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SQE - FLK1 > Dispute Resolution > Flashcards

Dispute Resolution Flashcards

1
Q

What is the overriding objective of the CPR?

A

Deal with cases justly and at proportionate costs

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2
Q

Two important considerations for litigants in person?

A

Solicitors must not take unfair advantage of them.

Court may be more lenient regarding case management decisions.

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3
Q

Who operates legal aid for civil matters? 2 excluded categories of legal work?

A

Legal Aid Agency.

Nearly all personal injury work and most civil/commercial litigation cannot be funded by the LAA

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4
Q

What is ATE insurance? What is an important warning you must give the client?

A

After the Event insurance provides cover for any adverse costs which the client may have to pay if unsuccessful.

Warn client that the premium is NOT recoverable from an unsuccessful opposing party and must be paid (with certain limited exceptions, eg defamation, privacy, some clinical negligence)

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5
Q

Distinguish between discounted CFA and success fees?

A

Discounted CFA usually requires client to pay costs and disbursements as matter progresses, but at a DISCOUNTED hourly rate with the BALANCE DUE payable only on success.

Success fee CFA usually only requires payment on conclusion of the matter (and it may be no win no fee depending on the CFA).

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6
Q

Requirements for enforceable CFA?

A
  1. In writing
  2. Must not relate to exempted proceedings (e.g. criminal and family)
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7
Q

Five warnings to give client when entering into CFA?

A
  1. Success fee generally NOT RECOVERABLE from opposing party
  2. MAXIMUM SUCCESS FEE that can be charged under the CFA
  3. When client MAY BE LIABLE FOR COSTS (both their own and opponent)
  4. Client’s ENTITLEMENT TO AN ASSESSMENT of costs
  5. Whether the legal representative has any INTEREST IN A CORRESPONDING FUNDING POLICY
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8
Q

What is a DBA? What are the 3 caps, and what is excluded?

A

Damages Based Agreement - fees based on a % of damages recovered by a successful client.

Capped at:
1. 25% for personal injury (excluding damages for future care/loss)
2. 35% for employment
3. 50% for other civil cases

Disbursements are excluded.

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9
Q

Two important clarifications on scope of permissible DBA?

A
  1. Cannot be used for appeals
  2. Can only be used for clients pursuing a financial remedy (by claim or counterclaim)
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10
Q

Three usual provisions in a DBA?

A
  1. No legal fees payable until conclusion of matter
  2. If unsuccessful, no need to pay costs and disbursements subject to the DBA
  3. If successful, must pay lawyer an agreed percentage of the recovered sum LESS any sum recovered for costs and disbursements.

*The sum payable to the legal representative under the DBA will also cap client’s claim for costs and disbursements

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11
Q

Two important clarifications for litigation funding?

A
  1. Usually does not extend to an adverse costs order if client is unsuccessful
  2. Funding agreement must comply with DBA regulations (in writing, etc)
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12
Q

When can formal proceedings be stayed in relation to ADR?

A

Where: (1) the parties wish to attempt ADR or (2) the court considers it appropriate

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13
Q

2 situations where court may stay proceedings for ADR purposes?

A
  1. Where one party wishes to attempt ADR and the opposing party cannot show good reasons why ADR is unlikely to work
  2. Where the court feels ADR is appropriate PROVIDED (i) does not impair essence of C’s right to proceed to a judicial hearing and (ii) is proportionate to the legitimate aim of a fair, quick and cost-efficient settlement of the dispute
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14
Q

Warning to give client who doesn’t want to do ADR?

A

May be penalised in costs if the matter proceeds to trial, even if successful. In awarding costs, court must consider efforts made before and during the proceedings to try and resolve the dispute

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15
Q

Precaution for solicitor to take in relation to ADR?

A

Keep detailed paper trial about the occasions on which ADR was discussed with the client and the opponent.

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16
Q

What is the most common ADR for commercial disputes

A

Executive Tribunal (comprised of panel of senior party reps not involved in the dispute plus an independent advisor)

If agreement cannot be reached, independent advisor issues NON-BINDING OPINION

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17
Q

3 important features of adjudication?

