Disputes Flashcards
What is mediation?
A confidential process to facilitate dispute resolution through a third party
It’s not binding
It’s quicker and cheaper
What is arbitration?
Where an impartial adjudicator resolves a dispute
Decision is final and bounding
Parties are agreeing to oust court’s jurisdiction
What are the advantages of arbitration?
Privacy
Easier enforcement
Can choose specialist to determine dispute
What are the advantages of ADR in general?
Court expectations
Better relationships
Generally less expensive and saves time
Greater privacy/confidentiality
Less disruption
Range of outcomes
Outcomes reflect risk
Parties in control
Parties more involved
What considerations are there for ADR?
- Pre-action protocols and practice directions that require parties to consider ADR
- Guidance with Precedent H
- Directions Questionnaire (fast/multi track) requiring solicitors to confirm they’ve explained to clients the needs, options and consequences of settlement
- At case management conference, court will want to know what steps parties took
How will ADR come into costs orders?
Court will consider party conduct when making costs order and consider whether any refusal to engage in ADR was reasonable
Burden of proof on unsuccessful party
What is the purpose of pre-action protocol?
Designed to push parties to resolve disputes without involving the court
What does the pre-action protocol for PI claims stipulate?
C write Letter of Notification to D
Parties consider rehabilitation needs
C writes Letter of Claim to D with full details of claim
D acknowledges LoC within 21 days
D investigates and sends Letter of Response within 3 months
Disclose key documents, engage in negotiations and make settlement proposals
Joint selection of quantum expert
When must a claim form be issued?
Before the limitation date so the limitation defence doesn’t arise
What is the limitation date for contractual claims? And for tortious?
Contractual: 6 years from when breach occurs
Tortious: 6 years from when innocent party suffers recoverable loss from breach
What are the possible consequences for not complying with a pre-action protocol?
Court decides whether consequences are merited
Most likely will relate to costs and interest
May stay proceedings until relevant steps are taken
Can ask for an explanation
How can non-compliance with a pre-action protocol be justified?
- Where limitation period was about to expire
- Another reason for urgent proceedings or for element of surprise
What must be considered where a dispute has an international element?
- Do E & W courts have jurisdiction to determine the claim?
- Which country’s laws apply to determine the claim
- Is it necessary to enforce judgement abroad and how?
What is the general rule regarding jurisdiction?
Court of E&W will determine disputes over matters occurring in E&W but not over matters that took place outside E&W or concern nationals of other countries
If a matter took place outside E&W, or concerned nations of other countries, what is considered?
If the Hague Convention applies
1. Must be a civil or commercial matter
2. Must not be an excluded matter (consumer/employment)
3. Does clause give jurisdiction to a Contracting state? (if not, common law applies)
4. Jurisdiction must be given exclusively
5. Agreement must be in writing
6. Consider if agreement is asymmetric
If clause falls within Hague Convention, what happens?
Court indicated as having jurisidction must do, and must not refuse
What is common law jurisdiction?
One of the following must apply:
1. Is D present in E&W jurisdiction?
2. Court gives permission to serve outside
3. Courts of E&W given jurisdiction in contract
Where there is conflict over jurisdiction in the UK, how is which law applied determined? And for jurisdiction?
For applicable law, the same way as any other country
For jurisdiction:
- property proceedings: where property situated
- if parties agreed, given effect to
- if party submits, that court will have jurisdiction
- if none of above, where person is domiciled
How is the applicable law determined for contractual claims?
- Have parties chosen? If yes, that applies
- If not, does the contract relate to cases specified? If yes, those apply
- If not, it’s where the party required to effect characteristic performance has its habitual residence
- Whether 2 or 3 applies, court will apply a different country’s law if contract manifestly more closely connected with that country
How is the applicable law determined for tortious claims?
- Have parties validly chosen? If yes, (agreement made after damage or made before between commercial parties, freely negotiating) that applies
- If not, do parties habitually reside in same country? If yes, that applies
- If not, apply law of country where damage occurs
- Whether 2 or 3 applies, court will apply a different country’s law if contract manifestly more closely connected with that country
In what 2 courts can civil proceedings be commenced?
High Court
County Court
What are the thresholds for determining where civil proceedings start?
Must be in County Court:
- Non-PI claims up to £100,000
- PI claims less than £50,000
Either County or High Court:
- PI claims over £100,000
- PI claims of £50,000 or more
What does the financial value of a claim not include?
Interest, costs, counterclaims etc
What factors are used to determine if a claim should be started in High Court?
