Dispute Resolution Flashcards
Limitation in tort
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
Limitation in contract
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
Limitation in latent defect claims
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
Procedural issues w limitation
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
PI protocol (letter of claim)
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
PI protocol (procedure)
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
Consequences of failure to follow pre action protocol
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
Where might be appropriate to issue before full PAP undertaken
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
Pre-action applications
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
Starting a case in the HC
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
Divisions and registries of HC
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
Bringing proceedings in the CC
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)
Issuing claim form (normal ie part 7 claims)
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
Issuing claim form (part 8 claim)
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
Docs included for service (within jurisdiction)
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
Service on who?
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)
Methods of service
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
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)
Exceptional circs for service
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
Service not valid
=> D will need to indicate on AOS and make an application within 14 days
Certificate of service
Court serving => will send certificate to C
C serving => need to file N215 within 21 days
Service by alternative method
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
Service of POC
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
Service outside jurisdiction
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
Time limits for responding to a claim
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
Admission in whole
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
Partial admission
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
Withdrawal of admission
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
Withdrawal of admission in PI claim
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
Filing defence and AoS
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)
Summary judgment
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
If D wants to dispute court’s jurisdiction
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
Judgment in default
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
App to set aside judgment in default
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
Discontinuance
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
Settlement
Will not carry legal weight unless embodied in court order setting out terms of agreement and time for paymentH
How to respond to POC in defence
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
Reply
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
When are Part 20 claims used
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
Issuign counterclaim
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
Issuing claim against third party (part 20)
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
Issuing claim seeking contribution/indemnity (part 20)
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
Counterclaim against another 3rd party (part 20)
D may file claim against 3rd party for their own injuries arising from same facts
Court permission required
Service of part 20 claim
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
Defence to CC (part 20 claims)
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
Requests for further info
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
When can a statement of case be amended
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
Process of amending statement of case
Files app notice with a copy of proposed amended statement of case
Parties consent => decided without a hearing
Otherwise hearing will be held
Amending statement of case to change parties
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
Changing parties of limitation period expired
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
Directions Questionnaires
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
Small claims track
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
Fast track
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
Multi track
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
Case management directions (fast track)
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
Case management directions (multi track)
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
Non-compliance with directions
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
Procedure for interim Application
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)
Grounds for app for interim payment
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
App for interim payment
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
Procedure for app for interim payment
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
Undertaking in damages (injunction)
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
Grounds for discharging an injunction
(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
Freezing injunction
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
Search orders/preservation of property
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.
Standard disclosure - duty and extent
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
Disclosure processes - LOD
LOD – 3 sections =
- List of docs in its control they do not object to other party inspecting
- List of docs in its control they object to other party inspecting with reasons (usually privilege)
- 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
Party not content with dislosure?
Can apply for specific disclosure
Serve a notice to admit facts
Apply for unless order
Specific disclosure
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
Pre-action discolsure
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:
- Freezing injunctions
- Search orders
- Apps for preservation of property; or
- Requests for further info pursuant.
Disclosure in cases of privileged info
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
Legal advice privilege
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
Litigation privilege
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
Common interest privilege
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
Public interest immunity
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
Loss of privilege
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
Witnesses in general
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)
Format of WSs
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
Hearsay evidence (definition + becoming non-hearsay)
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
How does a judge deal with hearsay evidence
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
Problem witnesses
(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
Notice to Admit Facts
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
Notice to prove document
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
Inadmissible evidence
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)
Expert evidence: what can they say
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)
Nature of expert report
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
What to do if oral exper evidence required
Default is oral evidence not required unless court directs otherwise. Party requesting oral evidence must establish that:
- Expert oral evidence is likely to have an effect on the outcome
- It will assist the judge
- There is a risk of injustice if the expert evidence is not tested; and
- The costs of the experts attending are not disproportionate
Procedure for SJE
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
Own experts
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
Provisions to ask questions of experts
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
How is settlement before trial recorded
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
Pre-trial hearing
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
Witness summons
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
Modes of address in advocacy
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
Trial bundle
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
Trial format
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)
Discontinuing claim
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
Destination of appeals
DJ -> CJ -> HCJ -> CoAJ
Master -> HCJ -> CoAJ
Right to appeal
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
Grounds for appeal
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
Time limits for appeal
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
Process for filing appeal
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
What the appellate court can consider
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
General principles re costs
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
Bases of costs assessment
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
What happens if parties can’t agree on costs
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)
Types of costs order
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
Costs management/budgeting
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
IP costs (summary assessment)
= 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
IP costs (detailed assessment)
= 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
Security for costs
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
Non-party costs
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
Qualified one-way costs shifting
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
Wasted costs order
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
Requirements of Part 36 offer
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
Terms of P36 offer unclear?
=> 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
Can P36 offer be withdrawn?
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
Acceptance of P36 offer (general)
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
C accepts D’s P36 offer outside relevant period
=> 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
D accepts C’s P36 offer outside relevant period
=> court will decide liability for costs if parties cannot agree
D accepts C’s P36 offer within relevant period
=> 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
Post-judgment costs consequences of rejecting P36 (rejected by C)
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
Post-judgment costs consequences of rejecting P36 (Rejected by D)
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
‘unless unjust’ to do so - what will the court consider (re P36)
- Terms of any P36 offer
- Stage in the proceedings when any P36 offer was made, incl how long before trail
- Info available to the parties at the time the P36 was made
- 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
- Whether the offer was a genuine attempt to settle the proceedings
Interest provisions on court judgments (HC)
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
Interest provisions on court judgments (CC)
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
Oral examination (re enforcement of money judgments)
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
Methods of enforcement of money judgments - taking control of goods
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
Procedure for taking control of goods (re enforcing money judgments)
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
Taking control of goods - general (re money judgments)
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
Methods of enforcement of money judgments - third party debt order
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
Methods of enforcement of money judgments - charging order on land
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
Methods of enforcement of money judgments - attachment of earnings
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
Methods of enforcement of money judgments - can multiple be used together?
Yes
Exception = party needs court’s permission to take control of goods while an attachment of earnings order is in force
Methods of money enforcement in another country
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
