Disputes Flashcards
Limitation periods for:
Tort (not PI)
Contract
PI and Death
Tort - 6 years from date cause of action accrued
Contract - 6 years from the breach (unless contract in deed then 12 years)
PI and death - 3 years from the later of when the incident occurred or the date of knowledge
Definition of without prejudice communications (privilege):
Document whose purpose is a genuine attempt to settle a dispute
Not confidential between parties, just hidden from the court
When is a document OTHER than a claim form deemed served?
Post
Personal delivery
Fax
DX
Other electronic method (e.g. email)
Post - Second day after posting if a business day (if not the day after)
Personal delivery - Effective immediately, if before 4.30pm on a business day, otherwise next business day
Fax - Effective immediately, if before 4.30pm on a business day, otherwise next business day
DX - Effective the second day after left at DX if a business day, if not next business day
Email - Effective immediately, if before 4.30pm on a business day, otherwise next business day [if email has been agreed as a mode of service]
Conditions applicable to questions to experts:
- Qs only put once
- Q generally for purpose of clarifying the report
- Q submitted to expert within 28 days of making report
- Copy of Qs sent to other party
- No time limit for expert to reply unless set by court
- Answers to Qs become part of the report
- If expert does not answer, court can order the party who instructed the expert that they cannot rely on evidence and or cannot recover fees from other party
Key dates for a CMC (or CCMC):
Disclosure - 14 days or more before CMC
Draft directions - 7 days or more before CMC
Disclosure report - 14 days or more before CMC and verified with statement of truth
Budget (H) - 21 days before CCMC
Budget discussion report (R) - 7 days before CCMC
When must you serve POC?
Either with the claim form or within 14 days of service of the claim form
Must be accompanied by response pack
Procedure for inspection:
Party wishing to inspect should send notice of wish to do so to the other side who must allow inspection within 7 days of receipt of notice
Party wishing to inspect can ask for copies as well as/instead of - provided within 7 days of request
What are the 3 parts of a disclosure list?
- “I have control and do not object to inspection”
- “I have control and object to inspection”
- “I no longer have control”
Procedure for application for specific disclosure:
Application notice + draft order + supporting evidence
Application must (i) specify order sought inc. list of docs sought (more specific = more likely to succeed) (ii) be supported by evidence
Main differences with an affidavit as opposed to a witness statement:
Affidavit:
a. in intro - wording “state an oath”
b. has a Jurat - statement at the end of the document which authenticates the affidavit
includes signatures and addresses and follows immediately from the text
Procedure for discontinuance and costs consequences:
- Claimant to file notice at court
- Serve a copy on every party
- Discontinuance takes effect from the date of service
- Costs order deemed to be made in D’s favour on standard basis
Rules on jurisdiction in the UK:
- Only ONE part of UK can have jurisdiction
- Land - where it is situated
- General rule - where D is domiciled
- Can be sued where D not domiciled if:
a. contract - place of performance of obligations
b. tort - where harmful event occurred
c. dispute arising in branch of company - where the branch is
d. where more than one D (must be closely connected so expedient to hear and determine together)
e. counter-claim - hear where main claim is being heard
What does “in the party’s control” mean in terms of standard disclosure?
- is or was in physical possession
- party has right to possession (held by agent)
- party has or had right to inspect or take copies of document
Key features of a Tomlin Order and why they are generally used:
2 parts:
1. Public - contains actions to be taken by court (stay, permission to apply, assessment of costs)
2. Private - contains the terms of the agreement and enables parties to include provisions beyond what the court can order
Test for granting permission to appeal:
First appeal:
1. Reasonable prospect of success OR
2. Some other compelling reason why appeal should be heard
Second appeal - in COA:
1. Real prospect of success AND raises important point of principle or practice OR
2. Some other compelling reason
What value does the debt need to be to obtain an attachment of earnings order?
