Dispute Resolution Flashcards
When does the limitation period run from and to?
Runs day after cause of action ends to the date
What is the effect of a limitation period?
Technical defence - can still bring claim
When does limitation run from for Tort / contract?
Contract - breach. Tort - when tort committed, for neggy will be when damage occurs. 6 years for both but 3 years for PI (from CoA or date of knowledge). If u18, runs from 18 bday
Negligent - damage hidden? 6 years from CoA, or 3 years knowledge of damage, but long stop date of 15 years from date of negligent act or omission
Can the limitation period be changed?
Can be shortened in contract. Extended in very rare cases - think of the sexual assault offender who won £7mil, court extended lim period
What is a protected party?
Can’t manage own affairs due to mental disorder - mental capacity act 05
What are the safeguards for children and protected parties ?
Settlement has to be approved by the court
If q claim is specified and unspecified sums, what will it be overall?
Unspec
Legal definition of a misrepresentation, and the purpose of damages?
Misleading statement of fact that induces someone to enter contract. Puts claimant back in position it would have been in prior to entering contract.
What pre-action protocol is used of mine exists ?
Practice Direction on Pre-Action Conduct and Protocols
Purpose of PAP
Initiate and increase pre action contract, encourage better and earlier exchange of info between the parties, more likely to settle case fairly and early without litigation
Principles all PAPs have in common?
Narrow issues; exchange sufficient info to allow each side to understand case, settle without proceedings, consider ADR, reduce costs; reasonable and proportionate steps only
PDPAC steps
- c write letter with concise details of claim
- Simple claim? Response in 14 days. Complex? 3 months. Inc details of counterclaim. Key docs should be disclosed
Consequences of not complying with PDPAC or any PAP?
- Penalised on costs - maybe indemnity?
- Depriving C of interests (some or all) on damages;
- D to pay Interest on damages, up to 10% per annum above base rate.
Who does PAP Debr Claims apply to
Business / sole trader to individual. Not B2B
Whose countries jurisdiction applies?
First, look at contract.
Hague convention (EU states are members - UK is too). Exclusive jurisdiction clause? Then clause limits dispute to the courts of one jurisdiction. Need the clause.
No HC? Common law rules - serve D in the jurisdiction I.e enabland and wales . If they are outside jurisdiction then need court permission. Service of court papers themselves establishes the court’s jurisdiction.
D could object in grounds English courts not most appropriate
When will court give permission to serve outside jurisdiction?
- Contract made or breached in England or wales, is governed by English law or contains English jurisdiction clause; or
- Tort - act causing damage done in England or wales, or loss sustained here.
If a claim sum is over £100k where can it be issued?
County court or high court - think complexity and public importance
What have the county court money claims centre and county court business centre been replace with?
Civil National Business Centre (at Northampton) pursuant to Civil Procedure (Amendment No.3) Rules 2023.
What sort of claims does the Civil National Business Centre hear? Where do the other types go?
All money claims. The other CC claims will just go to whatever CC the claimant wants, usually the closest
Wat are the 3 divisions of the high court? Where is the main office?
- Kings bench(contract & tort)
- Chancery (Company, partnership, land, trust, contentious probate, patents)
- Family
Royal Courts of Justice
Can you claim in high court that isn’t in London?
Yes there are local district registries e.g in Birmingham. Example, have TCC district registry in liverpool
When are proceedings started? When is claim brought for limitation purposes?
When CF received by Court, but for limitation purposes when received by Court office
Who to issue claim against if D dead?
Executors/personal reps
What value if spec claim? What value if unspec?
Spec: Exact amount & work out interest.
Unspec: Banding i.e anticipate over £100k. Disregard interest & costs; contributory negligence & counter-claims. What if PI? Over £50k is high court, must state if damages for pain & suffering is over £1.5k.
If fixed costs then include, if not put “to be assessed”
Statement of truth for which docs (for issuing claim)
CF, POC (any statement of case really). Either Claimant or legal rep can sign these - CPR Part 22.
What must you warn claimant if legal rep signs?
- Taken as confirmation client authorised
- Warn about contempt of court if lying
- Explain by signing it is taken that client believes facts are true
Legal rep signs in own name with firm nxt to it
What happens if a statement of case is not signed with a statement of truth?
May be struck out
Can you add someone as a new claimant after issue?
Yes but new claimants permission must be in writing and filed at the Court.
Is permission needed to add party to claim?
Yes from court unless CF has NOT BEEN SERVED
What are the grounds to rely on for adding new party before and after lim period?
Before limitation period expires:
- Add new party to resolve matters in dispute;
- Remove a party; or
- Substituted a part if their interest / liability has been passed over to another.
After:
Limitation period must have been current when proceedings started, AND:
1. OG party was mistake; or
2. OG party died/bankruptcy & interest/liability passed over to another; or
3. Claim can’t be carried on without new party.
When must a claim be served on the otherside?
In 4 months.
Can be served on solicitor if nominated in writing.
If injunction, serve personally.
What is personal service?
Depends on type of D.
- Individual: hand to them, leave near them
- Partnerships: leave with partner or person in control/management of business at business address
- Company: leave with treasury, director, secretary, CEO etc
What are the 3 methods of service?
- Personal service
- First class post/DX
- Leave at specified place
- Fax/electronic means (fax number on head paper satisfies, email address need confirmation)
- Alternative method (court must approve)
Where to serve for different types of defendant?
- Individual: usual or last known residence
- Sole trader: as above; or principal/last known POB
- Individual sue in name of partnership: as above; or principal/last known POB4.
- LLP: Principal POB, any POB in jurisdiction that has a REAL CONNECTION with claim
- Company reg england/wales: Principal POB, any POB in jurisdiction that has a REAL CONNECTION with claim
For service of claim form time limit, when is this “step required” met? Is it when carried out or deemed service?
Step required met:
- Personal service: when effected or delivery made
- Letter/DX: when posted or left with DV provider
- When fax transmitted or emai sent.
When is service deemed?
Claim form:
- Second business day after “step required” (inc personal service)
Any other doc (if PoC not sent with CF then it is under this cat):
- Personal service/Delivery to permitted address/ email /fax: if sent before 4:30pm on business day then that day. If after 4:30 then next day.
- First class post/DX: SECOND DAY after posted if that day is a business day. If not business day, then next business day.
When must PoC be served?
Within 14 days of service of CF but no later than 4 months after ISSUE of CF (long stop date).
If not served in 4months then struck out maybe.
Do you need permission from Court to serve out of jurisdiction? How long to serve?
- 6 months instead of 4
- No need for permission in Scotland or NI but specified methods of service in CPR Part 6
- Need permission, even in member states of EU (unless ENGLISH JURISDICTION CLAUSE!)
