disputes Flashcards
1
Q
Within what timescale of service must a defence to a Part 20 claim be served, and what is the consequence of failing to do so?
A
Within 14 days of service of the counterclaim. Failing that, the original defendant can obtain default judgment on the counterclaim.
2
Q
Where additional claims are brought by the defendant, what must the additional party do where (1) they are already a party to the case, and (2) they are not already a party to the case?
A
- File a defence, if already a party
- File an acknowledgement and/or defence, if not already a party
Same rules apply to them as the original defendant at the beginning
3
Q
If a party wishes to make a request for information from the other side, do they need to go through the court for this?
A
Only if the party does not adequately respond within a reasonable time
If a party objects to a request for information, they should respond providing reasons why
4
Q
What are five grounds for objecting to a request for information?
A
- Unnecessary, irrelevant, or improper
- Unable to provide information/clarification
- Insufficient time to reply
- Disproportionately expensive to reply
- Privilege
Something is relevant if it relates to matters which are disputed by the parties
5
Q
What is required to amend a Statement of Case before it has been served, and after it has been served?
A
Before: Can be amended at any time without permission
After: Written consent of all parties or court permission required
6
Q
What must the court be convinced of to add a party to a case?
A
Adding the party will allow the court to resolve all the matters in the case or resolve a connected matter
7
Q
What are the two requirements which must be satisfied for a court to grant an application substituting a party?
A
- Existing party’s interest or liability has passed to the new party (e.g. assignment, merger) and
- Desirable to substitute the new party, so the court can resolve all matters in dispute
8
Q
What is required to add or substitute a party after the limitation period has expired?
A
- Relevant limitation period must have been live when proceedings were started, and
- The addition or substitution is necessary
Necessary can come from: new party substituting for a party named in the claim by mistake; or original party has died or is bankrupt
9
Q
In determining the value of the claim, what four things will the court ignore?
A
- Sums not in dispute
- Interest
- Costs
- Contributory negligence
10
Q
To reiterate, what are the thresholds on the small claims track for:
(1) claims generally
(2) road traffic accidents
(3) personal injury if the value of pain, suffering and loss of amenity is below a threshold, and
(4) personal injury generally?
A
- £10k
- £5k
- £5k
- £1k
11
Q
When might the court allocate claims with a higher value than the small claims track threshold, to the small claims track?
A
Parties agree, or less than £10,000 is actually in dispute even if the claim is for more
12
Q
Unless the other side has behaved unreasonably, what costs can be recovered on the small claims track, and what is the upper limit for expert fees?
A
Fixed costs and reasonable expenses.
Expert fees limited to £750.
13
Q
What are the range/threshold on the fast track for:
(1) claims generally
(2) road traffic accidents, and
(3) personal injury generally?
What is the other category of case which can be dealt with on the fast track?
A
- £10k - 25k
- £5k - 25k
- £1k - 25k
Cases with no monetary value
14
Q
If a case is allocated to the fast track, within what time limit must the trial take place?
A
30 weeks
15
Q
In what two ways is evidence restricted on the fast track?
A
- Court prefers written rather than oral evidence
- Use of single joint expert is encouraged
Witness statement stands as evidence in chief meaning it has the same weight as if the witness had testified in court
16
Q
In the fast track, what must costs be in order to be recoverable?
A
Proportionate to the amount in dispute
Parties must submit cost schedules ahead of the costs hearing
17
Q
What is the monetary threshold and what is the time threshold for a case to be put in the multi-track?
A
- Claim exceeds £25k, or
- Lesser value but trial will last more than one day
18
Q
What is the Directions Questionnaire, and what does it ask?
Within what time limit must the parties complete and return it?
A
Questionnaire sent by the court with the Notice of Allocation in a fast track or multi-track case, which asks:
* Estimated trial length
* Estimated trial costs
* Whether parties complied with protocols
* Whether experts will be required
* Names of witnesses
28 days of receiving the Notice of Allocation, and cannot be extended
19
Q
At what stage is a Directions Order made?
A
Once the case is allocated to the small-claims or fast tracks
(Multi-track directions are usually given at the Case Management Conference)
The schedule for how the case will progress: disclosure, witness statement exchange, expert reports, trial, etc.
20
Q
What are two notable directions which will be given on the small claims track?
A
- Documents to be exchanged 14 days before hearing
- No expert may be used without express permission
21
Q
If a party is not happy with the directions given by the court, within what time limit must they apply for the directions to be varied?
