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SQE > Disputes > Flashcards

Disputes Flashcards

1
Q

What is the overriding objective of the Civil Procedure Rules?

Who is responsible for furthering the overriding objective - e.g. who needs to help keep costs down and come to an agreement?

A

To enable the courts to deal with cases justly and at a proportionate cost

Responsibility of the courts AND the parties

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2
Q

What are the bases for the court assessing costs and what is involved on each bases?

What kind of value would this be?

A
  1. Standard basis of assessment
    - Court will allow the party to cover costs which have been reasonably and proportionally incurred AND
    - Are reasonable and proportionate in AMOUNT
    AND
    - if any doubt this will be resolved in favour of the paying party
    - Generally around 60% of costs
  2. Indemnity basis of assessment
    - Court will allow the party to recover costs that have been reasonably incurred
    AND
    - Are reasonable in amount
    AND
    - If any doubt, this will be resolved in favour of the receiving party
    - Generally around 70-80% of costs
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3
Q

When does a party need to pay costs due to other party as ordered by the court?

A

Either
1. Date specified in court order OR
2. If order is silent then 14 days from the order if it contains the value of costs or from the certificate stating the value of costs

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4
Q

How are costs determined?

A
  1. Fixed costs
    - ie. small claims, enforcement proceedings and uncontested disputes
  2. Assessed costs
    - can be on a standard or indemnity basis
    - can be a summary assessment (at the end of the trial or hearing) OR a detailed assessment (as a separate process at a later date)
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5
Q

How does the detailed assessment procedure work?

A
  1. The receiving party commences the proceedings by serving a notice and its bill of costs on the paying party
  2. The paying party must respond to RP within 21 days with any objections to the bill of costs
  3. The parties should try and agree costs between themselves
  4. If parties cannot agree, RP should file a request at court for a detailed assessment hearing
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6
Q

What is generally required from pre-action protocol?

A
  1. Letter of claim sent to D including key documents
  2. Letter of response from D within a reasonable time (generally 14 days - 3 months depending on complexity)
  3. Parties to engage in ADR if possible, or at least attempt to narrow the issues
  4. Parties should consider their positions before continuing (take a ‘stocktake’)
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7
Q

How long does a party have to enforce a judgment?

A

6 years from date of judgment

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8
Q

Limitation periods:

A

Contract
- 6 years from breach
- UNLESS deed - 12 years

Tort (non PI)
- 6 years from date cause accrued
- OR if latent damage, 3 years from (i) date of knowledge and (ii) had right to claim

Tort (PI)
- 3 years from later of
(i) cause accrued
(ii) date of knowledge

Fatal accidents
- if injured party would not be entitled to bring claim then cannot but
- 3 years from (i) date of death or (ii) date of knowledge of dependent

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9
Q

What is max success fee for a CFA and a DBA?

A

CFA - conditional fee arrangement:
- max = 100% of the fees

DBA
- max = 50% of the value of damages UNLESS
- PI - 25%
- employment - 35%

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10
Q

How should the claimant decide which court to issue a claim in?

A

MUST BE issued in county court if value is:
- Non-PI - up to £100,000
- PI - up to £50,000

MAY be issued in HC because of:
(i) value
(ii) complexity
(iii) importance to the public

If issued in the wrong court it can be transferred but may be cost penalties to C

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11
Q

How to issue claim form:

A

Must be issued within limitation period by filing form N1:
- 1 for court
- 1 for each D
- 1 for C
along with the court issue fee

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12
Q

When must the claim form be SERVED?

Can time for this be extended?

A

Needs to be served:
- within 4 months if in jurisdiction
- within 6 months if out of jurisdiction

Can be extended at discretion of court:
- if apply within 4/6 months
- have GOOD REASON
- apply promptly
- C taken all reasonable steps to comply

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13
Q

What are the timing requirements for service of the Particulars of Claim?

What needs to be attached?

A

Either served with CF or if not within 14 days of service of CF

Must include response pack with:
- form for admission
- form for defence
- form for AOS

Must file a copy at court within 7 days of service of POC if have not done so already (i.e. with the CF)

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14
Q

Deemed dates of service:

A

Claim form:
- second business day after relevant step

Other docs:
- Non-instantaneous - second day after relevant step unless not a business day then the following day
- Instantaneous - same day if served before 4:30pm and business day, or else following business day

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15
Q

Company statement of truth wording:

A

“The defendant believes that … I am duly authorised to make this statement…”

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16
Q

Must interest be awarded by the court?