- CF must have notice setting out why England is correction (i.e breach/damage happened here OR excessive cost or delay if foreign court). Need evidence but can be sent WITHOUT NOTICE
How long to file AoS or Defence (if not AoS served) or admit?
14 days
Why admit part of claim and how?
On response, limit liability for costs
Test for not using ADR and what you need to do?
- Not using ADR? Witness statement in 21 days of proposal
- TEST: Halsey v Milton, Court MAY give costs sanction. Factors:
o Nature of dispute;
o Merits of case;
o How much has other methods of settlement been tried out?
o Are costs of ADR disproportionate?
o Delay in ADR prejudicial (e.g urgent injunction)
o ADR have reasonable prospects of success? - Burden on other party to show mediation refusal s unnecessary NO PRESUMPTION IN FAVOUR OF MEDIATION
Steps for PD on Pre-Action Conduct?
- LoC
- LoR (14 days or 3 months depending on complexity)
PAP on professional negligence steps?
Claimant against against professional for negligence.
- Notify in writing of potential claim (Preliminary Notice) - tell them to inform insurers
- Acknowledge notice in writing in 21 days
- Next, LoC
- Acknowledge in 21 days.
- 3 months for D to investigate and issue LoR or letter of settlement
- If deny all liability, start proceedings
- All other situations negotiate and resolve in 6 months from acknowledgment or at least narrow issues before proceedings.
Consider ADR.
PAP on debt claims steps?
Business to consumer NOT B2B.
- Give full info on debt and up to date statement of account (interest inc) and how debt can be paid). Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol should also be included.
- 30 days to respond. Can’t issue proceedings before this.
Specified claim - process for admitting the claim or part of the claim?
- Admitting whole specified claim? D to provide expenditure and income, make offer of payment.
- Claimant receives offer, if accepts file request for Judgment. If not, judge decides usually in absence of hearing.
- Admit part of claim? C has 14 days to decide on offers. 3 options:
o Accept offer & part admission in satisfaction of whole claim;
o Accept part admission & reject offer and get judge to decide;
o Reject whole part admission and carry on with claim.
Unspec claim - process for admitting?
- D admits liability and offers amount, Court send notice to C asking if want to accept
- If do, enter judgment
- If reject (or no offer given) judge decides at DISPOSAL HEARING
Can you extend the time for serving the defence?
- Serve on all parties – up to Court unless D’s lawyer says otherwise
- Can extend for further 28 days if C agrees (56 days total). Need Court’s permission for further
Test for if you can apply for default judgement
- CPR Part 12 application
- TEST: for default judgment:
o (1) PoC served on D;
o D did not file AoS or Defence in time. - May be rejected if pending strike out or summary judgment application from D
- Spec claim: state sum due and interest, payment usually in 14 days
- Unspec: DJ awarded but will need DISPOSAL HEARING
- If unspec and spec then unspec
- Loss of profit = unspec
Grounds for setting aside default judgment?
- MANDATORY GROUNDS (think – wrongly entered):
a. Entered DJ too early and D has more time;
b. Claim already paid in full. - DISCRETIONARY GROUNDS:
a. Real prospects of successfully defending claim; or
b. Some other good reason why D should be allowed to defend claim (take into account promptness of application)
- Write to C first before applying
- Mandatory ground C pays
- Discret (a) D pays
- Discret (b) in case
Can you discontinue the claim once its been started?
- Multiple parties? Need consent from all or consent from Court
- Serve notice of discontinuance on all parties. If consent needed then attach.
Can litigants in person file consent orders?
Need to be approved by Court
What does liberty to apply mean in a consent order?
Parties can apply to Court to lift stay and enforce settlement if not complied with (No new proceedings)
How to dispute jurisdiction?
- Do it in AoS, therefore, 14 days
- Lose right if do not
- If refused, have 14 days to file a further AoS and then proceedings continue
Ethical considerations in SoC?
- Do not mislead Court, if client wants you to the try convince them no. If can’t, stop acting
- Client filed SoC, tells lawyer prior to end of litigation that it contains material error which leads court, convince client to amend SoC or stop acting
What interest can be applied for in civil cases and under what authorities
- Interest rate in contract? Use that
- None? Late Payment of Commercial Debts Act 1998 IF COMMERCIAL NOT IF OWED BY A CONSUMER (only debts not damages)
- Any other case:
o S35A Senior Courts Act 1981
o S69 County Courts Act 1984 - Gives Court discretion to award interest
- Interest usually awarded from WHEN LOSS SUSTAINED
What happens if you forget to admit an allegation in the Defence?
- Do not miss a “denied”, if you do not response to allegation it is taken as admitted
- Either admitted, denied or non-admission (i.e not enough info to say)
- If alleging limitation issue, state in defence and give details. Then proof is passed to C to show claim is not time barred
- Burden of proof sometimes falls on D:
o Contributory negligence
o Failure by C to mitigate its losses
When does the burden of proof fall to D?
- Burden of proof sometimes falls on D:
o Contributory negligence
o Failure by C to mitigate its losses
What is a Part 20 claim and do you need the Court’s permission? Do you need Court’s permission for counterclaim?
- Counterclaim will be one doc with Defence – permission from Court not required unless defence has ALREADY BEEN SERVED
- Additional claim – made by D for contribution or indemnity or some other remedy against person whether or not they are a party – usually passing the blame to third party. No need for Court’s permission as long as done before or at time they file defence
What can amendments be made to statements of case within the limitation period?
- After filing before service:
o Amendments can be made any time - After service and filing
o Need written consent of all parties; or
o Consent of court (issue application, and SoC with proposed amendments) - Court will consider overriding objective, cases dealt with justly and at a proportionate cost. This will be balanced against the injustice to application if refused and injustice to opposing party.
What can amendments be made to statements of case after lim period expired
Only 3 instances this is allowed:
- Add or substitute a new claim, if arises out of same or substantially the same circumstances;
- Correct a GENUINE mistake as to the party’s name; or
- To alter the capacity in which a party claims.
What is an RFI ?
- Court or party may do so
- If successful the other side will need to:
o Clarify a matter in dispute; or
o Provide additional info.
RFI procedure
- Serve written request on other party REASONABLE TIME FOR RESPONSE MUST BE ALLOWED (no need for court’s permission)
- Request: concise and strictly confined to matters reasonably necessary and proportionate in order to prepare on case or understand otherside’s case
- Not piecemeally
- Response in writing
What happens if otherside do not respond to RFI?
No response or can’t comply with RFI?:
1. Apply to Court under Part 18;
2. Court will grant order if REQUEST CONFINED TO MATTERS REASONABLY NECESSARY AND PROPORTIONATE IN ORDER TO MAKE YOUR CASE OR UNDERSTAND CASE AGAINST YOU
Procedure for applying for an interim application?
