Dispute Resolution

Question 1

Limitation in tort

Answer 1

6 years (3 if PI) from date of accrual (ie when tort occurs) or knowledge

Date of knowledge = Point at which C had knowledge of all facts establishing all of the essential elements of the claim

In clinical injury claims, DOK whem C aware of the following:

That the injury was significant

That it was attributable in whole or in part to the act or omission

Alleged to constitute negligence, nuisance or breach of duty

Identity of D

If person other than D, identity of that person and additional facts supporting bringing of action against D

C dies (within 3 years of accrual date, if after 3 years no claim) => 3 years from date of death; or

3 years from date of knowledge of deceased’s PR of death

Question 2

Limitation in contract

Answer 2

Key = date of breach

If both tort and contract, C can choose which is more favourable

Construction contracts often incl stipulated time (ie make good clause) - whilst contract determines what happens in this situation, does not mean contractor escapes liability after the specified period has passed, as the general 6 year rule still applies

Contracts sometimes expressly state that claims cannot be brought after expiry of agreed limitation period

Any agreed shorter limitation periods would be subject to reasonableness test under UCTA

Question 3

Limitation in latent defect claims

Answer 3

Available for negligence claims for latent defects (i.e. defect in a property caused by design/materials/workmanship that existed when construction completed but not apparent at time of completion)

=> time limit is late of following:

6 years from date of accrual of cause of action; or

3 years from earliest date on which potential C knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence

Longstop limitation of 15 years from act or omission alleged to have caused loss or damage

Question 4

Procedural issues w limitation

Answer 4

Start/stop

Time starts to run from day after the date that the cause of action arose

Time ends when C delivers the properly completed claim form to court office with request to issue together with the correct fee

Expires on day court office is closed => action in time if all docs and fee lodged on next court business day

Normal limitation period will apply if adding new party to the proceedings (may not be if altering name of D correctly identified but incorrectly named)

C is a minor => clock will not start to run until their 18th bday

C lacks capacity => clock does not start until certification that C is of sound mind (BUT if of sound mind when action accrues, clock will not stop even if they then lose capacity)

Fraud/concealment => period runs from dates C discovers fraud/concealment or could have done so with reasonable diligence

Relief from mistake => time does not start to run until mistake discovered/could have been discovered with reasonable diligence

Question 5

PI protocol (letter of claim)

Answer 5

Letter of claim should incl:

Clear summary of facts

Details of injuries sustained and impact on C’s day-to-day life

Hospital attended, with relevant reference number

Indication of financial losses

If road traffic accident – indication of whether police report available

Indicate docs C proposes to disclose and seeks from D

Make clear that C expects response within 21 days

Question 6

PI protocol (procedure)

Answer 6

D must respond within 21 days

No response => C can start proceedings

D responds => D then has 3 months to investigate the claim, after which they must admit or deny liability. Denial => reasons must be given and LOD

Standard disclosure lists (dependent on type of claim)

Experts

C should strive to choose jointly with D

C to send list of suggested experts to D, who has 14 days to disagree

D disagrees => each expert can instruct their own

Protocol does not achieve settlement => C can issue proceedings

D’s insurer will normally nominate insurers to accept service

Admission => C should send:

Medical report they rely on; and

Schedule of past and future expensive with as much detail as poss

C must allow 21 days to elapse before they commence proceedings, to allow for an offer

Question 7

Consequences of failure to follow pre action protocol

Answer 7

Stay in proceedings to allow the PD or a step in the particular protocol to be complied with

Sanctions

E.g., ordering the non-compliant party to pay the costs of the other party

If non-compliant party is C, court may deprive C of interest or restrict period/rate of interest (on damages)

In some cases, court may relieve parties of their obligation to comply with protocol, court will consider the effect of non-compliance when considering whether to impose sanctions

Question 8

Where might be appropriate to issue before full PAP undertaken

Answer 8

Where limitation period is close => claim form should be served, and a stay sought to allow the parties to continue complying with the relevant protocol

Where a court order is required to protect or preserve evidence or assets – C should then seek directions from court to enable protocol process to be completed

Where there is concern that D may seek to issue proceedings in another country (i.e., to avoid England/Wales jurisdiction)– parties seek direction on issue to allow relevant protocol

Question 9

Pre-action applications

Answer 9

Do not have status of CPRs => not common for court applications to be required as part of protocol process

Poss to make pre-action disclosure app if felt disclosure necessary to investigate claim fully

Criteria =

Respondent likely to be a party to the proceedings

Applicant likely to be a party to the proceedings

Documents or classes of docs requested would be disclosed under standard disclosure rules

Disclosure now would fairly assist in disposing of the claim without need to issue proceedings and => save costs

Poss against non-party, but only if it will support the claim or adversely affect the opponent’s case and is necessary to dispose of matter fairly or to save costs

Inspect property pre-action. Applicant must show property in question:

Is or may become subject matter of proceedings; or

Is relevant to the issues that will arise in relation to those proceedings

Question 10

Starting a case in the HC

Answer 10

When:

Total value of claim must be > £100k (except for PI = > £50k)

BUT claim for > £100k may be started in CC e.g., if straightforward

Claim should be started in HC if:

Financial value of claim and amount in dispute

Complexity of facts, legal issues, remedies, procedures involved

Importance of the outcome of the claim to the public in general

Court can exercise power to transfer HC case to CC if felt CC is more appropriate

Question 11

Divisions and registries of HC

Answer 11

HC = RCJ, but there are many district registries (C should indicate on claim form where they wish to issue claim, generally DR closest to where they live. Does not specify => RCJ)

KBD deals with: defamation, breach of contract, negligence, PI, land possession, and non-payment of debts

Speciality courts within KBD =

Technology and construction court

Does not normally hear cases with value of less than £250k

Handles disputes about buildings/engineering/surveying

Commercial court

Handles complex national and international business disputes

Chancery division:

Deals with equity and trusts, commercial fraud, tax, IP, land, business disputes, contentious probate, regulatory work, bankruptcy, professional negligence

Question 12

Bringing proceedings in the CC

Answer 12

Unless special procedures apply or within practice directions, all CC money claims (and most non-specified claims for damages) should be issued out of County Court Money Claims Centre (CCMCC) in Salford

Poss for certain claim forms (eg landlord and tenant or claims for possession) to be issued out of and subsequently heard in local hearing centre, but most start in CCMCC

Separate procedure to issue claim on question that unlikely to involve substantial dispute of fact – can start at any CC unless rule etc provides otherwise

Following receipt of defence or admission, CCMCC will then transfer claim to hearing centre local to D’s address (if D is individual) or C’s preferred hearing centre (if D is a company)

