Disputes Flashcards
Explain what a duty of care is
A recognised relationship
Reasonable foreseeability of harm
Fair just and reasonable to impose a duty
What if there’s no recognised relationship between the parties
Court will use Caparo test -
- Was harm reasonably foreseeable?
- Sufficient proximity between the parties?
- Fair just and reasonable to impose a duty?
What is the aim of damages for BOC and Tort?
Contract - putting claimant in position they would’ve been in had contract been properly performed
Tort - putting claimant in position they would’ve been in had tort not happened
What are the different track allocations?
Small Claims Track
Fast Track
Intermediate Track
Multi Track
What are the different tracks for claims and the limits?
Small claims track - value up to £10,000
Fast track - value of more than £10,000 but less than £25,000
Intermediate track - value between £25,000 and £100,000 and less complex
Multi track - value exceeding £100,000 or those excluded from the IT due to their complexity (e.g. clinical negligence, mesothelioma, neglect).
** in MT, can be less than £100,000 of complex enough
Under OLA 1984, what does reasonably safe mean?
Protection from known dangers (dangers that they are aware of and pose risk of serious injury).
Duty is not to guarantee complete safety.
Age + vulnerability is considered - higher duty owed to children.
If the trespasser is injured due to their own recklessness, the occupier won’t be liable (if danger is obvious, occupier is not required to prevent reckless behaviour).
What are the advantages of arbitration?
Private
Parties can choose the arbitrator
Arbitrators are usually experts
Flexibility
Issues are examined more thoroughly
Can pick a seat of arbitration
What is dealt with at a preliminary hearing for arbitration?
Rules and procedures that will be followed
Timeframes
Extent of disclosure and evidence
Location and date of value
Forms of statements (e.g., witness statements)
Extent of disclosure
Form of questioning
Rules of evidence
If there will be oral or written submissions
What are the grounds on which a party can challenge an arbitrator’s decision?
Wrong in law
Serious irregularity
No jurisdiction
How long does a party have to appeal an arbitrator’s decision
Within 28 days of the award being signed
What is a novation and how can it be shown?
Giving the legal rights of a cause of action to another party through
- Written agreements
- Conduct
- Common understanding
When does time start to run for BOC / Tort / Negligence claims
BOC - date of breach
Tort - date of damage suffered
Negligence - date of negligent act
How can a limitation period be stopped / restarted?
Stopped -
1. Issuing a claim form within the limitation period
2. Entering into a standstill agreement
Restarted -
1. Defendant acknowledging the claim (in writing and signed)
2. Defendant making a payment in respect of the claim
What is ‘date of knowledge’?
Knowledge of material facts
Knowledge that damage was because of the negligent act
Knowledge of the identity of the defendant
Date of knowledge is basically fulfilled where the claimant has sufficient facts such that it would be reasonable to investigate further
When can a court refuse to apply certain law if hearing a case?
Court can refuse if that law is manifestly incompatible with the public policy of the place hearing the claim
What are the gateways (6) under which permission can be sought to serve out of the jurisdiction?
- Defendant is domiciled in the jurisdiction
- The contract was entered into in the jurisdiction
- The breach was committed in the jurisdiction
- For a tort, the damage was sustained in the jurisdiction
- Application is for an injunction to stop somebody doing something within the jurisdiction
- The defendant is a necessary party to the claim, and the other parties have been served/will be served
What if the override for pre-set applicable law?
Where the contract is manifestly more closely connected
For consumer contracts, what specific law can be implemented into the contract even if the applicable law is different?
The mandatory legal provisions in the claimant’s habitually resident country will still ply even if applicable law is different
When will an agreement of applicable law be upheld?
If the agreement as to the applicable law is entered before the event, and this agreement is freely negotiated, and the parties are pursuing commercial activities, it will be upheld
When can certain provisions re chosen law be refused?
If provisions of the chosen law are manifestly incompatible with the public policy of the court hearing the claim, the provisions can be refused.
In which circumstances is permission not required to serve out of the jurisdiction?