- parties should seek to agree matters themselves (overriding objective)
- Must serve application on other side in 3 CLEAR DAYS BEFORE ANY HEARING. Clear days mean the date of service, the date of hearing, bank holidays and weekends are all excluded. Bear in mind DEEMED SERVICE, i.e, if not claim form it is second day after being posted but only if is a business day (if not then next business day).
- If reached agreement with otherside on order parties want just file a consent order. Court needs enough material so Court is satisfied it is appropriate to make the order. Usually, file with letter.
Test for when applications can be sent off notice?
- Exceptional urgency (think urgent injunction); or
- Can better comply with the overriding objective if without notice.
Examples: freezing order, order to search premises. On notice would give otherside a chance to dissipate assets or hide items.
Procedure and duties with off notice application?
Without notice:
1. Must explain in application why without notice;
2. Duty of FULL AND FRANK DISCLOSURE, this means:
a. Cannot take advantage of Respondent not knowing about the application; and
b. Must point Court to all evidence and arguments REASONABLY ANTICIPATE THE RESPONDENT WILL MAKE.
3. Must AS SOON AS REASONABLY PRACTICEABLE AFTER ORDER IS MADE must serve on Respondent:
a. Order;
b. Application notice; and
c. Supporting evidence.
- Respondent, when in receipt of the above, will have 7 DAYS from date of service of Order to apply to (1) vary; or (2) set aside the order.
When will hearings be by video call or telephone
- PD 23A – general rule that hearings under 1 hour will be by video or telephone
- Exception if for example hearing is without notice
Types of costs orders for interim applications?
- Claimant’s/Defendant’s costs: summarily (instantly) assessed costs, payable in 14 DAYS, example if C’s costs then D pays C’s costs – used if clear winner of app e.g win a summary judgment;
- Costs in the case: winner or loser of claim pays at conclusion of proceedings – may be case if there is a conditional order etc D may continue to defend claim if issue defence in 14 days. If don’t claimant will get their costs at this point;
- No order as to costs: each party bears their own cost. Often if a draw. E.g additional evidence comes to light needing further witness statements.
Test for when Court can grant summary judgment?
- Court considers that:
a. Claimant has no real prospect of succeeding on the claim; or
b. Defendant has no real prospect of defending the claim.; and - There is no other compelling reason why claim should go to trial.
- 2 part test, need no real prospects AND no compelling reasons
- Either party can apply for summary judgment
- If there are complex issues that need proper investigation at trial or difficult question of law then will not be suitable for summary judgment
Examples for compelling reasons for summary judgment?
o Need more time to investigate e.g difficulties contacting key witnesses;
o Claim/defence highly complicated and technical; or
o Need to hear from witness e.g contract is oral.
- At the summary judgment hearing is not a trial. Focus on establishing a compelling reasons to allow proceedings to continue and do not attempt to argue case in its entirety.
Do you need permission to apply for summary judgment?
- NO NEED FOR PERMISSION TO APPLY for summary J unless the Defendant has not yet issued a defence or acknowledgement of service.
Procedure for summary judgment application?
- Issue an application and witness statement;
- The Respondent must:
a. Be given 14 DAYS NOTICE OF HEARING
b. File and serve any written evidence at least 7 DAYS BEFORE THE HEARING - If the applicant wishes to rely on further evidence it must FILE AND SERVE such evidence within 3 DAYS BEFORE THE HEARING.
What is a conditional order?
- Conditional order made when Court thinks its possible, but not probable claim or defence may succeed. Will be allowed to continue if they pay a sum of money into the Court, or take a specified step in relation to claim. Makes sure party is genuine in their despite and not a delaying tactic.
- If dismiss app or makes a conditional order will usually also give case management directions
Interim injunctions - who can apply, do you need permission, how long do they remain in force?
- Either party can apply
- Can apply after proceedings issued or before if urgent.
To apply before court must be satisfied the matter is:
o Urgent; or
o Desirable in the interests of justice.
(Think stopping winder)
- Called interim if applied for pre-trial, remain in force until matter comes to trial and then a final injunction may or may not be ordered
What is an injunction?
- Discretionary remedy, damages not adequate remedy
- Breach is punishable with CONTEMPT OF COURT
- Usually keep status quo, i.e stop a D doing something. Although can make D take positive steps i.e stop a nuisance
What are the test guidlines for interim injunctions? Rely on these because Court will not know all the facts at the hearing.
Set out in American Cyanamid v Ethicon 1975. When deciding if it should grant an interim Inj. The Court will determine whether:
1. There is a serious question to be tried;
2. Damages are an adequate remedy for either side;
3. Balance of convenience lies in favour of granting or refusing injunction;
4. Whether there are any special factors.
If an interim injunction granted, what happens?
- If granted interim injunction Applicat must give a CROSS UNDERTAKING: Application must undertake to Court to pay any damages that the respondent (or any other party effected) has incurred if it is found the injunction should not have been granted.
- Usually made on notice but can be made without notice pursuant to CPR Part 25. In such circumstances one of two things will happen if the interim injunction is granted:
o Court may grant II and set a date for further hearing, if D successfully argues injunction shouldn’t be granted it will be set aside.; or
o Or, rather than fixing a hearing court may just tell the defendant if they want to apply for it to be varied or set aside. Will be in place until trial or further order.
What is an interim payment?
- App made by Claimant
- Advance of any damages, debt etc BUT NOT COSTS!!!!
- Claimant needs a strong case on liability
- Must first try negotiate payment with other side or its insurers. If not forthcoming then make an application
- Must wait until after AoS SERVED
- Can make more than 1 app during proceedings
Procedure for applying for interim payment?
- Application for interim payment must be made 14 DAYS before hearing date;
- Evidence must be provided and set out:
a. Amount requested and what it will be used for;
b. Amount of money likely to be awarded at judgment; and
c. Reasons for believing grounds in CPR are satisfied. - Respondent to rely on evidence to counter app? Serve SEVEN DAYS BEFORE HEARING; and
- A to rely on addition evidence serve THREE DAYS BEFORE HEARING.
(same time frames as summary judgment)
Grounds (test) for interim payment?
(a) D has admitted liability; or
(b) Claimant has obtained judgment against D for damages to be assessed or for a sum of money; or
(c) Court is satisfied if case went to trial Claimant would obtain judgment for a substantial amount of money (OTHER THAN COSTS).
Usually only granted if there is going to be a delay in assessment of damages.
Ground C – high burden of claimant. Prove on balance of probs WILL SUCEED. Not enough Court thinks it is likely. Common sense approach.
