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SQE1 > Dispute Resolution > Flashcards

Dispute Resolution Flashcards

1
Q

What are the grounds for an interim payment?

A
  • D has admitted liability
  • C has obtained judgment but sum not assessed
  • Court satisfied that if proceeded, C would obtain judgment for substantial sum
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2
Q

What should C do before making application for interim payment

A

Invite other side to make an interim payment

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3
Q

When can application for interim payment be made?

A

After time for D filing acknowledgment of service passed

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4
Q

When should application for interim payment be served?

A

Application and evidence must be served at least 14 days before the hearing

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5
Q

What should application for interim payment include?

A
  • Sum sought
  • Matters for which sought
  • Estimate of expected judgment
  • In PI claim, schedule of losses dealing with past and future losses

No need to show financial need

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6
Q

What will court award in interim payment application?

A

Reasonable proportion of likely amount of judgement. Must take into account contributory negligence.

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7
Q

What does the directions questionnaire cover?

A

Issues that help court manage case
- whether experts required
- compliance with pre action protocols
- track allocations
- details of applications and directions already made re disclosure and inspection
- witness names and issues
- estimated length of trial
- anticipated costs

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8
Q

When must directions questionnaire be returned?

A

28 days - cannot extend

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9
Q

What does the applicant need to show to obtain summary judgment?

A
  • that the other party has no real prospect of success and
  • there is no other compelling reason why the case should be disposed of at trial
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10
Q

When should the defendants evidence be served following receipt of C’s application for interim payment?

A

7 days before the hearing

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11
Q

How long does a defendant have to acknowledge service?

A

14 days from deemed date of service of Particulars of Claim

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12
Q

What does defendant need to show to have default judgment set aside?

A

That they:
- have a real prospect of success and
- there is good reason why the judgment should be set aside

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13
Q

What should particulars of claim include?

A

Enough information to identify issues.

Contract claims - parties to agreement, nature of agreement, terms breached, facts showing breach and loss, prayer for relief and statement of truth

RTA Claims & PI Claims - description of incident, date, time, allegations of negligence, details of relevent convictions, details of injuries, loss suffered, schedule of past and future losses, prayer for relief and statement of truth

Employer Liability Tort Claims - facts establishing relationship, circumstances of injury, allegations of breach, details of injury and losses, schedule of past and future losses, prayer for relief and statement of truth

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14
Q

If C is claiming interest, what must POC contain?

A
  • basis of claim
  • %
  • date claim for interest ends
  • total amount claimed
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15
Q

What should defence include?

A

Response to each allegation either:

  • admitting (C doesn’t have to prove)
  • denying, reasons why and alternative version of events (C must prove)
  • non admission, neither admit or deny as outside knowledge (C must prove)
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16
Q

How should a partnership be described in a claim form?

A

Full name of partnership and then (a firm) after it to show partnership.

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17
Q

If D nominates solicitors for service, who may C serve?

A
  • on solicitors
  • unless D is a company, if a company can post or delivery to registered address or agent
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18
Q

Can you serve proceedings via email?

A

Yes if express consent given.

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19
Q

How long does D have to respond to a letter of claim in a PI case?

A
  • must respond within 21 days indicating whether liability is admitted
  • formal response without admission then gives D 3 months to investigate
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20
Q

Where will claims be heard? (Location)

A

If D is individual or sole trader - hearing centre local to D’s home address

If D company - C’s preferred centre

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21
Q

When is a case transferred to hearing centre?

A

After receipt of defence or admission from D

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22
Q

How long does an executor have to bring proceedings in a fatal accident claim?

A

3 years from date of death or 3 years from date of executors knowledge of tort

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23
Q

How long does C have to serve claim form?

A
  • 4 months if within jurisdiction
  • 6 months if outside
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24
Q

Following service of claim form how long does C have to file POC if not included?

A

14 days from service of claim form

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25
Q

If claim issued and limitation period expired, can C amend the name of D if misspelled/contains an error?

A

Yes but will have to make an application to court to disapply the limitation period. Within courts discretion but likely to allow it.

Can amend name before expiry of limitation period without permission if correctly identified but mistakenly named.

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26
Q

Who signs the statement of truth on the claim form?

A

Client

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27
Q

What happens if a party ignores a request for ADR?

A

Court likely to penalise in respect of legal costs.

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28
Q

What claims are heard in the small claims track?