Financial value of claim
Complexity of case
Importance of outcome to the public
If C believes so
If the court disagrees with the C’s choice of court, what can they do?
Can transfer the case and may order C to pay costs of transfer
What 2 documents are needed to start a claim?
Claim form and particulars of claim
What must be done to issue a claim form?
- Copies of Claim Form (Form NI) issued and sealed
- Court issue fee
What is the significance of the date of issue of the claim form?
Stops time for limitation and starts time for when claim form can be served
To add a C or D to a claim, what is the test?
Must be ‘desirable’
To add a claimant to a claim, what is needed?
Their consent
Court’s permission (unless claim form hasn’t been served)
To add a claimant after the end of a limitation period, when is this allowed?
If limitation period was current when proceedings started, and
Addition/substitution is necessary: The intended D has been identified in the statements of case by description or less specifically
Who can effect service of a claim form?
Court or claimant (C’s solicitor must file certificate of service after at court within 21 days of service)
When is service ‘effected’ within jurisdiction?
After the ‘relevant step’ has been completed before 12:00 midnight on calendar day 4 months after date of issue of claim form
What happens if a claim form is not served within the required time period?
Claim will fail
If they still want to pursue the claim, must issue a new claim and pay court fee again
How can an extension of time to serve the claim form be granted?
Application should be made within the 4 months needed to serve, and must show good reasons
If outside the 4 months, only granted if:
- Court failed to serve it
- C took all reasonable steps to comply
- Application was made promptly
When serving claim form outside jurisdiction, what are the requirements?
- C proves 1 of the grounds in GB PD 3.1 (see notes)
- Claim has reasonable prospects of success (low threshold)
- E&W is the ‘proper place’ to bring the claim
What is the time period in which to serve a claim form outside jurisdiction?
6 months on calendar day after date of issue of claim form
What is the service out procedure with and without permission?
With Permission: application to court & Form N244
Without Permission: Form N510 when issues and files claim form
When is it necessary to seek the court’s permission out of jurisdiction to serve claim form?
Where courts of E&W do not have jurisdiction
When is a claim form deemed served?
2nd business day after ‘relevant step’
When should the particulars of claim be served (if not with claim form)?
Within 14 days of claim form being served
AND
Within 4 months of claim form being issued (if with jurisdiction)
What are the deemed dates of service for instantaneous methods (other than claim form)?
If done before 4:30pm on business day, that day
If not, next business day
What are the deemed dates of service for non-instantaneous methods (other than claim form)?
2nd day after posting/giving to DX provider, if business day
If not, next business day
When does the D need to respond?
After the PoC has been served (until then, can do nothing)
What options does a D have for responding to a PoC?
- Admit
- Defend
- File an Acknowledgement of Service
If admitting a claim, when does the D need to send the relevant admission form?
Within 14 days of DDOS of PoC
If a specified amount is admitted in part, what does the D need to do in responding?
State amount they admit to
File defence for unadmitted amount
If an unspecified amount is admitted to, what does the D need to do in responding?
Can admit to pay whole sum or offer sum in satisfaction
Quantum must be decided
Where a D admits to a specified amount, what can they request?
A request for time to pay
What is a ‘judgement’?
Final order disposing of the claim
It’s an option for the C, not mandatory
It’s payable within 14 days
Where a D wants to defend a claim, when must the defence be filed and served on all parties?
Either:
- Within 14 days of PoC
- Within 28 days of PoC as they filed an AoS first
When does a D not need to file a defence?
If C has already filed for summary judgement before defence has been submitted
For how long can a D and C agree an extension of time for serving a defence? If they want longer, what should they do?
Up to 28 days
Must apply to court if longer
Where D served with claim for a specified amount but they have already paid C, what can they do?
Respond with defence saying ‘money paid’
Court notifies C and C has to reply within 18 days
When must a D file an acknowledgement of service?
Within 14 days of PoC
When should an AoS be filed?
If D unable to file defence within 14 days or want to dispute court jurisdiction
What are the consequences for the D for not responding to the claim form in time?
C can apply for judgement in default
What is the procedure for disputing jurisdiction?
- D files AoS
- D applies within 14 days after filing AoS, disputing jurisdiction, supported by evidence
What should the D be careful not to do when disputing jurisdiction?
Careful not to submit i.e. take any action engaging with proceedings beyond filing an AoS
What are default judgements?