A
  1. REFERRAL NOTICE will set out adjudicator’s directions on timeline for written subs
  2. Strict time limits = decisions are usually reached within 28 DAYS of service of Referral Notice
  3. Issues determined can be RELITIGATED at any time through court or arbitration
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18
Q

2 important clarifications about the role of the mediator?

A
  1. He does not act as a judge and will not rule on the merits
  2. He will not impose or propose settlement terms
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19
Q

What are three phases normally observed during a “mediation hearing”?

A
  1. Begins with a PLENARY SESSION where mediator explains the rules and process and invites opening statements
  2. May involve CAUCUS where mediator explores each party’s position confidentially
  3. May involve SHUTTLE DIPLOMACY - mediator moves between rooms in series of private sessions to identify common ground, concessions and offers
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20
Q

What are the two preliminary questions when determining jurisdiction?

A
  1. D’s domicile - EU rules set out basic principle that D should usually be sued in his country of domicile
  2. Date the proceedings were instigated - if claim was instigated by 11 PM on 31 Dec 2020, European Rules apply; if instigated from 1 Jan 2021, common law rules apply.
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21
Q

What is the basuc test for whether the English courts have jurisdiction over a claim?

A
  1. If D can be served within the jurisdiction OR
  2. Outside the jurisdiction with permission (i.e. meets the connecting factor and forum non conveniens tests)
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22
Q

What are the monetary thresholds for a High Court claim? 2 exceptions?

A
  1. Exceeds 100,000 for normal claims
  2. Exceeds 50,000 for personal injury

Exception:
(i) where STATUTE requires it
(ii) Relates to certain other exceptions like professional negligence, fraud, undue influence, defamation, police claims, contentious probate claims

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23
Q

When is a litigation friend required to conduct proceedings on C’s behalf (2 examples)?

A

Usually (1) child under 18 or (2) person lacking mental capacity to conduct the proceedings

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24
Q

How do partnerships commence legal proceedings?

A

Partnerships lack legal personality, so partners usually sue (and are sued) in their individual names OR in the name of the firm (the words “(a firm)” must be added to the title)

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25
Q

How should a sole trader commence proceedings? What about proceedings against a sole trader?

A

In his own name (add the term “trading as….”)

If D’s real name is not known, he may be sued in the business name following by the words “(a trading name)”

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26
Q

How should claims brought by a deceased party be dealt with (2 scenarios)?

A
  1. Death before claim issued - must be brought by his personal representatives
  2. Death after claim issued - must apply to court to: (i) substitute personal representatives for deceased party; (ii) direct a person to represent the estate; or (iii) order action to proceed without deceased party being represented
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27
Q

When is a claim commenced for purposes of computing limitation periods?

A

Time ends when the claimant delivers the claim form and corresponding fee to the court for issue. ACTUAL RECEIPT by the court office is the test (note for post).

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28
Q

When does the claim form expire? What does Claimant have to do with the claim form?

A

Four months after the sealing of the claim form. Claimant must serve claim form and particulars on D within four months or it will lapse (and if LP has ended, the claim will be time-barred).

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29
Q

Two key considerations when advising clients regarding limitation periods?

A
  1. Protective proceedings may be needed to ensure LP does not expire
  2. Limitation must be specifically pleaded as a defence - it does not automatically apply
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30
Q

What are the two main categories of time bar?

A

6 months (contract, tort, enforcing judgment)

3 months (personal injury, Fatal Accident Act claims, consumer protection, negligence where facts relevant to cause of action not known at date of accrual)

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31
Q

As a general rule, when does time start to run (2 points)? Apply to tort and contract claims.

A

Time runs from the DAY AFTER which facts exist establishing all of the ESSENTIAL ELEMENTS of the cause of action.

Tort - when damage suffered.

Contract - date of the breach of contract.

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32
Q

When may a limitation period be tolled by characteristics of the defendant (2 scenarios)?

A
  1. When claimant is a child, time bar will only start to run from the date of his 18th birthday
  2. When C is a protected party of unsound mind at the time the cause of action arose, from the date they are no longer of unsound mind
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33
Q

Two special time bar considerations for fraud claims?

A
  1. Time bar only starts running once C DISCOVERS or could with reasonable diligence have discovered the fraud
  2. Will not run whilst D DELIBERATELY CONCEALS a relevant fact
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34
Q

What special time bar test applies where a claim is for relief from consequences of a mistake?

