Dispute Resolution Flashcards

Question

3. PRE-ACTION CONSIDERATIONS PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS 3.5 When might it be justifiable to issue proceedings without following the relevant protocols?

Answer 1

o The **limitation period is almost over** o A court order is required to **preserve evidence or assets**, or o There is **concern that defendant may seek to issue proceedings in another country** to avoid UK courts.

Answer 2

**CONTRACT** o All contracts should have a clearly worded clause stating what law will govern the contract. o if not, the applicable law will be where the 'characteristic performer' has their habitual residence i.e. the country with which it is most closely connected. **TORT** o General rule is that where there is no agreement between the parties, the law of the country in which the damage occurs will apply.

Answer 3

o A proceeding is commenced by **issuing a claim form** setting out brief details of the claim

Answer 4

In England and Wales civil disputes are dealt with either by the County Court or High Court. o If the value of the claim is **£100,000 or less** it MUST be started in the County Court (£50,000 or less for Personal Injury Claims) o If the value of the claim **exceeds £100,000** it MAY be started in the High Court

Answer 5

o completing a money claim form which will be issued by the County Court Money Claims Centre (‘CCMCC’) in Salford, Manchester. o Most other claims (unspecified claims for damages) also start in the CCMCC.  Following receipt of a defence or admission, the CCMCC will normally transfer the claim to the hearing centre local to: * The defendant’s home address (if the defendant is an individual); or * The claimant’s preferred hearing centre (if the defendant is a company).

Answer 6

o The **financial value of the claim is high**; o The claim is **complex** o The outcome is **important to the public in general**

Answer 7

Proceedings commence when the claimant or their solicitor issue: **1. a claim form (N1)** **2. Particulars of claim** (as part of N1 or separately) **3. Any annexes** **4. appropriate court fee**

Answer 8

o If the claim is for a specified sum (a debt claim), that amount should be stated; o If the court will have to assess damages, the claim form should state that the claimant expects to recover:  Not more than £10,000;  More than £10,000 or, in a personal injury case, in excess of £1,000;  More than £25,000; or  More than £100,000 or, in a personal injury case, more than £50,000 if the claim is to be filed in High Court.

Answer 9

Usually, it should be signed by the claimant, but the solicitor may sign.

Answer 10

The claimant must decide whether the court or the claimant will serve the claim on the defendant o If the court is to serve, the claimant must include one copy of the complaint for each defendant named plus one copy for the court o The court will send a Notice of Issue to the claimant confirming the date the court issued the claim

Answer 11

A claim form must be served on the defendant **within 4-months** of its date of issue. o If service is outside the jurisdiction = the period is extended to 6-months. o Court permission is required to serve outside the jurisdiction (ex. Scotland & NI) o A claimant can make an application to extend the period of validity o The court will grant the application **only in exceptional circumstances**.

Answer 12

a) personal service b) first class post = most common c) leaving at a specified place d) fax - only if party has indicated willing to accept e) email - only if party has indicated willing to accept

Answer 13

o **personal service / fax / email** = same day if before 4:30 pm = otherwise next business day o **first class post** = second business day after it has been posted provided that is a business day. = otherwise next business day

Answer 14

o send proceedings to the defendant’s last known address if the claimant has made reasonable enquiries to ascertain the defendant’s address. o If the defendant is in prison, the claimant should serve the defendant in prison

Answer 15

they need to indicate such on the acknowledgment of service and make an **application to set service aside within 14 days**.

Answer 16

o **If the court serves the claim form** = it will issue a certificate of service and send to C o **If the claimant’s solicitor is serving** they need to file a certificate of service within 21 days of service

Answer 17

they can show a **good reason** for the order An application for an order under this rule – (a) must be supported by evidence; and (b) may be made without notice.