A

In PI claims if more than £200 damages awarded then YES

In debt, if D pays whole debt during proceedings then must grant some interest

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17
Q

How can facts be proved?

A

Evidence:
1. Documentary
2. Witness (i) witnesses of fact (ii) expert witnesses
3. ‘Real’ evidence

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18
Q

What must a party do after it serves WS and wishes to rely on it at trial?

A

Either
1. call the witness to give oral evidence at trial, or
2. put statement in as hearsay

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19
Q

Can parties extend time to serve witness statements?

A

Yes, by up to 28 days provided it doesn’t put the hearing date at risk

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20
Q

Is opinion evidence admissible?

A

Generally not UNLESS
1. Perceived fact (e.g. he was going fast)
2. Expert opinion

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21
Q

What extra paragraphs are there in a witness statement for an interim application?

A
  1. Near beginning - para stating purpose of WS i.e. what interim app it is for
  2. Near end - what the witness would like the court to do as regards to the interim application
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22
Q

What is an affidavit? How does it differ to a witness statement? What is it used for?

A

Affidavit = a statement made by a witness and sworn before a solicitor authorised to administer affidavits

Differs from WS:
- same content but different form
- will have wording to reflect sworn an oath
- will contain a jurat at the end which is a statement that authenticates the document

Used for
- freezing and search orders
- can elect to use affidavit instead of WS at any hearing other than trial

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23
Q

Definition of hearsay:

A

Statement made out of court and being adduced into evidence to prove the truth of the matter stated

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24
Q

What does a party need to do if it intends to rely on hearsay evidence at trial?

A

Needs to serve notice of intention to rely on hearsay evidence on the other party

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25
Q

When does a party need to give formal notice of hearsay to other party? When do they not?

A
  1. Hearsay in WS + witness will give oral evidence at trial = don’t need to do anything
  2. Hearsay in WS + witness will NOT give oral evidence at trial = no formal notice needed but need to tell why will not give oral evidence
  3. Hearsay not in WS - must give formal notice within a timeframe
    - if fail to do so may still be admissible but judge may attach less weight to it or may impose sanctions e.g. costs
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26
Q

Party’s options on receipt of hearsay notice:

A
  1. Request particulars of hearsay - to the extent reasonable and practical for purpose of dealing with issues raised
  2. Call for cross-examination - make application within 14 days of receipt of notice
  3. Challenge the weight of evidence - look for multiple hearsay, could witness be produced, circumstance in which statement made
  4. Attack the credibility of witness e.g. inconsistent statements
    - given 14 days notice of this from receipt of hearsay notice
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27
Q

Do parties have a right to adduce expert evidence?

A

No, a court order is required permitting it (they require permission of the court)

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28
Q

How can a party apply for permission to use expert evidence?

A

Apply for this in the DQ stating:
(i) estimated cost of instructing expert and using evidence
(ii) expert field required
(iii) if possible, the name of the expert although this should be approached with caution

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29
Q

Are instructions to expert privileged?

Does the expert report need to be verified by a statement of truth?

A

No, but they are not required to be disclosed for inspection unless court considers instructions as summarised by expert in report are incomplete or unclear

Needs to be verified by a statement of truth

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30
Q

Restrictions/provisions relating to putting questions to experts:

A
  1. Questions can only be asked once
  2. Questions should relate to clarifying the report
  3. Qs should be put to expert within 28 days of report being served
  4. No time limit for expert to reply unless specified by the court
  5. Qs must be sent to the other side
  6. Responses are included in the report
  7. If the expert fails to respond, the court may order the instructing party cannot rely on the expert evidence
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31
Q

Procedure if expert wants to ask the court questions?

