Dispute Resolution Flashcards
There are 6 types of Part 20 claims (additional claims). What are they?
- Counterclaim by Defendant against Claimant.
- Counterclaim by Defendant against Claimant and another person.
- Additional claim by Defendant against a party claiming a contribution/indemnity.
- Additonal claim by Defendant against a party claiming a remedy other than contribution/indemnity.
- Additional claim by defendant against any person for a contribution/indemnity/other remedy.
- Additional claim by a party joined to the main proceedings.
What additional claims require the permission of the Court to be brought and which do not?
Additional Claims not requiring permission:
- Classic counterclaims (if filed with defence)
- Contribution/Indemnity claim against an existing party (if filed with defence)
- Other additional claims if issued by time of the defence
Additional Claims requiring permission:
- Counterclaims against a person other than the claimant
- Other additional claims issued after filing the defence
What is the structure used for a classic counterclaim?
“Particulars of Counterclaim”
Defence and Counterclaim form one single document with the counterclaim following the defence
What form must be served on a person who is not already a party to bring an additional claim against them?
Form N211
If an additional claim is served on someone who is not a party to the case, what must be included with the additional claim?
A response pack.
A copy of every statement of case.
Any other documents the court directs.
When will a court decide to hear an additional claim with the main claim instead of hearing them separately?
Court considers whether there is a substantial connection between the claims.
If so, it will combine the claims to save time and costs.
When can parties amend statements of case without the permission of the court/other party’s consent?
Parties can amend a statement of case before serving it.
When can a party to a claim amend a statement of case by consent?
Any statement of case can be amended at any time by unanimous written consent of the parties.
The amending party bears the cost and the court can rule to disallow the amendment.
When will a party need to court’s permission to amend a statement of case?
When the statement of case has been served and/or all parties don’t give written consent.
Permission is always required if amending Particulars of Claim to alter parties after service.
How can a party obtain the court’s permission to amend a statement of case?
The party must file an application notice with a copy of the proposed amended statements of case.
Court can deal with the application without a hearing if the parties consent to this.
Once permission is granted, amended statements should be filed within 14 days and copies served on all parties.
The court is generally harsh on late amendments to statement of case. When might the court allow this?
Swain-Mason v Mills & Reeve [2011] - If there was some late disclosure or new evidence
When can the court allow parties to be added/substituted to a claim if the limitation period for bringing that claim has expired?
If the limitation period was current when the proceedings began;
AND
The addition/substitution was necessary…
e.g., name in the claim form was a mistake, claim cannot be properly carried on without substitution, OG party died or went bankrupt.
Before applying to the court, what should a party do if they intend to make a request for further information? (Part 18 Request)
Attempt to obtain the information voluntarily from the other party before applying to the court.
If you intend to object to a Part 18 Request, on what grounds can you do this?
Relevance
Proportionality
Privilege
When making a Part 18 Request for further information, what matters for further information can be requested?
Matters which are reasonably necessary for a party to prepare their own/understand their opponent’s case.
If a claimant receives a counterclaim, do they need to file a defence?
Yes, within 14 days of the counterclaims’ service as failure to respond can result in default judgment being entered against them.
What is a “reply” and when can/should it be used?
An optional and final statement of case.
Used by the claimant to allege facts in response to the defence not included within the initial claim.
When responding to a claim where you intend to dispute the court’s jurisdiction, what should you do?
File an acknowledgement of service indicating jurisdiction is disputed.
Make a separate application to the court within 14 days disputing jurisdiction.
Do NOT file a defence.
When a deadline specifies X amount of days, which days do not count for counting time purposes?
Where the period specified is less than 5 days, Saturdays, Sundays, and Bank Holidays do not count
If a claim arises from an accident abroad, or 1+ of the defendants are outside the jurisdiction, what is the timescale for the defendants’ response?
According to the Pre-Action Protocol for Personal Injury claims, defendants have 42 days to acknowledge a letter of claim and 6 months to confirm positions on liability.
If part of a settlement is to remain confidential, what order should be drafted and sent to the court?
A Tomlin Order.
It has the public part (identical to other consent orders) and the private schedule attached.
What does a Tomlin Order allow for in settlement agreements?
It enables unusual agreement terms to be agreed and enforced in the settlement (i.e., those that a court could not grant).
What is the maximum amount a solicitor can recover from a client with a damages-based agreement?
50% of the damages.
35% in employment tribunals.
25% in personal injury.
When might an interim payment be granted by the court?
Defendant has admitted liability to pay damages to the claimant.
Claimant has obtained judgment against defendant for damages to be assessed.
Court is satisfied that if the claim goes to trial, the claimant would obtain judgment for a substantial amount of money.
Amidst divorce proceedings, a parent seeks to obtain a child arrangement order. Which court should this be sought from?
The family court.
Where are single joint experts most likely to be called?
In the small claims and fast track.
When can a claim be issued in the High Court as opposed to the County Court?
A personal injury case worth more than £50,000 or a non-PI case worth more than £100,000 where:
The issue is complex, of high monetary value or the outcome holds public importance.
Is the Court of Appeal bound by previous Court of Appeal judgments?
Yes, the Court of Appeal binds itself.
If a company has received a defective product from a supplier, what can they claim back from them?
Any money paid to them and any loss.
Loss = The difference in position
(e.g., if they would have paid £60,000 and paid £70,000, their loss is £10,000).
How long does a defendant in a personal injury claim have to acknowledge a letter of claim?
21 days to acknowledge the claim.
They should send a full response within 3 months of the letter acknowledging the claim.
How long does a claimant have to serve a claim form after it has been issued by the court?
4 months starting the day after the date of issue of the claim form.
If not served with the claim form, how long does a claimant have to serve the particulars of claim?
14 days (as long as it is within 4 months of the issue of the claim form).
When is a claim form’s deemed date of service?
On the second business day after the completion of the relevant step.
When is the deemed date of service for documents other than the claim form, served by instant and non-instant methods?
Instant Methods:
- If done before 4:30pm on a business day, it is served that day
- Otherwise it is served the next business day
Non-Instant Methods (post/DX):
- Deemed served the second day after posting/giving it to a DX provider if this was done on a business day
- Otherwise, it is deemed served the next business day
If a defendant files an acknowledgement of service indicating an intention to defend the claim, when is the deadline for serving the defence extended to?
28 days after the DDS of the particulars of claim (extended from 14).
A defendant and claimant want to extend the deadline for serving a defence. How much time can they extend to?
Defendant and Claimant can agree an extension of up to 28 days at a time, notifying the court in writing.
Defendant can have up to 56 days (total) from the DDS of the particulars to file the defence without needed to apply for court permission.
When can proceedings be brought in the High Court?
Personal Injury cases valued at £50,000+
Other cases valued at over £100,000
What 2 types of claim must be brought in the High Court?
Libel/Slander Cases.
Cases seeking a Declaration.
When will a claim be allocated to the small claims track?
Value of the claim is less than £10,000.
Personal Injury cases worth less than £10,000 where:
- Claim for pain/suffering/loss of amenity is less than £5,000.
Residential Tenant vs Landlord for work to premises costing less than £1,000 (and value of other claims is not more than £1,000).
When will a claim be allocated to the fast track?
Valued at less than £25,000.
Trial not likely to last more than 1 day.
Max 1 expert per party in max 2 expert fields.
When will a claim be allocated to the intermediate track?
Claim is valued up to £100,000.
Trial not likely to last more than 3 days.
Max 2 experts per party.
When will a claim be allocated to the multi-track?
All other types of cases.
Usually going to be a long, high value and complex case.
What are the grounds for summary judgment under the Civil Procedure Rules (CPR)?
No real prospect of success
AND
There is no other compelling reason for trial.
CPR 24.3
What are some examples of compelling reasons for trial in a summary judgment application?
- Defendant needs more time for an investigation.
- Expert evidence is required.
- Multi-party litigation.
- Scrutiny of key documents.
- Defendant has the right to a trial by jury (e.g., fraud cases)
What are the 2 key matters which the court considers in a security for costs application?
- Whether it is just to make the order
AND
- Whether one of the 6 key conditions are met
CPR 25.13
What are the 6 conditions the court considers in a security for costs application?
- Claimant is outside the jurisdiction
- Claimant is a company and there is reason to belive they won’t be able to pay defendant’s costs
- Claimant taking actions that make cost enforcement difficult
- Claimant changed their address
- Claimant fails to give address
- Claimant acting as a nominal claimant and reason to believe they won’t be able to pay costs
CPR 25.13
If the conditions are met for a security for costs application, must the court grant the order?
No, the court has discretion to order security.
The primary consideration is the respondent’s ability to meet the security requirement.
CPR 25.13
What guidelines will the court consider when deciding whether to grant an interim prohibitory injunction?
American Cyanmid Guidelines:
- Is there a serious question to be tried?
- Would damages be an adequate remedy instead?
- Where does the balance of convenience lie? (Would granting the injunction carry a lesser risk of injustice than not granting it?)
What 3 principles should a party seeking an injunction abide by as it is an equitable remedy?
- They should only seek an injunction if it serves a practical purpose (it won’t be granted otherwise)
- They must have ‘clean hands’
- They must not cause excessive delay - excessive delay may lead to refusal
When can an application for strike out be brought?
The claim has no reasonable grounds
OR
It is an abuse of process.
CPR 3.4(2)
What is the legal title for an application to set aside default judgment?