£50+
What should a party do on receipt of a notice to rely on hearsay? (4 options)
- Request the particulars of hearsay - must be reasonable and practicable for purpose of enabling to deal with matters arising from hearsay evidence at trial
- Call for cross examination - application must be made no later than 14 DAYS after hearsay notice served
- Challenge weight of hearsay evidence
- Attack credibility of absent witness - receiving party must notify adducing party of intention to do this no later than 14 DAYS after hearsay notice served
Procedure for application for non-party disclosure:
Submit app which must
(i) specify order sought and list docs
(ii) be supported by evidence
(iii) require R to specify docs no longer in control or withholding inspection
(iv) app notice served on R and any other party to proceedings
Costs
* Presumption court order A to pay costs in dealing with app and complying
* Rebut if R acted unreasonably in opposing application or any previous requests
Non-party disclosure - When does the court have the power to order a person not party to the proceedings to give disclosure?
(I.e. what does the applicant need to show?)
- Documents likely to support the applicant’s case or adversely affect the case of other parties to the proceedings
- Disclosure is necessary in order to dispose fairly of claim or to save costs
Court still has DISCRETION
*only used after proceedings commenced
What is ‘Drawing Up’ an order and who can do it?
It is setting an order out in a formal document which is sealed by the court
It is done by the court normally
It CAN be done by a party and must be filed no later than 7 DAYS after being responsible
If party fails the other party may do so
When will an application for specific disclosure generally be successful?
- If court decides that the party against whom SD is sought has ‘failed adequately to comply with obligations imposed by order for disclosure’ court will ‘usually make such an order as is necessary’ for compliance – e.g. document should have been disclosed already
What is the procedure for allocation of a claim to a track?
- After the defence is filed and served, the court office will review statements of case and consider allocation
- Court will provisionally decide a track and send Notice of Proposed Allocation
- Notice requires parties to file and serve DQ (Form N181)
- IF FT or MT proposed - also have to file proposed directions [at least 7 days before CMC]
- IF MT - Disclosure report (Form N263)
- If MT - Costs Budget (Precedent H)
- If MT - file and exchange agreed budget discussion report (Precedend R)
- Court will order allocation hearing if necessary
- Court will send Notice of Allocation
- CCMC (if MT)
Definition of hearsay (civil):
Oral or written statement made out of court being adduced into evidence to prove the truth of a matter stated
When will costs management rules automatically not apply unless court orders otherwise?
Claims of value £10m+ commenced after 22 April 2014
What is the maximum value of claims for small claims, fast track and multi track?
SC - £10,000
FT - £25,000
MT - £100,000
What is set out in the disclosure statement (aside from the 3 parts)?
- Extent of search made i.e. was reasonable and proportionate
- Certifies that party understands duty to disclose
- Certifies that, to the best of the party’s knowledge, it has carried out that duty
- Signed by disclosing party or appropriate person (if a company)
Which claims can be brought in the County Court?
Claims under £100,000 must be brought in the County Court if they are not PI
Claims over can be brought in either, taking into account:
* Financial value
* Complexity of facts, legal issues, remedies or procedures
* Importance of the outcome to the public
What is a statutory demand (in relation to enforcement of judgment orders)?
Its a demand served on D. If the debt remains unpaid for 21 days after service of the SD then D is at risk of the court presuming they can’t pay debts. Makes petition for bankruptcy harder for D to resist.
SD = LOW cost and HIGHLY effective
Standard directions for a fast track claim and timings:
Standard directions:
* Disclosure – 4 weeks of notice
* Witness statement exchange – 10 weeks
* Expert reports – 14 weeks
* filing pre-trial checklists at court – 22 weeks
* trial date/period fixed for trial – 30 weeks
Consequences of unaccepted P36 at trial - D’s offer not accepted:
Where D’s offer not accepted and C awarded LESS - court order:
a. C to pay D’s costs from date of expiry of relevant period AND
b. interests on those costs
When will court give permission to withdraw or change the terms of a P36 offer when the relevant period has not expired?
- Court can given permission to withdraw/change offer if:
(i) Circumstances have changed since making offer AND
(ii) In interests of justice to give permission
Grounds of appeal:
- Decision is wrong - in fact, law or in exercise of court’s discretion
- Unjust because of serious procedural or other irregularity in proceedings of lower court
Key provisions of the Practice Direction Pre-Action Protocol:
- Letter of claim - to be sent in writing as soon as C decides there are grounds for a claim and attach documents setting out case AND what C wants from D and how calculated
- Response - D to respond to C within a reasonable time (14 days in a straightforward case and no more than 3 months in a complex one) and contain whether claim is accepted and if not why
- Parties should disclose key documents
- Review and create list of issues - if parties have followed the protocol and cannot resolve, should review and at least seek to narrow the issues in dispute before issuing proceedings
What do you 8 things do you include on a pre-trial checklist?
