parties return the Directions Questionnaire by?
Within 28 days of the date of service of the order
131
What are the below aspects of?
- Disclosure
- Witness statement exchange
- Expert report exchange
- Pre-trial checklist
- Date of trial
Fast track directions
132
If a party is not happy with court directions, what should they do?
Apply to vary within 14 days
(otherwise court may assume they have accepted directions)
133
What is the purpose of the pre-trial checklist?
To ensure parties are ready (or will be ready) for trial
134
When must disclosure reports and costs budgets be filed in a multi-track case respectively?
14 days before hearing
7 days before hearing
135
Where are directions given by the District judge in a multi-track claim?
At the case management conference
136
What is the purpose of the case management conference?
For the court to take stock of the case and consider further steps to prepare for trial
137
What should a party do if they have good reason for non-compliance?
Apply for relief from sanctions
138
What is an interim application?
Procedural application asking the court to make a key judicial decision. e.g. application to set aside default judgement. e.g. application for an unless order
139
When must an interim application be served on the other party prior to application to court?
Three days prior, or five days if by telephone, unless there is a good reason why notice should not be required
140
Who hears an interim application if issued in:
- High Court RCJ
- In all other cases
- Master if issued in the High Court RCJ
- District Judge in all other cases
141
How does the court usually hear interim applications?
By telephone
142
When is pre-application notice of an interim application unnecessary?
If giving notice may defeat the purpose of the application or create an injustice.
e.g. search orders, freezing orders
143
What will the court likely do if a party makes an application without notice erroneously?
Dismiss the application with a wasted costs order (solicitor pays other side's costs associated with application)
144
When will a party apply for summary judgement?
- When the other party has no real prospect of success
- There is no compelling reason why the case should proceed
145
Timing of evidence submission in application for summary judgment & interim payment and response
Applicant must serve on the other party at least 14 days before the hearing.
Evidence must be served in response at least 7 days before the hearing.
146
What should the applicant always do before applying for an interim payment?
Invite the respondent to make an interim payment
147
When are injunctions
- Interim
- Final
- If made before trial
- If made after trial
148
When does a granted injunction usually take effect?
Immediately
149
What are the consequences of the enjoined party breaching an injunction order?
Held in contempt of court. Liable for up to two years imprisonment or sequestration of assets
150
Two types of injunction
- Prohibitory
- Mandatory
151
What is an undertaking in damages following an application for an interim injunction (48-72 hrs)?
A condition sometimes imposed providing the claimant will compensate the defendant for any loss suffered due to the injunction if the court later determines the injunction should not have been granted
152
What are freezing injunctions and when are they granted?
Prohibitory injunction that freezes defendant's assets to prevent them from disposing of the assets or removing them from the jurisdiction before claim proceeds to trial
153
Who must an application for a freezing injunction be made to?
High court judge
154
Who does a freezing injunction bind beside the defendant?
Third parties with knowledge of the injunction
155
What is a search order?
Mandatory injunction allowing claimant to search for and potentially seize evidence the defendant may destroy. Last resort
156
Who oversees the execution of a search order?
Independent supervising solicitor
157
What is disclosure?
Which documents must be disclosed?
- To inform the other side of the existence of a document
- Any documents (written, digital or otherwise) that contains relevant information to the case regardless of how it affects the case
158
Which process allows the other side to view certain documents disclosed?
Inspection
159
What might the court draw from the fact a party has failed to preserve a relevant document for disclosure?
An adverse inference
160
A party must disclose documents within its control. When does a party have control?
- Have physical possession of the document
- Have a right to possession, right to inspect or right to take copies
- Had the document in their possession but no longer have it
161
What kind of search must a party make when disclosing relevant documents no longer in their possession?
Reasonable and proportionate search
162
In which types of cases will parties be required to file and serve a disclosure list?
- Fast track cases
- Personal injury multi-track cases
163
What are the three sections of a party's disclosure list?
- A list of documents in its control they do not object to the other party inspecting
- A list of documents in its control they object to the other party inspecting (with reasons, usually privileged)
- A list of documents that are no longer in its control, stating when last in control and where they are now
164
What is the usual time limit for Standard Directions disclosure?
28 days from the date of directions order
165
Disclosure of a document provides an automatic right to inspect unless specifically challenged. What are the grounds for refusing inspection?