Applying for judgement to be granted in C’s favour without trial if D hasn’t responded to a claim within the prescribed time limits
C has won case
No application for summary judgement or strike out can have been made by the D
What is the difference between strike out, summary judgement and default judgement?
Strike Out: focuses on statements of case
Summary Judgement: cases which are weak in facts - court considers merits
Default Judgement: is procedural - doesn’t look at contents or merits of the case
When must a court set aside default judgement?
Where judgement was wrongly entered e.g. time limit hadn’t expired
When may a court set aside default judgement?
Judgement was correctly entered but:
a) D has real prospect of successful defence (not just arguable)
or
b) There’s another good reason
Must be supported by evidence
What is a ‘Relief from Sanction’?
Application used to set aside a default judgement
What are the different ways a claim can end?
Success (trial or summary judgement)
Settlement
Discontinuance
Admission
Judgement following strike out
What is discontinuance?
Ends proceedings by C
Can be done at any time, for part or whole of the claim, against some or all defendants
C is liable to pay D’s costs until that point
What is the procedure for discontinuance?
- File notice of discontinuance at court
- Serve copy on every party
- Takes effect from date of service
- Upon discontinuance, costs order deemed to have been made in D’s favour on standard basis
What are the 3 rules for counting time?
- Always clear days (start on following day from when period begins)
- If end of period defined by reference to an event, that day is not included
- Where specified period is 5 days or less, don’t include weekends, bank holidays, Christmas or Good Friday
What are the main statements of case?
Claim form
PoC
Defence
Counterclaim
Reply
What is the structure of a statement of case?
Title of Proceedings
Contents Specific to that Doc
Statement of Truth
What does every statement of case need at the end and why?
Needs a statement of truth that verifies the statement of case
Can lead to proceedings for contempt of court if it contains false info
What makes up the contents of a claim form?
Sets out the key elements of the claim e.g. party identities; addresses
Concise statement of nature of the claim
Remedy sought
For money, specified, unspecified or known statement of value of the claim
If choosing between courts, jurisdictional endorsement
What makes up the contents of a particulars of claim?
Concise statement of facts on which C relies
Show duty, breach, causation and loss
Any claim for interest and remedies sought
What is the purpose of the defence?
Reacts to every point/allegation in the particulars of claim, stating full details of D’s own case
Each allegation must be dealt with individually
How can a D respond to each allegation in the defence?
- Admit
- Deny it (with reasons)
- Require proof of allegation (where they can’t deny or admit it)
What happens if a D fails to deal with an allegation?
They are deemed to admit it
Unless it’s a money claim where it’s not admitted to unless D specifically does so
What other things can be included in a defence?
- Limitation defence
- Disputing statement of value
- For PI claims, response to schedule of past/future expenses and losses, and medical report
- Any matters to do with mitigation or reduction of damages
- Any counterclaims
What is a ‘Reply’?
An optional statement of case served by C, alleging facts in response to defence not included in the claim form
Should be filed with directions questionnaire in the form of ‘Reply and Defence to Counterclaim’
Should be the last statement of case - permission needed to file one after this
What is a counterclaim?
Establishes duty, breach, causation and loss against C
May or may not be related to original case
Single doc with defence ‘Defence and Counterclaim’ and pay a fee
What is the defence of ‘set-off’?
the facts that give rise to a counterclaim may also amount to a defence in the main claim
Can be a partial or complete defence to main claim
Has effect of extinguishing any claim up to same amount against D
How can a C respond to a counterclaim?
By admitting or defending
How long does a C have to serve defence to a counterclaim?
14 days of service of counterclaim
How can a party request for further information about statements of case?
Expected to do so on voluntary basis first, only applying to court if request can’t be resolved
They serve a written request on other party stating date for response, including a statement of truth
If the other party objects, must do so within timeframe set out in request and give reasons
What must amendments to statements of case be verified by?
Statements of truth
When can amendments be made to statements of case without permission or consent?
Before the statement of case is served
What is an amendment by consent?
Any statement of case can be amended at any time with consent of all other parties
When does a party need permission to amend a statement of case?
Statement of case has been served & written consent of all parties hasn’t been given
Must file application notice with the court together with a copy of the proposed amended statement of case
What should be done if permission is given for an amendment to a statement of case?
The amended statement of case should be filed within 14 days of such order granting amendment
Must have an endorsement on it and re-verified by statement of truth if substance has changed
What is a late amendment?
One sought close to the trial date
What is the general rule and exceptions that apply to amendments after the limitation period?
Not allowed unless original set-off/counterclaim raised by amendment or where otherwise provided for
What specific obligations are on parties regarding interim applications?