Answer 18

On occasion it might be necessary to add, remove or substitute parties. - An existing party or person who wants to become a party can make an application

Answer 19

If a claim form is to be served outside of England and Wales: o the CPR allows the claim form must be served within 6 months (not 4 months within Eng & Wales) o Court's permission may be required

Answer 20

i. D responds on an N9 response pack ii. 14 clear days to respond from the date of deemed service of the Particulars of Claim. iii. If D does not respond within 14 days = the claimant can obtain judgment.

Answer 21

1. **ADMIT** claim in whole or part o Even if D admits the claim, they can still deny the amount of the loss o If D admits only part of the claim, they can file a defence as to the other parts 2. File a full **DEFENCE** + possible **COUNTERCLAIM** 3. File an **ACKNOWLEDGMENT OF SERVCE** = D has an additional 14 days to respond = 28 days total

Answer 22

o The parties may agree to extend the time for filing a defence for an additional 28 days o = for a maximum of 56 days from the deemed date of service of the particulars).

Answer 23

o Once D files an acknowledgment of service, C can make an application for summary judgment (or interim payment) o C can obtain summary judgment if they can show: - D has **no real prospect of success** - **no other compelling reason why the case should proceed to trial" o requires an assessment of merits of the case + no “material issue of fact” / all facts before the court = the Court can enter judgment as a matter of law.

Answer 24

o To do so, the defendant ticks the box in the acknowledgment of service indicating they wish to dispute the court’s jurisdiction o The defendant must then make an application challenging the court’s jurisdiction, supported by written evidence, within 14 days after filing the acknowledgment of service.

Answer 25

A defendant can make an application to set aside a default judgment if they can show: **MANDATORY GROUND** o Court is obliged to set aside if it was wrongly entered **DISCRETIONARY GROUND** o They acted promptly; o They have a real prospect of successfully defending; and o There is some other good reason why the judgment should be set aside.

Answer 26

A court must set aside a default judgment if: o The judgment was entered before expiry of the time to respond o The claim has already been paid or settled; o The judgment was entered whilst the defendant’s application to strike out or obtain summary judgment in respect of the claim was pending; or o The judgement was entered whilst the defendant’s request for time to pay was pending.

Answer 27

C can decide not to pursue their claim at any time even though no settlement has been reached

Answer 28

Where there has been a Pre-Action Settlement: o Claimant will not be able to recover legal costs o Once settlement terms have been agreed, they should be recorded in writing so they can be enforced if one party defaults.

Answer 29

Where there has been a Settlements after issue of proceedings: o Preferable to be recorded in a court order or judgement. o Where none of the parties are a litigant in person it is possible to avoid an application to the court by drawing up a **CONSENT ORDER** for sealing by a court officer showing: o agreed terms of settlement o expressed as being "By Consent" o signed by legal representatives of each of the parties.

Answer 30

o The formal documents in which the parties concisely set out their respective cases o Served between the parties o Filed at court o = ensures each party knows their opponent's case

Answer 31

o Particulars of claim should provide enough information to identify the issues so that the judge may give directions **to ensure that the trial can proceed promptly, fairly, and proportionately** in keeping with the overriding objective.

Answer 32

o The parties to the agreement o the nature of the agreement o terms that may have been breached o facts showing breach and losses o a prayer for relief (that is, the remedy sought), o o statement of truth

Answer 33

A brief description of the collision (including date, time, and place), allegations of negligence, details of any relevant conviction, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Answer 34

A brief description of the accident (including date, time, and place), allegations of negligence, details of any relevant conviction, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Answer 35

Facts establishing an employer-employee relation- ship, a description of the circumstances of the injury, allegations of breach, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Answer 36

The defence sets out D's answer to the claim. D must state for each paragraph of the particulars of claim whether it is: o **ADMITTED** = the claimant will not have to prove it o **NOT ADMITTED** = state they neither admit nor deny the paragraph because fact(s) alleged are outside the defendant’s knowledge (in which case the claimant must prove their facts) o **DENIED** = state reasons or setting out an alternative version of events (in which case, the claimant must prove their facts) = Narrows the issues in dispute between the parties

Answer 37

o A claimant may wish to file a reply to the defence. o It is optional and is usually prepared only if something has been raised in the defence that requires a response