A

Value of the claim is under £10,000
Straightforward claims
Claims of over £10,000 might be allocated if the parties agree or if an amount less than £10,000 is actually in dispute

Usual track for
- Personal injury claims of a total financial value of less than £10,000 if the value of any claim for damages for personal injury is no more than £5000 in a claim arising from a road traffic accident

  • The limit is £1500 in other claim for personal injury
  • A claimed by a residential tenant against a landlord to carry out repairs all works where the works are estimated to cost no more than £1000 and the financial value of any other claims is no more than £1000
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29
Q

What costs are recoverable in a small claims court?

A

Restricted to fixed costs and reasonable expenses in attending

Expert fees are restricted to a total sum of £750

The court award more of a party is behaved unreasonably

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30
Q

What cases are allocated to the fast track?

A

Value of between £10,000 and £25,000
Threshold for PI - £5000 for RTAs

Trial will not exceed 1 day
Oral expert evidence limited to 1 expert per party in any field
Expert evidence limited to 2 expert fields

4 complexity of bands.
4 = most complex

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31
Q

What costs are recoverable on the fast track?

A

The fast track cases up to £25,000 are all subject to fixed recoverable costs

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32
Q

What cases are allocated to the intermediate track?

A

Cases between £25,000 and £100,000 that are not suitable for the High Court given their relatively low complexity and value

Trial must last three days or less
Maximum of two expert witnesses giving all evidence on each side

Full bands which cases are allocated to the fixed recoverable costs will be calculated in relation to which band the claim falls into

Band one - simplest claims that are just over the fast track limit, but there is only one issue and the trial will likely only take one day

Band two - the normal band for intermediate cases where there is more than one issue in dispute

Band three - more complex than

Band four - the most complex intermediate cases where trial is likely to last three days and there are serious issues on breach causation and quantum

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33
Q

What are fixed recoverable costs?

A

The amount of legal costs that can be recovered by the winning parties at different stages of litigation from pre-issued to the final court hearing

The new rules applied to claims up to a value of £100,000 where proceedings are issued on or after the 1st of October 2023 safe for personal injury claims

The personal injury claims the extension of fixed recoverable costs applies when the cause of action cruise on or after the 1st of October whilst disease cases only applies to cases where letter of claim has not been sent to the defendant before the 1st of October 2023

Extra recoverable costs apply to all civil cases in the fast track up to a value of £25,000

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34
Q

What is the procedure for cases in the intermediate track?

A

Subject to an expedited procedure

  • Statement of case to be no longer than 10 pages
  • Written witness statements to stand as evidence and chief with statements limited to 30 pages
  • Oral evidence will be limited to one expert per reason be required and proportionate with each expert report limited to 20 pages excluding photographs
  • Oral evidence limited and identified the case management conference
  • All applications to be made at the management conference as much as possible
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35
Q

What claims are allocated to the multitrack?

A
  • Trial last more than three days
  • Claims of over £100,000 however the court has discretion to allocate complex matters from the intermediate track
  • Maybe issued in the county court or the High Court

In many multi track cases cost budgets must be filed before the initial directions hearing which is often a cost and case management conference there may be several of these before trial

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36
Q

What happens once the court has allocated a track?

A

After the defendant has filed defence, the court will allocate a case to the appropriate track.

They will then send the parties a notice of proposed allocation together with the directions questionnaire which must be completed and returned within 28 days. This time limit cannot be extended.

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37
Q

What are usual directions in the small claims court?

A

Documents to be exchanged 14 days before the hearing
Documents to be filed originals to court
Provision for final hearing date
Encouragement to try and agree the claim
Expert can only be used with express permission from the court

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38
Q

What are usual directions in the fast track?

A

Given without a case management conference

Disclosure within four weeks
Witness statement exchange within 10 weeks
Expert report exchange within 14 weeks
Pre-trial checklist at 20 weeks
Pre-trial checklist returned at 22 weeks
Date of trial at 30 weeks

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39
Q

When can an application to various direction given by court be submitted?

A

Must do so within 14 days of the directions being given

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40
Q

What is the pre-trial checklist?

A

Purposes to check that the parties have complied with directions and consider what else might be needed to prepare the case for trial

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41
Q

What are usual multitrack directions?

A

Tend to be no set timetable
Court case management conference requires the parties to file disclosure reports at least 14 days before and cost budgets seven days before the hearing

Filing of case summary is mandatory

Judge will give directions at the case management conference

At the case management conference the court will review the matter, compliance, further directions and orders. Encourage agreement where possible.