The court may set aside if:
The applicant has a real prospect of successfully defending the claim
OR
There was some other compelling reason for the failure to respond to the action.
CPR 13.3
What is the 3 step process for dealing with an application for relief from sanctions?
The Denton Principles:
- Identify the seriousness and significance of the failure (if neither serious nor significant, relief should be granted).
- Consider why the default occurred.
- Evaluate the circumstances of the case to ensure the court deals with the matter justly, considering:
- Litigation should be conducted efficiently at proportionate cost, and
- The court must enforce compliance with rules, PDs, and orders.
What is an unless order?
An order which provides for an automatic sanction in the event of non-compliance with the order.
When will the court grant an interim payment order?
- If defendant admits liability for damages/another sum.
- If the claimant obtains judgment for damages (or a sum other than costs) to be assessed.
- If the court believes claimant would likely obtain a substantial judgment at trial.
CPR 25.7
What is a Newton Hearing and when will it be used?
It is a voir dire.
It must take place where the defendant pleads guilty on a basis which the prosecution does not accept.
Judge considers if the defendant’s factual basis is absurd, then if it will make a material difference to sentence.
If it will make a material difference to sentence, a Newton Hearing will be heard.
If a Newton Hearing is held, will the defendant still get credit for a reduction in sentence?
The reduction which should have been available should normally be halved.
If witnesses are called, it may be further reduced
Under what provisions must parties give notice of intent to introduce hearsay evidence?
It is in the interests of justice
Witness is unavailable
Document prepared in contemplation of criminal proceedings
Multiple Hearsay
What is the procedure for serving a notice to introduce hearsay?
Notice must be served on all parties and court
Notice must:
- Identify hearsay evidence
- Set out facts relied on to make it admissible
- Explain how those facts will be proven
- Explain why the evidence is admissible
- Attach the evidence
When must the prosecution serve notice to introduce hearsay by, and when must the defence?
Prosecution:
- 20 business days after NG plea in Magistrates Court
- 10 business days after NG plea in Crown Court
Defendant:
- As soon as is reasonably practicable
How long does a party have to object to the introduction of hearsay evidence?
Objecting party must serve an application to court and all other parties as soon as is reasonably praciticable, and no more than 10 business days after:
- Service of notice to introduce evidence
- Service of evidence objected to (if no notice is needed)
- Or defendant pleads guilty
(whichever happens last)
What must an application opposing the introduction of hearsay evidence explain?
Which facts in the notice to introduce they dispute
Why the evidence is not admissible
Any other objection to the evidence
Is the defendant in a proceeding competent/compellable for either party?
For the prosecution:
- Not competent, thus not compellable
For themselves:
- Competent, not compellable
Can children/persons with a disability or disorder be competent/compellable to give evidence at trial?
If they are competent, they are compellable
Are spouses compellable to give evidence at trial by either party?
For the prosecution, only if the offence is:
- Domestic Violence
- Assault of a child (under 16)
- Sexual Offence of a child (under 16)
- Attempts, conspiring/aiding and abetting to do any of above
For the defence, they are compellable
What happens if a person is compelled to give evidence but refuses?
They can be arrested and held in contempt (it is an imprisonable criminal offence)
Why bother with ADR?
A solicitor must discuss ADR with their client if a dispute arises. Otherwise, there will likely be cost consequences.
Under the Practice Direction - Pre-Action Conduct, litigation should be a last resort. This means that:
- Both parties should seriously consider ADR before pursuing litigation. If a party fails to do so and has no justifiable reason why, they will likely be sanctioned.
- ADR should be considered throughout the trial. If a party makes an offer to engage in ADR and the other side unreasonably refuses, that can result in cost sanctions.
- Settlement should also be considered throughout trial (such as making a Part 36 offer) and that includes seeing if a settlement via mediation can be reached.
What this means is that parties should only pursue litigation if they are sure they have considered and tried ADR first.
What if a party makes a mediation/ADR proposal to the other side?
This must be seriously considered by other side.
- A party can be deprived of their costs if they unreasonably fail to conduct ADR (e.g., mediation) after an offer to do so by the other side.
- Whether a party has unreasonably refused ADR/mediation is assessed using a range of factors, including the nature of the dispute, the merits of the case, whether any other settlement attempts have been tried, how costly ADR would be, whether ADR would cause any harmful delay to one of the parties and whether ADR would actually have any chance of being successful.
- Any refusal to engage in ADR should be based on the above factors and should be communicated to the other side.
- Similarly, engaging in ADR but dragging out the process and not doing it properly can also result in costs sanctions.
Note - Under the standard directions, if a party has rejected ADR, they must file a witness statement setting out to the court why they have done so.
- The court also has the power to order that ongoing proceedings be paused so that the parties can engage in mediation (or negotiations or any other process that will end the dispute). Whether the courts will do this is up to the court’s discretion.
- A party can also apply to court to have proceedings paused to engage in ADR.
What is litigation and what are the pros and cons?
Litigation = Pursuing the dispute through the court system.
Advantages:
- Courts have wide ranging powers (e.g., damages, injunctions)
- Joinder of third parties (multi-party litigation)
- More predictable (via common law precedent)
- Can be appealed more easily (suitable for more complexes)
Disadvantages:
- Public Record (people can see what the judgment was)
- Time Delay
- Costs (particularly as a losing party)
- Enforcement not Guaranteed (the person whom judgment is given against may not have resources)
- Breakdown of Commercial Relationship (Litigation is Adversial)
Enforcement - The court hands down a judgment that the losing party must comply with. The winning party can go back to court to enforce that judgment if there is a failure to comply.
What is arbitration and what are the pros and cons?
A dispute is decided by one or more arbitrators who are usually experts chosen from a particular field or professional body.
Parties can agree in contracts to use arbitration if there is a dispute or agree to resolve their dispute by arbitration.
Entirely independent dispute procedures from the court.
Arbitration is conducted by hearings in arbitration forums, presided over by the arbitrator(s).
Advantages:
- Confidentiality (so that trade secrets can be protected)
- Flexibility: choice of seat, procedure and abritrator (parties are free to draft their own agreement and there are no fixed rules on procedure)
- Enforceability - arbitrations are intentionally enforceable via the New York Convention
- Decisions can be commercially favourable, rather than just based on the law
- No appeal on questions of fact and you can disapply any appeal on a point of law (arbitration can be final).
Disadvantages:
- Can be expensive and time-consuming (parties must hire arbitrators and venue).
- Requires the parties to agree to arbitration (e.g., by an arbitration clause in a contract - needs cooperation).
- Does not create legal precedents, meaning there may be uncertainties.
- Harder to join third parties (who may not be bound by an obligation to arbitrate).
Enforcement - On reaching their decision, an arbitrator will issue an Arbitration Award. This can be enforced in the courts if the other party does not abide by it.
What is mediation and what are the pros and cons?
A neutral third party (a mediator) discusses the problem and possible solutions with the parties. Parties will often meet in a certain area with separate rooms where they can discuss their position with the mediator. The mediator will act as the “go-between”, discussing the issue with both parties and trying to reach an agreement.
Advantages:
- A neutral third party (a mediator) discusses the problem and possible solutions with the parties.
- Parties will often meet in a certain area with separate rooms where they can discuss their position with the mediator.
- The mediator will act as the “go-between”, discussing the issue with both parties and trying to reach an agreement.
Disadvantages:
- Not always an expert doing the mediation (may just be a professional mediator) so may not be suitable for very complex disputes.
- Not a guaranteed outcome: may be wasted costs and delay.
- Requires cooperation.
Enforcement - If the mediation is successful, the parties will enter into a mediation agreement. This is a contract which is binding on the parties and can be enforced in the courts.
What are the pre-action steps?
Rules which govern the steps a party with a cause of action must take before issuing a claim form at court.
The Pre-Action Proposals - Set out the steps the parties must take before issuign proceedings for certain types of claims, e.g., debt, personal injury or professional negligence
The Practice Direction on Pre-Action Conduct and Protocols - Contains general guidance with certain steps that should be followed in all cases unless any part of a pre-action proposal applies.
What are the aims of the pre-action steps?
To see if they can resolve their issues before starting a fight in court or narrow the issues in dispute so that court proceedings are conducted as efficiently as possible (in line with the overriding objective).
What must the parties do to comply with the steps?
- The claimant must send a letter setting out the details of the claim - should set out the facts, what C wants from D and the money being claimed.
- D must respond within a reasonable time - that means 14 clear days for simple cases; 3 months for complex ones. D must state whether they accept or reject the claim, and why.
- Parties must disclose key documents in the case.
- Parties must consider ADR throughout their correspondence and use ADR to try and settle. If a settlement has not been reached, parties should be prepared to tell the court whether they tried ADR and they they could not settle. Failure to seriously consider a request for ADR by the other side will result in cost consequences.
- The parties must do a “stock take” before the claimant issues proceedings: see how many issues remain in dispute and whether they can be resolved.
Why bother with the pre-action steps?
If a party fails to comply with the pre-action protocol, they will likely face cost consequences.
These include:
- Costs: The party who has failed to comply may have to pay some or all of his opponents’ costs (sometimes on a penalty, or indemnity basis, which means a large amount of costs must be paid).
- Damages: Losing defendant could pay interest on damages (of up to 10%) or, if winning claimant, may not get any interest on their damages at all.
All pre-action steps must be reasonable and proportionate. This means they must be done concisely, efficiently, and quickly.