Answer 38

A defendant may want to make their own claim against a claimant, or bring another party into the proceedings. These additional claims are called **Part 20 Claims**: o **Counterclaim**: A defendant’s claim against the claimant for losses arising from the same set of circumstances involved in the claimant’s claim. A counterclaim: * Must be brought within the same set of proceedings * Is brought by an existing defendant against the claimant * Is a monetary claim in its own right o **Third-Party Claim** A defendant claims that a person who is not a party to the action has caused the claimant’s losses * The new party is called a ‘third party’ * Particulars of claim must be included in or served with the third-party claim o **Indemnity or contribution:** A defendant claims that if they are found liable to the claimant, another party to the claim should be liable to repay the whole amount (indemnity) or some (contribution) to the defendant * The defendant does not need court permission to file the above Part 20 claims if the defendant files the claim with their defence * If the defendant wishes to make a Part 20 claim at another time, the defendant must then obtain the court’s permission

Answer 39

o must be filed with 14 days o unless an extension to 28 days is agreed o if they fail to do so D may enter judgment in default on the counterclaim

Answer 40

if statements of case are confusing the court or the parties may **request further information** if successful, a party will be ordered to: a) clarify a matter in dispute or b) give additional information related to a matter.

Answer 41

After a Statement of Case has been served, a party can amend it: a) **only with written consent of all other parties or b) **permission of the court** Court will decide whether or not to exercise it's discretion taking into account o overriding objective of dealing with case justly and at proportionate cost. o i.e. injustice to applicant vs injustice to opposing party

Answer 42

o to enable the court to deal with cases **justly and at proportionate cost.** o ADR may aid in achieving this goal.

Answer 43

o Cases are dealt with **proportionately** and allocated to different tracks to ensure the most complex / high value claims receive greater resources. o Court **provisionally allocate** + request parties to complete a **Directions Questionnaire to confirm the track** and set directions for case management. o **Small Claims Track = Claims for £10,000 or less** £5,000 in PI claims from road traffic accidents £1,500 in any other PI claims for personal injuries o **Fast Track: Claims between £10,000 and £25,000** in dispute (or for many personal injury cases resulting from a road accident case in excess of £5,000) o **Multi-Track: Claims for more than £25,000** Other Factors taken into account: o remedy sought o complexity o number of parties o value of any counterclaim o amount of oral evidence o importance of non-parties o views & circumstances of parties

Answer 44

The Directions Questionnaire is a questionnaire the court will send out with the Notice of Allocation in a fast track or multi-track case, asking for estimates of trial length, whether the parties complied with the pre-action protocol, whether experts will be required, and the like. o The parties must return the Directions Questionnaire **within 28 days**

Answer 45

o Proportionate procedure to deal with straightforward claims. Small claims directions normally provide: o That documents are to be exchanged at least 14 days before the hearing o The hearing date o That no expert is to be used without court permission o hearing is informal + court can make a decision based on statements of case (rather than oral evidence)

Answer 46

= "middle range" of cases 9.4. Fast track directions normally provide that: o Disclosure within 4 weeks o Witness statements within 10 weeks o Expert reports within 14 weeks o Pre-trial checklists - sent out at 20 weeks and returned at 22 weeks o Trial at 30 weeks Difference with Multi Track: o Directions are standard (not tailored) o Expert evidence limited o Trial expected to last longer than 1-day o Power to award costs is limited

Answer 47

Multi-track directions will usually be given at the Case Management Conference (CMC). Usually, the court will require parties to file: o Disclosure reports at least 14 days before the conference; o Costs budgets 7 days before the conference; and o A case summary setting out the main issues in the case. o The directions usually include: * Encouragement for the parties to consider ADR * Disclosure requirements * The number of witnesses the parties may call and provision for exchange of witness statements, and * Costs budgeting provisions—either approval or amendment of the parties’ submitted costs budgets

Answer 48

9.6. Sanctions and reliefs for noncompliance: o **Striking out the claim**, defence, or counterclaim of the party who failed if an ‘unless order’ was issued by the court on application of the party seeking compliance; o **Imposing costs** or increased interest on the defaulting party; o Requiring a defaulting party to **pay money into court**; o **Debar** the defaulting party from relying on evidence. o A party can **apply for relief** from sanctions if they had a good reason for non-compliance (such as serious illness).