Should provide an estimate of expert fees and issues on what they will give evidence

Usual directions include restatement of the track allocation, the name of judge, encouragement to consider ADR, any amendments of the statement of case, time limits for response to requests for info, order to try and consider an issue separately as a preliminary issue for example limitation argument that may render a claim pointless, disclosure requirement either on a standard or specific basis, the number of witnesses the parties may call and provision of exchange for witness statements, whether a single joint expert as appropriate or a direction as the number of experts permitted and what fields, date of dispatch and completion of pre-checklist and fixing of the pre-trial review and cost budgeting

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42
Q

What happens if a party does not comply with directions?

A

If a party default the other party should make an immediate application for a unless order specify the penalty that will be imposed unless the party complies with the direction

Court may strike out the claim defence or counterclaim but usually will not unless the non-defaulting party has applied for an order and the order has not been complied with

The court may impose a costs order on a party who fails to comply award indemnity costs or increased interest or they may require a defaulting party to pay money into court or depart them from evidence

Minor breach, not a problem as long as the parties can keep the dates of the case management conferences pre-trial reviews and the trial

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43
Q

What is the criteria for relief from sanctions?

A

If a party has a good reason for non compliance, they can apply for relief from sanctions

The court will consider proportionality and the overriding objective and :
- The seriousness of the breach and
- The reasons for the breach

To provide an explanation and a good one

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44
Q

What are the time limits for the different types of claim?

A

Claim breach of contract 6 years
Tort claims 6 years
PI claims 3 years
Fatal accident claims 3 years
Defamation 1 year
Unfair dismissal 3 months
Long stop for latent defects 15 years

45
Q

When does the limitation period run from?

A

Date of accrual of the action
Or when the claimant first gains knowledge that they have a claim

The date of knowledge is the point which the claimant had knowledge of all the facts establishing all of the essential elements of the claim. Must have sufficient information to commence investigations do not need to know the precise details.

46
Q

What is the date of knowledge in clinical injury cases?

A

In a clinical negligence case, the negligence might have happened quite sometime before the patient was aware they’ve been the victim of an incident

Knowledge is the date which the claimant had knowledge of :
- That the injury was significant
- That it was attributable in whole or in part to the act or admission alleged to constitute negligence nuisance or breach of duty
- The identity of the defendant and
- If the act or omission was that of a person other than the defendant the identity of that person and the additional fact supporting the bringing of an action against the defendant

47
Q

In cases involving death, when is the limitation period?

A

Three years from the date of death or three years from the date of knowledge of the deceased personal representatives

Claim statute if the injured party died after three limitation period expired

48
Q

What did the latent damage act 1986 do?

A

Introduced an additional limitation period for claims in which the limitation period may expire before a party is aware a claim exists

This extension is available for negligence claims for latent defects which is a defect in a property caused by a fault in design materials or workmanship that existed at the time the property was constructed but was not apparent at the time of completion

The time limit is the latter of the following :
- six years and the date of acruel of the course of action or
- three years from the earliest date in which the potential claimant knew or reasonably ought to have known material facts necessary to bring an action alleging negligence this is subject to a limitation period of 15 years from the act or omission

If 15 years has passed since the negligent act, the claim will be out of time

49
Q

When does time stop running for the purpose of limitation?

A

Ends when the claimant delivers the properly completed claim form to the court office with a request issue together with the correct fee

50
Q

When does Clock start running when a claimant is a minor?

A

The clock for limitation does not start to run till the claimant is 18

51
Q

What guidelines are set out in the practice direction on pre-action conduct and protocols?

A

Steps to the view to proportionately identifying the narrowing the issues

  • Claimant should write the defendant with concise details of claim letter before claim
  • defendant should respond with a reasonable time. Protocol suggest 14 days for a straightforward case and no more than three months in a complex case. The defendants reply should confirm whether they accept the claim or not the reason why.
  • The party should disclose key documents to the issue and dispute
  • if expert testimony required the party should consider using a single joint expert however court permission must be given before they can rely on expert evidence
  • should consider ADR
  • If not possible to resolve the issue within the reaction process parties are encouraged to take stock of their positions before launching into court
52
Q

What are some common features of the protocols?