A
  1. Send copy of proposed Q to instructing party at least 7 days before filing at court
  2. Serve copy of question on all other parties at least 4 days before filing at court
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32
Q

Procedure for making a part 36 offer:

A

Use form N242A
1. In writing
2. State that is a P36 offer
3. State whether relates to whole or part of the claim
4. State the period of acceptance which should be at least 21 days (relevant period)
5. Clarify whether takes into account a counter claim
If D making the offer specifically
6. If offer to settle for a sum must be a SINGLE SUM
7. If offer involves D paying after 14 days then won’t be P36 unless accepted

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33
Q

Consequences of acceptance of P36 offer:

A
  1. Stays the proceedings
  2. Next bit depends on when accepted:
    (i) within RP - D pays C’s costs up to point of acceptance
    (ii) outside RP - court to decide but MUST awars:
    - D to pay C’s costs up to end of RP
    - Offeree to pay offeror’s costs from RP to acceptance
    (iii) if offer made less than 21 days before trial court will decide
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34
Q

Can a P36 offer be withdrawn?

A
  1. Can be withdrawn before accepted but if RP still running will terminate end of RP
  2. If not accepted and end of RP then can withdraw and take effect immediately
  3. If already accepted then within 7 days of acceptance can apply to court to withdraw/change terms. Court will grant if:
    (i) change in circumstances AND
    (ii) in interests of justice
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35
Q

Consequences of an unaccepted part 36 offer at trial?

What are factors court considers when looking at whether just to award?

A

If D has offered and C has won but failed to beat the offer:
- D to pay C’s costs up until the end of the relevant period
- from the end of the relevant period, unless the court considers it unjust to do so, the court should award:
(i) C to pay D’s costs
(ii) C to pay interest on D’s costs

If C has offered and has obtained an award of equal value or more:
- D to pay C’s costs up to end of RP on the usual basis
- from end of RP, unless court considers it unjust to do so, D to pay:
(i) C’s costs from end of RP on an indemnity basis
(ii) interest on those costs up to max of 10%
(iii) interest on the award up to max 10%
(iv) an additional sum of:
- 10% of value up to £500,000
- 5% of value over £500,000
- max total £75,000

Just?
- timing of offer
- terms of offer
- was offer genuine attempt to settle
- conduct of parties

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36
Q

Factors court will consider when deciding if it is reasonable for a party to have refused to engage in ADR:

Can silence in response to request to engage in ADR be reasonable?

A

Factors:
1. Whether cost of ADR is proportionate in the case
2. Whether ADR has a chance of success
3. Merits of the case
4. Nature of the dispute - is it suitable for ADR?
5. Whether any delay to engage in ADR would have been prejudicial e.g. close to trial

Silence
- generally will never be reasonable and likely to result in sanction

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37
Q

Procedure for discontinuance and cost consequences?

A

Procedure:
- C to file a notice at court
- C to serve notice on D/other parties
- Discontinuance takes effect from date of service

Costs
- C to pay D’s costs up to the date of discontinuance unless court orders otherwise

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38
Q

What is the pre-trial checklist and what needs to be included?

Deadline to finish this:

A

It is the listing questionnaire and provides the court with details it needs to list trial

Details:
1. Extent to which parties complied with directions to date
2. If need further directions, details of these and app notice + draft order
3. Confirm if court has permitted expert evidence and if not can apply now using app notice and draft order
4. Availability of experts
5. Witness identity, availability and any special measures required
6. Who will present the case and availability
7. Prediction of length of trial including cross-examination and closing arguments

Deadline
- will be a filing deadline set by court
- BUT must have this finished before because sent to other parties 14 DAYS before filing deadline

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39
Q

Documents needed to be filed pre-trial and timings:

A
  1. Pre-trial checklist
    - filed before filing date but served on other partied 14 days before filing date
  2. Trial bundle
    - prepared by and filed by C
    - agreed between parties where poss
    - filed not more than 7 not less than 3 days before trial (NB: counting time rules re 3 days)
    - bundle for court, all parties, and one for witnesses
  3. Brief to counsel
    - brief fee applies covering prep and first day of trial
    - non-refundable once brief delivered
  4. Reading list
    - with trial bundle
    - only where in Chancery of KB division
  5. Authorities
    - when in HC
    - filed before 5pm day before trial
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40
Q

Process for enforcing a judgment order and creditor’s options:

Which court should the creditor bring proceedings in?

A

Process:
1. Form N316 (individual), 316A (company)
2. Filed without notice at court
3. Obtain Order containing PENAL NOTICE
4. Serve order PERSONALLY on D unless court orders otherwise - serve within 14 days of order being made

C’s options:
1. Writ of control
2. 3P debt order
3. Charging order
4. Attachment of earnings order
5. Bankruptcy/liquidation proceedings

Which court?
1. Judgment debts over £5000 must be in HC
2. Less than £600 OR under Consumer Credit Act must be brought in CC

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41
Q

What goods are exempt from being repossessed under a writ of control?