You cannot incur unreasonable costs when carrying out any pre-action consequence, meaning basically you cannot be really slow and inefficient when dealing with it.
DISPROPORTIONATE COSTS INCURRED WHILE CARRYING OUT THE PRE-ACTION PROTOCOLS WILL NOT BE RECOVERABLE.
Who are the parties to a claim?
Claimant - The person who starts the case. This is the person who brought the dispute to court.
Defendant - The person being sued: defending themselves.
Can be an individual, company, or LLP (note - partners in a partnership are usually sued as a firm).
Remember to check if D is worth suing before suing - D may not have enough to pay the damages. To do this, conduct searches on CH, Bankruptcy Search, Inquiry Agent…
What is a Cause of Action?
The legal basis of a claim. It is what the client is suing for - the reason.
Breach of Contract (Dispute), Breach of the terms of the contract (Claim), Damages - the claimant to be put in the position they would have been if there no breach (Result).
Tort - Negligence (Dispute), Breach of Duty by D owed to C (Claim), Damages - the claimant to be put in the position they would have been in if negligence had not occurred (Result).
- To determine whether a client has a cause of action under which they can sue, the solicitor must understand the facts that make up the basis for that cause of action.
- Once the facts have been understood, the solicitor must gather in the evidence to prove those facts, such as witnesses, expert reports, and accounts to show losses caused by the client. The evidence will support the case and make it stronger.
What are the limitation periods for claims?
Contract - 6 years from when the contract is breached.
Tort - 6 years from when the damaged occurs.
Personal Injury - 3 years from when the damage occurs OR when the person injured finds out, whichever is later.
Latent Damage (meaning the damage is hidden/not obvious and only discovered later) - Later of: 6 years from the date of damage; or 3 years from the date of finding out there’s damage. For both, the claim cannot be more than 15 years from the date of the damage.
Note - LD does not apply if the dwelling is uninhabitable due to construction defects - use the limitation periods under the Building Safety Act 2022 (15 years for repairs; 15 years for dwelling completed after 28 june 2022; 30 years for dwelling completed before).
What are the rules on applicable law for contract disputes?
Check if the contract states what law should be used to govern a claim.
If there is not such a clause, the general rule is that for disputes within the EU, the law to use is where the seller under the contract is situated.
Exception - If the dispute is over property/land, it is the country in which that land is situated.
What are the rules on applicable law for tort disputes?
A contract may contain a clause stating what law to use for negligence claims.
If not, the general rule is for disputes within the EU, the law is where the tortious damage occurred.
What are the statements of case?
- Claim Form
- Particulars of Claim
- Defence/Counterclaim
- Reply to Defence
These are the documents in which the parties set out their case.
They are served on the parties and/or filed at court so that the parties know what is in dispute. The court will only try the issue that are in the statements of cas.e
A party cannot pursue an issue or claim a remedy that is not in the SoC.
Therefore they set out the parameters of the case and identify the disputes in issue.
What is the structure of a claim form?
- Claimant and Defendant’s details.
- Brief details of the claim.
- The value/amount claimed + court fee.
- Claimant solicitor’s costs (if the amount sought is a specified sum).
- Human Rights Act.
- Statement of Truth.
When stating the value of the contract/negligence claim, if for example, the contract price was £100k, you will need to state that then state the amount C is seeking from D.
- If it is a specified sum, state the amount and interest.
- If unspecified, C must indicate how much they expect to recover (e.g., above £10k, between £10-25k, above £25k, or above £100k).
You also have to insert the court fee.
What is the structure of a particulars of claim?
- The status of the parties (who C and D are, and what each of them does for a profession).
- The background to the claim - the relevant facts (such as when the contract was entered into, pre-contract statements, or what duty is owed to C).
- The details of the contract itself (the subject matter and purpose, date it was signed, consideration of the contract). The contract can be attached if written.
- The terms of contract (express and implied).
- Details of the Breach of Contract or Duty (e.g., failure to deliver) - this is called the particulars of breach and sets out why the breach of contract or duty occurred.
- Consequences of the Breach of Contract or Duty (causation - as a result, claimant suffered a loss).
- Details of the loss suffered.
- The relief claimed (damages) - known as the particulars of loss and damage - this sets out the amount of damages C is claiming for.
- Interest claimed.
- Prayer (summarises the amount C claims - damages and interest).
- Statement of Truth (where the particulars are not served with the claim form) - signed by the solicitor or client.
How must interest be sought in the particulars of claim?
- State the grounds on which C is claiming interest
- If the claim is for a specified amount of money, the amount of interest claimed and the methods of calculating that amount (with reference to the total sum claimed on which the interest is calculated). If unspecified, it is up to the courts to calculate.
Three grounds for a breach of contract:
- The contract may have a clause setting out how interest should be calculated;
- Late Payments at Commercial Debts Interest Act 1998 - for debts between businesses only at 8% above the Bank of England base rate; or
- If not the above, S.53(A) Senior Courts Act 1981/S.69 County Courts Act 1984 - this means the court has discretion to give interest, and C is requesting the court to do so rather than providing a specific ground.
For negligence, used S.35(A) SCA/S.69 CCA if no contract.
What must the defence do for each allegation?
- Deny, and provide reasons as to why; if there is a different version of the events, they must put it forward.
- State that they cannot admit or deny, but requires C to prove it (i.e., provide further evidence and explanation).
- Admit (D may admit the really basic stuff, like the names and dates of the contract or deliveries and some of the basic facts and may also admit allegations in the particulars).
This means the structure of the defence will follow the particulars, with each point being dealt with in the same order to ensure nothing is missed.
- A defendant who fails to deal with an allegation is deemed to have admitted it.
- The defence must also contain a statement of truth.
- Because the defence either admits, denies, or requies proof of a claim, the role of the statements of case becomes clearer - allows the issues in dispute to be narrowed.
What is a counterclaim and how must it be made by the defendant?
A claim brought by D in response to C’s claim, included in the same proceedings as C’s claim.
- The particulars of counterclaim should be contained in the defence in the same document, with the particulars of counterclaim forming the second half of the document.
- Counterclaim should contain the grounds on which D is counterclaiming (particulars of breach), the loss suffered, and how much is being claimed (a particulars of loss and damage). It is its own particulars within the defence.
- Once filed, C must file a defence within 14 clear days (no option to file an AoS but can be 28 days if the parties agree to that between themselves).
What is a Part 20 claim?
Covers additional claims - counterclaims, contribution/indemnities or other remedies against third parties.
What is the reply to the defence?
The claimant can choose to reply to the defence. This can be done with the defence to the counterclaim in the same document.
- C may reply to a defence but is under no obligation to do so. But they may wish to do so to answer any new facts put forward in the defence.
- C cannot raise new causes of action in the reply or try and amend the PoC. The reply must be verified by a SoT.
- If C does reply, they must file it at court with the directions questionnaire and served on D. The deadline to do this will be max 28 clear days from date of provisional allocation notice.
- If D counterclaimed, the reply will likely be in the same document as C’s defence to the counterclaim (filed within 14 clear days of the defence and counterclaim).
How do you amend a statement of case before the expiry of the limitation period?
Parties can amend the particulars or defence at any time before it has been served.
If the documents have been served, the party must get:
- The written consent of the other party; OR
- The permission of the court.
If requesting permission from the court, the applicant must file:
a. A copy of the document they want to amend;
b. The proposed amendments;
c. An application notice; and
d. accompanied by a Statement of Truth.
The court will decide whether to allow an amendment. The burden is on the amending party to persuade the court. If the amendment is granted, the party must file the amended document and serve on the other party.
How do you amend a statement of case after the expiry of the limitation period?
The party must apply to the court.
The court will only allow amendment:
- To add or substitute a new claim, but only where that claim arises out of the same facts as the claim already submitted.
- Correct a mistake in the name of the party.
- Alter capacity in which the party claims (e.g., as an individual or business).
How do you request further information about a statement of case?
Any request must be ncessary and proportionate for the party to understand the case and prepare their own.
Requests must be sent in a single document in letter format, with the case details at the top. It must state each request clearly in separate paragraphs and give a date for a response, which must be reasonable.
- The responding party can object to the request (e.g., because it is disproportionate) and/or say they cannot respond in time. Reasons must be given. They must inform the other side promptly or at the latest in the time stipulated.
- If a response is given, it must be in writing, signed by the respondent or the solicitor and dated (plus comply with the formalities under the CPRs). It must also be verified by a statement of truth. The response must then be filed at court.
If no response is given, an application to court can be made (general application procedure).
What powers does the court have to strike out a statement of case?
The court can strike out all or part of a party’s statement of case if:
- The statement of case submitted by the party discloses no reasonable ground for bringing or defending the claim (is inadequate in some way because, for example, the PoC is not detailed enough);
- The statement of case is an abuse of court process or will obstruct proceedings; or
- For a failure to comply with directions, a court order or practice direction.
A SoC can also be struck out if it does not contain a Statement of Truth.
In which court should you start your claim?
The general rule is that all claims must start in the County Court.
But if the value of the claim exceeds £100k, the client has a choice - can commence proceedings in the County or the High Court.
Where there is a choice, the CPR states that claims should only be sent to the High Court if:
- The financial value of the claim and the amount in the dispute is large (a large claim well above £100k); and/or
- The facts/legal issues/remedies are complex; and/or
- The outcome is important to the public.
If one or all of these factors apply, the case should be commenced in the High Court.
What are the “counting time” rules for any period of days?