Answer 49

o Applications made after litigation starts but before trial starts o Aim to ensure the case proceeds as quickly & efficiently as possible

Answer 50

o Application should be made to the court where the claim started. o Must state what order is sought and why. o Applicant should attach a **draft order** to assist the judge o Application should be made as soon as it is apparent that it is necessary or desirable o They should be served on the opponent at least 3 clear days notice (before the hearing?) o Notice is not required if:  there is exceptional urgency  Overriding objective would be best achieved by an order without notice.  e.g notice would give other party an opportunity to dispose of evidence or assets

Answer 51

a) Unless Orders b) Application to Set Aside Default Judgement c) Summary judgment d) Strike out a claim e) interim payment f) interim injunction g) freezing injunction h) search order

Answer 52

An "unless" order is an order that, **unless a party performs an obligation by a specified date** = they will be penalised by the sanction set out in the order.

Answer 53

If a defendant fails to file a defence within the time limits, the court may enter a default judgment against the defendant, preventing the defendant from mounting a defence. o Default judgment does not call for any assessment of the merits of the case. o A defendant can make an application to set aside a default judgment if they can show:  They acted promptly;  They have a real prospect of successfully defending; and  There is some other good reason why the judgment should be set aside.

Answer 54

3. Summary judgment is an interim order that can be applied for by either party during the proceedings. o The application asks the court to enter judgment for the applicant without proceeding to trial The applicant must show that: o the other party has **no real prospect for success** and o there is **no compelling reason why the case should proceed to trial**

Answer 55

is an interim application asking the court to strike out a claim in the Statement of Case because: o The statement discloses no reasonable ground for making or defending the claim; o The Statement of Case is an abuse of the court’s processes; or o There has been a failure to comply with a rule, practice direction, or order.

Answer 56

is an application for the court to order some payment before the court has given a final determination on the claim. o Interim payments are always discretionary o The court cannot award an interim payment if doing so would cause an injustice **Grounds for order:** o The defendant has admitted liability o The claimant has obtained judgment, but the sum to be paid is not yet assessed o The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum o The court can award a reasonable proportion of the likely amount of the final judgment

Answer 57

is an application asking the court for an order: o Either requiring a party to do something (mandatory) o Or prohibiting the party from doing something (prohibitory).

Answer 58

A freezing injunction prohibits the enjoined person from disposing of specified assets o Applications for freezing injunctions **can be made only to the High Court** o Applicant must prove: * There is a justifiable cause of action; * The claimant has a good, arguable case; * D has assets in the jurisdiction; and * There is a real risk that D may dispose of assets before judgment can be enforced.

Answer 59

If it is clear D will not obey the rules relating to disclosure and may destroy incriminating documents the other party can ask the court to make a **search order** to search for, and potentially seize, evidence that the party might otherwise destroy. o Can be obtained only from the High Court o Invariably sought without pre-hearing notice o Grounds: * A strong prima facie case * Reasons for claiming the enjoined party might hide or destroy the evidence; and * Evidence the property or documents are in the enjoined party’s possession.

Answer 60

o Duty to disclose all documents **relevant to the litigation**. o The duty continues throughout the litigation o The duty extends to emails, databases, photographs, and models, as well as written documents

Answer 61

11.2. On the fast track an order for Standard Disclosure is usually made which requires a party to disclose: o Documents on which they intend to rely o Documents that  adversely affect their own case  adversely affect another party’s case  support the other party’s case

Answer 62

A party has ‘control’ of a document if they: o Have physical possession of the document; o Have a right to possession o Had the document in their possession but no longer have it.