Question 13

Issuing claim form (normal ie part 7 claims)

Answer 13

C must decide prior to lodging whether they or court will serve (as impacts docs to send to court)

C must send:

Enough copies of claim form for service on each D, together with copy for court file

If C wishes court to serve and proposes separate particulars be served at same time, C needs to attach same number of copies of particulars

C proceedings via litigation friend – certificate of suitability of litigation friend should be included

Court serving => notice of funding should be included

Court fee must be included

Question 14

Issuing claim form (part 8 claim)

Answer 14

Used if claim does not involve substantial dispute of fact (e.g. when sol seeks approval for settlement of behalf of a child)

Must state:

That part 8 applies

The questions that the C wants the court to decide or the remedy sought and the legal basis for the claim to that remedy

Details of claim being made; and

Capacity of the representative if the claim is being made in a representative capacity

C must serve witness evidence with the claim form and should incl the particulars (any evidence must contain statement of truth)

D does not make a formal defence – D files their witness evidence with their AOS and the court treats the claim as if allocated to the multitrack

D does not respond => D cannot take part in the hearing unless court gives permission

Question 15

Docs included for service (within jurisdiction)

Answer 15

Claim form and particulars of claim

Medical report if appropriate

Schedule of past and future loss and expense

Notice of funding

Certificate of suitability of litigation friend

Response pack – AOS

Question 16

Service on who?

Answer 16

On D’s nominated sols – must be served on them if in existence (unless contract provides otherwise or D is company where deliver to office will suffice)

Personal service – (does not require ind to physically take hold of papers)

Individual - can be left with ind being served, or with person hold

Company – leaving with person holding senior position

Partnership being sued in the firm name – with partner or person who at the time of service has control or management in the partnership (safest to name all partners individually)

Question 17

Methods of service

Answer 17

First class post

Fax can occur if:

Party or their legal rep had indicated in writing

Party has given a fax number

Fax number is within the jurisdiction

Document exchange

If party’s address for service incl a DX, the DX number is on the party’s writing paper, and there has been no explicit indication that service will not be accepted by this method

Email

Only if there is express consent and party has given email address to which parties should transmit documents

Deemed service = on second business day after step occurred (unless personal service)

Question 18

Exceptional circs for service

Answer 18

D’s whereabouts known => C must serve D at that address

C believes D no longer lives at that address => must take reasonable steps and make reasonable enquiries to ascertain D’s current address

Otherwise safe to serve on D’s last known address

Doubt => prudent to make app for alternative service

D in prison => C should serve D in prison

Question 19

Service not valid

Answer 19

=> D will need to indicate on AOS and make an application within 14 days

Question 20

Certificate of service

Answer 20

Court serving => will send certificate to C

C serving => need to file N215 within 21 days

Question 21

Service by alternative method

Answer 21

If not achieved within validity period, CPR enables court to permit service by alternative method/place if party can show a good reason for the order

Can be made retrospectively

Court likely to be sympathetic to C if can be shown that D had notice of proceedings and the failure of good service was by some understandable or reasonable misunderstanding

Question 22

Service of POC

Answer 22

If not served at same time as claim form must be served within 14 days of claim form

If 14 days takes C past 4 months they must ensure particulars are served within 4 months

Question 23

Service outside jurisdiction

Answer 23

Must be served within 6 months

Service of claim form may require permission from the court

Not required if D resides in Scotland or NI or in situations where D is resident in the UK

Required in all other cases if a court in EW can be shown to be the most appropriate forum for resolution of the claim

Make an app to court for permission

Granted => D may challenge the order before service through an application to set aside the order or after service by app to set aside service

Imp to ensure service is in accordance with rules – any procedural irregularity will invalidate service

Question 24

Time limits for responding to a claim

Answer 24

D must respond within 14 days of deemed service of the particulars (which can be served by C with the claim form or within 14 days of the claim form)

If particulars served separately deemed service is same as service of all docs (other than a claim form) I.e.

First class post => second day after it was posted if business day, if not then next business day after that

DX => as above

Personal service => business day before 4:30 then on that day, if not next business day

Fax => as above

Email => as above

Time can be extended by agreement between the parties, but only for a further 28 days (and 56 in total) from deemed service of PoC where D has filed AoS

Agreement => D must inform court and make application

Question 25

Admission in whole

Answer 25

Specified sum

Court will issue a judgment order to incl accrued interest and fixed costs which D must pay (within 14 days?)

D can request time to pay or in instalments

D will need to provide details of assets/income/outgoings

C can accept or raise objections (with reasons)

C objects => court will determine an appropriate level of instalments or else list a hearing to decide

Unspecified amount (ie damages) => court will stay case and set case for disposal hearing to determine level of damages

D minor/protected party => court must approve an admission or any offer to pay

Question 26

Partial admission

Answer 26

Partial admission => D will need to file defence to part in dispute

Admit liability but dispute quantum (ie deny that breach caused injury/loss to the extent claimed by C) => D file defence accordingly

Question 27

Withdrawal of admission

Answer 27

With permission from court

Court will consider:

Prejudice to the parties

Reasons why admission was made

Stress a party was under when admission made

Interests of the public

Time when app to withdraw admission made

Question 28

Withdrawal of admission in PI claim

Answer 28

If admission came after letter of claim, person may withdraw pre-action admission:

With consent of person to whom it was made

After commencement, with permission from court

C issues claim after pre-action admission => party van apply for judgment on strength of the pre-action admission or party who made admission can apply to withdraw it

Question 29

Filing defence and AoS

Answer 29

Can’t simply deny, D must set out reasons

D can file AoS within 14 days and defence 14 days after that (if more time needed)

Question 30

Summary judgment

Answer 30

Once AoS is filed, C can make an app for summary judgment or apply for interim payment if they can show D has no realistic defence to action

Question 31

If D wants to dispute court’s jurisdiction

Answer 31

In AoS response pack

Must make an app, supported with written evidence, within 14 days of deemed service

D must not file defence until court has heard this app

D’s app fails => then required to file defenceJ

Question 32

Judgment in default

Answer 32

If D fails to file defence within specified period

Granted => D not permitted to defend claim further and required to pay specified amount (specified claim) or sum in damages to be decided by the court

Question 33

App to set aside judgment in default

Answer 33

D can apply to set aside. Court must be satisfied that:

D has a real prospect of successfully defending the claim; and

There is some good other reason why the judgement should be set aside and D allowed to defend (eg a regrettable but understandable mistake)