A

Time only runs from the date the mistake is (or could have with reasonable diligence been) discovered

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35
Q

What special time bar is created by the Latent Damage Act 1986?

A

3 years from the “starting date” - earliest date when C knew that the damage was sufficiently serious, and could attribute it to D’s negligence

Deviates from usual tort time bar of 6 years

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36
Q

What is the ultimate long-stop time bar for all civil claims?

A

15 years from the date of the act or omission

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37
Q

How is time bar computed for a claim for contribution to civil liability?

A

2 years from the date on which the person seeking a contribution is held liable by the judgment. Time begins running from the date of the damages assessment.

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38
Q

(3 situations) When may the court exercise discretion to extend the statutory limitation period?

A
  1. Defamation
  2. Judicial Review
  3. Personal Injury
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39
Q

How does C usually prosecute joint debtors?

A

All joint debtors should be made parties to the action; if C does not do this, D may apply to add his joint debtor(s) as additional partie(s)

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40
Q

3 partners are jointly and severally liable. C only sues one partner. How would you advise that partner?

A

While he may be liable for the whole debt (since they are jointly liable), he is entitled to seek contribution from his co-obligors under the doctrine of several liabilit.

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41
Q

What is the Claims Portal and what kind of claims is it meant to cover (1 general. 3 specific)?

A

Online dispute resolution portral intended to speed up the resolution of claims where liability (but not necessarily quantum) is admitted and the issues are straightforward.

Covers RTAs, Employer’s Liability and Public Liability personal injury claims up to 25,000 GBP BEFORE issue of proceedings.

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42
Q

For Claims Portal - what is the first step?

A

Filing a Claims Notification Form. If the claim is admitted, it will continue to be processed through the Portal; otherwise claim will exit Portal and Claimant will need to follow usual protocol.

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43
Q

For Claims Portal - what is the second filing step for C, and what is the timeline thereafter? What is the fee?

A

Complete Medical Report Form and Settlement Pack.

Insurer has 15 days to agree to pay the settlement figure or counter-offer; following which C has 20 days to consider the counter-offer.

300 GBP for RTA or 600 GBP for EL/PL IF matter is concluded

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44
Q

What happens if, for a claim submitted to the Claims Portal, liability is admitted but not quantum?

A

C will send the insurer a COURT PROCEEDINGS PACK FORM EPL6.

Proceedings will then be commenced by a modified Part 8 procedure, with the final assessment being a paper or oral hearing.

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45
Q

Describe the aim of the equitable remedy of rectification. Does the remedy have retroactive effect?

A

Correcting a contract to reflect the contractual intention of the Parties, with effect from the date of the original agreement.

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46
Q

Two procedural requirements when seeking an interim injunction before issuing proceedings?

A
  1. Application must be made on notice
  2. Applicant must undertake to issue proceedings on the same, or next working day
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47
Q

Four substantive requirements for an interim injunction?

A
  1. Locus standi (i.e., a substantive cause of action)
  2. Equitable maxims (because injunctions are discretionary)
  3. Damages not an adequate remedy
  4. It appears to be just and convenient to grant the injunction, pursuant to the American Cyanamid Rules
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48
Q

What are the four steps of the American Cyanamid test?

A
  1. Is there a serious question to be tried / real prospect of success?
  2. Would damages be an adequate remedy for either party?
  3. Balance of convenience
  4. Special factors
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49
Q

Two warnings to give a client who is contemplating seeking an interim injunction?

A
  1. Possibility of having to give a cross-undertaking as to damages
  2. Duty of full and frank disclosure
50
Q

Six requirements for a freezing order?

A
  1. Court has JURISDICTION
  2. It would be JUST AND CONVENIENT
  3. There is a CAUSE OF ACTION relevant to the application
  4. Applicant has a GOOD ARGUABLE CASE
  5. There are SUFFICIENT ASSETS in existence to satisfy the claim if successful
  6. REAL RISK of DISSIPATION
51
Q

3 procedural requirements to apply for a freezing order?