A

Tools of D’s trade (up to £1,350) and basic domestic items e.g. bed, fridge, furniture, essential household items

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42
Q

Process for obtaining a taking control of goods order:

A
  1. Apply for order at court with document and fee
    - doc for HC = writ of control
    - doc for CC = warrant of control
  2. Order addressed to EO and contains details of debt
  3. EO gives D 7 clear days’ notice of intention to enter premises
  4. EO enters premises and takes possession of goods up to value of debt
    - notifies D of premises entered and goods taken
  5. EO sells goods for best price reasonably obtainable generally at an auction
    - takes fees out of this
    - pays off debt
    - surplus returned to D
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43
Q

Attachment of earnings order - when is it available and where?

A
  • judgment debts over £50
  • only available in CC
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44
Q

When can a petition for bankruptcy be brought and when can a petition for winding up be brought?

A
  • Bankruptcy - where judgment debt is more than £5000
  • WU - where judgment debt is more than £750
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45
Q

What can a creditor do before issuing petition for bankruptcy/WU to keep costs down?

A

Obtain a statutory demand - served on D
- if unpaid for 21 days court will presume D is unable to pay its debts and is likely to grant a petition for bankruptcy/WU

  • Low cost and effective
46
Q

Test for permission to appeal:

A
  1. real prospect of success
    OR
  2. some other compelling reason
47
Q

Grounds court will consider when deciding on an appeal:

A
  1. Wrong (in law, fact or exercise of discretion)
  2. Unjust (unfairness)
48
Q

How long does a party have to appeal a decision?

A

21 days from judgment

49
Q

When can a party appeal a decision?

A
  1. In the lower court orally at the end of the trial
  2. In writing to the appeal court in form N161
50
Q

Does an appeal automatically stay the judgment of the lower court?

A

No - but the appeal court does have the power to stay the judgment

51
Q

What powers does a civil appeal court have?

A

All the same powers as the lower court

52
Q

How will COA decide on permission to appeal?

Test?

A

Decides on the papers unless thinks cannot ‘fairly determine’ on the papers
THEN
Will hold oral hearing - listed within 14 days

Test
1. reasonable prospect of success AND some reason of public importance OR
2. some other compelling reason

53
Q

How does CC/HC decide on permission to appeal?

Test?

A

On the papers but if refused on papers then A can request oral hearing which must be listed within 7 days of refusal

Test
1. reasonable prospect of success OR
2. some other compelling reason

54
Q

Requirements for the Hague convention to apply:

Effect

A
  1. Proceedings commenced on or after 1 January 2021
  2. Civil/commercial case
  3. Not excluded (employment, consumer…)
  4. Provision in agreement giving exclusive jurisdiction to a Convention state (UK, EU, Mexico, Singapore, Montenegro)
  5. Agreement in writing or at least evidenced in writing

Effect
- Court with jurisdiction MUST accept jurisdiction and other courts must decline

55
Q

When will EW have jurisdiction over a claim?

A

Where proceedings can be served on someone - this is when:
1. Party present in jurisdiction
2. Jurisdiction clause provides
3. Hague convention applies
4. Court gives permission

When will court give permission?
1. C makes out one of the grounds
2. Claim has a reasonable prospect of success
- ‘more than fanciful’ - same test as for summary judgment
- low threshold
3. E&W is the proper place
- natural place = witnesses reside there
- proper = fair legal system

Grounds:
1. Claim against a D who resides in jurisdiction
2. Claim in respect of contract which:
(i) was made in jurisdiction
(ii) governed by English law
(iii) contains jurisdiction clause
3. Claim in respect of breach of contract and breach occurred in E&W
4. Claim in respect of tort and
(i) damage occurred in E&W
(ii) damage was a result of an act that occurred in E&W

56
Q

Procedure for serving a claim form outside of jurisdiction where C does not need the court’s permission?

A
  1. Has 6 months from issue to serve
  2. Needs to file at court a Form N510 which details the basis on which does not need court’s jurisdiction
  3. Serve in compliance with the laws of the country in which D domiciled
57
Q

Process for service of Claim Form outside of jurisdiction where C requires the court’s permission?