- Confirm whether complied with directions given
- Specify further directions required to prepare case for trial and enclose an application form and draft order for those directions
- To confirm whether court has already consented to expert evidence being given at trial – if not it should be applied for now as outlined above in 2
- Give details of experts, whether met to discuss reports, whether reports agreed
- Dates within trial period when experts not available
- Detail witnesses, availability and special facilities they require
- Give details of who will present case at trial and their availability within the trial period
- Estimate the trial length, including cross-examination and closing arguments and to attach proposed timetable for trial (preferably agreed between the parties)
When can a claimant issue proceedings in the High Court?
Which division?
Value: over £100,000 unless PI and then £50,000
(Value excludes interest and costs)
Professional neg - King’s bench or Chancery
Contract/Tort - King’s bench
Land, trusts, mortgages, admin of estates, bankruptcy, partnerships, probate, IP, company - Chancery
Family - Family
What must ALL statements of case contain?
A statement of truth
Requirements for permission to serve proceedings outside of jurisdiction:
What are the grounds?
- C must establish a ground (below)
- Claim must have reasonable prospect of success
- E&W must be the ‘proper place’ in which to bring the claim - e.g. witnesses based there, English law applies, D resides
Grounds:
1. Claim against someone domiciled in jurisdiction
2. Claim made in respect of contract which:
* was made within jurisdiction
* is governed y English law
* contains a term to effect that the court shall have jurisdiction to determine the claim (doesn’t need to be exclusive jurisdiction)
3. Claim made in respect of breach of contract committed within jurisdiction
4. Claim made in tort where:
* damage sustained in jurisdiction
* damage been sustained as a result of act committed in jurisdiction
What is a split trial?
Where evidence on liability is different to evidence on quantum and will further the overriding objective to hold 2 separate hearings
The hearing that assesses damages is called disposal hearing
What is the Debt Respite Scheme? What is excluded?
Provides temporary protection from a judgment/order for SOME judgment debtors
Scheme allows individual debtor to approach debt advisor to ask for breathing space (like a moratorium) of up to 60 DAYS (on basis unlikely to be able to repay debts)
Excluded - any judgment for damages for death or PI caused to someone else
When should you submit a list of authorities to court?
In High Court trials
Before 5pm the day before the hearing
What is a reading list? When should it be submitted?
In all HC King’s Bench and Chancery cases
Lodge reading list WITH the trial bundle
Sets out an estimate of the reading time of the bundle AND estimates length of hearing
Signed by ALL advocates
When can a petition for bankruptcy be issued and when can a petition for winding up be issued?
Bankruptcy - Debt over £5,000
Winding up - Debt over £750
3 instances a party does not have a right to inspect a document:
- No loner in control
- Privileged
- Disproportionate (rarely used)
Party can’t rely on documents it doesn’t allow inspection of
Time for filing an admission of the claim
Must be by notice in writing and can be either whole or part of the claim
Made within 14 days of deemed service of POC if served separately to CF or else 14 days of service of both CF and POC
When should you send pre-trial checklist (N170) to the OTHER PARTY?
At least 14 days before filing deadline
Can the parties agree extension of time to serve witness statements? If so, up to what length?
Parties can agree a 28 day extension provided it doesn’t put the hearing date at risk
Are there P36 consequences where offer made within 21 days of trial?
- Where offer made within 21 days of trial even if a trigger satisfied, there will be NO P36 CONSEQUENCES UNLESS court abridges the relevant period (shortens it) – fine because relevant period had not expired before trial
Where affidavit evidence is used:
Where making an application for:
a. freezing order
b. search order
Party can choose to use Affidavit rather than WS at any hearing other than trial
When might an expert ask questions to the court? Are there formalities?