Does the Court have a discretion to award an interim payment?
Court has discretion if a interim payment should be made (i.e if complicated or difficult Qs of law arise Court may decide not to), or if yes it should then what amount? Court cannot order more than REASONABLE PROPORTION OF LIKELY AMOUNT OF FINAL JUDGMENT TAKE INTO ACCOUNT CONTRIBUTORY NEGGY AND COUNTERCLAIM. Court will try work out what is indisputably owed to C.
What is the overriding objective and what does this include?
The objective is that CASES ARE DEALT WITH JUSTLY AND AT A PROPORTIONATE COST.
There are 6 factors:
1. Parties on equal footing
2. Saving expense
3. Dealing with cases proportionately to:
a. Claim sum
b. Importance of case
c. Complexity of issues
d. Financial position of parties
4. Cases dealt with expeditiously and fairly
5. Allotting case appropriate share of court’s resources
6. Enforcing compliance with rules, PDs and order
- Court consider overriding objective when making procedural decisions
- Parties have positive duty to help Court achieve OO
What is allocation procedure?
Court provisionally allocates to a track and then sends directions questionnaire to parties.
In claims provisionally allocated to multi-track, what other docs will need to be prepared other than DQ?
o Claims summary (updated case analysis – brief chronology, factual issues agreed and not agreed, evidence needed to decide them. Claimant drafts but agree with other side if can)
o Draft Order for directions
o Disclosure report
o Costs budget (Prec H) and budget discussion report (Pre R)
What happens if the DQ isn’t served?
- Don’t serve? If money claim in CC, Court will service notice requiring compliance in 7 days or STRUCK OUT AUTOMATICALLY. Other cases, Court MAKES ORDER AS IT CONSIDERS APPROPRIATE
Directions on the different tracks
- Small claims – no disclosure and evidence/expert CPR provs, no cost recovery, no oral evidence
- Fast track – 1 day trial only suitable, standard directions, parties can approve different directions but court must approve, can vary timetable in writing but NOT trial or date for returning PRE TRIAL CHECKLISTS, single joint expert (rely on written report),
- Intermediate – 4 different bands depending on complexity
- Multi track:
a. Simple cases – standard directions and set timetable
b. Complex cases – flexible approach, CMC to ensure appropriate directions.
What happens at a CMC?
Court will:
1. Review steps parties have taken to prepare for case
2. Check compliance with directions Court have made
3. Given further directions, PTR before trial
- If inadequacy of person attending CMC leads to adjournment of hearing Court may make wasted costs order against solicitor firm or solicitor attending CMC personally
- Purpose to identify live issues between parties
- Takes place after allocation
- Must send someone who is familiar with case and has authority to make decisions
Multi-track, what directions are used and can they be varied by the parties? When are the agreed directions file?
- Menu of directions on ministry of justice website (model directions)
- Parties can agree in writing to vary timetable, need application to Court to change the following:
o CMC
o PTR
o Exchanging pre trial checklists
o Changing trial period or trial - CMC usually costs in the case
- Agreed directions to be file 7 DAYS BEFORE CMC
What happens if a party does not comply with the directions?
- If don’t meet every deadline on directions timetable generally okay if key ones are kept e.g CMC, PTR, trial & parties cooperate
- Other party may apply for order enforcing compliance or sanctions order (would need to apply for relief from sanctions)
- Court will not allow failure to comply with directions that leads to adjournment of trial except for exceptional circumstances
How big does your claim need to be to have no costs management?
£10 mil
When is the Precedent H costs budget filed?
- Filed with DQ if claim under £50k (is this affected by intermediate track?)
- Filed 21 days before first CMC for anything over
Wen is the precedent R (budget discussion report) due?
7 Days before CMC (same as agreed directions). Parties then seek to agree costs. If can’t, Court reviews costs
How to amend Precedent H?
file Precedent T (budget variation summary sheet). Mistakes won’t be amended on costs budget accept with othersides agreement or developments significant and agreed by Court
What happens if don’t file Prec H on time?
- Don’t file one? Treated as only filing budget for Court fees unless relief given (Andrew Mitchell MP v News Group Newspapers [2013] – must apply for relief from sanctions
What is a costs management order and when is it used?
- Not needed if judge thinks litigation can be conducted JUSTLY AND AT A PROPORTIONATE COSTS
- If CMO less flexibility with costs, unlikely to depart from last approved or agreed budget if on standard basis. If no CMO and costs are less than 20% more than budget can provide statement of reasons for difference. Court then decides
- In order the court will:
o Record extent costs are agreed
o For not agreed costs, Court will record approval after making revisions - Costs awarded on indemnity basis assessed in usual way
When can relief from sanctions application not be used and what will the Court consider when looking at one?
- If the sanction is payment of costs, then the party will need to appeal the order rather than apply for relief from sanctions. In any other case but this CPR 3.9(1) applies
- CPR 3.9(1) says Court will consider when looking at an app for RfS:
o Need for litigation to be conducted efficiently and at proportionate cost; and
o Need to enforce compliance with rules, PDs and orders - Apply promptly and support with evidence!!!
What is the test for the structured approach the Court should take upon receipt of relief from sanctions?
o Identify seriousness or significance of relevant failure. If breach not serious relief usually granted;
o Consider why failure occurred (any good excuses?);
o Evaluate all circumstances e.g can trial still be met, effect of failure to comply and granting relief has on each party
- Parties can be penalised if seek to unreasonably take advantage of a mistake by opponent e.g minor or technical breach that had no effect on litigation
Which claims involve disclosure?
Governed by CPR Part 35 – for all claims but small claims
How to disclose a document?
- Disclose document by stating that it exists or once existed
- Documents that can be capable of disclosure are “information that is recorded” including databases
(i.e not actually handing over the document it is stating it exists)
Disclosure for each track?
- Small claims – 14 days before trial each party files and serves on every other party copies of all documents which they intend to rely on at trial (inc expert reports)
- Fast track – standard disclosure
- Multi track – May b standard disclosure or may be more tailored. Involves:
a. Disclosure report (14 days before CMC)
b. Parties seek to agree disclosure 7 days before CMC (file at Court)
c. Court makes order for standard disclosure or any other order it considers appropriate (e.g dispensing with disclosure, specific disclosure, issue by issue)
- Menu of options for multi track (a bit like with directions – found on Ministry of Justice website) e.g keys to warehouse approach or keywords etc
Multi track - what needs to be filed and served before CMC
21 days before - Prec H
14 days before - Disclosure report
7 days before - Agreed directions, agreed disclosure & Prec R (budget discussion)
Test for standard disclosure?
TEST:
- Disclosure documents that the parties rely on; and
- Disclose documents that:
a. Adversely affect the party’s own case;
b. Adversely affect other party’s case
c. Support the other party’s case.