Answer 63

The court expects each party to make a **reasonable and proportionate search*** for documents. * depends on the nature of the case, its value, and its importance

Answer 64

o A legal representative must cease to act for a client who is not prepared to comply o If a document is removed or destroyed, the representative is required to inform the court and the other party of its existence, together with the reason for its destruction  The court is entitled to draw an **adverse inference** if a party has failed to preserve a relevant document

Answer 65

1. A list of documents in its control that they do not object to the other party inspecting; 2. A list of documents in its control that they object to the other side inspecting + reasons for objecting; and 3 A list of documents that are no longer in its control, stating when they were last in their control and where they are now.

Answer 66

Each party (not their solicitor) is required to make a disclosure statement: 1. detailing the extent of the search made. 2. Certifying that the person understands the duty to give disclosure + they have carried out that duty to the best of their knowledge 3. Declaring that they believe that the extent of the search made is **reasonable** and 4. Explaining why any particular search may not have been carried out.

Answer 67

The Standard directions allow: o 28 days from the date of the directions order for the parties to serve their lists of documents. o The order will also routinely require that inspection take place within 7 days

Answer 68

1. Apply for specific disclosure 2. Apply for an unless order 3. Submit a Request for Information

Answer 69

o Privilege; o The document is no longer in the party’s control; or o It would be disproportionate to allow inspection. o Documents may be redacted to blank out irrelevant and confidential information.

Answer 70

o **Legal advice privilege** protects legal advice between a client and their solicitor o **Litigation privilege** protects communications with third parties e.g. experts and barristers o **Common interest privilege** when there are multiple defendants or group actions. o **Without prejudice privilege** protects discussions regarding potential settlement that the parties agreed were not to be referred to in court o NB. If a document is privileged, its existence still must be disclosed.

Answer 71

To set out the witnesses evidence-in-chief

Answer 72

o from witnesses who have provided a **signed statement** setting out their evidence. o endorsed with a **statement of truth** + **served on the opponent** in accordance with the directions order o If not possible to obtain a witness statement before the exchange date = a party may seek court permission to serve a **witness summary**

Answer 73

generally the proponent of the witness **cannot call the witness** to give evidence **unless a good reason** for the failure can be shown

Answer 74

o A witness may be compelled to give evidence by serving a witness summons o Party must ask the court to issue the summons at least 7-days before the hearing

Answer 75

o An affidavit can be used as evidence o = sworn statement, endorsed by a solicitor, that maker had sworn contents were true.

Answer 76

Hearsay evidence o is a statement made out of court offered in evidence to prove the truth of what is being said in the statement. o may be oral or written o The trial judge must indicate the weight they attached to hearsay

Answer 77

if the witness comes to court and affirms their statement = it is treated as if it were spoken in court = serves as the proponent’s evidence in chief

Answer 78

o 1. The court will consider whether it would have been reasonable or practicable to force the witness to attend; o 2. whether the witness made the statement contemporaneously; and o 3. whether there was any motive to misrepresent or conceal facts.

Answer 79

o the fact a person has a conviction for an offence in UK is admissible to prove they committed that offence e.g. civil road traffic accident case o A party may rely on previous convictions as evidence of similar conduct in the case in question.

Answer 80

Experts can give opinion evidence o derived from special knowledge, skill, or training that is not within the ordinary experience of the judge

Answer 81

o Experts owe the court a duty to exercise **independence, integrity, and impartiality**. o This overrides any duty owed to the person who instructed them or who is paying their fee

Answer 82

As a general rule, expert evidence is to be given in a written report addressed to the court.

Answer 83

Fast Track The parties should try to agree a single joint expert **unless there is good reason not to**.

Answer 84

The court may allow parties to instruct their own experts if: o issues are complex / high value; o The parties already have their own experts from the pre-action phase = more cost-effective to retain o There are different schools of thought o The issue is significant to the outcome of the action o Court may order a without prejudice meeting of the experts + request a joint written statement

Answer 85

o Expert Reports are privileged and are not subject to inspection by the party's opponent. o However, if the party intends to rely on the report, it must be disclosed and it loses its privilege and is subject to inspection.