A

Each claim has a different protocol if there is none but the practice direction

Common features are:
- template letters, including guidance for the contents of letter of claim
- pre-action exchange information
- disclosure documentation relevant
- encouragement to instruct a single joint expert
- reminder of the requirements to consider ADR
- propose time limit for investigation
- and a bar to commencing proceedings until the period has lapse from sending the letter of claim

53
Q

When is the personal injury protocol used and what are the features?

A

Use for cases in the fast track does not apply to clinical negligent disputes

The letter of claim should include :
- Clear summary of the facts
- details of the injuries sustained and the impact on day-to-day life
- Hospital attended and relevant reference number
- Indication of financial losses
- In a road traffic accident claim and should provide an indication as to whether a police report is available
- Letter of claim should also indicate documents which the claimant proposes to disclose and seeks from the defendant
- Make clear that they claim and expect a response in 21 days

Defendants response
- Must respond within 21 days if no response the claimant can start proceedings
- Response provided within 21 days the claimant has three months to investigate after which they must either admit or deny liability
- If they deny must give reasons why and contain a list of relevant documents likely to be disclosed in any subsequent proceedings
- Experts if the client wants to instruct an expert the claimant should try and choose that jointly with the defendant they are to send a list of suggested experts the defendant who then has 14 days to disagree if the defendant disagrees each party can instruct their own

If the protocol fails achieve settlement claimant can issue proceedings

If there is an admission the claimant should send the medical report they rely on and schedule of past and future expenses to a defendants insurer

The climate must allow 21 days to lapse before they commence proceedings to allow for an offer to be made.

If incident outside of the UK extended to 42 days to reply and six months to investigate

54
Q

What are the consequences of failing to comply with the practice directions or protocols?

A

Likely consequences

Sanctions and the court ordering a stair proceedings to allow the practice direction or a step in the protocol to be complied with

55
Q

What will the court consider when looking whether to impose sanctions?

A

The court will consider the effect of non-compliance.

Sanctions may include ordering the non-compliant participate costs of the other party or deprive the claimant of interest or restricting the rate or period of interest

56
Q

What are pre-action applications?

A

Some situations may be appropriate before proceedings are commenced

Pre-action disclosure
May be appropriate if it is felt disclosure of documents held by the other party unnecessary to investigate a potential claim fully
Criteria :
- Respondent is likely to be a party to proceedings
- The applicant is likely to be a party to proceedings
- The documents or classes of documents would be disclosed understand the disclosure rules and
- Disclosure would fairly assist in disposing the claim without the need to issue proceedings and costs.

Application for pre-action disclosure is possible against someone who is not a party but only if it will support the claim or adversely affect the opponents claim and it is necessary to dispose of the matter fairly or save costs

Pre-action inspection of property
Applicant must show the property in question :
- is or may become the subject matter of the proceedings or
- is relevant to the issues that will arise in relation to those proceedings

57
Q

Where should proceedings be started?

A

To be started in the High Court the total value must be more than £100,000, £50,000 in PI cases

However, claims exceeding £100,000 may be started in the county court

Reasons to start in the High Court:
- include the value
- the complexity of the facts legal issues remedies or procedures involved
- the importance of the outcome to the public in general

58
Q

What is the procedure for claiming a debt or a specified claim?

A

Special procedure for claiming debts up to £100,000 the claimant should complete a money claim form which is issued by the county court money claim centre in Salford

All County Court money claims should be issued out of the county court money claims centre

Damages claims our claims are issued used the online damages portal

59
Q

When is the case transferred to a hearing centre? And where will this be?

A

Once the defendant has filed a defence or admission, the court will transfer the claim to the hearing centre.

This will be local to the defendants home address if the defendant is an individual or if the defendant is a company, the claimants preferred hearing centre

60
Q

What are the High Court divisions?

A

Chancery
Family
Kings bench

61
Q

What types of claims does the Kings bench division hear?

A

Defamation breach of contract negligence personal injury, land possession and nonpayment of debts

62
Q

What is a High Court district registry?

A

Only one High Court which is the RCJ but the High Court has a number of district registries in most large towns and city.

The claimant should indicate whether they wish to issue the claim out of the district registry and in which division.

  • will usually issue in the district registry closest to where they live if they just High Court will be issued out of the RCJ
63
Q

What specialist courts are there?

A

Within the kings bench division, there are the business and property courts which include the technology and construction court and the commercial court

The technology and construction court usually hears cases with a value of over £250,000 and handles disputes about buildings engineering and surveying

The commercial court handles complex national international business disputes particular emphasis on international trade banking and insurance

64
Q

What does the chancy division deal with?