To ‘bunch’ their interim applications
What is the procedure for ‘with notice’ interim applications?
- File application notice at court & court fee
- Service: effected as soon as possible after application filed & no less than 3 days before application is to be heard
- Further evidence
- Hearing: can be done by phone or dealt with without hearing at all
When must further evidence/statement of costs be filed and exchanged for summary judgements and interim payments?
No less than 7 days before the hearing
When can a ‘without notice’ interim application be made?
Exceptional urgency
OO furthered
All parties consent
Court gives permission or court order does
Date for hearing fixed & insufficient time to serve notice
What safeguards are there for the ‘without notice’ procedure?
Applicant must explain why
Applicant must draw court’s attention to the other side
Applicant must serve respondent ASAP after hearing
Court order contains statement of respondent’s right to make an application to set aside/vary order
What are the requirements for a summary judgement to be upheld?
- C or D has no real prospect of succeeding (just needs some chance to counter this)
- No other compelling reason why case/issue should not be disposed of
Evidence must support these grounds and be served at least 14 days before hearing
Who and when can apply for summary judgement?
Claimant: after D files AoS or Defence
Defendant: after proceedings commenced
Court: fix hearing of its own initiative
What is the effect of a summary judgement application?
Creates a pause in proceedings
What potential orders are there for a summary judgement?
Dismissal of Application
Dismissal of Claim (if D wins)
Judgement on Claim (if C wins)
Conditional Order
What is an interim payment?
Payment on account for damages D may be held liable to pay to C
Who only can apply for an interim payment?
Claimant
What conditions are there for interim payments?
Only one must be satisfied
a) D admitted liability to pay damages to C
b) C obtained judgement against D for damages to be assessed
c) Must be reasonable proportion of likely amount of final judgement
What is an interim injunction?
Temporary measure before trial/final decision on merits to restrain respondent from causing irreparable damage
Equitable principles apply
What is a perpetual injunction?
Final injunction that continues with no time limit
What are the 3 types of interim injunctions?
Prohibitory
Mandatory
Quia Timet: allows both of the above where wrong threatened but not yet committed
What is a cross undertaking in damages?
Court often only grants interim injunctions where applicant offers this to a respondent for any losses sustained due to injunction
What is the overriding objective?
Court deal with cases justly and at proportionate cost
What does the OO require for the participation of vulnerable parties and witnesses? What should the court do?
OO requires they fully participate
Court should take all proportionate measures to identify vulnerability and give directions to facilitate participation
What are the 3 possible tracks for a civil claim?
Small claims
Fast track
Multi track
When is a case normally allocated to the small claims track?
Value of no more than £10,000
Claims by tenants for repairs of no more than £1,000
When is a case normally allocated to the fast track?
Claims of up to £25,000 provided that they won’t last longer than a day and only 1 oral expert evidence per party
What are the standard directions for fast track cases?
Disclosure: within 4 weeks
Exchange of Witness Statements: within 10 weeks
Exchange of Experts’ Reports: within 14 weeks
Filing Pre-Trial checklist: within 22 weeks
Trial Date: within 30 weeks
If notice of proposed allocation indicates multi-track, what happens?
Either court gives directions
Or a case management conference is convened (by phone to determine future conduct of the case)
Who attends a CMC?
Legal representatives of the parties
What are parties under an obligation to do prior to a CMC?
Try to agree directions, satisfying the OO
What is ‘vacating a CMC’?
Where court cancels CMC as parties have agreed all directions and court is satisfied they’re appropriate
What must both parties produce for the CMC (unless a PI claim)?
A disclosure report, filed no less than 14 days before 1st CMC, verified by statements of truth
What possible areas are there for sanctions?
Interest
Costs
Striking Out
Other measures
What is an in-time application?
Where a deadline is looming and party realises they won’t make it - alternative to relief
What is a ‘strike out’?
Deletion of written material from a statement of case so it can’t be relied upon
Court can do so on own initiative or on application of a party
What is the purpose of a costs and case management conference?
Decide future conduct of case
Apply robust costs and case management
Identify and narrow real issues before trial
What comes out of a CCMC?
A directions order
What types of evidence are there?
Witnesses of Fact
Documents
Expert Evidence
What is the general rule as to admissibility?
All evidence relevant to the facts is admissible
What is hearsay? What is the general rule as to its admissibility?
Oral or written statement made out of court being adduced in court to prove truth of matter stated
It is admissible but treated carefully
If a party intends to use hearsay evidence at trial, what must it consider?