For any period of days: count from the day after the period begins. If the end of the period is defined by an event (e.g., a hearing), do not count that day.
You can count weekends and bank holidays as part of your clear days’ calculation.
E.g., 14 clear days to file an acknowledgement of service within deemed date of service of the claim form. Claim form deemed to be served on 2nd October, last day to file an acknowledgement of service is 16th October.
NOTE - Does not apply to the time limit for serving a claim form which is 4 months (or 6 if outside the jurisdiction) to take the relevant step from the date of issue. This is 4 calendar months - 1st Jan would be 1st May.
What are the “counting time” rules for a period of 5 days or less which includes a weekend or a bank holiday?
Count from the day after the period begins. If the end of the period is defined by an event (e.g., a hearing), don’t count that day.
Weekends and Bank Holidays DO NOT count.
How do you add and substitute a party to the proceedings if the claim form has been served?
- An existing party or someone who wants to be added can make the application. If you want to add a claimant, you need the person’s permission and that permission needs to be filed at court.
- Satisfy the grounds:
- If you are within the limitation period, the new party is needed to resolve the dispute; or remove a party; or substitute a party no longer relevant;
- If you are outside the limitation period, the proceedings must have started within the limitation period (meanign the claim form must have been issued within the limitation period); AND
- The original party has been named by mistake; OR
- The original party’s dead/bankrupt; OR
- The claim cannot be carried on without the new party.
- If you are outside the limitation period, the proceedings must have started within the limitation period (meanign the claim form must have been issued within the limitation period); AND
- If you are within the limitation period, the new party is needed to resolve the dispute; or remove a party; or substitute a party no longer relevant;
Note - If you are within the limitation period, an alternative way of amending the claim form rather than making an application to court is to get the written consent of the other party and apply to court for a consent order (which the court will usually grant unless it is not in the interests of justice or would prejudice any of the other parties). This should be done before any application in line with the overriding objective.
How do you serve a claim form within England and Wales using the CPR methods?
Check the following (in THIS ORDER):
- Has D/D’s solicitor given a business address of the solicitor for service in writing? If yes, that address must be used (post or leave it there)
- Has D given an email or business address for service? If yes, use them.
- Even if D has given an address or email, C can choose to use personal service
- If C has no address/email and chooses not to use personal service, C must serve by post or leaving the CF at the addresses set out in the CPRs.
- If that cannot work, C must see if there is an alternative; if not, make an application for service by alternative method or at an alternative place OR just serve at usual or last known address of business location.
Note - If it is an Ltd, PLC, or LLP, CA 2006 can be followed…
Note - Check there is not a contractually agreed method of service - if so, the CF may be served in accordance with that method.
What alternative method could a claimant use if suing a company or LLP to serve the claim form?
Posting the CF to or leaving it at the company or LLP’s registered office.
- If a company is suing a company or LLP, the CPRs permit the claimant to rely on the methods of service under the Companies Act 2006 as an alternative method to using the CPRs.
- This means C can post (by 1st class or 2nd class) or physically leave the claim form at the registered address of the company or LLP.
What is the deemed date of service for a claim form under the CPRs?
If the claim form has been served according to one fo the CPR methods correctly, then the deemed date of service is the second working day after the method of service (the relevant step) has been executed.
A working day is not a weekend or bank holiday.
What is service by alternative method or place?
The court may make an order permitting service by an alternative method (e.g., the court may order personal service on the defendant’s solicitor if it so wishes) or service at an alternative place (from those specifically listed under the CPRs) if there is a good reason to do so.
- The claimant must make a court application supported by evidence.
When must the particulars of claim be served by?
They must be served within 4 months of the issue of the claim form if serving on a defendant within the jurisdiction, and 6 months if serving on a defendant outside the jurisdiction. They can either be served with the claim form or after the claim form.
If the PoC is served with the claim form, the claim form rules of service apply.
If the PoC is served separately from the claim form, you serve the claim form first and the PoC must be served within 14 clear days after the deemed date of service of CF using the methods of service for serving the PoC and the deemed dates of service of the PoC.
What method under the CPRs can be used to serve the particulars of claim if served separately to the CF?
If a postal address or email is given (for service), post/leave/email to or at that address (and personal service cannot be used).
Personal service can only be used if D has not given any address for service.
The deemed date of service of the PoC depends on the method chosen:
Personal Service or Email - If sent on or before 4:30pm, on that day. If sent after 4:30pm, the next working day.
First Class Post/DX - The second day after posting if a working day; if not, the next working day.
Leaving at D’s Address - Before 4:30pm, on that day; after, next business day.
When is permission from the court needed to serve outside of England and Wales?
When the claimant is suing a defendant outside of the UK or it is a claim without contract containing a jurisdiction clause in favour of England and Wales.
If permission of the court is not required:
- C must file at court form N510 with the claim form stating the grounds for serving outside of England and Wales and serve the claim form with that notice on D.
- The PoC can be served without permission if the CF was served without permission.
- If serving on a party in Scotland and Northern Ireland, use the same methods of service as in England or Wales (and take the relevant step for service of the claim form within 6 months of issues). D has 21 days to file the AoS or defence or, if they file an AoS, 35 days, after the service of the PoC.
- If serving outside the uk, the methods of services under the CPRs are followed and the timings of response for each country are also set out in Practice Direction 6B.
On what grounds will the court grant permission to serve outside of England and Wales if it is required?
The grounds are:
- The claim is for an injunction ordering D to do or not do something within England and Wales.
- The claim relates to a contract that was:
- Made within England and Wales or the offer was accepted in England or Wales.
- Was made through an agent trading or residing in England or Wales.
- Is governed by English or Welsh law.
- Is a claim relating to a braeach of contract that was made or likely to be made in England or Wales; or
- Is a claim that no contract exists but, if it did exist, would satisfy one of the conditions above.
- A tort claim where the damage was sustained or will be sustained in England or Wales or the damage results from an act committed in England or Wales or the claim is governed by English or Welsh law.
- This claim relates to land in England or Wales.
- This claim relates to a trust created in or under English or Welsh law or is administered in England or Wales or the breach of the trust is in England or Wales.
- Breach of a fiduciary duty claim where the breach occurred in England or Wales, the duty arose in England or Wales or the duty is governed by English or Welsh law.
- Probate or will claims.
If court permission is required, the claimant must:
- Apply to court. The application must state the grounds being relied on, that the claimant belives they have a reasonable prospect of success and D’s address or location.
- The court will not give permission unless satisfied that England and Wales is the “proper place” to bring a claim.
- If the court grants permission, it will give directions as to the method of service and the timings of response and the service of other documents.
What is an Acknowledgement of Service?
Filing an acknowledgement of services gives D more time to file the defence and/or dispute the court’s jurisdiction.
This is because once the PoC has been served, D has:
- 14 clear days from service of PoC to file a defence; OR
- If D files an acknowledgement of service, a total of 28 clear days from the service of the PoC to file a defence.
D must file an acknowledgement of service within 14 clear days of the service of the PoC.
How can the defendant dispute the court’s jurisdiction?
An acknowledgement of service can be used to dispute the court’s jurisdiction.
To dispute the court’s jurisdiction, D must indicate this on the AoS. Following this, D must make an application to dispute the jurisdiction within 14 days after filing the AoS. The application must be supported by evidence.
If D fails to make the application, then the court assumes they have submitted to the jurisdiction.
If D is successful, the court can set aside the claim. If D is unsuccessful, D must file another AoS within 14 days of the court’s declaration.
How can the defendant admit all of the claim?
If D is admitting all of the claim and the claim is a specified sum, D must serve a form of admission within 14 days of the service of the PoC and must make a payment offer (and method/timing of payment). C may accept D’s officer (in which case they file a request for judgment) or, if they reject the timing of the payment, the court determines this.
If D is admitting all of the claim makes no offer, and the claim is an unspecified sum, C requests judgment and the court will determine the amount to be paid and the timing. If an offer is made, C can accept or reject the offer and accept or reject the timing proposals; if C rejects, the court will determine the amount and/or timing at a hearing.
How can the defendant admit part of the claim?
D files a form within 14 days of service of the PoC.
The court notifies C, who within 14 days must:
- Accept the offer (in which case C files a request for judgment);
- Accept the offer but reject D’s proposal on payment timings. The court will then determine this; or
- Reject the offer, in which case the case proceeds.
What action can the claimant take if no AoS or defence is filed within 14 days of receipt of the PoC?
C can obtain a judgment in default, which means there is no trial.
C must file a form requesting a default judgment as soon as D is late to file (so C can do it on the day after the 14 days have expired).
- If C is seeking a specific sum, they must file the request with the amount sought, costs, and interests. The court will then issue judgment and notify C and D.
- If unspecified, after C’s application, the court will decide the amount at a hearing; the court will enter an interim judgment and give directions and a date for a hearing. A copy of the interim judgment is sent to C and D.
What action can the defendant take in the event of a potential default judgment?
D can either accept the default judgment or apply to have it set aside.
D must apply as quickly as possible to set aside the judgment and file an application notice with a witness statement.
There are two grounds D could argue to set aside: Mandatory Ground or Discretionary Ground.
Mandatory Ground: Judgment in default entered into by mistake - either D did have time to file or did in fact file.
Discretionary Ground:
- D has a real prospect of successfully defending the claim; or
- There is good reason for allowing the claim to continue (e.g., being on holiday). For this ground, the judge must (i) assess the seriousness and significance of the non-compliance; (ii) consider why the breach occurred; and (iii) evaluate all the circumstances of the case so the application is dealt with fairly.