- Experts may submit written requests for direction to help carry out task – expert must:
1. Provide party instructing expert a copy of any proposed request for directions at least 7 days before filing at court
2. Provide copy to all other parties at least 4 days before filing at court - To assist experts, where order requires act to be done by expert, party instructing expert must serve copy of order on other expert – C must serve order on the single joint expert
Objectives of the pre-action protocols
- Understand each other’s position
- Make decisions on how to proceed
- Try and settle the issue without proceedings
- Consider ADR
- Support management of those proceedings
- Reduce costs
Time limits for obtaining permission/appealing:
Appeal (inc. app for permission) - within 21 days of lower court’s decision - Form N161
Consequences following the acceptance of a part 36 offer:
- Claim is stayed and won’t continue to trial
- Settlement sum - D has 14 days from acceptance to pay the sum failing which C can enter judgment against D
- Costs - depends on when accepted
* Before expiry of RP - C entitled to costs of proceedings up until date of notice of acceptance
* After expiry of RP - C awarded costs up to expiry AND offeree to pay offeror’s costs for period from date of expiry to notice of acceptance
where offer made LESS than 21 days before trial, court will determine costs liability
How can you withdraw a P36 offer?
Offer accepted - can’t be changed or withdrawn
Trial started - need court permission to withdraw
If relevant period expired - withdrawn/change terms WITHOUT court permission
Relevant period not expired - notice of withdrawal/variance takes effect at end of relevant period
*NB other party can still accept and offeror can either allow this or apply to court for permission to withdraw/change terms WITHIN 7 DAYS OF ACCEPTANCE
What is the consequence of failing to file a Precedent H?
Presumed the defaulting party filed a budget of applicable court fees only
Binding forms of ADR:
Arbitration
Expert Determination (suitable for technical disputes as independent expert on matter appointed to determine)
Definition of legal advice privilege:
Document which is a:
a. confidential communication between lawyer and client
b. and which was prepared for the dominant purpose of
c. giving or receiving legal advice
Attendance note of convo with client would be privileged
What is Form N20?
Witness summons
Routes of appeal:
CC DJ –> CC Circuit Judge
CC Circuit judge –> HC judge
HC master –> HC judge
HC judge –> COA
How permission applications are dealt with in COA and in CC or HC:
COA - default is on papers but may deal with orally if need to to ‘fairly determine’ the app
*hearing would be listed within 14 days
CC/HC - if court refuse appeal on papers, appellant can request it to be reconsidered at oral hearing within 7 days of service of refusal
*if refused at oral hearing then no appeal possible
What does the continuing obligation of disclosure mean?
- Duty to disclosure continues until proceedings are concluded
- Party must disclose documents which come under its control or were created after date originally gave disclosure if fall within disclosure obligations immediately
Types of disclosure order:
- No disclosure
- Reliance and specific
- Issue by issue
- “Reasonable” for advancement of case or damage to other party
- Standard disclosure
- Any other order
When does a judgment/order take effect?
Effective from the date made/given NOT the date served
Consequences of unaccepted P36 at trial - C’s offer not accepted:
Where C’s offer is not accepted and win same as or more at trial - court orders:
a. Interest on award at a rate not exceeding 10% above the base rate for some or all of period from expiry of relevant period
b. Costs from end of relevant period assessed on INDEMNITY basis
c. Interest on those costs at a rate not exceeding 10% above base rate (this is a higher rate than normal)
d. An additional amount based on the value of the award
* 10% up to £500,000
* 5% over £500,000 - total capped at £75,000
UNLESS court considers it unjust to do this and court will take into account (i) terms of offer (ii) stage in proceedings was made (iii) info available to parties etc.
Rules for determining which country’s laws apply to a contract dispute:
Rome I
- Parties’ choice prevails
- In absence, is it a specified class of dispute?
a. Sale of goods - S’s habitual residence
b. Provisions of services - Service providers residence
c. Contract relating to land - where land situated
d. Distribution - distributor’s habitual residence - No choice, no specified class - Characteristic performance = the party to the contract doing the “something” being paid for
- BEWARE of - Manifestly more closely connected (circumstantial)
Timing for seeking clarification of P36 offer:
Seek clarification from offeror within 7 days of service
Where does the CPR prescribe ADR to be considered?