Can also be set aside if D can show wrongly entered, eg

Judgement entered too early

Claim paid or settled

D submitted request for time to pay which has not yet been considered

App for judgment was made after an app by D to strike out claim or dismiss summarily and app not yet considered by the court

D must act promptly in issuing app to set aside

Question 34

Discontinuance

Answer 34

C may discontinue by filing notice of discontinuance which gives formal notice to D that they do not wish to continue with their claim

Only post-issue

Once served => will bring claim to end save for question of costs

Question 35

Settlement

Answer 35

Will not carry legal weight unless embodied in court order setting out terms of agreement and time for paymentH

Question 36

How to respond to POC in defence

Answer 36

Admission

=> no longer in disupte and C will not have to prove it

D fails to respond to para it is deemed to be admitted

Deny

=> must state reasons and put out alternative version of events

Fact is denied => C must prove it

Non-admission

D may state they neither admit not deny if facts alleged are outside D’s knowledge

=> C must prove it

D disputes value on claim form => defence should say way and provide D’s value if poss

Disputes limitation => state in defence

Question 37

Reply

Answer 37

Purpose

Optional and usually only prepared if something raised in defence requires a response (ie not dealt with in PoC)

Not used to rectify mistakes or omissions from PoC – purpose is to clarify points

Format

Often incorporated in a defence to counterclaimW

Question 38

When are Part 20 claims used

Answer 38

If:

D wishes to bring counterclaim against C

Ds may bring claims against third parties who might be liable to C or D under facts relating to C’s claim

Question 39

Issuign counterclaim

Answer 39

Must be brought within the same set of proceedings

Key features =

Brought by existing D against C

Arises out of same or substantially same facts

Monetary claim in own right

Not a defence

Can be made without court’s permission if D files CC with their defence

Requires court’s permission if D wishes to make CC at another time

Question 40

Issuing claim against third party (part 20)

Answer 40

Ie if blamed for C’s loss

As above, no permission required if filed at same time as defence. Otherwise court permission required

New party termed third party

App can be made without notice unless court directs otherwise

Particulars of additional claim must be contained in or served with additional claim

Third party wishes to blame someone else => fourth party etc

Question 41

Issuing claim seeking contribution/indemnity (part 20)

Answer 41

Party may serve a notice on another party (usually another D) that that party must pay the serving party some (contribution) or all (indemnity) of any payment if the serving party is ordered to pay to the C

Permission of the court is not required if filed at same time as defence. Otherwise required.

Claim against a party not added to claim until later in action => no permission required if party is served within 28 days of the third party filing their defence

Question 42

Counterclaim against another 3rd party (part 20)

Answer 42

D may file claim against 3rd party for their own injuries arising from same facts

Court permission required

Question 43

Service of part 20 claim

Answer 43

Where permission not required => must be served at same time as defence

Permission required/issues by court later => must be served within 14 days of issue

Must be served with docs required for service ie forms for defending claim etc

Question 44

Defence to CC (part 20 claims)

Answer 44

Defence to CC must be served within 14 days of date of service

Not => D can obtain judgment on the counterclaim

New D must file an AoS and/or defence

Fails to acknowledge/defend, deemed to admit the main action

Question 45

Requests for further info

Answer 45

Eg to clarify matter in dispute and/or for additional info in relation to matter (ie must be relevant)

Initial request for info

Should first make formal request to other party

Only make app to court if receiving party does not respond adequately within a reasonable period

Respondent objects => should state why

Court will list app for hearing unless R has failed to respond at all in which case court can consider matter on papers

Party should incl statement of truth on replies

Grounds for objecting incl

Request unnecessary/irrelevant/improper

R party unable to provide info or clarification

Party requesting info gave insufficient time to reply

Expense of complying with request would be disproportionate to the claim or contrary to overriding objectives of CPR

R party is protected from answering by existing privilege

Question 46

When can a statement of case be amended

Answer 46

Before served => can be amended at any time without court’s permission

After served => can other be amended with written consent of all other parties or permission of the court

Question 47

Process of amending statement of case

Answer 47

Files app notice with a copy of proposed amended statement of case

Parties consent => decided without a hearing

Otherwise hearing will be held

Question 48

Amending statement of case to change parties

Answer 48

App with supporting evidence required

Court add new party if:

Desirable to add new party so court can resolve all matters in dispute

Issue involving new party and an existing party which is connected to the matters in dispute

Court remove party if not desirable for them to be a party in the proceedings

Substitute a party if:

Existing party’s interest or liability has passed to new party; and

It is desirable to substitute the new party so the court can resolve matters in dispute

Question 49

Changing parties of limitation period expired

Answer 49

Court can add or substitute only if:

Relevant limitation period was current when proceedings were started; and

Addition/substitution necessary

New party is to be substituted for a party who was named in the claim form in mistake for new party; or

Claim cannot properly be carried on by or against the original party unless the new party is added or substituted as C/D; or

Original party has died or had a bankruptcy order against them and their interest/liability has passed to new party

Question 50

Directions Questionnaires

Answer 50

Must address certain points ie whether parties have complied with PAP, case management info, whether experts are required, names of witnesses etc

Judge confirm track upon receipt and make directions; or else list claim for CMC

Parties must return DQs within 28 days of the date of service of the order. Not open for partied to agree an extension of time

Question 51

Small claims track

Answer 51

Most straightforward claims

Upper limit of £10k

Not absolute ceiling - parties may agree or claim for more but in dispute is less than £10k

PI (road traffic) = less than £5k for pain, suffering and loss of amenity (PSLA)

PI (non-road traffic) = less than £1k for PSLA

Hearing is less formal

Recoverable costs restricted to fixed costs and reasonable expenses in attending and expert fees at £750 (BUT court can award more if party behaved unreasonably)

Party can apply to set side decision if they were not in attendance

App made within 14 days of service of order showing:

Good reason for not attending; and

Their claim or defence has reasonable prospects of success

Question 52

Fast track

Answer 52

Value between 10k and 25k

Tight control of claims with strict time limits

Trial must take place within 30 weeks of allocation

Recoverable costs must be proportional to the amount in dispute (fixed according to amount C recovers in certain claims e.g. PI road)

Court expects parties to consult and agree directions, often standard

Evidence restricted (use of SJE encouraged)

Witness evidence stand as evidence in chief

Party seeking to rely on expert evidence will need to provide justification and estimate of likely cost

Partied to submit costs schedules ahead of hearing

Question 53

Multi track

Answer 53

25k + or trial to last more than 1 day

Court expects parties to agree directions

More flexibility for experts – court usually allow partied to instruct own experts and in more than one field