For both discretionary grounds, whether D made the application to set aside promptly is considered by the judge.
What are some of the key rules on settlement?
Settlement may happen at any stage - before the claim form is issued right up to the door of the court before trial.
Settlement can be made via a Part 36 offer.
Settlement discussions must be conducted on a “without prejudice” basis. This means the discussions cannot be referred to in court.
Do the parties want to keep the terms of the settlement confidential?
If the settlement is reached after issue of the CF, it can be recorded in a Consent Order, which is a settlement agreement filed by both parties at the court. This makes it easier to enforce if a party breaks the settlement agreement. The terms of the consent order are available to the public.
If the clients want to keep the agreed terms confidential, they can use a Tomlin Order. The Tomlin Order will contain a schedule setting out how much a party has paid to settle, and it is this schedule that is confidential; the order can also refer to a document that is not filed at court so is kept confidential. The Tomlin Order is filed with the court.
What is Discontinuance?
C dropping the lawsuit. C can do this at any time but needs the court’s permission if an interim injunction or payment has been made.
- To discontinue, C files a Notice of Discontinuance and must serve it on D. If the court’s permission was not required, D may apply to set aside the notice. The application must be made within 28 days of service of the notice. Use the general procedure to make the application.
- C is liable for D’s costs up to the date of service of the notice unless both reach an agreement or the court orders otherwise.
What is the overriding objective?
The overriding objective is to deal with cases justly and at proportionate cost - CPR Rule 1.1
The court complies with this duty by actively managing cases. This means the court should:
- Encourage parties to cooperate;
- Promoting ADR and seeing it that will resolve the dispute;
- Identify issues at an early stage;
- Decide which issues need further investigation;
- Decide the order in which issues should be resolved;
- Fix timetables for proceedings; and
- Give directions to ensure the case proceeds quickly and efficiently.
The court has wide powers to ensure these objectives are achieved, including the general catch all to make any orders necessary.
What are the thresholds and rules for track allocation?
Small Claims Track - Equal to or less than £10k
Fast Track - £10,001 - £25,000 AND trial will last no more than 1 day + expert evidence limited to 1 per party in no more than 2 fields.
Intermediate Track - £25,001 - £100,000 AND trial will last no more than 3 days + expert evidence limited to 2 experts per party + max of 3 parties involved.
Multi-Track - ST/FT/IT inappropriate because claim value is in excess of £100k; trial will last more than 3 days; more than 2 experts needed; more than 3 parties involved; or there are additional factors that make the IT inappropriate.
When the defence is filed, the court provisionally allocates the case to a certain track and serves notice of proposed allocation on the parties. The parties then file a directions questionnaire - parties cooperate to complete this.
Once the Directions Questionnaire is completed, the court will definitively allocated the claim to one of the tracks. Once allocated, the court serves notice on the other parties.
What is the Directions Questionnaire?
A form filed in and filed at court by both parties which gives further details on the case so that the court can definitively allocate the case to the correct track.
Contains details like:
- Whether settlement has been attempted
- Whether any interim applications have been made
- Objections to the provisional track allocation
- Details on Electronic Disclosure
- Details on Witnesses and whether any experts will be required
- Estimate on costs
- Estimate on length of trial
- Accompanied by a draft order for directions.
The parties must fill in and file the DQ at the latest within 14 days of service of notice for the small claims track and 28 days for the other tracks.
The parties cooperate to complete the questionnaire - this is filed on a set date. Each party will exchange their questionnaire.
What directions are usually used for fast and intermediate track cases?
Standard Directions.
The parties may also agree directions themselves which must be filed at court and approved by the court. The court will also make an order for disclosure (standard disclosure) and find a time and date (or time period) for trial.
A typical fast and intermediate track timetable is from the date of allocation:
- Disclosure: 4 weeks after allocation (i.e., you must complete disclosure by the end of a 4 week period after allocation).
- Exchange of Witness Statements: 10 weeks after allocation.
- Exchange of Experts’ Reports: 14 weeks.
- Sending Pre-Trial Checklists: 20 weeks.
- Filing of Completed Pre-Trial Checklists: 22 weeks.
- Hearing: 30 weeks.
Can a case management conference be used for the fast and intermediate tracks?
Yes.
For the fast track, the judge will order a CMC only if necessary.
For intermediate track, the judge is more likely to order a CMC and a pre-trial review hearing.
- Any directions the court issues for the IT, usually after the CMC, will deal with similar issues with respect to witness statements, disclosure orders (usually standard disclosure), trial date, experts, etc as for the fast and multi-tracks.
- Before the CMC (IT), the parties must try and agree directions and submit them at least 7 clear days before the CMC and submit a disclosure report (no more than 14 clear days before the CMC).
- There are some specific rules that any intermediate track directions must follow:
- Oral expert evidence is limited to one witness per party, save where the oral evidence of a second expert for any part is reasonable required and is proportionate;
- The trial time estimate must not exceed 3 days;
- The total length of all the permitted witness statements and witness summaries of a party shall not exceed 30 pages; and
- Any expert record shall not exceed 20 pages.
What directions can be used for multi-track cases?
Two options for multi-track directions:
- The court gives directions for the case with a timetable (i.e., uses the fast-track directions or directions based on them) - these are known as “standard directions”; OR
- The court will fix a Case Management Conference (CMC) or pre-trial review to determine directions tailored for the case and before trial.
What must the parties do before the multi-track Case Management Conference?
- Agree draft directions and file at court at least 7 days before the CMC;
- Submit a case summary to the court (which outlines the steps taken so far in the case and the issues still in dispute). This is for the claimant to prepare, but both parties can do it together;
- Submit a disclosure report;
- Submit and exchange a costs budget and file a budget discussion report; and
- Discuss electronic disclosure wih the counterparty. Submit a summary to court of agreed approach on electronic documents. The parties can also exchange and file (with the disclosure report) the Electronic Disclosure Questionnaire.
A disclosure report is given by each party at least 14 clear days before the CMC (verified by a Statement of Truth). It sets out what documents are to be disclosed, the costs of a standard disclosure exercise in respect of those documents, if there are e-documents how those are stored, what disclosure order the parties are seeking, and where the documents are located.
What will the court do at the CMC?
- Review the steps already taken by the parties and their compliance with any directions already issued.
- Give directions (either approving the parties’ draft or issuing new ones) and a timetable for the case up to trial.
- Encourage the parties to reach an agreement on as many matters as possible (including considering ADR or pausing proceedings to allow the parties to engage in ADR).
- Decide whether any amendments need to made to the statement of case.
- Decide what disclosure is necessary (e.g., standard disclosure) and issue directions and orders.
- Issue any directions re electronic disclosure.
- When and what evidence should be exchanged between the parties (i.e., written statements).
- Determine costs.
- Decide whether experts are necessary.
- Set a trial date.
In other words, the CMC lays down the stages for the case up to trial and what those stages will comprise - a steps plan for the parties up to the courtroom so that the parties can get things done quickly and efficiently.
The court will also make a decision on the actual costs for the CMC. The court will make an order for “costs in the case” meaning that the loser will pay the winner their costs for the CMC (i.e., the legal costs for preparing for it and then being represented at it).
What is a costs budget and what is its purpose?
It is a budget provided by a party showing their future costs, agreed and exchanged between the parties and ensure that costs are reasonable. The parties must try and agree on a costs budget together and then file it before the CMC/costs hearing. The budget must give a breakdown of costs already incurred and an estimate of future costs. Used for MT.
- The court will usually consider the filed budget at the CMC, but it can schedule a separate costs hearing.
- The courts will issue a costs management order in which it records or approves the budget. This is to make sure the costs are within the budget and are therefore reasonable.
- If the court approves the budget, the costs are recoverable, which means the winning party will get their costs paid for by the losing party. The court will follow the budget closely, ordering the losing party to pay up the amounts stipulated in the budget if costs are on a standard basis. In other words, the parties are tied to the figures in the budget, even if the case turns out to be more expensive.
- If there is no costs management order, the court will determine costs more flexiblty and the court will determine how much costs should be recovered on a case-by-case basis with reference to the budget. The court will not issue a costs management order if it believes the parties will be reasonable in their costs and/or it desires flexibility when approaching costs.
- If a party fails to file a costs budget, then they will not be able to recover their full legal costs if they win.
What can the court do if a statement of case is inadequate or abusive?
Strike out the statement of case. Striking out means the case (whether claim or defence) can no longer continue and the other side wins.
- This can be at the court’s own initiative or after an application by the other side.
- It is used when the claim or defence brings no basis of claim or no grounds of denial or is a vexatious claim. The court applies a “general test” - if the statement of case is obviously rubbish, then it is struck out.
- After the SoC is struck out, the court will give judgment and the party can only appeal.
- A party can apply for both summary judgment and strike out of the other party’s SoC.
What can the court do if a party fails to comply with any rule, practice direction, or court order?
Impose a Sanction - the most severe would be a strike out, but can also be costs, limiting issues at trial, or interest.
This can be at the court’s own initiative or after an application by the other side.
When determining the sanction, the court bears in mind proportionality and the overriding objective.
The other side can also apply for an Unless Order - An order from the court that unless a party complies with a specific order, then the court will impose a sanction.
- Before applying for this, the innocent party should inform the other side first.