- Privilege
- Document no longer in party's control
- It would be disproportionate to allow inspection
166
When must a disclosure report be filed in a personal injury multi-track claim?
- At least 14 days before the Case Management Conference; or
- with the Directions Questionnaire
167
What are the four types of privilege plus type of immunity which functions similarly?
- Legal advice privilege (LPP) (client-solicitor)
- Litigation privilege (LPP) (communications re pending litigation with third parties e.g. experts, barristers)
- Common interest privilege
- Without interest privilege
- Public interest immunity
168
When is the dominant purpose test applied?
When deciding whether litigation privilege will apply or inspection will be allowed
169
What is a witness summary?
Identifies witness and summarises the factual issues covered in their evidence.
Helpful when witness is abroad or will not sign statement.
Court permission required.
170
What is the difference between a witness statement and an affidavit?
What is an affidavit usually required for?
Witness statement contains a statement of truth while affidavit must be sworn before a solicitor.
Affidavit usually required for freezing and search orders
171
At which point does oral/written evidence made outside of court (e.g. witness statement) cease to be hearsay?
What is the procedure?
When the witness comes to court to give evidence.
Witness must take the stand, swear an oath or affirmation that their evidence is true, confirm it is their signature on the statement, and confirm the statement is correct.
172
What is evidence in chief and evidence given in cross-examination regarding witness evidence?
- Evidence in chief is actively presented by the party in the witness statement (oral/written)
- Cross-examination occurs when a party asks questions of the opponent's witness
173
What does a Notice to Admit Facts do and when must it be served?
- Establishes facts between sides so they need not be proved in court
- 21 days before trial
174
What happens to a party that refuses to admit facts in a Notice to Admit Facts which are later proved in court?
Court may order party who refused to admit facts pay costs associated with proving facts at trial, regardless of the case outcome
175
What can a party serve if they believe a document produced by the opponent is not authentic?
Notice to Admit or Produce Documents (Notice to Prove)
176
When must a Notice to Prove be served?
By the last day available for witness statement exchange or within 7 days of disclosure of the document (whichever is later)
177
What happens if a party files a Notice to Prove and document authenticity is proved?
Court may make a costs order against the party who served the notice
178
What standard of proof is required of the claimant in a civil dispute claim?
On the balance of probabilities (more likely than not)
179
What document must meet the following conditions?
- Be independent and uninfluenced
- Provide an objective, unbiased opinion
- State the facts on which the opinion is based
- Make clear when an issue falls outside the author's field of experience or when there is insufficient evidence
Expert's report
180
When must a party submit questions to an expert by and who must the question be served on?
- Within 28 days of the expert sending the report
- Copy of the question must be sent to the other party
181
Two parts of a Tomlin order
- The order - confirming settlement agreed and case stayed pending settlement terms
- Schedule confirming amount to be paid, by whom and by when
182
When should pre-trial checklists be filed with court?
No later than 8 weeks before trial date
183
What type of case management conference is being described?
- Usually held 4 weeks before trial window starts
- Checking compliance with previous court orders
- Approving trial timetable
- Setting case management directions
- Preparation of trial bundles
- Fixing time and date of trial
Pre-Trial Review
184
What are procedural requirements of a party applying for a witness summons?
- Send two copies of summons per witness to court (one for service, one for court file)
- Court fee
- Conduct money
185
When must a witness summons be served on a witness?
At least 7 days before trial
186
What happens if a witness receives Summons but fails to attend trial?
Held in contempt of court.
In County Court will likely be fined
187
How is a Circuit Judge addressed in court, in correspondence, and abbeviated written title?
- Your Honour
- Judge
- [Surname] HHJ (His Honour Judge)
188
How are judges of the High Court and Court of Appeal addressed in court?
My Lord/Lady
189
How are judges of the High Court addressed in correspondence?
Judge
190
How are judges of the Court of Appeal addressed in correspondence?
Lord/Lady Justice
191
When should a trial bundle be filed and how many?
3-7 days before trial
One for each party
192
Who opens and who closes in the usual trial format?
- Claimant opens
- Defendant closes
193
What is the usual order of claimant and defendant's witnesses and experts giving evidence in the usual trial format?
- Claimant's witnesses
- Claimant's experts
- Defendant's witnesses
- Defendant's experts
194
When are leading and non-leading questions permitted?
Leading and non-leading questions are permitted during cross-examination.