A

Equity commercial fraud tax, intellectual property, land, business disputes, contentious, probate regulatory work, bankruptcy and professional negligence

Specialist courts within the chancery division include the bankruptcy court and the companies court

65
Q

What does the claim form include?

A

Form N1
- names and addresses of parties
- Details of the claim, concise statement of the nature and provide brief details to the court can see what it is about in general terms
- remedy sort for example damages or injunction
- value of the claim to enable the court to determine the track and the fee payable should also include whether the claim is for a specified sum which is the debt claim
- If the claim is for an unspecified sum and the court must assess the damages the claim form should state whether the claim expects to recover no more than £10,000 more than £10,000 or more than £25,000
- If the claim is issued in the High Court, it must include a statement that the climber expects to recover more than £100,000 PI £50,000 or details of the enactment that provides the claim may be commenced in the High Court

66
Q

How should a partnership be named on a claim form?

A

Full name of the partnership and every partner

67
Q

How should a limited company be named on the claim form?

A

Name of the limited company or limited liability partnership including the appropriate suffix, e.g. LLP or PLLC

68
Q

How is a cell trader named in a claim form?

A

Their name and then trading as company names so Stuart Smith trading as fit & fix property solutions

69
Q

What should be disregarded when valuing a claim?

A

Interest
Costs
Contributory
Any counterclaims

70
Q

What are the fees and costs for a claim form?

A

Court fee depends on the amount of damages claimed if the claim exceeds £10,000 but it’s less than £200,000. The fee is 5% of the value of the claim the claims over £200,000 feet is set at £10,000.

Costs are either fixed amount to recoverable or in other cases to be assessed when the court will determine

71
Q

What needs to be sent to the court to issue a claim?

A

Enough copies of the claim form for service for each defendant and a copy of the court file

If the claimant wishes the court to serve the proceedings and propose the particular of claims Said at the same time, they also need to attach the same number of copies of the particulars of claim

If the claim is proceeding via litigation which happens when the claimants under 18 capacity certificate of suitability, the litigation friend should be included

If the court is serving a notice of funding should be attached confirming the claimants case is funded

The court fee

The court will issue proceedings by seeding the claim form and allocating claim number. The court will then send a notice of issue to the claimant which confirms the date that it was issued.

72
Q

What is a part 8 claim?

A

Where the claim does not involve a substantial dispute of fact process is different. Eg approving entitlement on behalf of minor.

Part 8 claim must:
- state that part eight applies
- the questions that the claimant wants the courts to decide, or remedy sought and the legal basis to claim that
- details of the claim being made and the capacity of the representative of the claims being made in a representative capavity

The claimant must serve witness evidence with the claim form and the form should include the particulars of a claim and any evidence in support must contain a statement of truth

The defendant does not make a formal defence to part eight claim they file their witness evidence with their acknowledgement of service and the court treats the claim as if allocated to the multi track

If a defendant does not respond, they cannot take part in the hearing unless the court gives permission

73
Q

When must the claim form be served?

A

Four months from issue
If the party is outside the jurisdiction service must take place within six months of the date of issue

74
Q

How is service affected?

A
  • Service by first class post - how the court will serve
  • Service on defendants nominated solicitors - If the defendant nominates solicitor to accept service, they must be accept served on the nominated solicitor unless a contract provides otherwise but if the defendant is a company delivery or posting to the companies registered address will suffice
  • Personal service - in the case of an individual this involves leaving the proceedings with them being served, in the case of a company this is done by leaving the proceedings with the person holding a senior position or in the case for partnership being sued in the firm name leaving it with a partner or a person who has controlled or management of the partnership at its principal place of business. Claimant should serve all partners individually.
75
Q

Can proceedings be served by fax, DX or email?

A

Can be served by fax if the party or their representative has indicated in writing they’re willing to accept by fax. The firm is given the fax number and the fax number is within the jurisdiction.

Can be sent by DX the parties address for service includes a number and there has been no explicit indication that service will not be accepted by this method

May be server by email only if there is express consent and the party has been given the email address to which the party should transmit documents. Email address on a firms paper is not sufficient to amount to express consent. Neither does the fact they’ve communicated via email

76
Q

When is a claim form deemed to be served?

A

CPR includes indisputable presumption that the claim form is deemed to be served what ever the method of service on the second business day after the step taken to effect services is carried out

Weekends and bank holidays are not included

77
Q

When is Poc due?