If an unless order has been breached, the specific sanction will apply (usually strike out). The innocent party then files for judgment.
The breaching party would then need to apply to have the judgment set aside (‘relief from sanctions test’) - evidence must be submitted to do this.
How does relief from sanctions work?
If a party fails to comply with a rule, court order, or practice direction (including an unless order), they must apply for relief from any sanction imposed.
- They must submit evidence with their application for relief.
- The application should be made as soon as possible.
- The court applies a 3 stage test to determine whether relief should be granted:
- Identify the seriousness and significance of the breach (both of the CPRs and the unless order if there was one).
- Understand why the failure occurred.
- Evaluate all the circumstances of the case, considering the need to conduct litigation efficiently and at a proportionate cost and to enforce compliance with rules, practice directions, and orders.
What is a summary judgment and what are the grounds?
To allow judgment to be obtained without going to full trial. Used when the other side’s case is weak.
Two grounds are required to be satisfied:
- C/D has no real prospect of succeedng = the case is very weak;
AND
- There is no other compelling reason why the case should be heard at trial = If there is important evidence which is not yet clear/witnesses should be heard at trial/the matter is very complex and of public interest, these are compelling reasons.
What is the procedure for a summary judgment application?
With notice application:
- Applicant must file application notice (stating SJ is being sought) + witness statement + draft order at court.
- The application notice must state why the two grounds are satisfied.
- Once the hearing date is fixed, the applicant must give the respondent at least 14 clear days’ notice of the hearing.
- The respondent must file written evidence at least 7 clear days before the hearing.
- Applicant must file any reply at least 3 days before the hearing.
D can apply at any time.
C cannot apply until D has served either AoS or defence unless C has court permission.
What orders can the court give after a summary judgment hearing?
- Judgment on the Claim = C wins (if C is applicant); case is over.
- Strike out/Dismissal = D wins (if D is applicant); case is over.
- Application Dismissed = applicant fails; case proceeds.
- Conditional Order = applicant is partly successful but the court still believes the respondent has a chance of winning. The case continues but the respondent must pay a sum of money into court or to do something specific. Failure to do so means the case ends.
What is the purpose of an interim injunction?
To prevent a party from doing something that would be damaging to the applicant or their case.
Can be a standard interim injunction or a specific one, e.g., a freezing injunction (prevents the other party from moving assets that can be used to pay if they lose the case) or a search order (prevents the destruction of documents).
What are the grounds required for an interim prohibitory injunction?
Must be “just and convenient” and, in addition, for without notice applications, must be “good reasons” (i.e., urgency).
The court must be satisfied that:
- There is a serious question to be tried;
- Damages are not adequate; and
- Granting an Injunction would cause less harm to the respondent than not granting one would to the applicant.
To tip the balance, the merits of the case can be considered if one party has a much stronger case than the other. The court can also consider special factors like damage to the business from trademark infringement.
What is the procedure for applying for a with notice injunction?
Applicant needs to file:
- An application notice (in the court where the claim started) stating the applicant is seeking an injunction and why.
- The application notice is filed with written evidence (witness statement or affidavit) and a draft order.
- This is served on the respondent as soon as practicable after filing or at least 3 clear days before the hearing.
What is the procedure for applying for a without notice injunction?
The application can be made at any time - so, even before a claim form has been issued by the claimant.
- An application is made with an application notice. This must be filed in the High Court for a freezing injunction and search order; otherwise in the court the claim started.
- The AN must state what order the applicant is seeking and why. Must attach a draft order to the AN (assists the judge and makes the process quicker). Must provide evidence in support of the application (must be an affidavit for a freezing injunction and a search order).
- No notice is served on the respondent that an application has been made.
- If the without notice application is granted, you then serve a copy of the order, the application notice and witness statement/affidavit on the other party.
The order must contain details on:
- If there is a hearing to determine whether to allow the injunction to continue or not when that hearing is; or
- If there is no hearing, how the other party can appeal to dismiss the injunction, which they have 7 clear days to do.
What order may the court grant if the injunction application is successful?
The court either grants the injunction or dismisses the application.
If the injunction is granted, the applicant will have to give a cross-undertaking in damages. These are also given for freezing and search orders.
A cross-undertaking in damages is where the applicant must promise to pay any damages that the respondent suffers as a result of the injunction if turns out at trial that the injunction was incorrectly granted.
What is an interim payment?
A down payment by D (only D) to C on the damages or debt owed.
Allows a claimant with a strong claim to pursue the claim without financial hardship.
What are the grounds for an interim payment?
a. D has admitted liability; or
b. C has won the case and obtained a judgment for damages yet to be assessed; or
c. The court is satisfied that, if the case went to trial, C would win.
(A) and (B) are used after the claimant has won but there is a delay in the assessment of damages as the case is very complex.
(C) is used if the application is made early on in the case and C is financially stretched/lacks the resources of D to run the full case.
What is the procedure for an interim payment?
- C must first try and get voluntary payment from D.
- Failing that, C can make an application.
- The application cannot be made until at least 14 clear days have passed from the service of the PoC.
- C must file an application notice + draft order + evidence (witness statement or affidavit).
- The evidence must set out the amount being sought; the likely final damages amount; and why the grounds are satisfied.
- These must be served at least 14 clear days before the hearing on the respondent.
- The respondent must submit any evidence at least 7 clear days before the hearing.
- The applicant reply at least 3 clear days before the hearing.
What will the court do if the application for the interim payment is successful?
The court will calculate how much D will pay.
The sum must be a reasonable amount of the likely final damages D will have to pay, and D must be able to pay it without it being too prohibitive.
What is disclosure?
The process of providing to the other side a list of “documents” that have a bearing on your case.
“Document” - Anything in which information of any description is recorded, e.g., email, written documents, and databases.
Whether a document is disclosed will depend on the information recorded in the document and the level of control - this is governed by the rules of disclosure, which vary according the order the court makes.
In the fast and multi-trac cases, the court most often orders standard disclosure at the CMC. This is a direction from the court to the other party on what to disclose.
Other orders that can be used in a more complex multi-track case:
- Specific Disclosure
- Disclosure on Issue-by-Issue Basis
- Order Dispensing with Disclosure
- Disclosure of Certain Documents which are Reasonable to Disclose
- Orders relating to Electronic Disclosure
Once documents are disclosed, the parties may then inspect (read) the documents in the list, unless they are privileged.
Purpose of Disclosure - Promote an early settlement to save costs and enable a fair trial.
What is Pre-Action Disclosure?
Disclosure before the claim form is issued and proceedings have started.
Often used where the potential claimant is unsure whether they have a good claim against D.
An application must be made to court (follow the general procedure = application form + witness statement + draft order).
To grant the application, the court must be satisfied:
- The parties are likely to face each other in proceedings;
- The documents sought would be disclosed under standard disclosure (and have been or are in the party’s control); and
- Disclosure would be desirable to fairly assist the parties to resolve their dispute (with or without proceedings) or save costs.
What is non-party disclosure?
Before or after proceedings have commenced, a party can apply for disclosure against someone who is not a party to the proceedings.
This allows a party to obtain documents from someone outside the case if those documents will help resolve the dispute.
Most common where:
- In their disclosure list, one of the parties has indicated they have documents that are no longer in control but party X has them.
- The other party writes to X requesting copies of these and X refuses.
- The other party can then apply for a court order for X to disclose those documents.
General Application Procedure used.
Court will order non-party disclosure if the documents are:
- In the party’s possession, custody, or control;
- Relevant to the case; and
- Will help resolve proceedings (and/or save costs).
The order will instruct X to disclose a specific number of documents and indicate which are not in their control and which are privileged.
What is Standard Disclosure?
An order for disclosure.
Requires disclosure of:
- Documents on which they rely (favourable to their case);
- Documents which:
- Adversely affect their case; or
- Adversely affect the other party’s case; or
- Support the other party’s case. - The documents must have been or are in the disclosing party’s control, which means the party possess(ed) the documentation or has a right to inspect or take copies of it.
THINK RAC - Rely, Adverse, Control.
What is the Search Duty under Standard Disclosure?
The parties have a duty to make a reasonable search for all documents that adversely affect their own or the other party’s case, or which support the other party’s case.
Limitations can be placed on this provided they are proportionate, and justified, and do not hinder a proper investigation into the case.
If a party places limitations on their share, they must disclose this in their disclosure statement. Ideally, limitations should be agreed upon at the CMC.
How are documents disclosed under standard disclosure?
The parties make and serve a list of documents. The list is in three parts:
Part One - Documents which the other party can inspect.
Part Two - Documents the disclosing party believes the other party should not inspect.
Part Three - Which documents are no longer in the party’s control and what has happened to them.
The list will also contain a signed Disclosure Statement (by the party or their solicitor) that:
i. Confirms that the party has conducted his disclosure with honesty and completeness.
ii. Sets out the extent of any search made to locate the documents and any limitations.
iii. Certifies that the party understands the duty to disclose documents and that to the best of their knowledge they have carried out that duty.
What is Electronic Disclosure?
The disclosure of electronic documents like emails.
There is specific guidance for the disclosure of electronic documents (e.g., emails) in multi-track cases, set out in Practice Direction 31B.
The guidance contains several principles, which state the electronic documents must be:
- Managed efficiently;
- Disclosed in a way that is clear so the other side can view and inspect the documents; and
- Only relevant documents should be disclosed.
