Dispute Resolution 2

Question 1

Court’s general case management powers

Answer 1

Extend/shorten time for compliance with any rule, practice direction or court order, adjourn hearings or bring them forward, require a party or their legal representative to attend court, stay the whole or part of the proceedings or judgement either generally or until a specified event, order any party to file and serve a costs budget

Question 2

Court order of its own initiative

Answer 2

If this is done without hearing and without giving the parties the opportunity to make representations, the court will include a statement in the order that the parties have a right to apply to set aside, stay or vary the order within a given period - if this is not specified any application should be made within 7 days of the date on which the order was served on the party making the application

Question 3

Strike out

Answer 3

Deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party. Deletion of the entire statement of case so that the case is effectively over, designed to target cases that are inadequately drafted or are otherwise an abuse of the court process

Question 4

Strike out

Answer 4

Court may exercise its own initiative to strike out or on the application of a party preferably before allocation

Question 5

Summary judgement

Answer 5

Covers cases which are weak on the facts

Question 6

Default judgment

Answer 6

Consequence of the defendant failing to respond to a claim, if a defendant fails to file and acknowledgment of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment

Question 7

Allocation

Answer 7

Deciding which track a claim should be allocated to (small claims for not more than £10,000 and claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than £1000, fast for claims up to £25000 and the trial is likely to last no longer than one day (five hours) and there will only be oral expert evidence from one expert per party in each of no more than two expert fields and multitrack for all other cases)

Question 8

Small claim tracks

Answer 8

Road traffic claims where the accident occurred before 31 May 2021 or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages for the personal injuries (pain, suffering and loss of amenity) are valued at not more than £1000, in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5000, damages for claims other than road traffic are valued at not more than £1,500

Question 9

Small claims track

Answer 9

Very limited costs recovery will rarely order one party to pay any costs to the other party, other than very limited fixed costs (and court fees and witness expenses), fewer ‘formalities’ will also encourage litigants to represent themselves, parties to file and serve on ever other party copies of documents they intend to rely upon no later than 14 days before the main hearing, notice of the hearing date (at least 21 days)

Question 10

Settlement

Answer 10

Stay is a period of time during which the proceedings are paused and the parties are prevented from taking any steps in the proceedings, if all parties request a stay, the claim will be stayed for a month, if one party but not all requests a stay, the court can stay the claim if it considers it appropriate

Question 11

Case Management Conference

Answer 11

Hearing to ensure whether the claim is clear, whether any statements of case need to be amended, what disclosure is required if any, what expert evidence is required and how and when it should be obtained, what factual evidence should be provided for, whether any further information is required and whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues

Question 12

Fast track

Answer 12

Disclosure within 4 weeks of notice of allocation, exchange of witness statements within 10 weeks, exchange of expert’s reports within 14 weeks, filing pre-trial checklists at court within 22 weeks, trial date within 30 weeks. Fast track trials will usually be held in the County Court, and should last no longer than one day, so there may be no opening speeches and limited oral evidence, fixed costs will usually apply to trial

Question 13

Notice of proposed allocation

Answer 13

Indicate which track is proposed for the claim and require parties to file and serve a directions questionnaire (Form N180 for small claims and Form N181 for fast and multitrack), on the fast track or multi-track, file proposed directions and for claims under the costs management regime, file and serve a costs budget and an agreed budget discussion report

Question 14

CMC continued

Answer 14

The parties should attempt to agree directions before the CMC and submit agreed or proposed directions at least 7 days before the CMC, unless it is a personal injury claim, the parties should file a disclosure report at least 14 days before the first CMC

Question 15

Claims for other cases

Answer 15

File budget 21 days before the first CMC

Question 16

Scope of the costs management regime

Answer 16

Does not apply for small/fast track claims, claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more or which are for a monetary claim which is not quantified or fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10million or more, commenced after 6 April 2016 made by or on behalf of a person under the age of 18, claims that are the subject of fixed or scale costs, the court can disapply the costs management regime even when it would normally apply automatically eg where a claimant has a limited or severely impaired life expectation of 5 years or less remaining, or require compliance with the regime even when it would not normally apply