Stays for ADR encouraged

Costs budgets to be filed before initial directions hearing, which often proceeds as CCMC

Question 54

Case management directions (fast track)

Answer 54

Directions given without CMC

Standard directions=

Disclosure – 4 weeks

WS exchange – 10 weeks

Expert report exchange – 14 weeks

Pre-trial checklist – 20 weeks

Pre-trial checklists returned – 22 weeks

Trial – 30 weeks

Can apply to vary directions – must do so within 14 days

Fees payable on filing of pre-trial checklists (ensures parties have complied with directions and considers what else may be required to prepare case for trial) and hearing fee

Question 55

Case management directions (multi track)

Answer 55

Above steps => key in all cases

Tends to be no set timetable

Complex/high value => CMC listed, normally requiring:

Parties to file disclosure reports at least 14 days before

And costs budgets 7 days before

Must file case summary

CMC

Opp for court to take stock of case and consider further steps that may be necessary to prepare for trial

Parties should provide estimate of experts’ fees and issues on which they will give evidence

Question 56

Non-compliance with directions

Answer 56

Failure to comply with directions may lead court to strike out claim/defence/CC

Party defaults => other party should make immediate app

Court usually make unless order – specifying the penalty that will be imposed unless party complies with the direction

Court may make costs order instead of striking out

Minor breaches not usually a problem as long as parties keep to dates of CMCs, pre-trial reviews, and trial

Relief from sanctions

If party has good reason for non-compliance

Court will consider seriousness of the breach and reasons for breach

Question 57

Procedure for interim Application

Answer 57

Should be made as soon as apparent that it is necessary

If poss should be made and heard at any hearing already listed

Party should apply to court where action is proceeding

App should be on at least 3 days’ notice to other party (ie 3 days before the hearing)

All evidence filed at court along with notice and required filing fee

Applicant should file and serve a case summary and proposed draft order no later than 2 days before the hearing

Notice unnecessary if:

E.g., defeats purpose of app (search orders/freezing orders)

Made without notice => must incl evidence explaining why notice was not given

Order made => must be served on party with app and supporting evidence. D then has 7 days to make app to vary or set aside order

App made erroneously => court likely to dismiss it with a wasted costs order (ie that solicitor, not party, pay legal costs associated with the app)

Question 58

Grounds for app for interim payment

Answer 58

D has admitted liability

C has obtained judgemtn but sum to be paid is not yet assessed

Court is satisfied that if the action proceeded to trial, the C would obtain judgment for a substantial sum; or

If the claim is against 2+ Ds, the court is satisfied that if the claim went to trial, C would obtain judgment for a substantial sum against at least one and each D carries insurance

Question 59

App for interim payment

Answer 59

Applicant should always invite R to make payment before making an app

C cannot make app until time for filing AoS has passed

Often combined with summary judgment app

Not necessary for court to consider whether specific need for payment

Court cannot award interim payment that is more than a reasonable proportion of the likely amount of the final judgment

Must take contributory neg into account

Question 60

Procedure for app for interim payment

Answer 60

Must be supported with evidence filed and served with app

Soon as practicable but not less than 14 days before the hearing

R then has 7 days before hearing to file evidence

Any reply up to 3 days before hearing

Written evidence must incl:

Sum of money sought

Items and matters in respect of which payment is sought

Estimate of final judgment, attaching medical reports in PI case

In PI claims a schedule of loss

Question 61

Undertaking in damages (injunction)

Answer 61

By applicant

Court may require as a condition to granting the injunction

Ie that C will compensate D for any loss due to injunction if court later determines the injunction shouldn’t have been granted in the first place

By D

D may give undertaking in terms similar to the injunction C is seeking – D will be bound as if the injunction had been granted

C will then be required to safeguard the D in the event of the C not succeeding in obtaining an injunction at trial

Question 62

Grounds for discharging an injunction

Answer 62

(D must apply on notice to judge) e.g.

Material non-disclosure (ie C did not provide all relevant info when seeking injunction)

Failure of applicant to comply with terms on which injunction was granted

Facts do not justify interim injunction

Injunction is oppressive

Material change in circs or in law

C has failed to prosecute claim with due speedFr

Question 63

Freezing injunction

Answer 63

Ie freeze assets of D

Granted if risk D may dispose of subject assets or remove them from jurisdiction before the claim proceeds to trial

App made without notice to R

Must be made to HC judge

Grounds necessary:

Justifiable cause of action

C has good, arguable case

D has assets within jurisdiction; and

Real risk D may dispose of/dissipate those assets before judgment can be enforced

Likely to include:

Undertaking by C (usually e.g. as to damages/to notify D of order)

Order freezing D’s assets (must state period of time and amount must not exceed max amount of claim)

Binds third parties with knowledge of it

D can apply for discharge if they offer other security for C’s claim or show C is guilty of material non-disclosure

Question 64

Search orders/preservation of property

Answer 64

Court usually only grant if considered essential and no alternative

Grounds =

Strong prima facie case on the merits of the underlying claim

D’s activities must cause very serious potential or actual harm to C’s interests; and

Clear evidence that property or evidence are in D’s possession and real possibility material may be destroyed before an app can be made on notice

D must disclose whereabouts of any docs or property referred to in order

Independent supervising solicitor oversees execution of the order and will undertake to:

Offer to explain the meaning and effect of order to D

Inform D of their right to seek legal advice and to apply to vary/discharge the order; and

Prepare a written report on execution of the order an to provide it to C’s sols and the court

C’s sols will undertake to:

Return original docs to D within 2 days;

Deliver any property in dispute to D’s sols, for them to retain securely; and

Retain securely other property until court directs otherwise.

Question 65

Standard disclosure - duty and extent

Answer 65

Only docs relevant to issues in question

Obligation extends to any doc within party’s control even if no longer in party’s possession

Legal rep:

Legal rep must cease to act for client who is not prepared to comply eg by refusing to disclose docs adverse to their case

Doc destroyed => legal rep required to inform court

Party has control if:

Have physical possession

Have right to possess

Had doc in possession but no longer have it

Make reasonable and proportionate search

Question 66

Disclosure processes - LOD

Answer 66

LOD – 3 sections =

1. List of docs in its control they do not object to other party inspecting
2. List of docs in its control they object to other party inspecting with reasons (usually privilege)
3. List of docs no longer in its control, stating when last in control and where they are now

Disclosure statement – signed by party (not legal rep)

Time limits = usually 28 days from date of directions order

Inspection usually within 7 days (but often copies sent with LOD)

Must be good reason for not disclosing eg public interest immunity

Automatic right to inspect unless specifically challenged eg: Privilege, Doc is no longer in party’s control, Would be disproportionate to allow inspection

Wants to inspect doc => must give notice to other party who must then permit inspection within 7 days of the date they received the notice

Docs may be redacted to blank out irrelevant/confidential info

Question 67

Party not content with dislosure?