Before the CMC, the courts expect the parties to have discussed together how they intend to disclose their electronic documents: what parameters they will use, which documents will and will not be disclosed, how they will present and file the documents, and what keywords to use in any search for the documents.
Once they agreed on the manner of electronic disclosure, the parties must submit a summary of their agreement to the court before the CMC. The court will then give directions or hold a hearing on electronic disclosure.
The parties can also exchange and file an Electronic Disclosure Questionnaire, filed with the disclosure report at least 14 clear days before the CMC.
What is Specific Disclosure?
If a party is dissatisfied with the disclosure given by the other party on the grounds that it is inadequate (i.e., documents are missing), they can apply for specific disclosure.
Before making the application, they must write to the other party setting out what documents are missing and requesting disclosure of these.
If no response is received, they msust file an application notice with supporting evidence (a witness statement) and a draft order.
Court may then make an order for specific disclosure.
What documents can the other party inspect?
The other party has a right of inspection of the disclosed documents unless the documents:
- Are no longer in the other party’s control; or
- The other party has a right to prevent inspection (mainly because it is privileged).
Note - A client can waive privilege over a document.
This is waived when a copy of the privileged document is served on the other side.
However, if this is waived by mistake, it can only be used by the other side with a court application and the solicitor cannot disclose the contents of that document with their client.
What is Legal Advice Privilege?
a. Communications between a party and their legal adviser.
b. Must be written/given by the client’s solicitor/barrister in their professional capacity
c. For the sole or dominant purpose of obtaining or giving legal advice or assistance to the client.
What is Litigation Privilege?
Any document or communication (e.g., letter, email, etc) which before or during proceedings:
- At the time it was made, litigation was reasonably in prospect; AND
- The document was made for the sole or dominant purpose of obtaining information or advice (including to obtain legal advice) in connection with the conduct of that litigation.
What are “without prejudice” communications?
WP communications record the parties’ attempt to settle a case.
They are inadmissable as evidence at trial but still must be disclosed.
What is the general rule on evidence and admissibility?
All evidence that is relevant to the facts is admissible.
Two main types of evidence:
- Factual Evidence from a witness (includes hearsay).
- Expert Evidence from a suitably qualified evidence.
Opinions are not admissible but “perceived facts” are - to the witnesses own mind, they are true.
What is hearsay and is it admissible?
- A written or oral statement;
- Made out of court (i.e., made otherwise than by a person while giving oral evidence in proceedings; and
- Which is repeated to the court as evidence that the issue it is referring to is true.
Hearsay evidence is admissible but must be relevant and must be of fact.
What is the procedure for admitting hearsay?
- If the witness whose statement contains the hearsay is called to trial, they must serve that statement on the other side.
- If the witness is not available for trial, the statement must be served together with a hearsay notice.
The other party is free to request the cross-examination of the maker of the hearsay statement.
An application for cross-examination at court or notice to adduce evidence to undermine the crdibility of the other party must be made or served no later than 14 days after the statement is served.
The judge will then determine how much weight can be placed on the hearsay when reaching its verdict.
How is witness evidence given for a trial?
Before trial, as part of the directions, the parties will exchange witness statements on the date determined by the court at the CMC.
These will form part of the trial bundle, submitted to the court before the trial, so the judge can read it.
What’s an affidavit?
A sworn statement of evidence.
What’s the duty of an expert?
To assist the court on matters within their expertise.
Overrides any obligations to the party who is paying them.
An expert may seek clarity from the court on their duties.
The expert should be completely objective and unbiased when providing their opinion to the court.
What are the requirements of an expert’s report?
- Addressed to the court
- Give full details on the expert’s qualifications
- Set out the evidence and the investigations relied on
- Contain a statement that the expert understands their duty to the court and has complied with this
- Contain a material description of the instructions given by the party to the expert
- Be verified by a statement of truth given by the expert
If either party has separate experts preparing separate reports, a party who wants to use their report in trial must serve it on the other party. The other party can then submit written questions to the expert about his report.
When will discussions between experts take place?
If:
- Both parties have instructed an expert each on the same issue; but
- Both experts have a different opinion.
The court may order that the experts should meet and have a without prejudice discussion.
Purpose - narrow the issues in disagreement, the experts will then submit a statement to the court outlining the results of the discussion.
Remaining disagreed issues will be brought to trial where experts will give oral evidence.
When is a single joint expert used?
Fast-track cases - unless there is a good reason not to do so.
When considering whether to use a single joint, the court considers:
- Whether it is proportionate to use separate experts for both parties considering the amount in dispute, the importance of the case, and the complexity of the issue;
- Whether a single joint will speed up the trial;
- Whether the area of expertise is an established area of knowledge with little dispute;
- What the expert is being used for (quantum or liability); and
- Whether a single joint can deal with all the issues.
When being used, the parties should prepare joint instructions and share the cost of the expert.
What is the Pre-Trial Checklist/Listing Questionnaire?
Sent to the Court by the parties in all tracks.
Enables the court to issue further directions if necessary for trial.
Parties must complete the checklist and file it at court on a specified date. Encouraged to exchange checklist before filing.
Court will serve it on the parties at least 14 days before the specified date for filing.
Failure to file by both parties will result in the case and defence being struck out unless the parties can file one within 7 days of a court ordering filing.
If one party files and the other does not, the court will fix a hearing to determine trial date, place, and issue pre-trial directions.
What is the Pre-Trial Review Hearing?
Used for complex, multi-track cases.
A hearing where the court will issue directions for trial if necessary, and must fix a date, time, and place of trial (with a time estimate).
The court must give the parties at least 7 days notice of the hearing.
What is the trial bundle?
Contains the key documents for the case.
Also sets out which are the key issues the parties are arguing about.
Who prepares the trial bundle and what is the procedure?
The claimant must prepare the trial bundle and file it at court before trial (not more than 7 nor less than 3 clear days before trial).
They must also serve it on the defendant.
What is a Witness Summons?
An order from the court to attend the trial. Used to ensure a witness attends if there are any doubts).
To get a witness summons issued, the party must file two copies of the summons at court. The court will then issue the summons and serve it on the witness.
Breach of summons is contempt of court.
Summons must be served on the witness at least 7 clear days before the date of trial.
What is the order of trial (multi-track)?
- Preliminary Issues
- Claimant’s Opening Speech
- Claimant’s Examination in Chief
- D’s Cross-X of C’s witnesses, and C’s Re-Examination
- D’s Examination in Chief
- Cross-X of D and D’s witnesses, Re-Examination of D
- Closing Speeches: D first then C
- Judgment
What are leading questions?
Questions which suggest their own answer. Not permitted for XIC but can be used for Cross-X.
What does the judgment deal with?
- Liability - Has the claimant been successful on the balance of probabilities? Judge decides yes/no and gives reasons.
- Quantum - Judge wil give an amount of damages that D must pay if C is successful (or if there is a counterclaim, what C must pay).
- Interest - Interest will be awarded to C on the damages from the date the loss was sustained to the date of judgment as set out in the particulars.
- Costs - Loser pays winner’s costs, dealt with on the same day as trial if fast track or intermediate track; usually at a separate costs hearing if multi-track.
Where the court orders any payment of money (damages/costs), it must be paid within 14 days of the judgment unless otherwise specified.
How do you appeal a judgment on first appeal?
General procedure is:
- Make an Initial Application at the oral hearing of the court of judgment
- If that is refused, make a written application to the appeal court (notice of appeal).
Appeal applications to the County Court and High Court will be written only (no oral hearing).
However, if an appeal is from a District Judge to a Circuit Judge or a Circuit Judge to a High Court Judge, if permission is refused on written application, the appellant can request a reconsideration at an oral hearing within 7 days.
The Court of Appeal (on first appeal from the High Court) will not hold a hearing unless it considers it necessary.
Who should you appeal to on first appeal?
Depends on which judge heard the claim. Appeals are to the next most senior judge.
District Judge of County Court - Appeals to - Circuit Judge of County Court
Master/District Judge of High Court - Appeals to - High Court Judge
Circuit Judge - Appeals to - High Court Judge
High Court Judge - Appeals to - Court of Appeal
What are the grounds for granting a first appeal?
- The court considers the appeal would have a real prospect of success; OR
- There is some other compelling reason.
What is the process for getting a second appeal to the Court of Appeal?
Within 21 days of judgment, make a written application (notice of appeal) to the Court of Appeal.
NOTE - All 2nd appeals go to the Court of Appeal (unless it is already a first appeal from EWHC, in which case it goes to UKSC).
CoA will hold an oral hearing to consider the appeal if it believes it necessary.
The appeal will only be granted by the CoA if:
- The appeal would have a real prospect of success; AND raise an important point of law; OR
- There is some other compelling reason.
What is the process for getting a second appeal to the Supreme Court?
IF THE FIRST APPEAL WAS TO THE COURT OF APPEAL.
An appeal can be made to the UKSC if the appeal raises an arguable point of law of general importance.
Application can first be made to the CoA.
If the CoA reject it, it can be made to the UKSC (who consider it on paper - no hearing). The application must be served on the other side and it must be made within 28 days of the CoA’s judgment.
What are fixed recoverable costs?
In fast or intermediate track cases, where the court makes an order as to costs, the court must make a fixed costs order in accordance with the costs set out in the tables in CPR Practice Direction 45.
- The amount of costs that can be awarded under the tables is determined by the amount of damages awarded and the complexity band that the case was allocated to (Bands 1 to 4). The higher the band, the more complex the case, the more costs available.