- Court has power to determine the claim (under The Hague convention)
- Claimant relies on a term that the court has jurisdiction
- Claimant is a consumer and bringing proceedings under a consumer contract
- Claimant is an employee and bringing proceedings against their employer
- Statutes that have effect
If serving out of the jurisdiction, and no permission is required, what must be served alongside the claim form?
A standard form of statement of the grounds relied on must be included
When is permission required to serve out of the jurisdiction?
Party must satisfy the court that
- Claim is within the jurisdictional gateways, and
- Claim has a reasonable prospect of success, and
- England/Wales is the proper place to bring the claim
In following the PDPAC, what does exchanging information facilitate the parties to do?
Understand each other’s position
Make decisions about how to proceed
Settle without proceedings
Consider ADR
Support efficient management of proceedings
Save costs
What is the difference between a Part 7 and a Part 8 claim?
Part 7 = dispute of fact
(involves POC, oral evidence)
Part 8 = dispute of law
(no detailed statements or case, usually involves witness statements and exhibits)
Where is a monetary claim for less than £100,000 issued?
Issues with the Money Claims Online and sent to the County Court Money Claims Centre
What are some considerations looked at when deciding if a Part 20 claim should be introduced? What happens if these considerations are not fulfilled?
The connection between the original claim, and the new Part 20 claim (they must be sufficiently connected)
Whether the parties are seeking a substantially same remedy?
If the additional claim wants to address an issue connected with the subject matter of the current proceedings
A part 20 claim can be severed if there is an insufficient connection
In entering default judgement, what sum can be recovered if claim is for:
- A specified sum
- An unspecified sum
What happens if unspecified sum is not agreed?
- Specified sum = the claim will be for that amount of money + costs
- Unspecified sum = the claim will be for a sum decided by the court (that amount + costs)
A defendant can dispute the amount payable, but cannot dispute their liability
What are some amendments that can be made to a statement of case?
Adding more facts
Adding new causes of action
Removing/amending elements of the claim
How can amendments be made to a statement of case if
- The parties agree
- The parties do not agree
- Agree = the parties can file their agreement in writing with the court
- Disagree = the party making amendments must apply to the court for permission to amend
What is the deciding factor as to whether the court will allow amendments to a statement of case?
Whether the claim is within the limitation period
If the claim is within the limitation period, what considerations does the court have in deciding on whether to allow amendments to a statement of case?
Court will consider:
- the overriding objective
- that it is beneficial for a dispute to be disposed of in one set of proceedings
- the disruption/prejudice that the amendment might have
- whether the amendments show any prospect of success
If outside the limitation period, what amendments will the court allow to a statement of case?
Court will only allow amendments for
- adding / substituting a new claim (if claim arises out of the same facts)
- correcting a mistake as to a party’s name (if this was a genuine mistake)
- altering the capacity in which a party is claiming in
Where an application to serve a defendant by alternative method is successful, what will the court’s permission include?
The method of service that will be used
The date of deemed service
The deadline for defendant to acknowledge / defend the claim
How can parties go about extending the deadlines for filing / acknowledgement?
If parties are in agreement, they can extend the deadlines by 28 days by setting out their agreement in writing to the court
If there is no agreement, the party seeking the extension must make an application to the court
If the parties would like a further extension (after 28 days), this must be agreed by consent order
What information is set out in a response pack?
Whether the defendant admits liability
Whether defendant is offering to pay a certain sum in satisfaction of the claim
Indicates how defendant can pay the sum
Provides defendant’s information (employment/income/assets) so that a proposal can be made
If a defendant proposes a settlement sum in response to a claim, how is the claimant informed, and what can they do to accept?
The court will give the claimant notice of the sum offered
If the claimant accepts, they must serve notice to the court and defendant within 14 days
In what circumstances can a party be added to a claim? (after claim form is served)
Where it is desirable to add that party to resolve all matters in dispute
Where there is an issue involving the new party, and the existing party is connected, and it is desirable to add that party so the court can resolve all matters.
What must be obtained before a claimant can be added to a claim?
A claimant must give their consent in writing
In what circumstances can a party be substituted in a claim?
Where the court is satisfied that the interest / liability has passed to that party
Where ur is desirable to substitute a party so the court can resolve all matters
In what circumstances will the court allow the extension of deadlines for service?