Documents that fall into the above are called RULE 31.6 DOCUMENTS. Basically disclosing docs that help or hinder each party. No need to disclose docs that record info relating to agreed matters, only those in dispute.
Test for only disclosing documents in parties’ control?
TEST:
Only need to disclose documents in parties control (CPR 31.8). I.e documents that:
- Either are or were in parties’ physical possession;
- They have the right to POSSESS; or
- They have a right to INSPECT.
Consider: physical possession (either before or now), right to possession (e.g docs held by solicitor) or right to inspect (e.g medical records).
What is the duty to search?
- Subject to duty to make a REASONABLE AND PROPORTIONATE SEARCH for rule 31.6 documents
Electronic documents for disclosure?
Electronic documents
- CPR requires parties to manage electronic docs to minimise costs
- Use technology (think of Quantuma)
- Try agree categories of electronic docs e.g keywords
- Must be done BEFORE directions for case are given. Perhaps using an electronic disclosure questionnaire
What does the disclosure statement say? Who can sign it?
- Party sign disclosure statement confirming (a) it understands its disclosure duty and (b) to best of knowledge duty has been carried out (solicitor cannot sign)
- If a party does not permit inspection of category or class of document note on list and give reasons i.e not proportionate to issues in dispute due to expense and marginal relevance
- Contempt of court can be brought against someone who makes false statement without belief in its truth
Ongoing duty of disclosure, what happens if enw docs come to light?
- Ongoing duty of disclosure – if become aware of additional doc must produce supplemental list of docs. If party wishes to rely on ‘new docs’ at trial, if not got permission of otherside will need Court’s permission
What are the 3 parts to the disclosure list?
o Part 1 – documents in the party’s control that they do not object to being disclosed
o Part 2 – documents in control but object to inspection (e.g litigation priv)
o Part 3 – documents that were in he party’s control but not anymore (state what happened e.g destroyed in fire, was posted on XX)
Part 2 - are these documents disclosed?
- Usually legal professional priv – two types:
o Advice privilege; and
o Litigation privilege. - Will still be disclosed but:
o Will not be inspected (remember – disclosing is just stating existence in list); and
o Described generically rather than with date and description etc
What is legal advice privilege?
- Legal advice given by solicitor, barrister, licensed conveyancers, legal executives, in-house lawyers
- NOT non-lawyers like an accountant
- SOLE or DOMINANT reason for the COMMUNICATION is “TO SEEK OR TO GIVE LEGAL ADVICE”. If there is a dual purpose the dominant one must be established and if the dominant one is not to seek or to give legal advice then it must be disclosed (for example – if sought commercial advice).
- Document is disclosable but cannot be referred to at trial. It will also be disclosable if adversely affects, or benefits, either parties’ case. But cannot inspect due to priv
What is litigation privilege?
3 distinct aspects, document must be a communication that:
1. Passes between the client or lawyer and a third party;
2. Which came into existence when litigation was ongoing OR CONTEMPLATED (e.g client makes appointment with lawyer to discuss proceedings); and
3. Which was produced with a view to litigation, for the sole or dominant purpose of giving or receiving legal advice, or for obtaining evidence to be used in litigation.
Waiving priv - what if solicitor accidentally discloses?
- The client can waive privilege – remember it’s the right of the client not the lawyer. For example, drafting statements of case, they start as priv but then waive it when issue.
- If sent accidentally to other side by lawyer then its not waived as its for the client to waive
- If otherside send you priv doc accidentally according to SRA principles 1,2 and 5 do no read (need to uphold proper admin of justice, uphold public trusts & confidence and integrity). Return advice, point out error, confirm not read & deleted. Do not tell client. SRA code to make client aware of all relevant info does not apply to priv docs mistakenly disclosed
Can you disclose without prejudice documents?
- Probs will satisfy standard disclosure test
- Genuine attempt to settle
- Irrelevant for standard disclosure that otherside already seen it
- Point of WP is so TRIAL JUDGE doesn’t see. Not otherside. Remember, disclosure is between parties
- Should be disclosed and no priv from inspection claimed
What is the right to inspect disclosure documents?
- Applies to Part 1
- Made in writing, granted within 7 DAYS
- Can agree longer period between parties
What are the different orders for disclosure that you can apply for?
- Specific disclosure
- Dispute Priv
- Pre-action Disclosure
- Non-party disclosure
- Before applying write to other side and try agree first (overriding objective)
- If fail, fill out N244 and attach WS
What is specific disclosure?
- Inadequate list of disclosure docs
- Apply for specific disclosure under CPR 31.12
- Could request an order that he party:
o Carry out more extensive search; and
o Disclose further docs located as a result; or
o Disclose specific docs that the party would have expected to see.
Must satisfy test for standard disclosure
Application for disputing priv?
- Application under CPR 31.19 to challenge claim for priv
- Court may require party to produce doc, invite any person (whether a party or not_ to make representations
- Court will determine if correctly categorised. If not – Court will order the doc is revealed to opponent
Application for pre-action disclosure? TEST?
- Usually party unsure of strength of case so used this to make informed decision as to if they should issue proceedings
- Application and WS
- TEST: Court must be satisfied that:
o Both application and respondent are likely to be a party to subsequent proceedings;
o Documents sought would come within standard disclosure; and
o Disclosure desirable to:
Dispose fairly of anticipated proceedings;
Assist dispute being resolved without proceedings; or
Save costs. - Think: both sides likely to be parties to litigation, do the docs satisfysatndard disclosure test and will they either get rid of need for proceeding, assist dispute being resolved without proceedings (i.e encourage parties to settle), or save costs.
Application for non-party disclosure? TEST?
- Apply under CPR 31.17
- Proceedings must have been commenced
- Must help resolve issue in case
- Usually where no longer have doc in possession (part 3 DL) but third party does. Other party usually write to third party first, then if say no, apply to Court
- TEST: Disclosure order only given if:
o Docs in question likely to support applicant’s case or adversely affect case of another party; and
o Disclosure NECESSARY to dispose fairly of the case OR save costs (same as pre-action accept not to dispose out without proceedings because they have already started and is NECESSARY to dispose fairly of proceedings rather than desirable).
Standard of proof & s22 Civil Evidence Act 1968?
- Claimant must provide every fact unless admitted
- S11 Civil Evidence Acy 1968 – if the defendant is convicted of a relevant crime to proceedings the burden of proof is reversed
- Burden of proof on defendant: contributory negligence
Does a witness statement have to be served on otherside if used at trial?
If can’t get hold of witness to do statement what can you do instead?