Answer 86

o consent order which the court will issue. o This makes the agreement enforceable

Answer 87

o A Tomlin order is a type of consent order which confirms the parties have agreed a **stay of proceedings** + a separate schedule confirming terms of settlement o A Tomlin order will be appropriate where the terms of settlement are:  **Complex**  **Go beyond the boundaries of the claim.**  **Confidential or sensitive** o Because it is a stay of proceedings, if a party defaults on the terms **proceedings can pick up where they left off** = there is no need to file new proceedings.

Answer 88

**High Court** o Judge = My Lord / Lady o Master = Judge **High / County Court** o Circuit Judge = Your honour **County Court** o District Judge = Judge

Answer 89

1. Opening submissions (C then D) 2. Witness evidence in chief then cross examination (C then D) 2. Closing submissions (C then D)

Answer 90

At the conclusion of trial Judge may give judgment immediately or reserve judgment for a later date. Judge will determine o Liability o Quantum o Interest + Costs

Answer 91

o District Judge (County Court) > Circuit Judge (County Court) o Circuit Judge (County Court) > High Court Judge (High Court) o Masters (High Court) > High Court Judge (High Court) o High Court Judge (High Court) > Lord Justice of Appeal (Court of Appeal) o Lord Justice of Appeal (Court of Appeal) > Justice of Supreme Court (Supreme Court) focus on the judge who made the decision and not the court they were sitting in.

Answer 92

o either the court in which the decision was made or o the court which will hear the appeal

Answer 93

o The decision is **wrong in fact, law, or the exercise of the court’s direction**; and/or o The decision is **unjust because of serious procedural or other irregularity in the proceedings**

Answer 94

A party has 21 days to request permission to appeal from the time the decision is handed down.

Answer 95

o real prospect of success o OR some other compelling reason why it should be heard

Answer 96

Loser pays the winner’s costs and disbursements. o Costs are solicitors’ fees o Disbursements are expenses incurred by the solicitor on behalf of their client

Answer 97

o Costs ordered to be paid are given as an indemnity to the person entitled to them. o = They are not imposed as a punishment o = The amount which the paying party has to pay cannot exceed the amount which the successful receiving party has to pay to their solicitor. o = they cannot recover their solicitor’s ‘usual’ fee if the solicitor gave them a discount.

Answer 98

**Standard basis** o Most common o The court allows only proportionate costs o Doubts resolved in favour of the paying party **Indemnity Basis** o The court does not consider proportionality o Doubts resolved in favour of the receiving party o Usualy only awarded as a **sanction** against a party for incurring unnecessary costs by their conduct

Answer 99

"Between the parties" costs are the costs the other side have to pay (also known as “Inter-partes” costs)

Answer 100

o If D is concerned that C will be unable to pay D’s costs if they win = they can make an **interim application for a security for costs order**. o If granted, C may be required to pay money into court or provide a bond **Only Available If:**: o C is resident outside the jurisdiction; o C is a company or other body + there is reason to believe that it will be unable to pay D’s costs o C has changed address since the claim was started with a view to evading the consequences of litigation; o C failed to provide an address or gave an incorrect address on the claim form; o C is acting as a nominal claimant (i.e. someone suing for the benefit of another person); or o C has moved assets outside England and Wales to make it difficult to enforce an order for costs against them NB. o Only a defendant can make an application for security for costs. o The logic is that the defendant cannot stop the claimant bringing proceedings, whereas a claimant can, and frequently will, make a judgment as to whether the defendant is worth suing or not.