Court will allow extensions if they are made before the current deadline has expired.
If application is made after the current deadline has expired, the court will allow extensions if:
- there has been a failure of the court itself
- the claimant has taken all reasonable steps
- the claimant has acted promptly
What is required after service has been effected?
A certificate of service
must be filed within 21 days of service of the POC
must state the date the relevant step was taken to effect service
must state where the forms have been served
How can a claim be discontinued?
A claim can be discontinued without court permission.
Done by filing a notice of discontinuance with the court and serving on every other party.
When is permission required to amend a claim form, and how is permission sought?
If a claim form has already been served, permission is required to remove/amend/substitute a party
Permission sought by an interim application supported by evidence
Before the end of a limitation period, when will the court give permission to amend/substitute/remove a party from a claim form?
Court will consider all matters and decide whether any amendments would help deal with the case expeditiously and fairly
After the end of the limitation period, when will the court allow for amendments to a claim form?
The limitation period was current when proceedings were started
Amendment is necessary
When is an amendment to a claim form necessary?
New party is being substituted for a party who was named by mistake
The claim cannot be properly carried out against the original party
Original party has died / become bankrupt
When can service be effected on a solicitor?
If the solicitor has given express written confirmation that they are authorised to accept service
In making an application to serve out of the jurisdiction, what must be set out in that application?
- the grounds on which the application is being made (one of the jurisdictional gateways)
- that the claimant believes the claim has a reasonable prospect of success
- the defendant’s address / where the defendant can be found
If serving out of the jurisdiction, how is service effected through a contracting state under The Hague convention?
Service is effected via a central appointed authority in each contracting state + official certificate is produced
If serving out of the jurisdiction, how is service effected through an authority otherwise than under The Hague Convention?
Documents are sent to the Foreign Commonwealth Office requesting the documents to be served through official channels + official certificate is produced
What are some advantages of mediation?
- without prejudice (can’t be used at court)
- commercial relationship can be maintained
- agreed solution can take any form (e.g., apology)
- confidentiality (held in private)
- flexibility
- speed
- low cost
- reaching a solution together
- in line with PDPAC
- can take place alongside a formal dispute process
What are some disadvantages of mediation?
- not certain that an agreement will be reached
- other party may not have a genuine desire to settle
- mediation may not be suitable for complex/technical issues (mediator is not an expert)
- parties bear their own costs
What is a conditional fee arrangement?
No win, no fee
If client loses, no fees/reduced fees are due
If client wins, your fees plus a success fee is payable
What is a damages based agreement?
If client wins, a percentage of damages awarded will be paid to you
If client loses, they have no liability to pay for legal fees
What duty does a party have in relation to relevant documents?
Parties have a duty to preserve all documentation that could possibly be relevant
Duty kicks in as soon as litigation is contemplated (as soon as party thinks a cause of action has arisen and will likely be pursued)
What is habitual residence for
- a company
- an individual acting in the name of a business
When is this determined?
- The place of central business administration
- The principal place of business
Determined at the time the contract is entered into
What factors are taken into account when undertaking searches for disclosure?
Number of documents
Costs
Complexity of proceedings
Significance of any documents
Proportionality
The overriding objective
If a contract does not state the applicable law to be applied, how can a court decide which law applies?
Either
- Using the pre-set applicable law rules (i.e., habitually resident / manifestly more closely connected / characteristic performance)
Or
- Using draft contracts / contracts previously entered into with the same terms
In determining validity of a contract, at least one of these three points must be satisfied
- If requirements under governing law are satisfied, then contract is valid
- If requirements under law of country that both parties were in at the time of entering into the contract are satisfied, then contract is valid
- If requirements under law of country of habitual residence for both parties are satisfied, then contract is valid
If damage is caused by a product, what is the applicable law?
If all parties have habitual residence in the same country, the law of that country.
If the product was marketed in a country where the injured person was habitually resident when the damage occurred, the law of that country.
If the product was marketed in the country it was acquired, the law of that country.
If the contract is manifestly more closely connected with a country, the law of that country.
What are the time limits for replying to a letter of claim?