A
  1. Can make without notice
  2. Support by sworn affidavit (stating reasons for urgency and risk of dissipation; details of assets to be frozen; and evidence of C’s ability to meet the cross-undertaking)
  3. Serving promptly and personally on the respondent and relevant third parties
52
Q

6 unique requirements for a search order?

A
  1. EXTREMELY STRONG prima facie case
  2. SERIOUS DAMAGE (actual or threatened) to Respondent’s interests
  3. Clear evidence that INCRIMINATING THINGS are in R’s possession
  4. NO OTHER WAY to obtain that material
  5. REAL POSSIBILITY OF DESTRUCTION OR DISPOSAL before an application on notice can be made
  6. NO EXCESSIVE OR DISPROPORTIONATE harm to R by execution of the search order
53
Q

An application for a search or freezing order must always be accompanied by a sworn affidavit covering which 3 aspects?

A
  1. Reasons for urgency and the risks sought to be addressed by the application
  2. Details of the property intended to be subject to the application
  3. Evidence of C’s ability to meet cross-undertaking in damages
54
Q

How is service and execution normally carried out for a search order (3 points)?

A
  1. Carried out by court-appointed independent supervising solicitor
  2. Serve personally on respondent
  3. Must allow D sufficient time to obtain legal advise (usually up to 2 hours)
55
Q

3 important considerations when / after carrying out the search?

A
  1. Supervising solicitor must produce LIST of every item seized
  2. Documents seized must be copied and returned to D or their solicitor within2 DAYS
  3. Solicitor must prepare a report of the execution before the SECOND HEARING
56
Q

The PDPACP requires parties to exchange sufficient information before commencing proceedings. What does that entail (3 steps)?

A
  1. Letter of Claim
  2. D’s response within a reasonable time (14-90 days)
  3. Disclosire pf leu dpci,emts
57
Q

When does the PI Protocol apply (3 criteria)? What is the main pre-proceeding advice for C? What about for D?

A

(1) Personal injury claims (2) likely to be allocated to fast-track (2) with a value of up to 25,000 GBP

C must contact D as soon as practicable to advise that investigations into liability and losses are underwar, give details of the potential claim and advise when LOC will be sent.

D must acknowledge the letter of claim within 21 days with a full response within 3 months (insurer and/or D can investigate claim within this time)

58
Q

What is the main deadline for expert selection under the PI Protocol?

A

If either party proposes a list of joint experts and the other side does not raise any objections within 14 days, then one of the listed experts can be appointed as an agreed joint expert

59
Q

Which claims are covered by the Debt Protocol (3 criteria)?

A
  1. Claims for PAYMENT OF A DEBT
  2. BY A BUSINESS
  3. Against an INDIVIDUAL (including sole trader)
60
Q

Two timelines that creditor must observe under the Debt Protocol before issuing proceedings?

A
  1. At least 14 days notice of their intention to start proceedings
  2. No earlier than 30 days from the later of: (i) receipt of the completed Reply Form or (ii) from the creditor providing any documents requested by D
61
Q

For purposes of limitation periods. time starts running once the court seals the claim form. True or false?

A

False. Time stops running when C delivers the claim form and fee to the court.

Sealing claim form issues claim and starts time running for proceedings

62
Q

In which court should a PI or negligence damages claim be issued?

A

Less than 50,000 - County Court

More than 50,000 GBP - MAY issue in High Court if (i) complex (ii) high monetary value or (iii) public importance

63
Q

In which court should a commercial claim for damages / special sum be issued?

A

100,000 GBP or less - County Court

More than 100,000 GBP - MAY issue in High Court if (i) complex (ii) high monetary value or (iii) public importance

64
Q

What are the two County Court Hearing Centres and what claims do they hear?

A

Civil National Business Centre - all County Court money claims under CPR 7

County Court Hearing Centre - narrower; covers things like landlord/tenant claims, possession claims, some injunction applications

65
Q

Five items of essential information for the Part 7 Claim Form?

A
  1. Parties’ names and addresses
  2. Nature of the claim
  3. Remedy sought
  4. For money claim, statement of value
  5. For specific sum claim, interest accrued
66
Q

2 procedural steps C must follow once court seals claim form? Longstop deadline for both steps?