Question 17

Stated value of the claim is less than £50,000

Answer 17

File budget with the parties’ directions questionnaires

Question 18

Budget Form

Answer 18

Must be signed with its own form of statement of truth, where the monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000, the parties must only use the first page of Precedent H, budgeting is all about future costs, incurred costs(pre-budget costs) are included on the form but cannot be altered by the court and the rule that a party will only recover budgeted costs unless there is good reason

Question 19

No costs management order

Answer 19

If there is a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in a budget filed by that party, the receiving party must provide a statement of the reasons for the difference with the bill of costs and the court may reduce the recoverable sum if the paying party reasonably relied on the budget

Question 20

Amended costs budget

Answer 20

Submit to other parties for agreement if possible using Precedent T and submitted to court for consideration

Question 21

Sanctions

Answer 21

Interest (reducing the interest payable to the claimant as a sanction imposed on the claimant), costs (ordering the defendant to pay costs on the indemnity rather than standard basis as a sanction imposed on the defendant), striking out a statement of case

Question 22

Courts power to impose sanctions

Answer 22

Immediately or make an unless order (provides for an automatic sanction in the event of non-compliance with the order and must specify the date and time within which the act must be done)

Question 23

Non compliance with orders imposing sanctions

Answer 23

If a party fails to comply with an order imposing a sanction, the sanction takes effect unless the party applies for relief from it and court will apply Denton principles

Question 24

Sanctions and time limits

Answer 24

Parties can agree an extension of time of up to 28 days provided it does not put at risk a hearing date or it is not contrary to CPR or a court order

Question 25

Denton principles

Answer 25

Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order, if the breach is neither serious or significant, then relief should be granted, if it is consider why the default occurred, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly but with particular weight to be given to litigation must be conducted efficiently and at proportionate cost.

Question 26

In time application

Answer 26

An application for an extension of time to take any particular step in litigation is not an application for relief from sanctions provided that the applicant files his application before the expiry of the permitted time period, this is the case even if the court deals with the application after the expiry of the relevant period

Question 27

Disclosure

Answer 27

No obligation to give disclosure- it comes from a court order, instead of ordering standard disclosure the court could dispense the need to carry out a search for documents, or require disclosure in relation to only some of the issues, or in stages, only one copy of a document needs to be disclosed, unless the copies have changes/annotations which are material to the dispute

Question 28

Standard disclosure

Answer 28

Is this a document? Was it in the party’s control? Does he rely on the document and does it adversely affect his or another party’s case or support another party’s case and is it required to disclose by a relevant practice direction.

Question 29

Reasonable search factors

Answer 29

The number of documents involved, the nature and complexity of the proceedings, how difficult/expensive it is to retrieve any document, the significance of any document likely to be found, overriding objective, principle of proportionality

Question 30

Inspection

Answer 30

A party has a right to inspect a document that has been disclosed except where the document is no longer in the disclosing party’s control, allowing inspection would be disproportionate or the disclosing party has a right or duty to withhold inspection, ie it is privileged

Question 31

Redaction

Answer 31

A party can redact parts which are irrelevant or which are privileged, it cannot redact something simply because it is confidential

Question 32

Waiver

Answer 32

It is possible for a party to deliberately allow inspection of a privileged document if it considers that the document helps its case but this can lead to privilege being lost in other documents and they do not have unrestricted rights to determine precisely what it wishes to waive privilege over

Question 33

Before disclosure stage of proceedings

Answer 33

Party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and an expert’s report

Question 34

Procedure for inspection

Answer 34

A party wishing to inspect documents must send a written notice, and inspection must then be allowed within 7 days, a party can also ask for copies, if it undertakes to pay reasonable copying charges, and the copies must then be provided within 7 days of the request

Question 35

Privilege principles

Answer 35

Once privileged, always privileged, the burden of proof is on the party claiming privilege to establish whether a document is subject to privilege

Question 36

Legal advice privilege

Answer 36

A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice

Question 37

Litigation privilege

Answer 37

A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect

Question 38

Without prejudice communications

Answer 38

A document whose purpose is a genuine attempt to settle a dispute

Question 39

Specific disclosure

Answer 39

A party must do one or more of the following: Disclose documents/classes of documents specified in the order, carry out a search to the extent stated in the order, disclose any documents located as a result of that search