A
14 days
Make an immediate application to the court for an unless order
22
Q
When a Case Management Conference is listed on the multi-track, within what time limits before the conference must the parties file:
(1) disclosure reports, and
(2) costs budgets?
A
- Disclosure report: 14 days
- Cost budget: 7 days
23
Q
Where a party has defaulted on directions, and the innocent party has made an application to court about this, what is one type of order that the court will typically make which gives the party an opportunity to comply, and what is the impact of this?
A
The court will make an unless order, which specifies a penalty which will be imposed unless the party complies with the direction
24
Q
Where a party has defaulted on directions, what are three other options available to the court?
A
- Impose a costs order, including indemnity costs, or increased interest
- Require the defaulting party to pay money into court
- Debar a party from relying on evidence
25
Where a party has a good reason for non-compliance and applies for relief from sanctions, what two things will the courts consider?
1. Seriousness of the breach, and
2. Reasons for the breach
26
What is an interim application?
How soon should they be made?
Any pre-trial application made to the court which requires a judicial decision
As soon as it is apparent that it is necessary or desirable
27
What is true of an interim application if there is already another hearing listed in the matter?
It should be raised at that hearing, if possible
28
Unless there is good reason why notice should not be required, what notice of an interim application must be given to parties
(1) generally, and
(2) if over the telephone?
What is an example of a good reason?
1. Three clear days
2. Five clear days
Notice would provide the other party an opportunity to dispose of evidence or assets
29
It would be extremely unusual to not give notice of an interim application, except for which two types of orders?
Where an interim application is made without notice, what must it include?
1. Freezing injunction
2. Search order
Evidence explaining the good reason
30
What three things must be served on the non-applicant party if an order is granted based on a without-notice application?
1. The order
2. Application notice
3. Supporting evidence
31
If an order is granted based on a without-notice application, within what time limit of being served must the non-applicant party apply to vary or set aside the order?
7 days
32
If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?
A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent associated with the application
33
What should be true of evidence relied on in support of an interim injunction?
It should be in writing and filed at court within the relevant time limit
34
What two things does the applicant have to file and serve on the court within 2 days of the hearing on the interim application?
1. Case summary
2. Proposed draft order
35
What is the difference between default judgment and summary judgment?
Default judgment: Defendant has failed to acknowledge service or file a defence on time, not related to strength of defence
Summary judgment: Other party has weak case and there’s no other reason to have the trial
36
What are the two criteria which the applicant must satisfy when applying for summary judgment?
Before when can the claimant not make an application for summary judgment?
1. Other party has no reasonable prospect of success, either their claim or defence, and
2. No other compelling reason why the case should proceed
Before defendant receives particulars and serves either an acknowledgement or defence, i.e. claim must be live from defendant’s point of view
37
In an application for summary judgment, what are the three time periods before the hearing before which:
(1) Applicant must serve written evidence in support of the application on the other party
(2) Other party must serve evidence in response, and
(3) Applicant must serve any further evidence in response to (2)?
1. 14 days
2. 7 days
3. 3 days
Same for interim payments
38
What is the difference between an application to strike and summary judgment?
Application to strike: goes to procedure
Summary judgment: goes to merits
39
What are three things for which the court will grant an application to strike?
1. Statement of case discloses no reasonable grounds for bringing/defending claim
2. Statement of case is an abuse of court process
3. Failure to comply with a rule, practice direction, or order
40
What are the three conditions, one of which is required for an order of interim payment to be made?
Are interim payments mandatory or discretionary?
1. Defendant has admitted liability
2. Claimant has obtained judgment but the sum to be paid is not yet assessed; or
3. The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum (and in cases with multiple defendants, from at least one of them and each carries insurance)
Discretionary, and the court will not grant one if it would cause an injustice
41
Before making an application for interim payment, what should the applicant do?
Before when can the claimant not make an application for interim payment?
Request that the defendant make a payment voluntarily
Before defendant receives particulars and serves either an acknowledgement or defence, i.e. claim must be live from defendant’s point of view
42
In an application for interim payment, what three things must the claimant’s written evidence contain?
Does claimant need to demonstrate need?
What additional thing should be included in a personal injury claim?
1. Sum of money sought
2. Items and matters in respect of which payment is sought
3. An estimate of the final judgment
No
Medical records should be attached to estimate of judgment; and a schedule of loss with details of past and future loss
43
In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?