A
  1. Serve Claim Form if not already done by court
  2. Serve Particulars of Claim and Response Pack within 14 days from service of Claim Form

Claim Form and particulars of Claim must be served within 4 MONTHS if within jurisdiction and 6 MONTHS if outside jurisdiction

67
Q

When is a document deemed served?

A

The SECOND BUSINESS DAY after the completion of the RELEVANT STEP

68
Q

What date is assessed when determining if service has been effected in time?

A

The date on which the RELEVANT STEP is taken (and not the date of deemed service).

69
Q

What are the three general guidelines for ascertaining the address for service?

A
  1. Usual or last known residence
  2. Principal or last known place of business
  3. Place of business with a real connection to the claim
70
Q

What should C do when he cannot ascertain D’s address for service?

A

Apply to court for service by an alternative method or at an alternative place (good reason is required)

71
Q

when may a claim form be served out of jurisdiction without the court’s permission?

A
  1. Court has jurisdiction to determine the claim
  2. No proceedings are pending in another court within the UK or other Convention territory
  3. D is domiciled in the UK
  4. There is no other agreement conferring jurisdiction
72
Q

Two procedural requirements for contesting jurisdiction on the basis of effective service?

A

1.Acknowledge service on Form N9 with box 3 (“I intend to contest jurisdiction”) within 14 days
2. File application within 14 days

73
Q

Which three types of remedies require specific reference in the Particulars of Claim?

A
  1. Interest
  2. Aggravated / exemplary damages
  3. Provisional damages
74
Q

When can the Part 8 procedure be used instead of the Part 7 procedure?

A

Where C seeks the court’s decision on a question that is unlikely to involve a substantial dispute of fact.

75
Q

One item you must include with the Part 7 Claim Form that is not required for Part 8?

A

Must serve any witness evidence C wants to rely on.

76
Q

When will the court allow joinder of an additional party to existing proceedings?

A

When it is desirable to resolve: (i) all matters currently in dispute or (ii) another issue involving the new party and one of the existing parties connected to the matters in dispute

77
Q

When will the court grant permisison for a child to conduct proceedings without a litigation friend (2 situation)? If such permission not granted, who will act as the litigation friend?

A
  1. Very close to becoming of age
  2. Child can show he has the skill, knowledge and understanding to conduct proceedings

Usually a relative with no adverse interst in the litigation

78
Q

2 distinctions between a litigation friend acting on behalf of a child vs a protected party?

A
  1. Protected party’s litigation friend is usually a deputy appointed by the court of Appeal, whereas the child’s is usually a deputy
  2. Litigation friend’s appointment ceases automatically once child turns 18 whereas for protected party, a court order is required to terminate appointment
79
Q

3 procedural steps that must be followed once litigation friend’s appointment is terminated? Consequence of non-compliance?

A

Within 28 days of the termination:
1. Serve notice about termination of litigation friend’s appointment
2. State address for service
3. State whether they intend to carry on proceedings

Otherwise the claim/defence may be struck out

80
Q

3 procedural steps for D upon receipt of a Letter of Claim? 2 consequences of non-compliance?

A
  1. Acknowledge within the time limit specified in the letter
  2. Request extension of time for response if needed
  3. Provide letter of response stating whether claim is admitted / denied and any proposals for settlement

Consequences of non-compliance = (i) entitle C to issue proceedings and (ii) possible adverse costs order

81
Q
A
82
Q

What is the consequence of a pre-action admission? Exception?

A

Neither party will be required to adduce evidence in relation to the admitted element of the claim. EXCEPTION is an admission inferred from conduct - then evidence may be adduced to disprove the inference

83
Q

Two situations when a pre-action admission can be withdrawn?

A
  1. Before commencement of proceedings if the recipient of the admission agrees
  2. After commencement of proceedings if all parties consent OR with the court’s permission
84
Q

Five situations when D is not bound by an admission?

A
  1. Admission was made in previous proceedings not placed before the current court as ADOPTED AND TRUE
  2. INFERRED and NOT PROVED
  3. Not CLEAR and UNAMBIGUOUS
  4. Made by a person WITHOUT OSTENSIBLE OR APPARENT AUTHORITY
85
Q

What are the two possible responses by D if C proposes the instruction of a single joint expert?