Answer 67

Can apply for specific disclosure

Serve a notice to admit facts

Apply for unless order

Question 68

Specific disclosure

Answer 68

App may arise if a party believes another party’s disclosure is inadequate (normally takes places after standard disclosure)

Order may require respondent to:

Disclose certain docs or classes of doc

Prepare supplemental LOD

Carry out a search to the extent specified in the order

Disclose any doc located by the search

Party should make written request for docs before issuing the app. Evidence in support must include a statement of belief that the disclosure is inadequate

Question 69

Pre-action discolsure

Answer 69

App usually available only against a person who is likely to become a party to the proceedings

Can be made against non-parties if case involves:

1. Freezing injunctions
2. Search orders
3. Apps for preservation of property; or
4. Requests for further info pursuant.

Question 70

Disclosure in cases of privileged info

Answer 70

Existence must be disclosed but party holding it has right to withhold doc from inspection
Can be: legal advice privilege, litigation privilege, common interest privilege, WP privilege, public interest immunity

Question 71

Legal advice privilege

Answer 71

I.e. comms with a client

Protects compulsory disclosure of all types of comm between a client and their lawyer in which advice is given within a relevant legal context

Question 72

Litigation privilege

Answer 72

Relates to comms with third parties (ie experts and barristers) in relation to the preparation of pending or contemplated litigation

Must be real likelihood of litigation, a mere possibility is insufficient

Docs with multiple purposes => privileged only if court decides its dominant purpose is to prepare for litigation (different from stated purpose)

Burden on person asserting privilege and bar is high

Privilege lost if docs is to be used at trial

Question 73

Common interest privilege

Answer 73

May apply where there are multiple Ds or group actions

To apply common interest must have been present at the time of disclosure between the parties

If subsequently the parties’ relationship breaks down, the right to c laim privilege to third parties subsists

Privilege can only be waived if all interested parties agree to waive it

Question 74

Public interest immunity

Answer 74

Ie if disclosure may harm the nation or the administration of justice

Court will balance risk with the value that disclosure may have for the other party

Question 75

Loss of privilege

Answer 75

May be waived by the client

Once disclosed cannot be restored

Mistaken disclosure (Ie inadvertently waived by the sol)
- The party who has inspected it may use it only with permission of the court
- Court may prevent use if there has been an obvious mistake in making it available for inspection
- Court will also consider interests of justice and the overriding objective

Question 76

Witnesses in general

Answer 76

Signed statement generally required to testify: Endorsed by statement of truth and served on opponent on time; Then attends court for cross-examination

WS not served => party cannot call that witness to give evidence unless court gives permission

Defaulting party can apply to adduce the evidence despite failure to serve on time if they can demonstrate a good reason for the failure

Competency of witness and service of summons:

Competent if they can be lawfully called to give evidence (eg with mental capacity)

Witness can be compelled to give witness by serving a witness summons on the witness:
Court will issue witness summons on the witness at least 7 days before the hearing
Witness entitled to conduct money for travel and lost time, incl earnings lost on account of attending the trial

Party decides not to call a witness whose evidence has been served, other party can still refer to the statement (court will treat as hearsay evidence)

Question 77

Format of WSs

Answer 77

Incl a statement of truth

As standard

If party’s rep is making a statement:
1. Firm’s name and address should be given, with confirmation that maker is party’s legal rep
2. Not direct evidence => should preface any reference to facts outside personal knowledge with ‘i am informed’

Not possible to obtain witness statement => party may serve witness summary (which identifies the witness and summaries the factual issues their evidence will cover)

Affidavit = written statement by oath or affirmation
1. Whereas WS contains a statement of truth, an affidavit must be ‘sworn’, usually before a sol who will endorse to say that the maker had sworn begore them that the contents were true
2. Some apps may requires affidavit eg freezing injunctions or search orders

Question 78

Hearsay evidence (definition + becoming non-hearsay)

Answer 78

Must be:
1. Made outside court; and
2. Its purpose must be to prove the truth of what is being stated

Ie stops becoming hearsay when witness attends at court

Claimant’s case:
1. C’s witnesses will give evidence first
2. Asked whthere their sig on WS and if yes that will stand as their evidence in chief and cease to be hearsay

D’s reps then cross-examine

Then D’s witnesses give evidence in chief and are cross-examined

Question 79

How does a judge deal with hearsay evidence

Answer 79

Judge will not put as much weight on this evidence

Judge will consider:
1. Whether it would have been reasonable or practicable to force the witness to attend
2. Whether the original statement was made contemporaneously with the event
3. Whether the evidence involves multiple hearsay
4. Whether there was any motive to misrepresent the position/conceal facts
5. Whether the original statement was edited

Trial must indicate weight they have attached to hearsay evidence

Party wishes to rely on hearsay evidence => must serve notice on opponent

Witness attending => service of WS constitutes notice

Witness not attending => party must serve formal document giving notice

If party served seeks to call witness at trial/seek to attack witness’s credibility at trial => must within 14 days of service make an app to call witness to court

Question 80

Problem witnesses

Answer 80

(ie sig lack of cooperation to tell the truth on behalf of the party who called them)

Can be declared ‘hostile witness’

If judge agrees, witness can be cross examined on facts of case to eg provide the witness has made inconsistent statement in the past

Question 81

Notice to Admit Facts

Answer 81

Facts capable of agreement and admission => serve Notice to Admit Facts on opponent no later than 21 days before trial

Notice served, facts not admitted but then proved at trial => court may order party who refused to admit to pay associated costs

Question 82

Notice to prove document

Answer 82

Party believes a doc produced by opponent is not authentic => can serve notice to prove the document at trial

Must be served by last day available for WS exchange or within 7 days of disclosure of the doc (whichever is later)

Recipient proves authenticity of doc => court may make costs order against party who served notice

Question 83

Inadmissible evidence

Answer 83

Opinion evidence (unless expert, or unless facts as perceived by them)

Privileged

Without prejudice comms

Evidence protected by public interest immunity

Irrelevant evidence

Court may also disallow evidence that would normally be admissible (ie court has a discretion)

Question 84

Expert evidence: what can they say

Answer 84

Experts may give opinion evidence as long as expert qualified to give the opinion and the expert evidence is reasonably required to resolve the proceedings