Pre-action protocol and PD on PAP
Guidance accompanying Precedent H
DQ
CMC
Rules for determining which country’s laws apply to a tortious dispute:
Rome II
- Parties’ choice prevails
* agreement entered into after event = effective
* agreement before = only effective if commercial activity and freely negotiated choice of law
*choice can be demonstrated by the circumstances of the case - Absence of choice, Parties resident in the same country
* for a company - where the central administration is
* if C and D reside in the same country will apply even where damage occurred elsewhere - Law of country where the damage occurs
- BEWARE OF manifestly more closely connected
What are your options if you’re having difficulties serving the claim form outside of jurisdiction?
- Alternative service - make an application to court listing reasons why methods/attempts to serve have been unsuccessful and propose an alternative
* serve on solicitors where they’ve not been authorised to accept
* placing ad in newspaper notifying D that proceedings have been commenced against it
Court will make order if GOOD REASON to do so - Dispensing with service - court may dispense with service of a document where the other side is already aware of it
*VERY rare where other party is not aware
What is a Precedent H and when must it be filed?
Precedent H is the costs budget
It must be filed in Multi-track cases and cases in the High Court
It must be filed 21 days before a CCMC
How long do parties have to comply with a judgment order?
14 days unless otherwise specified by the court
Requirements for a P36 offer?
- APPLY TO BOTH C AND D OFFERS
(a) in writing
(b) make clear it is made pursuant to P36
(c) specify period of NOT LESS than 21 days during which if accepted D will pay C’s costs (‘RELEVANT PERIOD’)
(d) state whether relates to whole or part of claim
(e) states whether takes into account any counterclaim - Apply to ONLY D offers:
(a) with LIMITED exceptions, P36 offer by D to pay sum of money in settlement must be offer to pay a SINGLE SUM of money
(b) Ds offer to pay ALL OR PART of sum at a day LATER THAN 14 DAYS AFTER ACCEPTANCE will not be treated as P36 offer UNLESS it is accepted
Who files the trial bundle, when and to who?
Responsibility of Claimant
File no more than 7 and no less than 3 days before trial begins (note the different methods of counting days for these time limits)
Parties should supply bundles to every party to the proceedings, one for the court, and a further one for use by witnesses (just 1 for all witnesses)
Consequence of non-compliance with pre-action protocols
Stay of proceedings and force compliance
Sanctions such as indemnity costs or interest
Take into consideration for general costs order
(Court generally not interested in technical or minor short comings)
Definition of affidavit:
Written statement that is sworn before a person authorised to administer affidavits - contents same as WS but form is different
What is the test for disclosure under standard disclosure?
Documents IN THE PARTY’S CONTROL (or ones that were) which:
* the party relies on
* that are adverse to own case
* adverse to another party’s case
* support another party’s case
When does Precedent H need to be filed? Are there other formalities that a precedent H needs to comply with?
At least 21 clear days before CCMC
Needs to be signed with a statement of truth
When is a skeleton used?
HC trials - prepared by counsel
What form is the disclosure report?
Form N263
(If electronic then N263)
Does an agreement reached by experts in a discussion ind the parties?
No unless the parties agree to be bound. If they do not agree to be bound they must give reasons.
Contents of discussion are without prejudice unless parties agree
What form is the pre-trial checklist and when does it need to be filed/sent to parties?
Form N170 and sent to each aprty at least 14 days before the due date for filing specified in the directions
Conditions for a Norwich Pharmacal Order:
- There is a wrong carried out by an ultimate wrongdoer (breach of contract, tort)
- The order i needed to enable action to be brought against the wrongdoer
- Person agains twhom the order is sought must be:
(i) more than a mere witness (needs involvement)
(ii) able to provide the necessary information to enable the ultimate wrongdoer to be sued
Must also be NECESSARY and PROPORTIONAL in circumstances
How do you record a settlement before proceedings issues:
No need for a consent order. Just a contract.
Date that Hague Convention operates from:
Proceedings starting 1 Jan 2021
AND
Agreement must be concluded on/after 1 Oct 2015
Otherwise use the common law provisions
Is the letter of instruction to an expert privileged?
- Letter of instruction not privileged however disclosure and inspection not required unless court considers instructions as summarised by expert in report are inaccurate or incomplete
- Purpose balance need for transparency about experts with need for privilege
What factors suggest the court will issue a claim to the fast track?