Answer 101

A court may issue a wasted costs order requiring a solicitor or party to pay the costs of the other party **if the solicitor acted improperly, unreasonably, or negligently.**

Answer 102

A Part 36 offer is a formal WP offer to settle a claim. o WP = cannot be referred to in court o Must be in writing + state it is a Part 36 offer o Must specify the ‘relevant period’ during which it cannot be withdrawn without court permission (minimum 21 days)

Answer 103

o the offeree can request a clarification within 7 days. o If the offeror does not provide suitable clarification within 7 days, the offeree may apply to the court for an order requiring the offeror to clarify

Answer 104

o A Part 36 offer can be withdrawn **as long as the offeree has not served a notice of acceptance** o If the notice of withdrawal is served before the relevant period expires, it takes effect upon expiry of the relevant period

Answer 105

o The offer can be accepted only in writing. o It may be accepted after the relevant period has expired if it has not been withdrawn by the offeror o A Part 36 offer can be accepted during trial only with permission of the judge shared or sold for any purpose. o If a Part 36 offer is accepted within the relevant period:  The defendant will pay the costs of the claim to the point of acceptance; and  The costs will be assessed on the standard basis (reasonable costs) if the parties cannot agree them.

Answer 106

**If D accepts C’s offer after expiry of the relevant period** = court will decide the liability for costs if the parties cannot agree **If C accepts D’s offer after expiry of the relevant period** = D’s liability to pay C’s costs runs only up to the end of the relevant period i.e. 21 days after the offer was made

Answer 107

the court may award the offeror pre-issue costs that they incurred.

Answer 108

**Rejection by Claimant:** o If C beats the offer at trial = the Part 36 has no effect eg. D offered £15k, C awarded £20k = no effect o if C fails to beat = **a split costs order will be made** eg. D offered £20k, C awarded £15k **= Split costs D up to / C after expiry of relevant period** = D will be ordered to pay C’s costs (on standard basis) up to expiry of the relevant period. + C will be ordered to pay D's costs (on standard basis) after expiry of the relevant period o if C loses = Penalty interest is payable on costs

Answer 109

**Rejection by Defendant** o If C equals or beats the offer at trial = severe sanctions will be imposed on D eg. C offered £15k, C awarded £20k = D will be ordered to pay: - interest on the entirety of the claim at an enhanced rate for the period after the relevant period expired * Costs for this period on the indemnity basis * Additional damages of up to 10% for the first £500,000 in damages (and 5% for amounts above) may also be available o if C wins but is awarded a lesser sum or loses = the Part 36 has no effect eg. C offered £20k, C awarded £15k = no effect

Answer 110

The court may allow the party to recover the cost of pre-action work in addition to the costs of the litigation.

Answer 111

**High Court** o If the losing party does not pay the judgment in High Court = interest accrues at 8% per annum from date of the judgment until the award is paid **County Court** o Interest is only payable on a County Court judgment over £5,000. o However, a County Court judgment over £600 can transfer to the High Court for enforcement so that interest can be collected

Answer 112

A judgment creditor (the ‘successful’ party) may apply for an order requiring a judgment debtor (the ‘losing’ party) to attend an oral examination in court to provide information about their means and assets.

Answer 113

A **writ of control** (High Court) or **warrant of control** (County Court) is issued by the court to an enforcement agent to take control of a judgment debtor’s assets to sell to settle the judgment. o Creditor must give Debtor 7 days’ notice of the intention to take control of goods o Agent can enter only the stated address + must provide an inventory of any goods seized and sold o Goods must be seized within 12 months of the notice o Agent must sell the goods within 7-days of the seizure with the proceeds used to discharge the debt o **Agent cannot seize**: - Equipment for use in the debtor’s trade - Household items for basic domestic needs

Answer 114

If the judgment debtor has money in a bank, the creditor can obtain a **third-party debt order** that the bank pays the money to them instead of to the debtor.

Answer 115

If a judgment debtor has an interest in land o a creditor may obtain a **charging order** which will give the creditor the right to apply for an **order for sale**. o This can apply even if the land is in joint ownership

Answer 116

If the judgment debtor is an individual in regular employment o a creditor may apply to the County Court for an attachment of earnings order to compel the debtor’s employer to make regular deductions from the debtor’s earnings and then pay them into court.