A
  1. Agree - parties will be bound by the joint expert’s evidence
  2. Refuse - D will not be permitted to rely on expert evidence in subsequent proceedings unless court permits
86
Q

What are D’s 3 options on receiving the Particulars of Claim, and what is the deadline?

A

In all cases, 14 days from the date of deemed service of the Particulars of Claim:

  1. Admission
  2. Acknowledgment of Service (which extends the time for filing Defence to 28 days from the date of deemed service)
  3. Defence (and Counterclaim)
87
Q

4 situations where D does not need to file a Defence within 14 days of receiving the Particulars of Claim?

A
  1. D files Acknowledgment of Service - extends Defence deadline to 28 days
  2. D disputes jurisdiction (must state in the Acknowledgment of Service)
  3. C applies for summary judgment
  4. D admits the claim in its entirety
88
Q

Can D extend the timescale for his Defence beyond 28 days?

A

Yes. Either by agreement (for up to 28 days) or at the court’s discretion (any period)

89
Q

3 consequences of D’s failure to file a Defence within the applicable timescale?

A
  1. C can apply for default judgment
  2. D may not defend the claim
  3. Court will give judgment on the claim and D will be liable for fixed costs and interest
90
Q

How does D respond to the claim particulars in his Defence (3 options)?

A
  1. Deny - must set out his version of events for denied allegations
  2. Admit
  3. Put claimant to proof (i.e. D cannot admit or deny)
91
Q

Your client wants to issue a blanket denial of all allegations in the Particulars of Claim. What is your advice?

A

Any fact, issue or matter not genuinely in dispute should be admitted; otherwise sanctions may be imposed.

92
Q

What kind of claims are brought under Part 20 of the CPR?

A

Any additional claim brought by D in an action (whether a counterclaim against C, contribution claim or indemnity)

93
Q

When must D bring his Part 20 claim in the same proceedings as the main action?

A

When the counterclaim arises from the same, or substantially the same, set of facts as C’s claim

94
Q

What is the most common counterclaim brought by D against a claimant?

A

Equitable or legal set-off (claim by D for an ascertainable amount of money - may be distinct from C’s cause of action

95
Q

Does D need the court’s permission to file a counterclaim against C?

What about a claim against a third party?

A

Against Claimant: No, if counterclaim filed at the same time as the Defence. Yes, if counterclaim is filed at any other time.

Claims against a 3P require the court’s order to add that 3P as an additional party

96
Q

When can D file an additional claim against a third party without the court’s permission

A

When the additional claim is issued before or at the same time as the filing of the Defence

97
Q

What are the 3 possible deadlines for serving a Part 20 Additional Claim?

A
  1. With the Defence if permission is not required
  2. For any additional claim where permission is not required, within 14 days of issue by the court
  3. If permission of the court is required, in accordance with the court’s service directions
98
Q

What 3 documents must you include when serving a person not already party to the proceedings?

A
  1. Form for ADMITTING OR DEFENDING the claim
  2. Form for ACKNOWLEDGING SERVICE
  3. Copy of EVERY SOC filed and served in the main proceedings, together with any other documents the court has directed
99
Q

When is C entitled to file a Reply in response to the Defence? Important rule regarding the content of the Reply?

A

When necessary to respond to any allegations or issues set out in the Defence which were not covered in the Particulars of Claim

Claimant cannot rectify any mistakes in the SOC - that must be via the amendment procedure

100
Q

When must C file a Defence to Counterclaim?

A
  1. 14 days from service of the counterclaim OR
  2. By the date for filing of DQs, if accompanied by a Reply to Defence
101
Q

3 important rules for computing court deadlines?

A
  1. Exclude START AND END date
  2. Weekends and PHs not counted if period is UNDER 5 DAYS
  3. If deadline falls on a day the court office is closed, deadline moves to the NEXT OPEN DAY
102
Q

What is the significance of the statement of truth with respect to pleadings?

A

Without the statement of truth signed by the party or his legal representative, no party may rely on the statement as evidence of any matter set out in it

103
Q

When can a party amend his SoC without the court’s permission

A

At any time before service; or with the written consent of all parties once served

104
Q

Two options where an SoC is amended without the court’s permission?