Yes
44
What is an injunction?
What are the two types?
When is an injunction considered interim, and when is it considered final?
A court order that requires a party to do or stop doing something.
Mandatory and prohibitory
Interim if made before trial; final if at trial
45
In the context of an injunction application, what is an undertaking in damages?
An undertaking by the person making the application that they will compensate the other party for any loss suffered if the court later determines that the injunction should not have been granted
46
How can a party apply to have the injunction discharged?
By applying on notice to a judge of the division where the claim is proceeding
47
What are the three grounds that can be argued in support of an application to discharge an injunction?
1. Applicant did not disclose all information when applying, or did not comply with its terms, or failed to prosecute claim with speed
2. Relief is oppressive, or not justified
3. Material change in circumstances
48
What is a freezing injunction?
To whom must an application for one be made?
A type of prohibitory injunction designed to freeze the assets of the defendant
A High Court judge only
49
What are the three requirements of which a court must be satisfied before granting a freezing injunction?
1. Strong case on the merits
2. Defendant has assets within the jurisdiction
3. Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced
50
What two things must be true of a freezing injunction?
When will a freezing injunction bind third parties?
1. The assets frozen should not exceed the maximum amount of the claim, and
2. The order must state the period of time it will be in effect
When they have knowledge of it
51
What must a defendant offer in order to apply for discharge of a freezing injunction?
Security for the value of the claim
52
What is a search order?
To whom must an application for one be made?
A last resort order applied for without notice by the applicant if it is clear the defendant will not obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant to search for and potentially seize this evidence
A High Court judge only; same as freezing injunction
53
What are the three requirements of which a court must be satisfied before granting a search order?
1. Strong case on the merits
2. Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
3. Clear evidence that the property and documents are in the defendant’s possession and there is a real possibility the material may be destroyed
54
What three things will the independent supervising solicitor who oversees execution of a search order undertake to do?
1. Offer to explain the meaning and effect of the order to the defendant
2. Inform the defendant of their right to seek legal advice and right to apply to vary or discharge the order, and
3. Prepare a written report on execution and provide it to the claimant’s solicitor and the court
55
In the context of a search order, what three things will the claimant’s solicitor undertake to do?
1. Return original documents to the defendant within two days
2. Deliver property in dispute to defendant’s solicitors, and
3. Retain all other property securely until the court directs otherwise
56
What does disclosure mean?
For how long does the duty to disclose run and when does it terminate?
Clearly identify and inform the other side of the existence of a relevant document
Continues through the whole case and concludes when the case is over
57
What two types of documents must be disclosed?
What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?
Documents which:
1. Support your case
2. Are adverse to your case
Cease to act
58
How far does the obligation to disclose go?
Does a party need to have possession?
A party’s obligation to disclose extends to any document within the party’s control
No, a right to control is sufficient
59
What three criteria, one of which is enough, will determine if a party has control of a document?
1. Physical possession
2. Right to take possession, inspect or take copies, or
3. Had the document in their possession but no longer
60
What is the obligation when a document is unavailable or has been destroyed?
Can the court draw an adverse inference from this?
Notify the court and other party of its existence, and provide reasons
Yes
61
What is standard that the court will expect a search for documents to meet?
The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance
62
What are the three sections of the disclosure list which is filed and served on the fast track, as well as personal injury on the multi-track?
1. Documents a party controls that they do not object to the other party inspecting
2. Documents a party controls that they do object to the other party inspecting (along with reasons)
3. Documents that are no longer in a party’s control
63
Who signs the disclosure statement detailing the extent of the search made?
What is declared in the disclosure statement?
The party, not their solicitor
Party understands the duty of disclosure, they have carried it out to the best of their knowledge, and that they believe the extent of the search was reasonable and proportionate; also explaining why a particular search was not carried out
64
Under standard directions, within what time limit from that point must the disclosure lists be served?
Within what time limit should inspection occur?
28 days
7 days, for which the party seeking inspection must notify the party with the document
65
What triggers a requirement for specific disclosure?
What are the two criteria, one of which the court must be satisfied of to grant an order?
What should a party do before making an application for specific disclosure?
Triggered by a party believing certain documents have not been disclosed.