Only non-leading questions are permitted during re-examination
195
What might the judge do if they cannot hand down judgment immediately or after a brief retirement?
Reserve judgment and list matter for a further hearing to hand down judgment
196
What ancillary matters can be addressed following judgment?
## Footnote
v
- Interest
- Costs
- Time to pay
- Stay of execution
- Permission to appeal
197
Where is the appeal destination of a High Court judgment by a Master?
High Court Judge
198
Where is the appeal destination of a High Court judgment by a High Court Judge?
Court of Appeal
199
There is no automatic right to appeal in civil cases. Where must a party make an application for permission to appeal a decision?
- To the lower court where the decision was made
- To the appeal court in the notice
200
What are the two grounds for appealing a decision of a lower court?
- The decision is wrong in fact or law
- The decision is unjust because of serious procedural or other irregularity in proceedings
201
What are the two ways a party can obtain permission to appeal a High Court or County Court decision?
- Oral permission immediately after judgment
- Formal application for leave to appeal
202
What is the time limit for applying for permission to appeal?
Within 21 days of the judgment or order they are seeking to appeal
203
What can the appellant do if court refuses permission to appeal?
Request an oral hearing within 7 days of refusal to make representation as to why court should grant permission
204
To which court can an appellant apply retrospectively if appropriate?
What is the application considered as?
Court of Appeal
Application for relief of sanctions
205
What is a 'rolled-up' hearing?
Determining the application for permission to appeal and considering the appeal in the same hearing
206
What are the two bases of costs assessment?
Explain
- Standard basis - court allows only proportionate costs and exercises any doubt in favour of the paying party
- Indemnity basis - when court has doubts in the receiving party's favour. Proportionality not considered. (Court sanctions)
207
When must parties file and exchange costs budgets?
With DQ if case worth less than £50,000, or 21 days before first CMC if £50,000 or more
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At which events do courts deal with
- budgets
- costs
Budgets: CMC
Costs: CCMC
209
What must a party do if they exceed their CMO beyond 20%?
Apply to the court for a new order
210
What does inter-partes costs mean?
Party is awarded costs against another party
211
When must a statement of costs be filed in lower value cases?
24 hours before a hearing or 2 days before trial.
Judge will make summary assessment of costs payable at conclusion of hearing
212
In which cases will the court generally make no order for payment of legal costs?
Small claims track
213
What is the timeline for serving and disputing a bill of costs?
Receiving party serves bill of costs on opponent within 3 months of judgment.
Paying party may file 'points of dispute' within 21 days thereafter. If not, receiving party can apply for default costs certificate.
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What is a provisional assessment and when is it not applied?
District Judge considers reasonableness of bill of costs and decides how much can be sanctioned.
No provisional assessment where costs claimed exceed £75,000
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What can a party do if they are not happy with the provisional assessment?
Challenge it within 21 days and request detailed assessment hearing
216
What is issued once parties agree on costs or following assessment?
Final costs certificate
217
When should costs be paid from issuing of final costs certificate?
14 days
218
What interim application can a defendant apply for if they are concerned the claimant will not be able to pay defendant's costs if defendant wins?
Security for costs order
219
Which party can make an application for security for costs?
Defendant
220
What costs order is made by the court if it is satisfied that:
- The legal representative acted improperly, unreasonably, or negligently
- The conduct caused unnecessary cost; and
- It is 'just' to make the order
Wasted costs order
221
What privilege automatically applies to a Part 36 offer?
Without prejudice
222
What are the five characteristics of a Part 36 offer?
- In writing
- Stated clearly it is made pursuant to CPR Part 36
- Specify a relevant period of at least 21 days for acceptance (cannot withdraw during this time without court permission)
- State whether offer relates to whole or part of claim
- State whether offer takes into account any counterclaim
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In which type of claim can a Part 36 offer not be made?
Small claims
224
When can a Part 36 claim be made?
## Footnote
In relation to proceedings
Any time during or before proceedings or trial
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How can a Part 36 offeror withdraw/amend their offer after the offeree serves a Notice of Acceptance?
Offeror may apply to court for permission to withdraw/amend offer within 7 days of acceptance.
Court will give permission if it is satisfied there has been a change of circumstances and it is in the interest of justice
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How are costs of a party who accepts a Part 36 offer after the relevant period determined if parties cannot agree?