Whether it’s necessary to give notice
When is it not necessary to give notice of intention to rely on hearsay?
If it’s evidence in a witness statement of a person giving evidence at trial
If person is not giving evidence a trial but other party must be informed why
What options does a party who receives notice of intention to rely on hearsay?
- Request particulars of hearsay
- Call for cross-examination
- Challenge the weight of hearsay evidence
- Attack credibility of an absent witness
When does exchange of expert evidence normally take place?
Following exchange of witness evidence
What is required for a party to adduce expert evidence at trial?
Court permission/order
What can the court do with regards to expert evidence when deciding on permission?
Has a duty to restrict expert evidence to that which is reasonably required
if issues are factual, not requiring expert evidence, should refuse permission
Can restrict evidence that would otherwise be admissible, to further the OO
Once expert reports are exchanges, what can the parties do?
Put written questions to the other party’s expert or to the single joint expert if there’s one
If the expert doesn’t reply to written questions, what can the court do?
Instruct the party who instructed the expert that they can’t rely on such evidence or can’t recover their expert fees from the other side
What can experts submit to the court?
Written requests for direction
- Must provide to party instructing them a copy of such at least 7 days before filing it at court
- Must provide a copy to all parties at least 4 days before
For small and fast track claims, when will the court grant permission for an expert to appear at trial?
If it’s in the interests of justice
What is hot-tubbing?
Some or all of the expert evidence is given concurrently
What options do parties have who receive an unfavourable expert report?
- Put questions to expert
- Seek advice from another expert (if they want to call them at trial, must get permission)
- Seek a direction for expert to give oral evidence at trial
Is a letter of instruction from solicitor to expert privileged?
No but no automatic right to inspection
Is an expert report privileged?
Yes, but waived when submitted
- Draft reports remain privileged
What is the general rule on the admissibility of opinion evidence? What are the exceptions?
Not admissible
- Perceived Facts
- Expert Opinion
What is the duty of an expert?
To help the court on matters within their own expertise, overriding any obligation to party instructing the expert
What are discussions between experts?
Where experts discuss the various expert issues in dispute so they can reach an agreement where possible
Any agreements don’t bind the parties unless parties say so
A joint statement may be produced
Only experts attend, unless ordered by court or agreed by parties and experts
Content of discussion have without prejudice privilege
What can a party who considers that its expert has stepped outside their expertise/acted incompetently in reaching an agreement, do?
Agreement won’t be accepted by the court
Party should adduce further expert evidence if feel good reason to
What is the general rule regarding facts that need to be proved by the evidence of witnesses at trial?
It will given by oral evidence (can be through video link)
What is a witness statement?
Signed by a person which contains the evidence which that person would be allowed to give orally
Exchanged with other parties, usually standing as witness’s evidence in chief at the trial
If a party has served a witness statement and wishes to rely on it, what must the party do?
Call the witness to give oral evidence at trial or put in the statement as hearsay evidence
If a witness statement for trial isn’t served within the time specified by the court, what is the consequence?
The witness may not be called to give oral evidence unless court grants permission
When does exchange of witness statements normally happen
Following disclosure and inspection
Can the time for serving witness statement be extended?
Yes, up to 28 days
For longer, court approval needed provided it does not put hearing at risk
What happens where no extension is agreed but witness statements were served late?
An application would be needed for relief from sanctions
What must a witness statement be verified by?
A statement of truth
Must also be signed by the eprson
What must evidence of facts be given by?
Affidavit (as opposed to a witness statement) if required by court
What authenticates an affidavit?
A jurat (not a statement of truth)
What is disclosure?
Stage in proceedings when parties exchange documents relevant to the dispute
Involves disclosing documents favourable to your position and those which are adverse
What is the general rule regarding disclosure and inspection?
If a party has to disclose a document, must allow the other party to inspect the document
Where does an obligation to give disclosure come from?
From a court order - no automatic obligation to give disclosure of anything
What does standard disclosure involve?
Search of the relevant documents
An obligation to disclose document adverse to your case
Costly and time consuming
What is the usual order on disclosure for small claim track?
Directions given on allocation
At least 14 days before date fixed for final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing
What type of disclosure order usual for fast track?
Standard disclosure - directions normally given on allocation
What are cases on the multi-track obliged to do for disclosure?
Complete a disclosure report to be filed and served not less than 14 days before 1st CMC
Not less than 7 days before CMC, consider issues and enter into discussions to agree a draft disclosure order
At CMC, consider what form of disclosure order is most appropriate
What is the continuing obligation as to disclosure?