A

14 days from date of deemed service of the claim form

78
Q

What is certificate of service?

A

When the court serves the clay perform it will issue a certificate of service and send it to the claimants if the proceedings are undelivered to the court will notify the claimant

If the court has entered judgement, the court will deem the proceeding served as long as the address for service is the correct address

If the court is not enter judgement, the claimant ideally should have another try another method of service may wish to make an application for alternative service

If this claim solicitor serving they need to file certificate of service within 21 days

79
Q

Is permission of the court required to serve a defendant who is outside of the jurisdiction?

A

Maybe

Permission not required if the defendant resides in Scotland or Northern Ireland or other situations whether the defendant is a resident in the United Kingdom

Permission is required in other cases if a court in England and Wales can be shown to be the most appropriate forum for resolution of the claim, the party can make an application for permission to serve a claim form on defendant outside the jurisdiction. if the application is granted, a defendant may challenge the order before service through an application to set aside the order or after service by an application to set aside the service

80
Q

What is service by an alternative method?

A

The CPR enables the court to permit service spin alternative method or vinyl alternative place on application if a party can show good reason for it

An order can be made retrospectively

The court can also make an order that gives effect to the steps taken to bring the claim to the attention of the defendant to make a good service

81
Q

What is the standard basis for assessing costs?

A

Costs reasonable incurred
Costs must be proportionate
Any doubt in favour of paying party

82
Q

What is the basis for costs under the indemnity basis?

A

Reasonable incurred and reasonable in amount
No proportionality
Doubt in receiving party

Usually punishment

83
Q

What do court consider when assessing costs?

A

Conduct,
Value
Importance
Complexity
Specialised knowledge
Time spent

84
Q

What’s a costs management order?

A

Order made by court where recorders and approves parties budgets filed before cost management conference.

If made, and court assessing on standard basis cannot depart from amount unless good reason not to. Controls costs of parties and ensures stays in budget.

If made and court assessing on the indemnity basis it will have no regard for the budget and assess costs in usual way

85
Q

If no cost management order is made, how will the court assess costs?

A

Court will take into account agreed budget when deciding what to pay. If difference of over 20% receiving party must file statement explaining why.

Paying party can dispute costs by claiming unreasonable, must serve statement.

86
Q

When will a court made a costs order?

A

At the end of an interim application will make an interim costs order

At end of trial or costs hearing will make final costs order

Fast track and intermediate track cases, costs of interim applications fixed at £750

In multitrack cases, court can make summary assessment of costs after decision. Parties must serve statement of costs 24 hours before hearing. Payable within 14 days.

87
Q

Can the court make a costs order against a non party?

A

Yes, can order non party to pay costs on behalf of the loser. May be where loser can’t find or non party funded party to pursue litigation and had a connection to the case.

Can be jointly or wholly liable for costs

Court will do this where it is just to do so but high bar

Non party must be added as a party for the purposes of costs and the non party must be given the opportunity to attend a hearing where the court considers the matter

88
Q

What is an application for security for costs?

A

Made by D, it successful C must deposit money at court as security for D’s costs if they love
3 grounds 1 must be established
- claimant resident outside of jurisdiction
- claimant company and unlikely to pay D’s costs if ordered to do so. Eg accounts are bad at time of app
- C taken steps to make enforcement of an award difficult

court will take into all circumstances, discretionary
- financial harm to C
- if can comply with the other
- if D been aggressive
- delay by D in making app
- C means

89
Q

What is a part 36 offer?

A

Offer to settle, can be made any any time.

Must be in writing, clear pursuant to part 36, specify period of acceptance (can’t be less than 21 days), state if applies to whole claim or part,

Relevant period 21 days, can be accepted after if not withdrawn.

If accepted during trial need courts permission

Carry costs consequences & incentive to settle

D has 14 days to pay from date of acceptance

90
Q

What are the consequences of a part 36?
Claimant making offer multitrack

A

If C makes offer and D accepts within RP
- D pays C’s sum and costs up to date of acceptance. D notifies court.

Offer accepted outside of RP or accepted but made less than 21 days before trial
- court determines costs unless parties agree. If cannot agree, C pays D’s costs until expiry of RP, then offeree pays offeror costs until date of acceptance

C wins equal amount or more
- D should have accepted
- D must pay damages plus penalty (10% on up to 500k, 5% over) plus costs of standard basis until end of RP and then costs on indemnity basis from expiry of RP plus interest

C wins less than offer
- D pays damages and costs on standard basis, no consequences

C loses
- C pays D’s costs on standard basis
- D pays C sum under the offer.