Defendant should respond within a reasonable time.
This is no more than 3 months in a complex case.
This is no more than 14 days in a straightforward case.
If a claim is issued in the wrong court, how can this be corrected?
It can be transferred by agreement of the parties (by a consent order).
If the parties do not agree, and application must be made to the court.
How is a court fee calculated if the claim is for
- A sum of money
- Monetary and non-monetary remedies
- Court fee is calculated with reference to the sum of money claimed.
- Fees applicable to both remedies are payable, and if alternative remedies are given, the higher fee is payable.
When is the deemed date of service for a claim form?
Claim forms served within the jurisdiction are deemed served on the second business day after completing the relevant step
In calculating days for deemed date of service, what is not included in the definition of clear days?
Do not include the first day
Last day is not included if the period is concluded by an event
If the period is 5 days or less, do not include weekends or public holidays
In making an application to serve out of the jurisdiction, what must the application set out?
- The grounds on which the application is being made (i.e., one of the gateways)
- That the claimant believes the claim has a reasonable prospect of success.
- The defendant’s address / place where the defendant can be found
What is the deemed date of service for a claim form served out of the jurisdiction?
There is no deemed date of service for a claim form served out of the jurisdiction
The date of service should be specified on the certificate provided by the authority that effected service
What is the deemed date of service for particulars of claim?
Second day after for
- first class post
- document exchange
If on a business day before 4:30, that day for
- personal service
- fax
- electronic methods
- leaving docs are permitted address
What if a defendant does not file an application to contest jurisdiction within the 14-day period after acknowledgement of a claim?
They will be deemed to have accepted that the court has jurisdiction
What is the process that a defendant must follow to dispute the jurisdiction of a claim?
- Defendant files an acknowledgement of service stating their intention to dispute jurisdiction
- Defendant files an application with the court within 14 days acknowledgement. Application includes:
- application notice
- supporting evidence
- draft order setting out what the defendant is seeking - Defendant served the application notice and supporting evidence on the claimant
What happens if an application to challenge jurisdiction unsuccessful?
The acknowledgement of service will cease to have effect
The defendant must file a further acknowledgement within 14 days of the court decision
Court will give directions as to filing/service the defence
If defendant does not file a new acknowledgement, claimant can apply for judgement in default
In what claims can a claimant request judgment in default?
Can file for JID if claim is for:
- a specified sum of money
- an amount of money to be determined by the court
- delivery of goods where the defendant has the alternative of paying the value
When can an application of judgement in default be made without notice?
- Where claim form is served out of the jurisdiction
- Where defendant has failed to acknowledge
- Where notice is not needed under any other CPR rule
Otherwise application must be made on notice
In what circumstances can a party make claims beyond their statement of case?
A party can only make legal or factual claims beyond their statements of case if they get consent from the other parties or the court’s permission to amend their statement
If a defendant accepts that some loss was incurred, but disputes the nature/quantum of the claimant’s calculation, what can they do?
Defendant can provide an alternative calculation
What must be obtained before a party can amend their statement of case?
Written consent of all parties in the proceedings
If the case is within the limitation period, what factors will the court consider when deciding whether to allow amendments to a statement of case?
- the overriding objective
- the fact that it is beneficial for parties to have the entirety of the dispute between them disposed in one case
- any disruptions / prejudice that might be suffered as a result of the amendments
- whether the proposed amendments show some prospect of success
If there is no order/agreement, what is the deadline for filing a defence to counterclaim?
14 days from service of the defence and counterclaim
When making a request for further information, what formalities must the RFI follow?
It must be a written request.
It must specify that it is a request made under CPR pt 18.
It must specify the date by which a response should be served.
Must be concise and confined to matters which are reasonably necessary.
If a recipient of an FRI objects to complying, what can they do?
They must inform the party making the RFI and give reasons
How must a recipient respond to an RFI?
Use the same heading as required
State that it is a response
Repeat the test of each paragraph and respond to each request
Refer to and attached documents as part of the response
When is a CPR of 18 application used?
Used when there is no response/an inadequate response to an RFI
When there is no response / an inadequate response to an RFI, how is this addressed?