Court must be convinced the party has documents that may:
1. Contain information that would assist the applicant’s case or damage the respondent’s case; or
2. Lead to a train of enquiry which has either of those consequences
Make a written request for the documents: describing the document and explaining why it is relevant, why it is reasonable and proportionate to disclose, grounds for believing the document exists, and safeguards that can be provided, e.g. redaction
66
Unless challenged, what does disclosure of a document provide?
An automatic right to inspect it
67
What are the three grounds for refusing inspection of a disclosed document?
1. Privilege
2. Document no longer in party’s control
3. Disproportionate to allow inspection
68
Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track?
Within what time limit of what event must this be filed?
Disclosure report
At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.
69
Must a document which is privileged still be disclosed?
Yes, but it can be withheld from inspection
70
What are the four types of privilege ?
What is the one immunity which functions like a privilege?
Only whom can waive privilege?
1. Legal advice privilege
2. Litigation privilege
3. Common interest privilege
4. Without prejudice privilege
Public interest immunity
The client
71
What does legal advice privilege protect?
Communication between a lawyer and a client in which advice is given or requested within a legal context
72
What does litigation privilege protect?
Who bears the burden of proving litigation privilege?
Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation
The party seeking to assert it
73
If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?
Only if the court decides the dominant purpose is to prepare for litigation
74
What is the common interest privilege?
common interest privilege enables the sharing of privileged documents with others with the same interest. Privilege will not be lost where privileged communications are passed to a person with a recognised common interest.
Examples of persons who may have a common interest include companies in the same group, insurer and insured, agent and principal or neighbours with the same complaint.
75
What is the one requirement of the common interest for common interest privilege to apply?
Does common interest privilege subsist if there is a subsequent breakdown in the parties’ relationship?
The common interest must have been present at the time of disclosure between the parties
Yes
76
If a solicitor accidentally sends a privileged documents to the other side, what is required for the other side to use the information?
Court permission
77
What are the two types of witness evidence?
1. Direct
2. Circumstantial
78
What is the general rule for what a witness must have done to be able to give evidence at trial?
Signed a previous witness statement setting out their evidence, which is endorsed by a statement of truth and served on the other party
79
What is possible if a witness statement cannot be obtained?
Party can get court permission to serve a witness summary which identfies the witness and summarises the factual issues the witness will cover when testifying
80
What happens if a witness statement is not served, and what is a way around this?
Party cannot call that witness, unless they receive court permission by showing good reason for the failure to serve
81
If a witness is to be compelled to testify, within what time limit before the hearing must the witness summons be served by the party calling the witness?
7 days
Summons must contain conduct money or it is ineffective
82
What can the other party do if a party decides not to call a witness who has had a witness statement served, and how will the court treat what they do?
Other party can refer to the statement, but the court will treat this as hearsay
83
Although hearsay evidence can be oral or in writing, what are the two requirements for evidence to be hearsay?
1. Statement must have been made out of court
2. Statement must be used to prove the truth of what is being stated
84
When will the contents of a witness statement cease to be hearsay?
When the witness thereafter comes to court, their statement plus their answers under cross-examination are all treated as if they were made in court and cease to be hearsay
85
What six factors will the court consider when determining the weight to apply to a witness statement entered as evidence where the witness does not come to court?
1. Reasonable/practicable to force witness to attend?
2. Original statement made contemporaneous with the event?
3. Single or multiple hearsay?
4. Motive to misrepresent facts?
5. Was original statement edited?
6. Does the situation suggest attempt to prevent proper evaluation of evidence?
86
If a party wishes to rely on hearsay evidence, what must they do?
What is the effect of the witness attending the trial on how this obligation must be satisfied?
If the other side wishes to have that witness attend court so that their credibility can be attacked, within what time limit must they make an application to the court?
Must serve notice on the other side.
If the witness is attending court, the witness statement itself constitutes notice.
14 days
87
What is admissible in any civil case to prove the conduct occurred?
Details of a criminal conviction arising from the same events
88
What are four types of evidence that is inadmissible?
Does the court have discretion to disallow evidence which would otherwise be admissible?
1. Opinion evidence, except from experts
2. Evidence that is privileged or protected by public interest immunity
3. Communications that are without prejudice
4. Any evidence which is irrelevant
Yes
89
What evidence is a lay person allowed to give, even though it may appear to contradict the general rule that only experts can give opinion evidence?
Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident
90
One of what three things must occur for a party to have their own witness declared as hostile by the court?
What is the effect of a witness being declared hostile?