Opinoin must depend on special knowledge that is not within the ordinary experience of the judge

Expert must demonstrate that they can be regarded as a true expert in the particular field of expertise

Exoert must give evidence to a reasonable degree of certainty regarding their opinion, inference, or conclusions; and

Expert must be able to demonstrate the basis of their opinion and conclusions

Expert must exercise independence, integrity and impartiality (owes duty to court)

Question 85

Nature of expert report

Answer 85

Report prepared by expert should:
1. Be independent and uninfluenced
2. Provide an objective unbiased opinion
3. State the facts on which the opinion is based; and
4. Make clear when an issue falls outside the author’s field of expertise or where there is insufficient evidence or research on which to base an opinion

Question 86

What to do if oral exper evidence required

Answer 86

Default is oral evidence not required unless court directs otherwise. Party requesting oral evidence must establish that:

1. Expert oral evidence is likely to have an effect on the outcome
2. It will assist the judge
3. There is a risk of injustice if the expert evidence is not tested; and
4. The costs of the experts attending are not disproportionate

Question 87

Procedure for SJE

Answer 87

Parties should try to agree identity

Not possible => court will choose from a list provided by the parties

Fast track => court must give directions for a SJE unless good reason not to

Parties share fee until conclusion (at which point losing party claims responsibility)

Different from agreed expert in PI claim: (Ie an expert nominated by the C’s rep in the PAP process)
- D does not object => C will instruct, but not instructed jointly and D retains right to instruct own expert

Question 88

Own experts

Answer 88

More likely in multi-track

Must persuade court it is reasonable to do so, eg:
1. Complex issues and high value
2. Parties already have own experts from pre action stage
3. Number of schools of thought
4. Issue may have huge significance in outcome of action ie addressing challenging issues to liability and quantum

Directions likely to include requirement that parties arrange a WP meeting
- Legal reps should not be present when experts meet

Question 89

Provisions to ask questions of experts

Answer 89

Parties can ask questions to expert within 28 days of expert sending report

Should be proportionate and for clarification

Each party must send a copy of their questions to the other party

Question 90

How is settlement before trial recorded

Answer 90

Usually in form of tomlin order which incl:

The order, which confirms that the parties have agreed settlement and that they have agreed that the case is stayed pending the terms of the settlement being carried out; and

A schedule confirming the amount to be paid, by whom, and what dates this needs to be paid by

Question 91

Pre-trial hearing

Answer 91

Fast track case => court will usually fix the trial date or window when giving directions after receipt of the DQs

Multi track => court more likely to list the case for a pre-trail hearing on consideration of the pre-trial checklists completed by the parties

Pre-trial review hearings take place approx 10 weeks before the trial date

Purpose = make sure everything in place for the matter to be heard at trial to ensure effective use of court time

Court may:
1. Consider the extent to which parties have complied with orders and directions;
2. Set a trial timetable; and
3. Set the number of experts and witnesses that may give evidence at the trial

Parties required to file and serve an agreed (where possible) case summary before hearing with a list of issues
1. Must not be more than 500 words
2. Should incl agreed upon facts, what is in dispute, and a synopsis of the evidence that is believed to be required

Question 92

Witness summons

Answer 92

Purpose = to compel a witness to attend court to give evidence at trial

Issued by the court on the request of a party

Send to court separate summons for each witness to be served plus one copy of each plus court fee

Party must also send appropriate sum to cover witness’s expenses in attending trial and compensating them for their time (conduct money)

Conduct money not incl = summons is ineffective

Effect = if witness then fails to attend they will be in contempt of court

CC => likely a fine

To be effective must be serve don witness at least 7 days before the trial

Question 93

Modes of address in advocacy

Answer 93

Magistrates => Your Worship or Sir/Madam - begin letters ‘Dear [full name]’

District Judge => DJ => Judge

Circuit Judge => HHJ => Your Honour => Judge

Master => Master => Master => Master

HC => J => My Lord/My Lady => Judge

CoA => LJ => My Lord/Lady => Lord Justice

Question 94

Trial bundle

Answer 94

C’s sol must prepare and bear expense of preparation

Must be filed within 3 and 7 days before trial

At least 6 bundles should be filed

Question 95

Trial format

Answer 95

Judge has discretion to depart from the timetable if they intend to

Usually =
1. Opening submission for C
2. Opening submissions for D
3. Consideration of any preliminary issues
4. C’s witnesses give evidence (incl EiC, XE, and RE)
5. C’s experts give evidence
6. D’s witnesses give evidence
7. D’s experts give evidence
8. C’s counsel makes closing submissions
9.D’s counsel makes closing submissions

Leading question = one that prompts or encourages the desired answer

Both leading and non-leading permitted during XE, but only non-leading are permission during RE

Judgment may be given or reserved (and list hearing for another date to ‘hand down’)

After judgment hand down the parties may make submission on any other matters that flow from the judgment (Eg interest, costs, time to pay, stay of execution, permission to appeal)

Question 96

Discontinuing claim

Answer 96

Must file and serve a notice of discontinuance

Sometimes must obtain permission to do so (incl when court has granted interim injunction or interim payment)

Consequence = C who has discontinued is liable to pay the costs of the D in defending the action, subject to the application of qualified one-way costs shifting

Question 97

Destination of appeals

Answer 97

DJ -> CJ -> HCJ -> CoAJ

Master -> HCJ -> CoAJ

Question 98

Right to appeal

Answer 98

No automatic right to appeal in civil cases => party needs to seek permission

To lower court where decision was made

To appeal court in the notice

Question 99

Grounds for appeal

Answer 99

The decision is wrong in fact, low or the exercise of the court’s direction; or

The decision is unjust because of serious procedural or other irregularity in the proceedings

Question 100

Time limits for appeal

Answer 100

Can be made orally immediately after judge has made the decision/given order

Can also make formal application within 21 days of judgment hand down (more time => must be sought from the judge)

Usually considers appellant’s notice and application without a hearing

Granted => listed for hearing for appeal to be heard

Not granted and within 7 days of service of the order refusing to grant permission => appellant may request an oral hearing to make reps (court not required to grant this request)

Does not seek permission of lower court and no request for extension fo time => cannot make permission app after 21 days

BUT party can apply in appropriate case to CoA for permission retrospectively (court treats this as an app for relief from sanctions and so must look at):
1. The seriousness and significance of the failure to comply with the rules
2. Why the default occurred; and
3. Evaluation of the circs of the case, so that the court can deal with the application in a just manner

Question 101

Process for filing appeal

Answer 101

Party wishing to appeal must send appeal form to the court with copy of sealed order, the subject of the appeal, and the application notice