- If can’t obtain statement e.g can’t get ahold of witness or if can’t convince witness as they are scared of repercussions can APPLY TO COURT WITHOUT NOTICE for summary:
o Include witnesses name and address
o Evidence they can give (if know) or if not;
o Matters witness would be questioned on at trial (disputed issues).
Form & content of WS?
- Compliant with Part 35 (if not, can’t rely on WS)
- First person own words
- State if info not made from own knowledge or if refreshed mind by looking at docs
- How was statement prepared e.g face to face
- Legal rep can’t sign statement of truth
- If in another language, put in own language, date, and then details of translation
- Exchange date give in directions, usually few week after disclosure and inspection. Exchanged simultaneously
What is an affidavit?
- Applications for freezing injunctions or search orders
- Maker has to swear or affirm before a solicitor (but CANNOT be their own) that the contents are true
Test for admissibility of witness evidence?
- Irrelevant material not admissible (relevant to issues in dispute)
- Opinion evidence not admissible, exceptions:
a. Facts personally perceived; and
b. Expert evidence. - Special considerations for hearsay evidence.
What are the exceptions to no opinion witness evidence? And TEST?
-s3(2) Civil Evidence Act 1972 – TEST: if statement of opinion is a way of conveying facts personally perceived then admissible
- Examples:
o D was driving at about 60mph
o D was drunk
- Witness cannot draw conclusion from their evidence as this is the Court’s role e.g cannot say the D was driving “too fast”
Civil Evidence Act definition of hearsay?
- Civil Evidence Act definition:
o Statement made out of Court;
o That is repeated in Court;
o In order to prove the truth of the statement. - Must be a relevant fact or admissible opinion (i.e must be relevant to matter in dispute, not be opinion unless admissible i.e personally perceived or expert evidence).
- Key is the PURPOSE. Was it to prove truth? Ex: C booked holiday with D. D told C “it is very quiet”. It turned out to be vert noisy, statement is a LIE and so is not being said to prove truth. Not hearsay.
- Two types:
o First hand hearsay: relayed through once person
o Multiple: relayed through multiple people - Think: not giving evidence of what you personally know
Is hearsay admissible?
- S1(1) Civil Evidence Act 1995 – it is admissible but notice requirements under s2:
o Call witness with hearsay evidence statement, just serve other party with statement
o Opponent then decides whether to ask Court to (1) make order that maker of OG statement attend for cross-examination OR (2) serve notice of intention to attack credibility of hearsay evidence. - Different to crim, simply serve and then on other side to apply to court to bring in OG maker or to serve notice to attack credibility.
- If do not call witness to stand their whole statement becomes hearsay. Need to give advance warning as cannot cross examine
- Must serve HEARSAY NOTICE when serving WS – explains why not calling
- If don’t serve statement, still admissible but failure to serve will be taken into account when assessing weight (or when making costs order)
What weight will the Court attach to hearsay evidence and what factors will it consider?
- Hearsay is second best evidence. What weight Court will attach is dependant on:
o What issue it is addressing;
o How important is the issue;
o Any other evidence?;
o More probative than other evidence?
What is the s4 Civil Evidence TEST to assist judges in determining weight to hearsay?
TEST: Court MUST have regard to the following:
o Reasonable and practicable for party to call OG maker of statement. Need to be credible reason i.e dead, abroad, not contactable;
o Made contemporaneously with event in question e.g note made of car reg as card drives off. Fresh in mind;
o Any person involved had motive to conceal e.g to impress boss;
o OG statement edited or made in collab with someone as (may suggest collusion);
o Attempt to prevent proper evaluation of the weight of evidence – was notice given so late other side did not have opportunity to respond.
- Otherside can attack credibility of evidence using s4 guidelines
s4 guidlines the easy way to rememeber:
1. Could they call OG maker or are they dead / abroad etc
2. Was the statement made straight after incident? Or ages after?
3. Is there a motive to conceal?
4. Is the OG statement edited or made in collab with another?
5. Attempts to stop evaluation of evidence, was notice given v late?
Do you need permission to rely on expert?
- Must get permission from Court, usually at directions stage;
o When allocated to fast track; or
o At CMC. - Give Court:
o Name of expert;
o Field;
o Expertise and experience;
o Issues he will address. - Expert’s duty is to Court and overrides duty to instructing parties. Act with reasonable skill and care.
What does the Court consider when deciding if a single joint expert should be used?
- Court considers:
o Proportionality
o Resolve issues more speedily? Cost effective?
o Likely to be a range of expert opinion? - If agreement cannot be reached Court will decide from list prepared by parties
Procedure for separate experts, can you clarify reports?
- Court will give further directions:
o Exchange
o Further questions to ask HAVE 28 DAYS TO ASK WRITTEN QS TO CLARIFY. Answers become part of report
o Discussion – Court may order WP meeting between experts (no solicitors) – narrows issues – won’t become part of report
o Written joint statement (WJS) – Issues agree and disagree (signed by experts)
o Judge decides if need oral (PRESUMPTION TO RELY ON WRITTEN). Often oral in multi track - If report doesn’t comply with Part 35, may not be able to rely on evidence
- More likely Court will take into account the breach when deciding what weight to attach
Professional conduct issues with experts?
- Expert sets out all solicitors instructions whether oral or written
- Instructions are NOT privileged to ensure not influencing report
- Court can scrutinise instructions
Procedure for witness summons?
o Fill out summons (N20);
o Serve in 7 days BEFORE date witness attends trial (if do not will need the Court’s permission)
o Court usually serves it
o If don’t attend can be fined or, in high court, held in contempt of court
o Witness must be offered or paid:
Sum REASONABLY SUFFICIENT to cover travel expenses to and from Court; and
Compensation for loss of time.
- Unusual for expert to need one
- Judge will be more sympathetic if need to adjourn
Trial prep:
- When is there a PTR
- What tracks have pre-trial checklists and when are they due
- What happens if you don’t issue the checklist
- Before trial all directions and Court orders must have been complied with
- PTR if complex (often in trial longer than 10 days)
- Fast and multi track have a pre-trial checklist to ensure the above
- Pre trial checklist to be served 8 WEEKS BEFORE TRIAL
- Don’t comply? Court issue order to comply in 7 days or SoC struck out
- Court will decide if need listing hearing (fast track) or PTR (multi track)
Court room etiquette - what to call judges and witnesses
- Witness “Mr/Mrs” unless children
- County Court:
o District = “judge”
o Circuit judge = “your honour” - High Court = “my lord/lady”
- Supreme Court = my lord/lady
How will a 1 day fast track trial work?
How about multi-track?