A
  1. Court may disallow the amendment in its discretion OR
  2. Within 14 days of service of the amended SoC, any other party can apply for an order to disallow the amendment
105
Q

When may the court exercise case management powers to automatically transfer the claim to D’s home court?

A
  1. After filing of Defence
  2. Prior to allocation
  3. Claim is: (i) defended (ii) for a specific sum and (iii) against an individual
106
Q

Two key documents court will send after Defence is filed?

A
  1. Notice of Proposed Allocation
  2. Notice to download the appropriate Directions Questionnaire

LiPs will receive the correct DQ from the court

107
Q

Five key details covered by the Directions Questionnaire?

A
  1. Progress towards ADR
  2. Disclosure and evidence of fact (including identifying witnesses)
  3. Expert evidence
  4. Case management directions
  5. Costs estimate and costs incurred to date
108
Q

1 situation, 2 reasons why completing party must be especially careful when filling out costs estimate in the DQ?

A

In fast and multi-track cases:
1. A costs estimate in the DQ may be treated as binding by the court
2. If there is a 20% or greater difference between the estimate and the final costs claimed, the relevant party may be asked to state the reasons for the difference

109
Q

Deadline to file and serve DQs?

A

Within 28 days of the deemed date of service of the Notice of Proposed Allocation

110
Q

How does the court proceed once DQs are completed and filed in: (i) fast-track cases; and (ii) multi track cases?

A

Fast track - confirm allocation to fast track and give case management directions

Multi-track - list the matter for a CCMC to be heard by telephone

111
Q

What is the main purpose of a CCMC?

A

To review progress of the case to date (including compliance with previous directions) and hear submissions in relation to case management directions and costs budgets

112
Q

What is the purpose of a costs budget? When is it usually exchanged?

A

To help the court manage costs incurred and which may be recoverable. Must be exchanged 7 days before the first CCMC unless there is a Costs Management Order or the court orders otherwise.

113
Q

Why is the costs budget important?

A

A party cannot recover costs in excess of the budgeted costs unless: (i) there is good reason to depart from the approved budget or (ii) the party has applied to the court and received approval to increase the existing budget

114
Q

When does the court usually confirm allocation of the claim? Exception?

A

After DQs have been filed (usually at a CCMC, if one is scheduled)

Exception is where one party requests stay to enable ADR - court will not confirm allocation until stay expires

115
Q

What are the four main tracks and their respective financial thresholds?

A
  1. Small claims - value of up to 10,000 GBP
  2. Fast-track - 10,000 to 25,000 GBP
  3. Intermediate track - 25,000 to 100,000
  4. Multi-track - over 100,000
116
Q

Two trial limitations for fast-track claims?

A
  1. Estimated trial length of no longer than one day
  2. Expert oral evidence limited to two fields (with one expert per party per field)
117
Q

Two trial limitations for intermediate track?

A
  1. Estimated trial length of 3 days or less
  2. No more than 2 expert witnesses per party
118
Q

How can a party influence the track allocation?

A

Through submissions on the DQ or at any CCMC; failing which can also: (i) appeal against an allocation at a CCMC or (ii) apply for re-allocation if order not given at a CCMC

119
Q

What options does a party dissatisfied with case management directions have?

A

If the order was made at a CCMC at which the party was present / represented / had notice: APPEAL

Any other case: apply to VARY directions at the EARLIEST opportunity

120
Q

When do parties usually disclose the documents they intend to rely for: (i) small claims and (ii) fast track?

A

(i) Small claims - at least 14 days before the hearing
(ii) Fast track - 4 weeks from the date of the directions order

121
Q

What important procedural step occurs for the intermediate track but not the fast track?

A

The court will fix a case management conference. The parties are expected to try to agree directions and submit their proposals to the court at least 7 days before the CMC

122
Q

What is the purpose of the Pre Trial Checklist? What two decisions do the court make based on the PTC?

A

To confirm the progress made by the parties in complying with the existing case management directions and provide proposed case management directions for the progression of the claim to trial.

Based on the PTC, cout decides: (1) whether a Pre Trial Review is required and (2) whether a stay for ADR should be ordered

SQE - FLK1 (21 decks)

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