Specifies grounds on which party is appealing

Respondent may cross-appeal using similar process

Question 102

What the appellate court can consider

Answer 102

Appeal hearing is limited to a review of the decision of the lower court (NOT a re-hearing so party not allowed to rely on evidence that was not available at the original hearing)

May be dealt with as a rolled-up hearing

Question 103

General principles re costs

Answer 103

Key principle = loser pays the winner’s costs

Costs are always at the discretion of the court (may depart when eg failure to follow preaction protocol)

Indemnity principle = party cannot recover more from an opponent than they are liable to pay their own legal rep (ie limit is actual costs)

Costs are calculated by looking at time recording

Question 104

Bases of costs assessment

Answer 104

Standard basis = court allows only proportionate costs and exercises any doubt in favour of the paying party

Indemnity basis = court does not consider proportionality
- Used when the court has doubts in the receiving party’s favour
- Difficult for paying party to object to costs unless it was unreasonable for the sol to do the work at all
- Only a sanction against a party for incurring unnecessary costs by their conduct
- Costs must be reasonable incurred and reasonable in amount

Question 105

What happens if parties can’t agree on costs

Answer 105

Parties have a hearing to determine costs (an ‘assessment’)

Court will consider:
1. Value of the claim
2. Complexity and importance of the claim
3. Skill and effort involved
4. Time spent
5. Location (as may be differing overheads)

Question 106

Types of costs order

Answer 106

Stated amount for costs

Payment of costs up to a certain date or up to certain steps in the case

Order to pay only a proportion of the other party’s costs

Question 107

Costs management/budgeting

Answer 107

Aim = to limit costs

In multitrack cases both parties file and exchange costs budgets

Case worth <£50k => filed with DQ

Case worth >£50k => filed 21 days before first CMC

Often first considered by judge at CMC (=> called CCMC)

Judge may make a costs management order (CMO) at this hearing

Made => costs budget should not be departed from (leeway of 20%)

Party sees they will exceed CMO => must apply to court for new order

No budget filed => risk that no costs will be awarded bar the applicable court fees

Question 108

IP costs (summary assessment)

Answer 108

= for lower value cases and interim applications

Statement of costs must be filed by the parties 24 hours before a hearing or 2 days before a trial

Judge will make a summary assessment of the costs payable at conclusion of the hearing

Court normally orders costs to be paid within 14 days

Receiving party entitled to interest from the time of judgement until costs are paid

Question 109

IP costs (detailed assessment)

Answer 109

= for larger value claims or cases of greater complexity

Hearing to consider costs will take place after main action has concluded (unless parties agree amount of costs payable)

Receiving party prepares detailed ‘bill of costs’ that must be served on opponent within 3 months of judgment/order

Paying party files ‘points of dispute’ within 21 days thereafter (do not do so => receiving party can apply for default costs certificate)

Often ‘provisionally assed’ by DJ
- ie consider reasonableness of the bill and indicate an amount of costs that they would be prepared to sanction
- Costs claimed exceed £75k => no provisional assessment
- Receiving party not happy with amount in provisional assessment => challenge within 21 days and ask to be listed for detailed assessment hearing

Final costs certificate issued once parties agree or following assessment
(Poss for court to issue interim costs certificate where hearing is some time away)

Bill 20% more than costs budget => C must file statement of reasons . Court will not depart from budget without good reason

Costs awarded should be paid within 14 days of final costs certificate

Question 110

Security for costs

Answer 110

D may apply for this if they are concerned C will not be able to pay if D wins (ONLY D may apply for this)

Type of interim app

Granted => C may be required to pay money into court or provide a bond

Court will consider whether there is reason to believe C will not be able to pay

Subject to court’s discretion

Party cannot make app unless:
1. C is resident outside the jurisdiction
2. C is a company/other body and there is reason to believe that it will be unable to pay D’s costs
3. C has changed address since claim was started with a view to evading the consequences of litigation
4. C failed to provide an address or gave an incorrect address on the claim form
5. C is acting as a nominal C (ie suing for the benefit of another person)
6. C has taken steps in rel to assets that would make it difficult to enforce an order for costs against them

Question 111

Non-party costs

Answer 111

Court has jurisdiction to award costs in cases involving a non-party

Exceptional but, as costs are at court’s discretion, are possible in situations where the non-party funds the proceedings and controls or benefits from them

Procedure =
1. Non-party must be added as a party to the proceedings for the purposes of costs only
2. Non-party must be given the opp to attend a hearing at which the court will consider the matter further

Question 112

Qualified one-way costs shifting

Answer 112

PI claims => C does not pay D’s costs if claim fails unless:
1. Claim was fundamentally dishonest
2. Claim was made for the financial benefit of another
3. Claim was struck out for disclosing no cause of action or abuse

This is called qualified one way costs shifting

Where receiving party may enforce a costs order, they can do so only to the level of damages awarded

BUT C can lose QOCS protection if D has made a Part 36 offer to settle
- C fails to beat the offer, D can recover their costs up to the level of damages awarded

Question 113

Wasted costs order

Answer 113

made if a sol’s conduct has been improper, unreasonable, or negligent

Court must be satisfied that:
1. Legal rep acted improperly, unreasonably or negligently
2. Conduct caused unnecessary cost; and
3. It is just to make the order

Made at the end of the trial or hearing

Sol must advise the client within 7 days of the court making the order

Question 114

Requirements of Part 36 offer

Answer 114

Must specify amount that party would be prepared to pay or to accept to settle the claim

Can be made using court form (N242A) but most sols prefer to set it out in a letter

Must:
- Be in writing
- State clearly that it is made pursuant to CPR Part 36
- Specify a period (relevant period) of not less than 21 days within which the offeree can accept (during this period the offer cannot be removed without the court’s permission)
- State whether the offer relates to the whole or part of the claim
- State whether the offer takes into account any counterclaim

Usually made inclusive of interest

Whether made by C or D, if accepted within the relevant period, D will pay the costs of the claim to the point of acceptance and the costs will be assessed on the standard basis (ie reaosnable costs) if the parties cannot agree them

Question 115

Terms of P36 offer unclear?

Answer 115

=> offeree can request clarification within 7 days

Offeror does not provide suitable clarification within 7 days, offeree may apply to court for an order requiring the offeror to clarify

Question 116

Can P36 offer be withdrawn?