- Also applies to interim applications made in these tracks. If a party has made a successful summary judgment, interim injunction or interim payment application, the amount of costs they receive is fixed at £750 (in addition to any court fee payable).
What if a party has behaved unreasonably in a fast or intermediate track claim?
The other party can make an application for an order that the costs awarded be reduced (if the winner has behaved badly) or increased (if the loser has behaved badly) by 50%.
How are costs assessed in a multi-track claim?
Starting Point - The loser pays the winners costs.
The court has ultimate discretion as to cost - it can depart from the general rule and make varied costs orders, taking into account the behaviour of the parties.
When assessing costs, the court must make an assessment on the standard basis or the indemnity basis.
Standard - Each cost item must be reasonable and proportionate.
Indemnity - Each cost item must only be reasonably incurred.
How do the Standard and Indemnity bases work?
When the court is going through the winner’s bill, it takes a different approach as to which cost items to award depending on whether the basis of assessment is the standard basis or indemnity basis.
Indemnity Basis - Used to punish the paying party. The loser will have to pay more to the winner (the winner will recover about 70% to 80% of their costs).
How are costs assessed on the standard basis?
If the court decides to assess costs on a standard basis, then the costs the loser pays will be:
- Only on costs reasonably incurred or reasonable in amount (by the winner); and
- Proportionately incurred or proportionate in amount (winner will likely get 60-70% of the total costs incurred).
Costs are proportionate if they bear a reasonable relationship to:
- The sums in issue in the proceedings
- The value of any non-monetary relief in issue in the proceedings
- The complexity of the litigation
- Any additional work generated by the conduct of the paying party
- Any wider factors involved in the proceedings, such as reputation or public importance; and
- Any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.
If there is any doubt, it is resolved in favour of the paying party.
How are costs assessed on the indemnity basis?
If the court assesses on an indemnity basis, the loser will have to pay more costs to the winner. This is a penalty imposed on the loser for poor conduct during proceedings (such as a failure to comply with pre-action conduct or ADR processes). The costs the loser will pay will be:
- Only on costs reasonably incurred and reasonable in amount; but
- No proportionality (the loser ends up paying about 70-80% of the winner’s costs).
Any doubt is resolved in favour of the receiving party.
What is the difference between a summary and a detailed assessment?
Summary Assessments are used for fast and intermediate track cases and for interim applications. Costs are assessed then and there: on the same day as trial and by the same judge.
Detailed costs assessments are used for multi-track cases. There will be a separate costs hearing presided over by a costs officer. The winner will serve on the loser their costs details, including their bill of costs and counsel fees, within 3 months of the judgment. The loser then has 21 days to dispute the bill (if they do not, then the winner can get a default costs certificate). Then the winner has 21 days to reply. Then there is a costs hearing.
NOTE - The parties can agree costs rather than having the detailed assessment.
What is a Costs Management Order?
Order issued by the Court at the Case Management Hearing or at a separate costs hearing in multi-track cases.
The court records the approval of the parties’ costs budgets submitted and agreed upon by the parties.
If the court has made a CMO and assesses on a standard basis, it cannot depart from the amount of payable costs agreed in the budgets unless there is good reason to do so.
If assessing on an indemnity basis, it has no regard for the budgets and will assess costs in the usual way.
If no CMO is made, the court will still take into account the filed budgets when ordering the costs payable.
What are possible interim costs orders?
Costs in Any Event - The loser of the interim application pays the winner’s costs
Costs in the Case - The winner of the trial gets the interim application costs (can be even if they lost the application)
No Order as to Costs - Parties bear their own interim application costs
At the end of an interim application, the court will make an interim costs order.
Fast and Intermediate Track - £750
Multi-Track - Court can make a summary assessment then and there. Parties must serve a statement of costs 24 hours before the hearing for the court to do so. Parties can also agree on a figure prior to this.
Costs are payable within 14 days.
What is a non-party costs order?
A non-party to the proceedings pays the costs on behalf of the losed.
Used when the loser cannot pay (e.g., insolvent) or a non-party has funded the proceedings.
Non-party can be made jointly or exclusively liable.
Two step procedure:
1. Non-party must be added as a party to the proceedings for the purpose of costs; and
2. Non-party must be given the opportunity to attend a hearing where the court considers the matters further.
What is a security for costs order?
An application made by the defendant.
If successful, the claimant must deposit money at court as security for the defendant’s costs if they lose at trial.
One (or more) of the following grounds must be established:
- The claimant is resident out of the jurisdiction (England and Wales) a Hague Convention country.
- If the claimant is a company/LLP, it would be unlikely to be able to pay D’s costs if ordered to do so (judged at the time of the application).
- C has taken steps that would make enforcement of an award difficult - relocation of assets/wealth
- C has changed their address since the litigation began to evade the consequences.
- C gave the wrong or no address in the CF.
Court will exercise its discretion (even if a ground is established) and balance the interests of justice with D’s concerns.
What are the requirements for a valid Part 36 Order?
- Be in writing
- Make it clear it is pursuant to Part 36
- Specify a period of acceptance (cannot be less than 21 days, unless made less than 21 days before the start of trial) known as the relevant period
- State if it relates to whole or part of the claim
- State if it accounts for a counterclaim
Part 36 Offer = Offer to settle, a financial offer made by one party to another party in exchange for ending the case.
Can be made at any time before judgment is given.
Made without prejudice save as to costs - the trial judge will not know about it except when deciding which costs order to make.
In a multi-track claim, what are the cost consequences of the claimant rejecting the defendant’s Part 36 Offer, and winning equal to or less than the amount offered?
C has still won so will get damages and will receive costs on the standard basis up to the end of the relevant period.
BUT must pay D’s costs on the standard basis incurred from expiry of the relevant period + interest.
C is punished - should have taken the offer.
In a multi-track claim, what are the cost consequences of the defendant rejecting the claimant’s Part 36 Offer, and winning equal to or more than the amount offered?
D must pay:
- Damages
- Additional penalty/amount calculated on damages (10% on up to £500k, 5% for between 500k - 1m up to a max of £75k)
- Costs on the standard basis up to the end of the relevant period
- Costs on the indemnity basis from the expiry of the relevant period
- Interest on those Costs (max 10% above the base rate)
- Interest on Damages (max 10% above the base rate for some or all of the period starting with the date on which the relevant period expired).
D is punished - should have taken the offer.
In fast or intermediate track cases, what are the cost consequences if C rejects D’s Part 36 Offer but gets an amount equal to or less than the offer?
C is entitled to fixed costs applicable on the date of expiry of the relevant period + liable to pay D’s fidxed costs applicable on judgment date.
In fast or intermediate track cases, what are the cost consequences if D rejects C’s Part 36 Offer but gets an amount equal to or more than the offer?
C will get additional costs - 35% of the difference between fixed costs applicable on the date of expiry of the relevant period and on the judgment date.
When is an oral examination used against a losing party by the creditor (winning party)?
If not paid within 14 days of judgement.
The winner can make a without notice application to the court for an oral hearing, during which the loser will give information about themselves, allowing the creditor to choose the most appropriate method of enforcement.
Hearing takes placed in the County Court closest to where the debtor lives and presided over by a judge or a court officer. If D does not attend court, a committal order is made against them.
When is a taking control of goods order used?
Used if the debtors has moveable assets (e.g., household goods, stock, car).
Allows a court enforcement agent to seize and sell the debtor’s goods to pay the judgment debt and costs. The items seized are sold at public auction. Any surplus proceeds are given to the debtor.
Expenses of sale are deducted.
Certain items cannot be seized - tools of trade necessary for the debtor’s job or living (subject to a maximum aggregate value of £1,350) and domestic needs goods like clothes and furniture that are reasonably required for the debtor and their family, as well as jointly owned property and hire purchase items.
What court should be applied to for a taking control of goods order?
The High Court, regardless of the amount to be enforced, if the creditor obtained judgment in the High Court or the value exceeds £5,000. The HC issues a writ of control.
County Court otherwise - The CC issues a warrant of control.
NOTE - If the value of the debt is between £600 and £5,000, the creditor can choose to transfer the CC judgment to the HC for a writ to be issued.
When is a charging order used?
Used if the debtor has land or a beneficial interest in land.
Apply to court for an order charging the debtor’s land for the amount owed. Once the order is granted, the charge will need to be registered.
This creates security over the land which can be released only if the debt is paid off.
The creditor then applies for an order of sale from the court.
NOTE - This may not be granted if family/children are living in the home.
When is a third-party debt order used?
Use if the debtor is a sole trader and has other debts owed to them OR has an account (e.g., a bank account or building society account) with credit in it.
- The account must be owned by the debtor completely
- If a third party owes a debt to the judgment debtor, the court can order that person to pay the creditor the amount owed instead
- Creditor must make a without notice application to the court to freeze the third party’s funds or the bank account. Once frozen, there is a hearing 28 days later to determine if the order to pay should be granted. If it is, the third-party debtor or bank must pay the creditor directly.
- There is a risk the third party may not have the money themselves or may move their money or the amount in the account gets moved.
When is an Attachment of Earnings order used?
Use if the debtor is still employed.
- An order requiring the debtor’s employer to make deductions from the debtor’s earnings and pay them to the creditor. The debtor will still get the amount of money needed to live on.
- Risk that the debtor loses their job or moves job - if they move, a new application must be made. May take a long time to pay off the debt.
- Attachment of Earnings Order must be made in County Court Money Claims Centre.