A
  1. C has 6 months from issue to serve the claim form
  2. C should apply to court via an interim application for permission to serve using form N244
  3. Serve in compliance with the laws of the country in which serving in
58
Q

What is alternative service and how does it work?

A

C can apply to court to serve proceedings in alternative means
1. Make an application and list reasons for alternative service and proposed means of alternative service
2. Court may permit if “good reason” to
3. Proposed means:
- service via solicitor (who has not been authorised to receive)
- service via notice in newspaper

59
Q

How can D dispute the jurisdiction of court?

A
  1. File AOS on receipt of CF and tick box indicating intent to dispute jurisdiction
  2. Within 14 days of filing the AOS apply to court disputing jurisdiction
  3. ENSURE do not inadvertently submit to court’s jurisdiction e.g. by filing a defence
60
Q

Process for deciding re conflicts of law - Contract:

A

Rome I

  1. Have the parties agreed?
  2. If not, look at the special cases:
    (i) sale of goods - seller’s habitual residence
    (ii) provision of services - service provider’s habitual residence
    (iii) involving land - where the land is situated
    (iv) distributions - where the distribution provider is situated
  3. If doesn’t fall into above - habitual residence of charcteristic provider
  4. BUT court may alter this if another law is more manifestly closely connected
61
Q

Process for deciding on conflicts of law - tort:

A

Rome II

  1. Have the parties agreed?
    (i) if agreed after damage occurred then this is valid
    (ii) if agreed before damage occurred then only valid if both parties were pursuing a commercial activity and freely negotiated choice of law
  2. If not, then will be where parties reside if the same place
  3. If not, where the DAMAGE occurred (not the event leading to the damage, though this may well be the same place)
  4. WATCH OUT FOR whether manifestly more closely connected to another jurisdiction
62
Q

How is conflict of laws determined where countries involved are within the UK e.g. E&W vs Scotland or NI?

A

Worked out in the same way as though were international - Rome I and II

NB: DIFFERENT for jurisdiction though

63
Q

How is jurisdiction determined in a case involving different areas in UK? e.g. E&W v Scotland?

A
  1. Only one country can have jurisdiction and will be exclusive jurisdiction
  2. If concerns land, the country where land situated will have exclusive jurisdiction
  3. Agreement - the parties could agree which jurisdiction has exclusive jurisdiction
  4. A party could submit to the jurisdiction e.g. filing a defence but note this doesn’t override the exclusive jurisdiction rules above
  5. General rule - where D is domiciled
  6. Can be sued in parts of the country where not domiciled where:
    (i) contract - place of performance
    (ii) tort - where harmful event occurred
    (iii) events arising out of operation of branch - where that branch is located
    (iv) many Ds - where an D is domiciled so long as expedient to hear all together
    (v) counter-claim - where the original claim is being heard
64
Q

When should a claimant’s ‘reply’ be served? Is C required to serve a reply?

A

C is not required to serve a reply but if C chooses to it should be served with the DQ and this will be the last SOC filed/sered without court permission

65
Q

Can C claim for interest in DJ application?

A

Only if interest was included in POC and C includes a calculation of interest up to date in DJ app

66
Q

When can a court set aside default judgment?

A
  1. Court MUST set aside DJ when wrongly entered because:
    - time limit not expired
    - AOS/Defence was filed on time
    - SJ or SO proceedings commenced
    - POC not served properly/on time
    - D satisfied whole of claim before judgment entered
  2. Court MAY set aside where correctly entered BUT:
    (i) D has reasonable prospect of successfully defending the claim
    (ii) Or some other good reason
67
Q

Where would you include a set off claim?

When can D use set-off?

A

Within the defence - last para
- has effect of extinguishing the claim up to value of set off

Often used alongside counterclaim

D can use a set off where:
1. S claims for price of goods sold, B can set off breach of implied term of quality and fitness for purpose
2. C claims for price of services, D can set off poor service
3. Where equitable - two claims must be manifestly closely connected

68
Q

Are there any additional claims that can be made by the claimant?

A

No

69
Q

Difference between contribution and indemnity?

A

Contribution - right of a party to recover all or part of amount which he himself is liable to pay

Indemnity - right to recover whole amount from a person which he himself is liable to pay

70
Q

Additional claims - when is permission required/not required?