1. Witness is unfavourable to the side who called them
2. Lack of cooperation to tell the truth on behalf of party who called them, or
3. Evidence is entirely inconsistent with their witness statement
They can be cross-examined by the party who called them
91
What is similar fact evidence?
What must it be to be admissible?
Evidence of previous incidents or conduct as evidence of similar conduct in the case in question, e.g. a driver having nine points on their license for three separate instances of running red lights is evidence that, on balance of probabilities, they ran the red light in this case
Must be relevant to be admissible
92
What are the two requirements for an expert to give evidence?
1. They must be qualified to give the opinion
2. Their expert evidence must be reasonably required to resolve proceedings
Qualified does not mean a formal degree is needed; experience is sufficient
93
If expert evidence is allowed, what are the three conditions it is still subject to?
1. Opinion must stem from special knowledge, skill, or training that is not within the ordinary experience of a judge
2. Expert must be reasonably certain of their opinion
3. Expert must demonstrate the basis of their opinion and conclusions
Judge will ultimately determine if the witness is truly an expert
94
What is the duty owed to the court by an expert?
To exercise independence, integrity, and impartiality
This overrides their obligation to the person who instructed/paid them
95
Is the default position that experts will attend court to give their evidence?
No, the default is a written report
96
If a party wishes to have an expert testify in court rather than the default of preparing a written report, what four conditions must they satisfy?
1. Expert oral evidence likely to have an impact on the outcome
2. It will assist the judge
3. Risk of injustice if expert evidence is not tested, and
4. Cost of the expert attending is not disproportionate
97
What is the difference between an agreed expert in a personal injury case, and a single joint expert generally?
An agreed expert is one chosen by a claimant in a personal injury case. The defendant does not have to agree to jointly instruct an agreed expert and the defendant retains the right to instruct their own.
A single joint expert is one where the court has imposed the obligation that parties share an expert, share the fees whilst the matter is ongoing, and then the losing party will assume responsibility for paying the expert after the trial.
98
In what four instances may the court allow parties to have their own expert?
1. Complex issues or high value case
2. Parties already have their own expert from pre-action phase and most cost-effective to retain
3. Number of different schools of thought concerning the issue requiring expert opinion
4. Issue the experts are focusing on has huge significance to the outcome
99
Is an expert’s report privileged?
Until disclosed
Expert’s report need only be disclosed if the party intends to rely on it
100
What is the time limit from the expert sending the report that the parties can ask questions of the expert?
28 days
101
If a case is settled before trial, other than via a Part 36 Order, what must the parties do?
Record the terms of the agreement in writing in an appropriately worded consent order
102
102
What is the usual order used to record settlement?
What is the consequence of not using an order?
Tomlin Order
If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.
103
What are the two parts of a Tomlin Order?
What happens if a party defaults?
1. The order, which confirms the parties have agreed settlement and that the case is stayed pending the settlement terms being carried out, and
2. A schedule confirming the amount to be paid, by whom, and by what date
Proceedings can recommence
104
What is the maximum word count for the case summary filed before the pre-trial review hearing, and what three things should it specify?
Case summary must not exceed 500 words and should specify:
1. Issues of fact
2. What is in dispute
3. Synopsis of the evidence
105
How many trial bundles should the claimant’s solicitor prepare, and who bears the expense of this?
Within what time period before trial should the trial bundles be filed?
The claimant’s solicitor must prepare one bundle each for each party and witness, and the claimant bears the expense of this
Between 3 and 7 days before trial
106
In what two circumstances will court permission be required to discontinue a case?
What is the costs consequence for the claimant of discontinuing a case?
1. Court has granted an interim injunction
2. Claimant has received an interim payment (unless paying party consents)
Claimant liable to pay the defendant’s costs up until that point (subject to cost shifting applicable to personal injury)
107
What is the destination of appeal where the judgment was delivered by:
(1) District Judge
(2) Circuit Judge
(3) Master of the High Court
(4) High Court Judge
(5) Lord Justice of Appeal?
Is there an automatic right to appeal in civil cases?
1. Circuit Judge
2. High Court Judge
3. High Court Judge
4. Lord Justice of Appeal
5. Justice of Supreme Court
No
108
To where can a party make an application for permission to appeal?
1. Lower court where the decision was made
2. To the appeal court
109
What are the two grounds to appeal a decision of a lower court?
1. Decision is wrong in fact, law, or the exercise of the court’s discretion; and/or
2. Decision is unjust due to serious procedural or other irregularity
110
Within what time limit must a party appeal and when does this time begin to run?