Any duty of disclosure continues until proceedings are concluded
A party must disclose docs which come within its control or were created after date it originally gave disclosure if it falls within its disclosure obligations
Can disclosed documents be used subsequently?
No - can only use that doc for the purposes of the proceedings in which it was disclosed
Except, where the doc was read or referred to in a public hearing, court gives permissions, the party who disclosed the document and to whom the document belongs to agrees
What is the process to determine if one should disclose something?
- Is it a document?
- Is/was it in the party’s control?
- Does it fall within standard disclosure?
What documents don’t need to be disclosed under standard disclosure?
Documents which might be considered relevant in the sense that they tell the story of what happened, but don’t support or undermine either side’s case
When an order for standard disclosure is made, what must a party do?
Make a reasonable search for documents
Reasonable determined on no. of docs involved, nature/complexity of proceedings, difficulty/expense to retrieve, significance of any document
What is a disclosure list?
Each party under standard disclosure makes a list of the required documents and serves it to the other party, normally simultaneously
If a recipient disagrees with the disclosing party’s assertion of privilege, what can they do?
Can apply to court challenging the alleged privilege
What must each disclosure list include?
A disclosure statement signed by disclosing party
What is specific disclosure?
An order to do one or more of:
a) disclose document(s)
b) carry out search to extent stated in order
c) disclose any documents located due to search
When is an application for specific disclosure made?
Court can make it at any time after proceedings have been issued
Normally done by application after standard disclosure, when they consider that further should be made by other side
What does the court consider for an application for specific disclosure to be successful?
All circumstances of case
Overriding objective
If the party against whom specific disclosure is ought has failed adequately to comply with order of disclosure
What is pre-action disclosure?
Enables a party to obtain disclosure of documents before proceedings have commenced
When will the court grant an app for pre-action disclosure?
a) respondent likely to be a party to subsequent proceedings, and
b) applicant likely to be a party to those proceedings
c) if proceedings had started, standard disclosure would extended to these documents
d) pre-action disclosure is desirable
What is the general rule regarding costs for pre-action disclosure?
The respondent will be awarded the costs of the application and of complying with it
Not an absolute rule
What is non-party disclosure?
Ordering a person who is not a party to proceedings to disclose documents
Docs must be likely to support applicant’s case or adversely affect other parties
disclosure must be necessary to dispose fairly of the claim or to save costs, considering OO
Court has discretion
What happens with costs for non-party disclosure?
Application pays the costs - may be rebutted
What is a Norwich Pharmacal Order
Solution for when court proceedings can’t be commenced as D’s identity is unknown
Orders the respondent, who is not the D, to disclose information allowing the C to sue the right defendant
What are the conditions to be satisfied for court to order Norwich Pharmacal relief?
- Wrong must have been carried out by an ultimate wrongdoer
- Need for an order to enable action to be brought against the ultimate wrongdoer
- The person against whom the order is sought must a) be more than a mere witness/bystandar AND be able to provide information to enable ultimate wrongdoer to be sued
Must be necessary and proportionate
What are the different types of privilege?
Legal advice
Litigation
Without Prejudice
What is legal advice privilege?
Confidential communication between lawyer and client, prepared with dominant purpose being giving or receiving legal advice
What is litigation privilege?
Confidential communication between lawyer and his client, or between one of them and a third party, where dominant purpose is to obtain legal advice, evidence or info for use in the litigation which was at the time reasonably in prospect
What is without prejudice communications privilege?
A doc whose purpose is a genuine attempt to settle between the parties
A party has a right to inspect disclosed documents except for when?
- No longer in their control
- Disproportionate
- Right/duty to withhold inspection i.e. privileged
Why may a client want to redact parts of a document?
As they contain info which is confidential and commercially sensitive
In what 2 circumstances is it possible to redact parts of a document?
- There’s a clear and distinct part of a document which does attract privilege, but remainder does not, then it can be redacted, to avoid waiving privilege
- If the information is totally irrelevant to dispute
What is waiver of privilege?
Where a party deliberately allows inspection of a privileged document if it considers that the document helps its case
What is a pre-trial checklist?
Form N170, provide court with opportunity to check case management directions have been complied with, give any more directions, fix a date for trial
What guidance on directions will the court give on listing a matter for trial?
Fix the trial date
Time estimate for trial
Fix place of trial
What is a trial bundle?
ensures all relevant material is before the court at trial
Whose responsibility is it to file the trial bundle and when?