A

Counterclaim:
- NP - filed same time as defence
- P - any other time

Counterclaim against C and another
- P - ALWAYS REQUIRED

Claim for contribution or indemnity against an existing party
- NP - made at same time as defence or if party added later in proceedings 28 days after addition
- P - any other time

Other additional claims:
- NP - made at same time as defence or before
- P - any other time

71
Q

Procedure for obtaining permission for an additional claim?

A

Standard procedure for interim application
- App notice + fee + evidence
- A to serve the notice at least 3 days before hearing
- R to serve response ASAP
- A to serve any further evidence ASAP
- submit statement of costs at least 24 hours before

72
Q

How is a statement of case amended?
- Without consent or permission
- W/O permission but with consent
- With permission

A

Without consent or permission:
- only for amendments before SOC served
- Can be amending CF before POC served
- Court still has power to disallow

Without permission but with consent:
- Parties can agree to amend SOC at any time
- Must endorse amended SOC with relevant wording
- Court still has power to disallow

With permission:
- Procedure = app notice (N244) + fee + amended SOC
- Serve on other parties within 14 days of order unless specified otherwise
- Test:
(i) find analogous case BUT
(ii) need SOME reasonable prospect of success

73
Q

What is the main test to be satisfied when seeking to add, remove or substitute a party?

A

Whether the amendment is ‘desirable’

74
Q

When is consent or permission needed to add/remove/substitute a party?

A
  1. Consent
    - where adding a claimant need consent of the claimant
  2. Permission
    - at any time except before service of the claim form
75
Q

Exceptions to the general rule that amendments are not allowed outside the limitation period:

A
  1. Where counterclaim/set off arising out of the same facts
  2. Otherwise provided in limitation act or rules of the court
    - e.g. in PI cases the court has discretion to allow disapplication of limitation if it would be equitable to do so
76
Q

What needs to be filed at court to commence an interim application?

A

Form N244 + fee + supporting evidence + draft order

77
Q

Procedural safeguards for the without notice interim application procedure:

EASO

A
  1. A must draw to the court’s attention arguments in support of R’s position
  2. A must serve on R as soon as possible the:
    - Application notice
    - Evidence in support
    - Order
  3. The Order must state R’s right to make an application to set aside or vary order - must be done within 7 days of service of order
  4. A must EXPLAIN why no notice

Explain, Arguments, Service, Order - EASO

78
Q

When can an application for strike out be brought?

A
  1. No reasonable grounds for bringing the claim OR
  2. Abuse of process/otherwise obstruct the disposal of proceedings
79
Q

Test for summary judgment:

A

C/D can apply for summary judgment and obtain it if they can satisfy the court that:
1. Other party has no reasonable prospect of successfully defending the claim AND
2. There is no other compelling reason why the case should be disposed of at trial

Compelling reasons:
- D needs more time to investigate
- expert evidence required
- D has right to trial e.g. fraud
- multi-party litigation
- scrutiny of documents required

80
Q

When can parties apply for summary judgment:

A

C - when D has filed AOS or Defence (or earlier if court permits)

D - at any time after commencement of proceedings
- in meantime D does not have to serve AOS or Defence

81
Q

Orders a court can make in response to an application for summary judgment:

A
  1. Dismiss appeal
  2. Dismiss claim - D wins
  3. Judgment on claim - C wins
  4. Conditional Order - e.g. if thinks C has chance of winning but unlikely - can order C to pay money into court if wish to continue (e.g. Willy the Wizard)
82
Q

What is interim payment, how is this obtained and what is the procedure?

A

Interim payment is when D pays C a sum of the damages it is likely to owe in advance of judgment on the case (EXCLUDES COSTS)

Requirements to get judgment:
1. D has admitted all or part of the claim OR
2. Judgment has been entered against D to pay a sum as part of the claim OR
3. Court is satisfied that if the case went to trial C would obtain a substantial amount of money against D

Procedure - extended procedure (14, 7, 3, 24h)

83
Q

What is a security for costs application and how can a party obtain this order?