- 1 days trial:
o Prelim issues sorted before trial e.g amending statements of case
o Judge may allow claimant to make opening speech
o Advocates only ask opening questions when adding to EiC (permission from Court needed)
Multi track lasts multiple days so a specific timetable is needed
How are costs assessed on fast and multi track?
- Take effect on day unless order specifies different day
- Fast track: judge summarily assess on day
- Multi track: say who pays but need to do a DETAILED ASSESSMENT OF COSTS at later hearing
- Payment of amount 14 days unless order specifies otherwise
2 bad types of witness?
- Unfavourable = forgetting something, interpreting something in different way
- Hostile = won’t support party anymore, tell lies, differing evidence to statement. Call on judge to treat witness as hostile and then can examine as if you were opposing counsel (closed questions and attack credibility)
Test for permission to appeal?
- Real prospects of success; or
- Some other compelling reason why.
(realistic prospect not fanciful)
(compelling reason e.g important Q of law or general policy)
If appealing to CoA or Supreme Court need:
- Real prospects of success; or
- Some other compelling reason why; AND
- Raise important point of principle or practice.
Second appeals are rare but same grounds as above
Procedure for appeal?
- Made at end of trial and judge can decide
- Can make app to appeal court (on paper – no hearing)
- In Court of Appeal if judge decides can’t be decided fairly without presence of parties MUST list hearing in 14 days after relevant direction
- 21 days to appeal a CC or HC judgment
- 28 days to appeal from CoA to Supreme Court
Appeal Court list?
- County Court district judge – to circuit judge
- CC circuit judge – High Court judge
- Master or district judge in High Court – High Court judge
- High Court judge – Court of Appeal
- CoA – Supreme Court
When is a leap frog appeal permission granted and what is the process?
- Permission granted when:
o Important point of principle or practice; or
o Other compelling reason why. - Usually relates to urgency of matter
- Process (2 steps):
o (1) Granting of leap frog certificate by the trial judge; and
o Grant of permission by supreme court - Think national importance
Grounds of appeal
- Wrong as to point of law, interpretation of facts or exercise of discretion; or
- Unjust due to serious procedural irregularity of lower Court.
When is cost budget due?
- Fast track: Cost budget due day of DQ
- Multi track: 21 days before CMC
- Costs management order gives Court greater control
What are the 3 types of costs orders?
- Summary assessment (usually fast track)
- Detailed assessment (usually multi track)
- Fixed costs e.g:
a. Default judgment
b. Fast track trial
c. May be able to agree higher for summary judgment
Summary assessment procedure
- Should be assessed at end of hearing
- Usually for (unless good reason not to):
o Fast track trial; and
o Any hearing lasting 1 day - Statement of costs to be filed TWO DAYS BEFORE FAST TRACK TRIAL
- SoC 24 hours before INTERIM HEARING
- Parties should try agree costs rather than letting judge decide
Procedure for detailed assessment
- Receiving party issues Notice of Commencement of Detailed Assessment along with a Bill of Costs and evidence e.g receipts in 3 MONTHS FROM RECEIVING OF JUDGMENT
- If responding party disputes then 21 days to serve points of dispute
- 21 days for receiving party to respond
- Receiving party then has 3 months to request a hearing for detailed assessment (from expiry of deadline to request DA)
- If less than £75k, judge has a go at assessing without hearing (provisional assessment)
- If dispute above, have 21 days to request hearing
- If don’t get 20% then you have to pay for hearing
Interim applications are usually summarily assessed at the end of the hearing
What is the standard basis of assessing costs? TEST!
- Is the item reasonably incurred?
- Is the item reasonable in amount?
- Is the item proportionate so that it bears a reasonable relationship to:
a. The sums in issue;
b. Value of non-monetary relief in issue
c. Complexity of litigation
d. Any additional work generated by the paying party’s conduct
e. Reputation / public importance
- Doubt resolved in favour of PAYING PARTY
What is the procedure the judge will take for the standard basis of assessment?
- Judge go through on line by line basis scrutinising each item. Any item unreasonably incurred or unreasonable in amount will be disallowed
- Will then look at proportionality of whole figure. If too high, judge will scrutinise categories e.g ‘disclosure, or ‘factual evidence’ to decide on reductions
What is the indemnity basis of assessing costs? TEST!
- Is the item reasonably incurred?
- Is the item reasonable in amount?
- No need for proportionality!!
- Benefit of the doubt is given to the RECEIVING PARTY
What is a non-party costs order and what is the test?
- Used when paying party cannot PAY COSTS
- Rare – discretionary power
- Used when there is a professional third party funder who funds the litigation.
- TEST: Need to be satisfied they were the real party interested in proceedings and they were responsible for bringing them
- Must add the funder to the proceedings and may attend costs hearing
- NO NEED FOR WRONG DOING OF THIRD PARTY
- E.G
What is qualified one way costs shifting
- Only relates to personal injury claims
- D can only enforce costs order if they win with permission of Court
- Can only be granted costs if the judge finds, on the balances of probs, the claim was FUNDEMENTALLY DISHONEST
- Usually when D is backed by an insurer
Security for costs TEST
- Courts discretionary power
- TEST: Discretionary power activated if:
o Is it just to make an order; and
o 1 condition of CPR PART 25 is satisfied. - Following CPR 25 conditions, 1 must be satisfied:
1. Claimant resident outside 2005 Hague Convention State;
2. Claimant is impecunious company – likely to not be able to pay costs; or
3. Claimant has taken steps to make enforcement difficult – must be steps in relation to their assets. The motivation does not matter, even if was innocent. E.g moving to Saudi arabia for employment. Not disclosing info on assets (freezing injunction may be appropriate).
What will judge consider for ‘justness’ point when deciding an application for security for costs?
- Court will consider:
1. Strength of the claim and defence, less likely D to win less justified;
2. Claimant’s ability to provide security, if reasonable prospects of success but courts less likely to make security order if C cannot comply as it would stifle the claim;
3. Causes of claimant’s impecuniosity, if financial state is caused by the D or contributed to;
4. Property within the jurisdiction, if C is outside jurisdiction but has sufficient assets in jurisdiction then order not likely to be granted; and
5. Timing of app – as soon as practicable. - Ask claimant first
- Most common remedy is C to pay money into the Court
- If apply, need application notice and witness statement
What 4 things does a Part 36 offer need to be valid?
- Be in writing;
- Be clear it is pursuant to Part 36;
- State the Relevant Period of NOT LESS THAN 21 days for acceptance (if accepted during this period the Defendant will pay the Claimant’s costs); and
- State whether it relates to the whole claim or part of the claim, and if it relates to any counterclaim.
Can technically be longer than 21 days but NOT shorter. Deemed service rules apply. Inclusive of interest unless the relevant period has expired.
What happens if Part 36 accepted in relevant period?