Within 21 days of the date the judgment or order they are seeking to appeal was handed down
Appeals can be made orally immediately after the judge makes the decision to be appealed
111
What is the consequence of not seeking permission from a lower court, and not requesting a time extension?
After 21 days, they can no longer make an application to the court for permission to appeal
112
In the case of not seeking permission from a lower court, and not requesting a time extension, such that application is barred, to what court can a party make a special case that permission should be applied retrospectively?
How will this court treat the application?
Court of Appeal
As a relief from sanctions, requiring the applicant to show good reason for the breach and that relief is reasonable in the circumstances
113
What is an appeal hearing limited to?
Can a party rely on evidence that was not available in the original hearing?
A review of the decision of the lower court
Not without permission
114
What does the indemnity principle provide?
A party can not recover more from an opponent than they are liable to pay their own legal representative
115
What are the two bases of costs assessment?
1. Standard basis
2. Indemnity basis
116
What occurs under the standard basis of costs assessment?
Court allows only proportionate costs and exercises doubt in favour of the paying party
117
What triggers costs assessment on an indemnity basis, and what occurs under this?
Paying party incurring unnecessary costs by their conduct.
The court does not consider proportionality and the paying party cannot object as to costs unless they are claiming the solicitor shouldn’t have done the work at all.
118
What are the two ways a party can file their costs budget on the multi-track, depending on the value of the case?
What is the possible consequence of not filing a budget?
1. £50,000 and below: filed with Directions Questionnaire
2. Over £50,000: filed 21 days before Case Management Conference
Costs may not be recoverable, beyond court fees
119
What are inter-partes costs?
A term given to describe the other party’s costs when you are obligated to pay them, to be distinguished from a party’s own costs
120
In lower value cases and interim applications, how soon before (1) a hearing, and (2) a trial must a statement of costs be filed?
1. 24 hours
2. Two days
121
What is the starting point for a detailed assessment of costs in a larger value claim, and within what time limit must the receiving party file this document?
Within what time frame must the paying party file their points of dispute, if any?
The receiving party prepares a bill of costs and serves within three months of judgment or order
21 days
122
How soon after the issuance of a costs certificate by the court must costs be paid?
14 days
123
Who is the only party that can apply for a security of costs order, and what is the logic being precluding the other party?
Defendant, as they cannot stop the claimant bringing proceedings, but the claimant is free to continually assess whether the defendant is worth suing
124
What are the five criteria, one of which is enough, which the defendant must satisfy to make an application for a security of costs order?
Claimant:
1. Resides outside jurisdiction
2. Has changed address since claim started with a view to evading consequences of litigation, or provided no/incorrect address on the claim form
3. Is suing for the benefit of a third-party
4. Is corporate entity and there is reason to believe they won’t be able to pay costs
5. Has taken steps regarding their assets that would make it difficult to enforce a costs order, e.g. moving them outside the jurisdiction
125
What is qualified one-way costs shifting in personal injury claims, and what are the three situations where it will not apply?
When is qualified one-way costs shifting not available?
In an unsuccessful personal injury claim, the claimant does not pay the defendant’s costs unless:
1. Claim was fundamentally dishonest
2. Claim was made for the financial benefit of another, or
3. Claim was struck out for disclosing no cause of action, or abuse
Where a claimant refused a Part 36 offer to settle and fails to beat that amount at trial, the defendant can recover costs up to the level of damages awarded
126
In addition to improper, unreasonable, or negligent conduct, what are the two criteria for a court to make a wasted costs order against a solicitor?
Within what time limit of a wasted costs order being made must a solicitor inform their client?
1. Conduct caused unnecessary cost, and
2. It is just to make the order
7 days
127
What is a Part 36 offer?
Who can make a Part 36 offer and what must they specify in the offer?
A formal, without prejudice offer, to settle a claim
Either party can make a Part 36 offer, and they must specify the amount they would be prepared to pay/accept to settle
128
What may the offeror be awarded if they make a Part 36 offer pre-issue and the parties settle the claim before proceedings begin?
Pre-issue costs that they incurred
129
What may the offeror be awarded if they make a Part 36 offer pre-issue but it is rejected by the other party, and the offeror wins the case?
Costs related to pre-action work, in addition to the costs of the litigation
130
Can a Part 36 offer be withdrawn?