A

It is where D requests court to order C to pay some costs into court/to D’s solicitor in the event it is not able to pay D’s costs if D wins

Requirements:
1. Having regard to all the circumstances of the case, it is JUST to make this order
2. One of the prescribed conditions is made out

Prescribed conditions:
- C lives out of jurisdiction (and not within a Hague Convention state)
- C has taken steps to move assets so making an enforcement order difficult
- C is a company and D has reason to believe it WILL be unable to pay its debt

Just:
- Will C be able to pay security? If not, should not award because restricts C’s access to justice (Art 6 HR)

Use the default interim application procedure

84
Q

Test for obtaining interim injunction:

A
  1. Can be ordered if it is JUST AND CONVENIENT
  2. Look to the American Cyanamid guidelines:
    (i) Serious question to be tried
    (ii) Would damages be an adequate alternative?
    - For A - may not if irreparable damage
    - For R - would damages be suitable if injunction was wrongly granted? (Court may request A to give cross-undertaking to pay R’s damages in this event)
    (iii) If damages adequate for neither, where does the balance of convenience lie?

IT IS STILL EQUITABLE AND DISCRETIONARY

85
Q

Indemnity principle - costs:

A

Party cannot recover costs from the other side in excess of their own solicitor’s costs

86
Q

Summary assessment of costs procedure:

A
  1. Parties file statement of costs at court 24 hours before hearing/trial
  2. Court hears submissions or reads submissions from either side
  3. Summary assessment should be used unless there is good reason not to
87
Q

Detailed assessment of costs procedure:

A
  1. Court makes an order for detailed assessment
  2. Receiving party commenced detailed assessment proceedings by serving notice on paying party as well as a bill of costs
  3. Paying party responds with any objections it has to the bill of costs within 21 days
  4. Parties try and agree bill of costs but if cannot then file request for court to call a hearing to assess costs
88
Q

How does the court’s power to strike out work?

A

Strike out allows the court to write out material from a SOC which can include the whole of the SOC
- can do of own initiative (party can apply within 7 days to set aside)
- can do on application of a party
- party may then apply for judgment

Grounds for party seeking SO:
1. SOC discloses no reasonable grounds for bringing the claim OR
2. SOC is an abuse of process/obstructs the just disposal of proceedings
3. Failure to comply with a rule, PD or order

89
Q

What can a party do if it is sanctioned by the court?

A

Can apply for relief from sanctions but court takes a very strict approach

Will look at the Denton test:
1. Was the breach serious and significant?
2. If yes, why did it occur?
3. Consider the circumstances of the case to decide how to deal with case justly. Court required to consider:
(i) how to ensure proceedings dealt with efficiently and at proportionate cost
(ii) the fact the court must enforce compliance with the rules

90
Q

Automatic sanctions:

A
  1. Failure to file budget on time - taken to file budget for court fees only
  2. Failure to disclose expert report - can’t use it in trial
91
Q

Allocation to track - which track?

Small claims and PI?

A

SCT - up to £10,000

FT - up to £25,000
- Trial set to last 1 day or less (5 hours or less)
- Oral expert evidence from one expert per party each in no more than 2 expert fields

MT - up to £100,000 and all other cases

SCT and PI - damages for pain, suffering and loss of amenity:
- Road traffic where C is child, protected, motorbike rider or claim b4 May 2021 = up to £1,000
- Other road traffic = £5,000
- Other PI = £1,500

92
Q

Standard directions for the fast track:

A
  • Disclosure - 4 weeks of notice of allocation
  • Witness evidence - 10 weeks
  • Expert evidence - 14 weeks
  • Pre-trial checklist - 22 weeks
  • Trial date - 30 weeks

4, 10, 14, 22, 30

93
Q

What is the purpose of a CMC:

A
  1. For the court to issue directions to manage the proceedings
  2. To check compliance with the rules and PD on PAC
  3. To check parties have considered/engaged in ADR
  4. Ensure issues identified and narrowed
  5. Estimate costs
94
Q

Key timings for a CCMC:

A
  1. File budget 21 days before
  2. File disclosure report 14 days before (unless it is a PI claim then do not need to do this)
  3. File draft directions 7 days before (agreed with the other side to the extent possible)
  4. File budget discussion report - 7 days before
95
Q

Is a case summary needed?

A

On the multi-track, parties are required whether a case summary would be useful

Requirements for a case summary
(i) no more than 500 words
(ii) chronology
(iii) facts agreed and facts in dispute
(iv) nature of evidence needed to decide issues

96
Q

Can court hear applications at the CMC?