- If offer to pay and accepted in RP 14 days to pay
- D pay C costs up until notice of acceptance is served.
- If can’t agree costs judge will assess on standard basis
What happens if a Part 36 offer is accepted late?
- Offer not withdrawn unless NOTICE GIVEN OF WITHDRAWAL
- The relevant period is for cost consequences
Defendant’s offer:
If C accept after relevant period:
- D pays Cs costs up until end of RP on standard basis
- C pays D costs up until acceptance on standard basis
Proceedings would be stayed to allow sum offered to be paid.
However, if the defendant accepts the claimant’s offer late, the defendant will usually be ordered to pay the claimant’s costs of the proceedings up to the date of acceptance.
In all these scenarios, the proceedings will be stayed (paused) to allow for the sum offered and the costs to be paid.
Costs consequences of D’s Part 36 offer if C does not get a judgment more advantageous?
o D pays C’s costs on standard basis up to day 21;
o From day 22 C pays D’s costs on standard basis; and
o Interest on those costs (1 or 2 % above base rate GENERALLY)
- Called a split costs order
Costs consequences of C’s Part 36 offer if D does not get a judgment more advantageous?
o Extra damages:
For damages up to £500,000 D must pay additional 10% of sum awarded;
For damages in excess of £500,000 and up to £1mil, 10% of first 500k payable and thereafter 5% up to a max of £75k
IF NON MONETARY THEN ‘SUM AWARDED’ BECOMES COSTS
o Enhanced interest on damages:
Up to 10% above base rate from day 22 (or expiry of relevant period) onwards
o Costs on indemnity basis from day 22 onwards
o Interest on indemnity costs (usually no interest on costs incurred before judgment):
Not exceeding 10% above the base rate
- % can be up to 10% above base rate but may be lower
Are Part 36 sanctions always imposed?
- SANCTIONS IMPOSED UNLESS UNJUST TO DO SO
- Judge decides on punitive costs based on justness, i.e:
o How close to trial was offer;
o What info did party have when rejected
o Was it a genuine attempt to settle
o Parties conduct - Exception not to make the order
- May be case if not sufficient disclosure to allow respondent to make informed decision e.g Part 36 expired days before trial and crucial allegations that had not been pleaded were raised in the opening of the case
How to investigate a debtor’s means?
- Hiring an Enquiry Agent (quicker but incurs expense); or
- Apply to Court for an order to obtain information (oral examination) – Part 71
- Application PERSONALLY served on debtor. In 7 days can request REASONABLE TRAVEL EXPENSES to and from Court
- County Court nearest debtor
- Judge makes committal order if D doesn’t turn up, suspended if attend
What are the 4 methods of enforcement?
- Taking control of goods
- Charging order
- Third party debt order
- Attachment to earnings order
Taking control of goods process? What items are exempt? Can they break in?
- Take goods of some value and auction
- High Court = High Court Enforcement Officers
- County Court = bailiffs
- If home, cannot force way in. Can use REASONABLE FORCE to enter business premises
- Necessary items exemption:
o Cannot take item REASONABLY REQUIRED FOR BASIC NEEDS OF DEBTOR OR FAMILY e.g clothes, bedding, furniture (individuals only)
o Neither can work tools, computers, vehicles etc necessary to debtor personally for work or study up to AGGREGATE OF £1,350
o Cannot remove goods that belong solely to another such as family or anything on hire purchase agreements
Disputes re co-owners items will be resolved by Court
Which Court will taking control of goods be in?
o £600 – CC – need warrant of control – Bailiffs
o £600 to less than £5k – either court. If HC chosen, transfer judgment from CC to HC – warrant of control or writ of control for HH – depends which court
o £5k or more – HC (EXCEPT proceedings under Consumer Credit Act 1974) – writ of control – HC enforcement officer
Need more time to pay? May enter into control of goods order.
What is a charging order?
- On land or securities (stocks, shares etc)
- Best if they apply for order for sale to actually get money
- If own land jointly can put charge on debtor’s interest rather than land – if registered land then register charge at land reg – or if unreg at the Land Charges Department
Charging order procedure?
- Over £5,000 can apply in HC or CC. If in CC have to apply through CCMCC
1. Interim charging order:
o Apply;
o Dealt with by court officer no hearing, make ICO or refer to judge
o When get ICO, the ICO, application notice and docs filed in support must be served on debtor in 21 DAYS
o Debtor as 14 days to request decision is reviewed by judge
2. Final charging order:
a. Anyone objects? Serve notice stating grounds of objection in 28 days from service of ICO
b. Hearing – court can make FCO or discharge ICO or direct a trial of issues
3. Order for sale
a. If FCO, creditor has charge on land can be enforced through order for sale
b. Fresh proceedings for OfS must be commenced
OfS may not work if have kids etc, may not work if have mortgage or other charges, interest will accrue unless consumer credit act
What is a third party debt order?
- Debtor may be owed money (bank / building accs in credit) or trade debts due to business
- Debt must belong SOLEY TO DEBTOR
Procedure for third party debt order?
- Must apply in Court that made order WITHOUT NOTICE
- Judge makes interim order (bank freezes) hearing listed NO LESS than 28 DAYS LATER
- Unless good reason not to, order made at hearing
Benefit of surprise! However account has to be in credit on the day when order is served or it will be ineffective – NO JOINT NAMES OF ACCOUNT. Must be sole name of debtor. Won’t work if husband and wife joint bank!
Procedure for attachment of earnings order?
- Must be employed NOT SELF EMPLOYED
Procedure
1. Apply to CCMCC
2. Court says ‘pay or file STATEMENT OF MEANS’
3. Court officer makes order on receipt of form
4. Employer can deduct SMALL ADMIN FEE
5. If parties object can apply for matter to be considered by district judge at hearing
If move jobs have to redo!!!!
Enforcement out of jurisdiction - Scotland & NI
- Quick and quite straightforward, creditor:
o Obtains certificate confirming date of judgment, sum awarded, details of interest and costs
o Apply to the Scottish or NI Court (with evidence in support) to register judgment in 6 MONTHS - Can be enforced using local methods
Enforcement out of jurisdiction - commonwealth
- Australia, Pakistan, Jersey etc
1. Administration of Justice Act 1920 for High Court judgments – judgment must be FINAL and REGISTERED in 12 months
2. Foreign Judgments (Reciprocal Enforcement) Act 1933 for county court judgments – creditor has SIX YEARS
Enforcement out of jurisdiction - Other countries (inc member states)
Two ways:
1. 2005 Hague Convention (parties need exclusive choice of court agreement) judgment will be enforced and recognised in that country;
2. Common law rules apply – determined by national law of country where enforcement sought. Fresh proceedings usually