Question 40

Specific inspection

Answer 40

Order that a party permit inspection of a document which has been disclosed, but the disclosing party alleges it would be disproportionate to allow inspection

Question 41

Pre-action disclosure

Answer 41

Respondent is likely to be a party to subsequent proceedings and the applicant is also likely to be a party to those proceedings and if proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks (so the scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order) and pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs

Question 42

Non-party disclosure

Answer 42

Court orders a person who is not a party to the proceedings to give disclosure where the documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings and disclosure is necessary in order to dispose fairly of the claim or to save costs

Question 43

Non party disclosure (cont.)

Answer 43

Court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence, it could be rebutted and a different costs order made

Question 44

Norwich Pharmacal Orders

Answer 44

Court proceedings cannot be commenced because the identity of the defendant is unknown- it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant

Question 45

Norwich Pharmaceutical Orders (cont.)

Answer 45

Necessary for the applicant to issue a claim form against ‘Persons Unknown’ and set out its claim as best possible on the claim form against the ultimate wrongdoer. It must be necessary and proportionate

Question 46

NPO

Answer 46

3 conditions to be satisfied: a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer, there must be the need for an order to enable action to be brought against the ultimate wrongdoer, the person against whom the order is sought must (i) be more than a mere witness/bystander and (ii) be able to provide the information necessary to enable the ultimate wrongdoer to be sued. A successful applicant will pay the costs incurred by the respondent, including the costs of giving the disclosure, the applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings

Question 47

Witness statement

Answer 47

Evidence in chief- witness statement, cross-examination, re-examination, parties can agree in writing extensions of up to 28 days for serving and filing if it has been ordered, of witness statements without the need for court approval provided any such extension does not put a hearing at risk

Question 48

Witness statements for interim applications

Answer 48

Any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing

Question 49

Opinion evidence

Answer 49

Not admissible unless it is perceived facts and expert opinion

Question 50

Witness statements other than trial

Answer 50

Witness statement for interim hearing should have two extra paragraphs one near the beginning after info and belief paragraph

Question 51

Affidavits

Answer 51

Evidence of fact must be given by affidavit if this is required by the court or rule or if a party chooses to do so, person who gives evidence by affidavit is a deponent, written statement of evidence that is sworn before a person authorised to administer affidavits rather than verified by a statement of truth

Question 52

Hearsay

Answer 52

Indirect evidence whether written or oral made outside of court to prove the truth of the matter stated in court, admissible but less reliable than direct oral, documentary or real evidence, formal notice required, a party who receives a hearsay notice can request particulars of the hearsay, call for cross-examination of the witness, challenge the weight of the hearsay or attack the credibility of an absent witness

Question 53

Expert evidence

Answer 53

Court order required, court is more likely to restrict expert evidence in the small claims and fast track. Fast track will be limited to one expert per party and expert evidence in two expert fields and only one expert for small claims

Question 54

Exchange of expert evidence

Answer 54

Experts’ reports must be exchanged with the other side and is usually done at the direction stage, failure to exchange means that the evidence cannot be used unless the court gives permission

Question 55

Single joint experts

Answer 55

More likely to be used in small and fast track matters and the court has power to only permit a single joint expert

Question 56

Questions

Answer 56

Can only be put once, must be submitted to the expert within 28 days of service of the report, only be for the purposes of clarifying the report, no time limit which the expert must answer questions unless ordered by the court, if the expert does not answer the court can order that the party who instructed the expert cannot rely on their evidence and or cannot recover the experts fees from the other party

Question 57

Questions by experts

Answer 57

Expert must provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court and provide a copy to all other parties at least 4 days before filing it at court. Claimant must serve order on the single joint expert

Question 58

Hot tubbing

Answer 58

Some of all the evidence of experts from similar disciplines is given concurrently

Question 59

Unfavourable expert reports

Answer 59

Put questions to expert, seek advice from another expert advisor if court allows it but is difficult and costly, if they are not given permission to call another expert that party can use the expert advisor to assist in preparing questions for cross-examination, if there is not a direction for the expert to give oral evidence, seek such a direction from the courts, party should ultimately think about the possibility of settlement