A

Yes

97
Q

When does the Cost Management Regime apply?

A

All cases EXCEPT:
1. Valued at over £10m
2. Brought by someone U18
3. SC or FT case
4. Fixed costs apply
5. Court disapplies it

98
Q

Form of a budget:

A
  • Precedent H
  • Contain a statement of truth
  • ONLY APPLIES to FUTURE costs not those already incurred
99
Q

What is a CMO?

A

CMO is a Cost Management Order and essentially sets a cap on what a party can recover - generally based on the last budget

Parties can apply to court with an amended budget (Precedent T) if:
(i) there have been “significant developments”
- should try and amend with agreement of other parties before filing at court
- should NOT be used for correcting errors

100
Q

Is there an automatic right to disclosure?

A

No, this comes from directions made by the court either when allocated to track or at CMC

101
Q

What is contained in the disclosure report?

A

What documents exist, where and with whom, how many E docs, estimated of costs in giving standard disclosure

102
Q

Types of disclosure order:

A
  1. No disclosure
  2. Issue by issue
  3. Standard disclosure
  4. Reliance and specific ???
  5. Reasonable for advancement of case or damage to other party
  6. Any other order
103
Q

What is standard disclosure

A

Party must disclose documents which it has in its control and which are adversely affects own case, adversely affects another’s case or support’s another’s case

104
Q

What must be served with the disclosure list?

A

Disclosure statement which sets out:
1. extent of search made
2. that disclosing party understands its duties of disclosure
3. confirms that party has complied with duty to the best of its knowledge
- signed by the disclosing party

Making a false disclosure statement = contempt of court

105
Q

When can a party refuse inspection of a document on its disclosure list?

A
  1. No longer in control
  2. Where it claims it is dispropotionate to allow inspection BUT then the party cannot rely on it
  3. Where the document is privileged - burden of proof on the party claiming privilege
106
Q

When can a party redact a document?

A

Where clear and distinct part of document attracvt privilege but the remainder does not or where info is totally irrelevant to dispute and contains sensitive informaiton

Would list the unredacted version in setion of disclosure lsit that refusing inspection from and redacted version in disclosure list allowing to inspect

107
Q

Process for inspecting documents:

A
  • Party sends notice to other side of wish to inspect and that party must allow inspection within 7 days
  • Can in alternative or as well as ask for copies to be provided within 7 days
108
Q

Different types of privilege and their definitions:

A

Legal advice privilege - applies to confidential communications between a lawyer and a client made for the dominant purpose of giving legal advice

Litigation privilege - applies to confidential communications between lawyer and client or either and 3P for purpose of obtaining advice, evidence or information for use in the conduct of litigation that was at the time reasonably in prospect

Without prejudice communication - applies to document between the parties which is a genuine attempt to settle the dispute

109
Q

What will the court look at when deciding whether to grant specific disclosure?

What is the test for the court making an order for pre-action disclosure?

A

Specific disclosure

Guide for court:
1. Look at all circumstances of the case
2. Look at overriding objective
3. Check whether R has failed to comply with a PAP or rule

Pre-action disclosure

Test:
1. A likely would be a party to proceedings
2. R likely would be a party to proceedings
3. If proceedings had commenced, documents would fall within R’s standard disclosure obligation
4. Desirable to:
(i) Dispose fairly of proceedings
(ii) Encourage disposal out of court
(iii) Save costs

110
Q

Tests for non-party disclosure and for a Norwich Pharmacal Order?

What is the difference in effect between the two?

A

Non-party disclosure:
- For use after proceedings have commenced
- Test:
1. Document(s) would support A’s case or be adverse to another party’s case
2. Disclosure desirable for fair disposal of proceedings or to save costs

Norwich Pharmacal Order:
- For use to allow C to bring a claim against D (i.e. where proceedings have not commenced)
- Test:
1. Wrong done by an ultimate wrongdoer (i.e. there is a cause of action)
2. Disclosure would allow a claim to be brought agains the ultimate wrongdoer
3. Non-party is (i) more than a mere witness (must have some involvement) and (ii) able to provide the necessary information
- court will have regard to what is necessary and proportionate in the circumstances of the case

111
Q

When does interest start to run on a judgment debt?

A

From the date the judgment is GIVEN not served

112
Q
A

SQE (10 decks)

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