After the expiry of the relevant period, as long as the offeree has not served notice of acceptance
131
If a notice of withdrawal or to change the terms to ones less favourable for the offeree is served before the expiry of relevant period, when does the notice take effect?
When the relevant period expires, unless the offeror accepts within that time (in which case the offer cannot be withdrawn/amended in the usual way)
132
What two things must the court be satisfied of to grant permission to withdraw or amend a Part 36 offer after it has accepted?
1. Change of circumstances since the offer was made
2. In the interests of justice to give permission
133
How must a Part 36 offer be accepted?
In writing
134
When can a Part 36 offer be accepted?
At any time within the relevant period with no limitations, and after the relevant period as long as the offeror has not withdrawn the offer
135
If a Part 36 offer, made by either party, is accepted within the relevant period, up until when will defendant pay the costs of the claim, and on what basis will they be assessed?
The defendant will pay costs on the standard basis up to the point of acceptance
136
If a claimant accepts a defendant’s Part 36 offer outside the relevant period, up until when will the defendant’s liability to pay the claimant’s costs run?
Until the end of the relevant period
137
What is required to accept a Part 36 offer from a single defendant in a case with multiple defendants?
Court permission
138
What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?
1. Claimant rejects defendant’s offer and fails to beat offer
2. Defendant rejects claimant’s offer and claimant is awarded an amount equal to or greater than the offer
139
What are the two situations where a Part 36 offer might will not cause cost-related difficulty for a party?
1. Claimant rejects defendant’s offer and beats it
2. Defendant rejects claimant’s offer and the claimant is awarded less
140
Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?
Defendant will have costs awarded on a standard basis from the date when the relevant period of acceptance expired
Defendant will usually still have to pay costs up to the expiry of the relevant period
141
Where a defendant rejects a claimant’s offer and claimant is awarded an amount equal to or greater than the offer, what is the consequence?
Unless it is unjust, for the period after the time for acceptance expired, costs will be assessed on an indemnity basis and the claimant will be entitled to 10% interest on top of costs accrued within this period.
142
What things will the court consider when determining whether an order for failure to accept a Part 36 is unjust, such that the court will exercise discretion not to make the order?
1. Stage of proceedings when the offer was made
2. Conduct of the parties
3. Whether the offer was a genuine attempt to settle
143
What is the annual interest rate of High Court judgments, from when does interest begin to accrue, and what is this interest in addition to?
8%, from the date of judgment, in addition to the any punitive interest the court may award on the value of the claim
144
What is the monetary threshold in County Court, under which interest will not be payable, and what is the exception to this?
What is the interest rate on County Court judgments above this threshold?
£5,000, except for when the dispute is based in contract, and the contract provides for interest
8%, the same as the High Court
145
What is the lower limit for a County Court judgment to be enforceable in the High Court?
£600
£600 is also the lower limit for a High Court enforcement officer to enforce a High Court judgment. County Court judgments are enforced by County Court enforcement officers
146
Within what period must a judgment creditor (successful party) serve a court order on a judgment debtor (losing party), for a hearing to examine the debtors means and assets?
What must the judgment creditor also file 2 days before the hearing?
14 days
Affidavit providing details of service and how much remains unpaid
147
What is a writ of control?
A document issued by the High Court where a judgment creditor has requested to execute a judgment, which is forwarded to the High Court enforcement officer
A warrant of control is the County Court version
148
If the creditor wishes to take control of debtor’s goods, how much notice must they give?
Within what period of serving must they take control?
Seven days
12 months
149
Where only can the creditor’s agent enter?
What must they do regarding goods seized?
Can only enter the address stated
Must provide an inventory of the goods, and sell them within 7 days and use the proceeds to discharge the debt and enforcement costs.
150
What two categories of items can the creditor not seize?
1. Equipment for use in the debtor’s trade
2. Household items necessary for basic domestic needs
151
What is a controlled goods agreement?
An agreement whereby the debtor retains custody of the goods on the understanding that the enforcement officer is taking control, but the debtor agrees not to dispose of them before the debt is paid
152
What is a charging order on land?
Where the debtor has an interest in land (even if this is a joint interest), a creditor may obtain a charge on the property which will rank as an equitable mortgage and gives the creditor the right to apply for an order for sale
153
What is an attachment of earnings order?
Where an individual debtor is in regular employment, the order compels an employer to make regular deductions from the earnings and pay them into court
Must be sought in County Court