Value between £10-25k
Trial is likely to last one day only
ORAL expert evidence from one per party each of no more than 2 expert fields
Definition of litigation privilege
A document which is a:
a. confidential communication between lawyer and client OR
b. between one of them and a third party for the purpose of
c. obtaining legal advice, evidence or information
d. for use in the conduct of litigation
e. which was at the time reasonably in prospect
Process for disputing jurisdiction:
- File AOS and indicate contest jurisdiction
- Apply within 14 days of filing AOS disputing jurisdiction with supporting evidence
Timing for filing/service of the defence:
Within 14 days of service of POC
UNLESS AOS has been filed - within 28 days of service of POC
Can agree an extension of 28 days
Timing for filing a defence to a counterclaim:
14 days of deemed date of service of counterclaim
Is repetition of legal advice internally privileged?
Yes if it is actually just a repetition and do not express an opinion on it
When can you redact a document for inspection?
Where:
1. A clear and distinct part of the document that attracts privilege but remainder doesn’t, or
2. If the information is TOTALLY IRRELEVANT to dispute and is commercially sensitive/confidential
When does a party need to give other parties notice of their intention to rely on hearsay?
Where the party intends to rely on hearsay at TRIAL
- If the evidence is a WD or person who is giving oral evidence at trial then NO NOTICE required (deemed served when WS exchanged)
- If evidence in WS of someone not giving oral evidence at trial, no formal notice required but other party should be informed they are not giving evidence with reasons
- In all other cases - formal notice which identifies hearsay and states that witness will not be called with reasons
How can you force a judgment debtor to give information about their financial affairs?
- File an App form - N316 (individual) N316A (company)
- Application is without notice to judgment debtor
- Court order will contain PENAL NOTICE
- Order to attend court should be served PERSONALLY on person not less than 14 days before hearing [unless court orders otherwise]
- D will attend court and produce required docs and answer questions under oath
What form is AOS?
N9 (file within 14 days)
What is N170?
Pre-trial checklist
Do parties need court permission to instruct experts?
Do not need permission to INSTRUCT but in order to ADDUCE any evidence from those instructions will need permission
Usually obtain permission by seeking directions at CCMC
What is a Norwich Pharmacal Order?
An order which orders the Respondent (who is not a D in the proceedings) to disclose information allowing C to sue D
Enforcement of judgement debt - procedure for taking control of goods:
Application for TCG:
* Issue Warrant of control (CC) or Writ of control (HC) + pay the fee
* Warrant/Writ addressed to Enforcement officer (EO) which entitles EO to seize and sell
3 stage process after warrant/writ delivered to EO:
1. EO to give notice to D of enforcement - 7 CLEAR DAYS + has 12 months from date of notice to seize
- Enter premises and secure goods (between 6am and 9pm) + provide notice to D detailing what is happening and what has been taken
[Alternative stage 2 - Controlled goods agreement where D retains goods pending payment] - Sale of goods - EO to sell for best price that can be reasonably obtained
When does precedent R need to be filed? What should it set out?
At least 7 days before hearing and set out (i) figures agreed (ii) figures not agreed (iii) brief summary of grounds of dispute
What is a costs management order?
Made after parties have filed and exchanged costs budgets
Records any budget agreed or the court’s approved version if a budget was not agreed
Budget becomes a cap on what can be recovered - if there is no CMO in place then will be less strict and parties can claim a difference of 20% or more
Consequence of failing to exchange expert evidence on time:
Evidence can’t be used unless court gives permission
Applying for permission to rely on expert evidence - when? what do you include?
Set out the info in the DQ
Parties must:
(i) provide estimate of costs of proposed expert evidence
(ii) identify the field in which expert is required and if practicable, name the expert (approach with caution - can’t change it)
Process for issuing claim
N1 Claim Form
Take fee and copies of claim form (1 for file, 1 for court, 1 for EACH D)
Issued when the court seals the claim form, gives it a case number and certifies the issue date
* stops limitation period running and STARTS time running for claim to be served on D
Claim form served on D by either claimant or court
* serve within 4 months inside jurisdiction
* serve within 6 months outside jurisdiction
* can extend if C has taken all reasonable steps to comply
* File certificate of service with court within 21 days
Under the COMMON LAW when does E&W have jurisdiction?