91
Q

What are the costs consequences for a part 36? Defendant making offer multitrack

A

C accepts within RP
- D pay sum and C’s costs to point accepted on standard basis

C accepts outside RP
- D pay sum and C’s costs up to relevent period expiry date. After then C pays D’s costs on standard basis

D loses or C wins more than offer
- no cost consequences

C wins amount equal to or less than offer
- C punished. Gets damages and costs on standard basis up to end of RP but must pay D’s costs ok standard basis from expiry of RP plus interest

C loses
- no damages, C pays D’s costs on standard basis and interest from expiry of RP

92
Q

What happens if D rejects a part 36 offer and C beats it in fast or intermediate track?

A

Costs not awarded on indemnity basis but C will get additional costs

35% of difference between fixed costs applicable on date of expiry of RP and on judgement date

93
Q

How do you apply for an oral examination?

A

Judgement creditor must apply to the court for an order requiring the loser to attend court provide information on their means and assets

Must serve the court order on the debtor personally no less than 14 days before the examination hearing

Creditor must file an affidavit at least two days before the hearing providing details of service and how much remains unpaid

The loser is then questioned on oath and the judge may make committal order if they fail to attend court

94
Q

How is interest calculated on judgments?

A

High court 8% per annum in addition to interest courts awards

County not normally payable if under £5,000 unless contractually obligated, if over £5,000 interest at same rate as high court

95
Q

How can judgements be enforced?

A

Taking control of goods
Controlled goods agreement
Third party debt order
Charging order on land
Attachment of earnings

96
Q

What is the process to take control of goods?

A

High court
- creditor files request to execute
- court issues are writ of control which is then forwarded to the High Court enforcement officer
- High court enforcement so enforce judgement registered in the High Court minimum £600

County court
- Judgement must the amount remaining once the court order it to a certified enforcement agent

Creditor must give no less than seven days notice of intention to take control of goods and this must take place within 12 months of giving notice

The agent can enter the address and provide an inventory of seized agent must sell these goods within seven days and proceeds to use to discharge the debts and costs

Equipment and household items are off-limits

97
Q

What is a controlled goods agreement?

A

Agreement that permits debtor to keep items on understanding that enforcement officer is taking control and debtor agrees not to dispose before debt paid

May arise after agent or officer tries to enforce judgment

98
Q

What is a third party debt order?

A

Applies if money in bank or owes third party money

Requires bank to pay money to creditor

Can be used in commercial cases also

99
Q

What is a charging order on land?

A

If debtor has interest in land, may obtain charge
Ranks as equitable mortgage
Can give creditor right to apply for order for sale

100
Q

What is attachment of earnings order?

A

Compels employer to make deductions and pay to court. Only available against individuals and in county court

Party can vary terms on notice

101
Q

How can judgments be enforced against debtor outside of England and Wales?

A

Possible only if reciprocal enforcement agreement require

102
Q

What are the grounds for a second appeal?

A

The grounds are there must be a real prospect of success and there is an important matter of law or a compelling reason why Lee should be granted

103
Q

What is a detailed cost assessment?

A

Used in multitrack claims to separate hearing present over by cost judge and must take place within three months of trial

104
Q

If a claimant discontinues a claim, what are the cost consequences?

A

Notice of discontinuance gives the claimant a chance to pull out without having the whole thing go to trial or having to settle, if the claimant falls the notice the claimant is liable of defendants cost up to the date of service of the notice unless both parties reach agreement or the court orders otherwise

105
Q

What are the rules for deemed dates of service of documents other than the claim form?

A

If personal service is used, if personal service is done on a business day and before 430 and service is deemed that day if after 430 the next business day

Personal service can be used if no address for service has been given by the other party

If email or post is

106
Q

When must the particulars of claim be served?

A

Within 14 clear days of the service of the claim form

But the claim form must be sent within four calendar months of the date of issue and particulars must be served within four months of issue

107
Q

How is a partnership named in a claim form?

A

Partnership name and then in brackets a firm

108
Q

What happens if a party fails to comply with an unless order and their case has been struck out?

A

The other party must apply for judgement for the sum plus costs and interest

SQE1 (23 decks)

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