Answer 116

Can be withdrawn as long as offeree has not served a notice of acceptance

Before expiry of relevant period => Takes automatically effect upon expiry of the relevant period

After acceptance (during relevant period) =>
- Offeror may apply to court for permission to withdraw the offer or change its terms within 7 days of the offeree’s notice of acceptance
- Court will give permission if satisfied that there has been a change of circumstances since the offer was made and it is in the interests of justice to give permission (otherwise acceptance will be effective)

After expiry of relevant period =>
- Can be withdrawn/amended without permission
- If this happens and new offer is made which is less advantageous to the offeree, then usual costs consequences flowing from a validly made Part 36 offer will not attach to the withdrawn offer

Question 117

Acceptance of P36 offer (general)

Answer 117

Must be accepted in writing

Can be accepted at any time (incl after relevant period) as long as offeror has not withdrawn it

Acceptance during trial requires permission

C wishes to accept D’s P36 offer when multiple Ds => must seek court’s permission

Question 118

C accepts D’s P36 offer outside relevant period

Answer 118

=> D’s liability to pay costs runs only up to the end of the relevant period
- C cannot recover costs incurred after this date unless parties agree otherwise
- Parties cannot agree who pays costs after this date => court will decide, but usual order = C should pay D’s costs from end of relevant period to date of acceptance

Question 119

D accepts C’s P36 offer outside relevant period

Answer 119

=> court will decide liability for costs if parties cannot agree

Question 120

D accepts C’s P36 offer within relevant period

Answer 120

=> liable to pay C’s costs of proceedings up to the date on which letter accepting P36 is served

C has automatic entitlement to those costs, to be assessed on the standard basis

Question 121

Post-judgment costs consequences of rejecting P36 (rejected by C)

Answer 121

C beats offer => D ordered to pay C’s costs of entire proceedings

C does not beat offer (incl being same) => court will award D their costs on the standard basis from the date when the relevant period for acceptance expired
- Unless court considers it unjust to do so
- D may also be awarded interest on those costs

Question 122

Post-judgment costs consequences of rejecting P36 (Rejected by D)

Answer 122

C fails to beat own offer => Part 36 has no effect

C beats own offer (or gets same) => C entitled to interest on entirety of the claim at an enhanced rate of up to 10% above base rate for the period after the time for acceptance expired
- Unless court considers unjust
- Costs for this period will be assessed on an indemnity basis with enhanced interest on those costs of up to 10% above base rate
- C may seek an additional amount of damages by virtue of D failing to accept their reasonable P36 offer

Damages only or mixed claims
- Amount to be paid by D will be calculated as % of damages awarded to C
- Up to £50k => 10% of amount awarded
- Above £50k => 10% of first £500k and 5% of amount awarded above that figure

Non-monetary claims
- D must pay % of costs that court has ordered D to pay to C, subject to cap of £75k
- Up to £500k => 10% of costs ordered to be paid
- Above £500k => 10% of the first £500k and 5% of any costs ordered to be paid above this figure

Question 123

‘unless unjust’ to do so - what will the court consider (re P36)

Answer 123

1. Terms of any P36 offer
2. Stage in the proceedings when any P36 offer was made, incl how long before trail
3. Info available to the parties at the time the P36 was made
4. Conduct of the parties with regard to the giving of or refusal to give info for the purposes of enabling the offer to be made or evaluated
5. Whether the offer was a genuine attempt to settle the proceedings

Question 124

Interest provisions on court judgments (HC)

Answer 124

8% per annum, running from date of judgment

In addition to interest court awards on the valid of the claim as part of its judgment

Question 125

Interest provisions on court judgments (CC)

Answer 125

Judgment under £5k =>
Interest normally not payable
- BUT if judgment arises from a contractual obligation and contract provides for interest, interest will be payable

Judgment over £5k => 8% unless postponed
- CC judgment over £600 can transfer to HC for enforcement

Question 126

Oral examination (re enforcement of money judgments)

Answer 126

Judgment creditor (ie successful party) may apply for an order requiring judgment debtor (other party) to attend a court hearing to provide info about means and assets

JC must service court order personally on JD no less than 14 days before oral hearing

JC must also file affadavit not less than 2 days before the hearing, giving details of service and stating how much remains unpaid

Officer of court/JC questions JD on oath

Judge may make committal order if JD fails to attend

Ascertains assets of JD and so what is likely to be most effective method of enforcement

Question 127

Methods of enforcement of money judgments - taking control of goods

Answer 127

HC enforcement officer will enforce a judgment registered in the HC (or CC if transferred)

Writ of control (HC)
- JC will file a request to execute the judgment, attaching a copy of the judgment and any order granting permission if required
- Court issue writ of control which is then sent to enforcement officer

Warrant of control (CC)
- JC must certify amount remaining due and, once court seals order, it forwards it to a certified enforcement agent

Question 128

Procedure for taking control of goods (re enforcing money judgments)

Answer 128

JC must give JD no less than 7 days’ notice of JC’s intention to take control fo goods

Must take place within 12 months of notice

JC’s agent can enter only the stated address and must provide an inventory of any goods seized

Agent must then sell the goods within 7 days with the proceeds used to discharge the debt plus enforcement costs

Question 129

Taking control of goods - general (re money judgments)

Answer 129

JC cannot seize:
- Equipment for use in JD’s trade
- Household items necessary for basic domestic needs

Controlled goods agreement = agreement that permits the JD to retain custody of the goods on the understanding that the enforcement officer is taking control of them, and the debtor agrees not to dispose of them before the debt is paid

Question 130

Methods of enforcement of money judgments - third party debt order

Answer 130

ie Order where bank pays money to JC instead of JD

Usually where JD has money in the bank

May also apply in commercial cases where JD is owed money by a third party who will then pay debt directly to JC

Question 131

Methods of enforcement of money judgments - charging order on land

Answer 131

JC may obtain charge on the property which will rank as an equitable mortgage (ie gives JC right to apply for an order of sale)

Can apply even where land is in joint ownership

Court generally won’t order sale if eg children living there

Question 132

Methods of enforcement of money judgments - attachment of earnings

Answer 132

JD in regular employment => this order compels an employer to make regular deductions from JD’s earnings and then pay them into court

Available only in CC and only against inds

Order made => either party entitled to apply on notice for terms of order to be reconsidered

Question 133

Methods of enforcement of money judgments - can multiple be used together?

Answer 133

Yes

Exception = party needs court’s permission to take control of goods while an attachment of earnings order is in force

Question 134

Methods of money enforcement in another country

Answer 134

JD in EU country
- Contract stipulates E+W courts have jurisdiction => JC can issue a claim in the UK

JD outside EU
- Country with reciprocal agreement with UK => creditor is permitted to trace JD and enforce the claim in that country, with the court’s permission
- Otherwise v difficult