- Serve proceedings on D in jurisdiction
- Court gives permission to serve outside jurisdiction
- Court given jurisdiction by clause in agreement
When can a court order pre-action disclosure?
- Respondent will likely be a party to proceedings
- Applicant likely to be a party to proceedings
- If proceedings were to start, respondent’s duty by way of standard disclosure would extend to the documents sought AND
- Desirable to (i) dispose fairly of proceedings (ii) assist in being resolved outside of court (iii) save costs
Must satisfy ALL and court still has DISCRETION
How might privilege be waived?
- Reference to documents in court documents
- Waive by agreement e.g. to determine costs
- Where docs referred to in SOC, Witness statements or summary, Affidavits, Expert reports
Main methods of enforcing MONEY judgments AND where should you issue proceedings:
- Writs/warrants of control
- 3rd party debt order
- Charging order
- Attachment of earnings order
- Insolvency/bankruptcy proceedings
Creditor can use any method and may use more than one up until debt paid up
*£5,000+ MUST be in HC
*Less than £600 OR arises out of agreement regulated by Consumer Credit Act - MUST be CC
*Between the values, either court
Consequence of Witness Statement not being served on time
May not call witness to give evidence
What is a form N242A?
Part 36 offer
How can a party rely on a witness statement it has served at trial?
Call witness to give oral evidence OR
Admit as hearsay in accordance with the rules
How to apply for permission to appeal:
1.Make app orally in the lower court then and there
2. Make app to appeal court later in writing on Form N161 (and usually there is no hearing)
When can a Precedent H be revised?
If there are significant developments in litigation but NOT to correct errors
If revised then should be submitted to other parties for agreement
What additional information is in witnesses statements for uses other than at trial?
2 additional paras:
1. Confirming reason for statement e.g in opposition to summary judgment
2. Confirming what witness would like the court to do in relation to the application
General rule (and exceptions?) on admissibility of opinion evidence:
General rule - inadmissible
Exceptions:
a. perceived fact
b. expert opinion
Procedure for obtaining a third party debt order
*Interim without notice application Form N249 - served on 3P and prevents from making further payments to D
* Order served on D and followed by ON NOTICE hearing
* Court decides whether to make final order requiring 3P to pay debt or discharge interim order
When does a brief to counsel fee become non-refundable?
When the brief is delivered
2 types of consent order:
Consent order based on contract between parties (Tomlin Order) - rarely interfered with by court
Consent order NOT based on contract - parties agreeing terms of settlement and CAN be varied by court
How to serve a claim form outside of jurisdiction:
- Have 6 months to serve
- Get permission UNLESS E&W have jurisdiction because of Hague or common law
a. without permission - file Form N510 when issue the claim form (confirms to the court on what basis permission hasn’t been sought)
b. with permission - ask for permission by interim app on Form N244 - Method of service
a. In accordance with an agreed regulation, convention or treaty
b. service through the government of the destination country
c. service by any method permitted by the law of the destination country
How can a defendant oppose a default judgment and what should the court do?
- If the JD was wrongly entered (e.g. defence was actually filed on time) court MUST set aside the judgment
- Court MAY set aside DJ if:
a. D has a real prospect of defending their claim successfully
b. There us some other good reason D should be allowed to defend e.g. minor default
c. burden is on defendant to prove
d. court MUST have regard to promptness of application
What is the duty of the court to restrict expert evidence?
Duty to restrict expert evidence to that which is reasonably required to resolve the proceedings
If issues are FACTUAL - court should refuse permission
Requirements to fall within Hague (excluding the date of agreement/proceedings):
Civil or commercial case
Not excluded (consumer/employment)
Clause giving EXCLUSIVE jurisdiction to a Contracting State (EU, UK, Montenegro, Mexico, Singapore)
Agreement in writing (or evidenced in writing)
What is default judgment, when can C apply for it?
If D has failed to file a response within the deadline
After the deadline for filing AOS or defence
Application made on notice and with evidence (witness statements)
Time for filing AOS
14 days from service of POC (don’t actually have to serve an AOS)
Procedure for applying for pre-action disclosure:
Application notice + Draft order + Supporting evidence + Require respondent to specify docs no longer under control or which withholding inspection of
When does interest start to run on a judgment debt?
From the date the judgment is GIVEN not served