Claimant
No more than 7 days and at least 3 days before trial
What is ‘drawing up’?
Setting the order out in the formal document to be sealed by the court, normally done by the court
Consent order is drawn up by the parties
What time limit is imposed on parties to comply with a judgement/order for the payment of an amount of money?
14 days (unless otherwise specified)
What is a debt respite scheme?
Provides temporary protection from a judgement/order for some judgement debtors
What is the general rule regarding costs for parties? What discretion does the court have?
Unsuccessful party will be ordered to pay the costs of the successful party
The court can determine who should pay and how much, altering the general rule taking into account other factors
Will only allow a reasonable and proportionate sum
What are the different types of litigation costs?
Solicitor-client
Inter-party
Non-party
How does the costs management regime help parties?
Involves the parties providing a budget of future costs at an early stage
Allow the parties to agree budgets or the court to amend/approve budgets so parties have an early idea of what is proportionate
What happens at the case management stage re costs? (only really a concern on multi track)
Parties exchange budgets
Court indicates what would be proportionate costs
Court gives directions based on those costs
What cases does the costs management regime apply to?
Multi track cases except:
- value on claim form of £10m or more (after april 2014)
- unquantified/partly quantified or non-monetary claim but claim form says claim valued at £10m or more
- claims made by or on behalf of a person under age of 18
What are the stages of the costs management regime?
- Budgets
- Budget Discussion Reports
- Case/Costs Management Conference
- Directions Order or Costs Management Order
How should one prepare the costs budget?
Using prescribed form of Precedent H
What should be done if significant developments in the litigation warrant a revision to a party’s budget?
An amended budget should be submitted to other parties for agreement if possible
Then submitted to court for consideration
What happens if a party fails to file a costs budget when required to do so?
Automatically treated as having filed a costs budget comprising only of applicable court fees unless court otherwise orders
How does the court approach inter-partes costs?
Starting point is successful parts receives costs from unsuccessful part
Consider any factors which may suggest a different order should be made e.g. party conduct
Only allow reasonable and proportionate costs
When determining costs, what does the court have discretion to?
Whether costs are payable
The amount of those costs
When they are to be paid
What are the 2 bases of assessing inter-partes costs?
Standard Basis
Indemnity Basis
What is the standard basis assessment?
Allows costs:
- Reasonably and proportionately incurred
- Reasonable and proportionate amount
Any doubt resolved in favour of paying party
What is the indemnity basis of assessment?
Allows costs:
- Reasonably incurred
- Reasonable amount
Any doubt resolved in favour of receiving party
In determining how much is paid, what rule generally applies?
Fixed costs regime e.g. uncontested disputes, enforcement proceedings, small claims
Applies unless court orders otherwise
What are assessed costs?
Where costs don’t fall under fixed costs regime e.g. parties can’t agree amount of costs
What are the 2 bases of assessed costs?
Summary
Detailed
What is ‘costs in any event’?
Party in whose favour is made is awarded its costs of interim hearing from other party regardless of who eventually wins the trial
What is ‘costs in the case’?
The party who eventually gets its costs at trial recovers its costs of interim hearing
What is ‘costs reserved’?
The decision of who pays costs of interim hearing is put aside to a later date
What is ‘costs thrown away’?
If a judgement/order is set aside, the party in whose favour this costs order is made is entitled to costs incurred due to the judgement/order being set aside
What is ‘costs of and caused by’?
A party must pay the costs resulting from something that party has done
What is ‘no order for costs’?
Each party bears its own costs of the hearing
What is Qualified One Way Costs Shifting?
Regime for the recovery of costs between parties in proceedings involving claims for damages for death or PI
If C wins, may recover and enforce costs order obtained in usual way
If C loses, costs order against them can’t be enforced except up to the level of damages and interest awarded to the C (likely to be 0)
What is the role of Part 36?
Encourages the parties to settle
By whom and when can a Part 36 offer be made?
At any stage in proceedings, by either party
What is a Calderbank offer?
An offer, normally in writing, ‘without prejudice’
What are the requirements for a valid Part 36 offer?
- In writing
- Clear it’s in pursuant to part 36
- Specify 21 day period within which D will be liable for C’s costs if offer accepted
- Specify if it relates to all or part of the claim
- If it take any counterclaim into account
When is a Part 36 offer made?
When served on offeree
How does one clarify a Part 36 offer?