Court decides liability for costs
227
Post-judgment cost consequences of claimant rejecting defendant's Part 36 offer and beating it at trial
Defendant ordered to pay claimant's costs of entire proceedings. Part 36 offer has no effect
228
Post-judgment cost consequences of a successful claimant who rejected defendant's Part 36 offer and failed to beat it at trial
Defendant awarded costs on standard basis from expiry of relevant period. May also be awarded interest
229
Post-judgment cost consequences of defendant rejecting claimant's Part 36 offer and beating it at trial (claimant fails to beat its own offer)
Part 36 offer has no effect
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Post-judgment cost consequences of defendant rejecting claimant's Part 36 offer and claimant beats the offer at trial
Claimant entitled to interest on entirety of claim at enhanced rate of up to 10% above base rate for the period after the time for acceptance expired. Assessed on an indemnity basis
231
What interest percentage must be paid by the defendant if rejected claimant's Part 36 claim and claimant beats or equals it, where damages awarded are up to and above £500,000
Up to £500,000: 10% of amount awarded
Above £500,000: 10% of first £500,000 and 5% of amount awarded above the figure
232
What interest is applicable in County Court judgments:
- under £5,000
- £5,000 and over
- Interest not payable unless judgment regarding contractual obligation and contract provides for interest
- 8% per annum
233
What is the interest rate on High Court judgments?
8% per annum
234
When can County Court money judgments be transferred to High Court for enforcement?
If judgment over £600
235
What can the judgment creditor (winner) do to determine best way to enforce costs on judgment debtor (loser)?
Apply for order requiring judgment debtor to attend hearing to provide information about means and assets
236
What is the judgment creditor procedure prior to oral examination hearing?
Notice must be served directly on loser at least 14 days before oral examination hearing. Must also file affidavit providing details of service and amount unpaid
237
What is issued by the High Court before a case is forwarded to HC Enforcement Officer?
Writ of Control
238
What is issued by the County Court before a case is forwarded to a certified enforcement agent?
Warrant of Control
239
What is the procedure for taking control in enforcement of money judgment?
4 steps
- Creditor gives debtor at least 7 days notice of intention to take control of goods
- Enforcement must take place within 12 months of notice
- Creditor's agent can enter only stated address and provide inventory of seized goods
- Agent sells goods within 7 days (proceeds go to discharging debt and enforcement costs)
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What can creditor not seize in enforcement of money judgment?
- Equipment for use in debtor's trade
- Household items necessary for basic domestic needs
241
Type of order granted to allow creditor to be paid directly by debtor's bank
Third-party debt order
242
What is a charge order on land?
Creditor obtains equitable mortgage allowing right to apply for an order for sale despite joint ownership
243
When is attachment of earnings an enforcement option?
Only in County Court and only against individuals
244
Parties must simultaneously file their budgets 21 days before the first case management conference if the case value is at least
£50,000
245
If a Personal Injury claim value is less than £50,000, what must both parties file their cost budget with?
Directions Questionnaire
246
Minimum County Court judgment amount for interest to be payable?
(Unless contract states otherwise)
£5,000
247
What are the 6 main statements of case?
- Claim Form
- Particulars of Claim
- Defence
- Reply to the Defence
- Request for Information
- Counterclaim
248
What must be filed by the defendant within 14 days of the deemed date of service of the Particulars of Claim?
Acknowledgment of Service
249
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, how long must the claimant give the defendant to investigate the claim?
3 months
250
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 does not respond to the letter within 21 days, what is the next step for the claimant?
Start proceedings
251
In a Road Traffic Accident claim, where would the claimant include details of a relevant defendant conviction?
Particulars of Claim
252
What are the three cases where a court will find adding or substituting a party necessary?
- Substitution due to mistake
- Claim cannot properly be carried out unless new party is added or substituted
- The original party has died or had a bankruptcy order made against them (liability passed to new party)
253
What will the court be determining when it considers these points:
- Whether it would have been reasonable or practicable to force the witness to attend
- Whether the witness made the statement contemporaneously
- Whether there was any motive to misrepresent or conceal facts
- Whether the case involves 'multiple hearsay'
- Whether the original statement was edited
- Whether there can be any suggestion that the events leading to the evidence being presented as hearsay evidence constitute an attempt to prevent proper evaluation as to its weight.
The weight to apply to hearsay evidence
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When assessing costs on the indemnity basis, doubts are resolved in favour of which party?
The party receiving the costs