Offeree can seek clarification of terms within 7 days of service
What are the rules regarding withdrawal of a Part 36 offer?
If it’s already been accepted, can’t be withdrawn
If trial has started, court’s permission is required to withdraw the offer
Otherwise, if relevant period has expired, it can be withdrawn without permission
If relevant period hasn’t expired, any notice of withdrawal takes effect at end of relevant period - if offeree accepts, offeror can either allow it or apply to court for permission to withdraw
How does one accept a Part 36 offer?
Serve written notice of acceptance on offeror
If case is issued, acceptance must be filed at court
What are the consequences of accepting a part 36 offer?
Stay - won’t continue to trial
Settlement sum
Costs
How long does an offer remain open for?
Until it’s been withdrawn, even after relevant period has expired
What are the costs consequences if a Part 36 offer is accepted before expiry of the relevant period?
Claimant entitled to costs up to date of notice of acceptance
What are the costs consequences if a Part 36 offer is accepted after expiry of relevant period?
Court determines liability unless parties agree
But court must order that Claimant awarded costs until end of relevant period, then offeree’s pays offeror’s costs from expiry to acceptance
For determining if a penalty should be imposed as a Part 36 offer wasn’t accepted, what does it depend on?
Who made the offer
When a Part 36 offer wasn’t accepted, what is considered?
Trigger: does the failure to accept trigger any consequences
Consequences: if so, what are the consequences
For a D’s Part 36 offer not being accepted, what is the ‘trigger’?
Where a claimant fails to obtain a judgement more advantageous than the Part 36 offer
If it fails to, will have consequences
What are the consequences where there’s a trigger for failure to accept a D’s Part 36 offer?
C pays D’s costs from date the relevant period expired and pays interests on those costs
Usual costs rules for before relevant period expired
What is the trigger for a C’s Part 36 offer not being accepted?
Where judgement against the D is at least as advantageous to the C as the proposals contained in a C’s part 36 offer
I.e. if C does same or better at trial than its own Part 36 offer, failure to accept will have consequences
What are the consequences for a D not accepting a C’s Part 36 offer where it’s triggered?
Interest on the award not above 10%
Costs from the end of relevant period assessed on indemnity basis
Interest on those costs at a rate not exceeding 10%
Additional amount based on a percentage of the award
What is security for costs?
An application made by a D who is concerned that the C won’t be willing/able to pay D’s costs should claim be successfully defended
Most commonly requires a payment into court
Who can make an application for security for costs?
A D against C
A C against D with respect to a counterclaim from D
A third party against a D
What should the court consider when determining the amount of security to give?
Amount of D’s likely costs
Security for whole action or up to a certain point
Can cover costs incurred and future costs
Other factors e.g. delay
What choice does a prospective appellant have as to how and when to apply for permission to appeal?
Can apply for permission from lower court at time when decision to be appealed is made
Or can make application to appeal court later
How are applications for appeal dealt where appeal court is Court of Appeal?
Determined o papers along, unless judge considers it should be dealt with orally
How are applications for appeal dealt with where appeal court is County or High court?
If appeal court refuses paper application, appellant can request an oral hearing - if refused then, no more appeals possible
What time limits are there for obtaining permission to appeal?
An appeal must be made within 21 days of date of lower court’s decision
When will an appeal court allow an appeal?
Where lower court’s decision was either wrong or unjust
What are the main methods of enforcement of money judgements?
Taking control of goods (Writs/warrants of control)
Third party debt orders
Charging orders
Attachment of Earnings Orders
Insolvency Proceedings
What is the most common reason for transferring from the County Court to the High Court for enforcement?
To use a HIgh Court Enforcement Officer to enforce the judgement by taking control of the goods
What are the financial limits that apply to each court in relation to where enforcement action should be commenced?
Up to £600: County Court
Between £600 and £5,000: Choice
Over £5,000: High Court
What’s the difference between writ and warrant of control?
Writ = High Court
Warrant = County Court
What is an attachment of earnings order?
Where a judgement debtor’s salary has deductions made from it which are paid into court and then sent to creditor
Most relevant where debtor doesn’t have substantial assets but does earn a salary from employment
For a with notice interim application, when should an applicant serve the respondent with application notice and supporting documentation?
As soon as possible but at least 3 days before hearing
When should application notice and and supporting documentation be served on a respondent for a summary judgement?
At least 14 days before hearing
When is the summary assessment of costs normally used?
For fast track cases or at the end of a hearing of an interim application
When is the detailed assessment of costs normally used?
For more complex cases