The party making the RFI must make a pt 18 application
- setting out the responses that have been provided
And
- setting out the elements of the RFI on which an order is sought
What happens if no response is received from an RFI within 14 days?
If no response received within. 14 days and the time for a response has passed, a pt 18 application does not need to be made and the court can deal with the application without a hearing
How should an interim application be dealt with initially?
By a consent order
When can an interim application be made without notice?
- exceptional urgency
- overriding objective is furthered by doing so
- consent of all parties
- permission of the court
- party has insufficient time to serve a written application
- court order/practice direction permits this
If an interim application is made without notice, what duty does the applicants have?
The duty of full and frank disclosure
What happens if the applicant does not comply with their duty of full and frank disclosure?
The order might be set aside / other sanctions
If an interim application is made without notice, what must the respondent be served with?
Applicant must serve OS with:
- a sealed copy of the order
- application notice
- evidence in support
- statement of the respondent’s right to have the order set aside
If issuing an application for an interim order, what must be filed at court?
Application notice (if without notice, explain why)
Court fee
Evidence (witness statement)
Draft order
For most general interim applications, when must notice be served on the respondent?
At least 3 days before the hearing
For most general interim applications, when must a respondent file their evidence? When must an applicant file further evidence in support?
As soon as possible for both
If an interim order is granted without notice, what can the respondent do?
They can apply to vary or set aside the order within 7 days of being served
What is the test for summary judgement?
Respondent has no reasonable prospect of success
There is no other compelling reason why the claim should proceed to trial
If making a summary judgement application on notice, what are the time frames that must be complied with for filing/serving docs?
Applicant must give 14 days notice of the application to the respondent
Respondent must file evidence within 7 days of the hearing
Applicant must file further evidence within 3 days of the hearing
If a claimant wants to apply for summary judgement before a defendant has had the chance to acknowledge the claim, what must be obtained?
Permission of the court
When should skeleton arguments be filed with the court?
At least 24 hours before an application hearing
When must a statement of costs be filed?
Successful party must have filed and served a signed statement of costs at least 24 hours before hearing
When costs are ordered, when must payment be made?
Within 14 days
What are some potential orders following summary judgment?
Judgement on whole / part of the claim
Strike out / dismissal on all or part of the claim
Dismissal of the summary judgement application
Conditional order (e.g., claim can only continue if money paid into court)
In what circumstances can a court order strike out?
No reasonable grounds for bringing / defending the claim
Abuse of court’s process
Any failures to comply with a rule / direction / court order
When can an application for interim payment be made?
Defendant has admitted liability
Claimant has obtained judgement against the defendant
If the claim went to trial, claimant would likely obtain a substantial just against the defendant
Court must be satisfied that claimant will win at trial
What are the possible outcomes for an interim payment application?
Payment of money into court
Payments of money made to the applicant
A bank guarantee
When calculating a sum payable for interim payment, what is taken into account?
Contributory negligence
Set off
Counterclaims
What are the two different types of injunctions and what is the difference?
Interim prohibitory injunction - stops somebody from doing something
Interim mandatory injunction - makes somebody do something
What is the basis for an injunction?
- There must be a cause of action
- The court must be satisfied that it is just and equitable to grant the injunction
What are some examples of ‘just and equitable’ that can be used to argue for granting an interim injunction?
- harm is serious and likely to continue
- threatened harm would be irreparable
- harm is difficult to assess
- respondent is effectively insolvent, so damages would be of no use
What is the one caveat with an injunction?
It is an equitable remedy, so court has discretion as to whether to grant one
To be successful in an application for an interim mandatory injunction, what must be established?
The applicant must show that:
- they will suffer serious harm if the injunction is not granted
- they are likely to success at trial
- the respondent will not be required to incur disproportionate expense
What are the exceptions to an interim prohibitory injunction?
- restraint of trade - is applicant seeking to enforce a non-competition clause?
- final disposal - would grant/refusal of an injunction finally dispose of the action?
- no defence - if there is no defence, injunction is usually granted
What are some defences to an interim prohibitory injunction?
Delay - undue delay by the applicant
Acquiesce - has applicant consented to the acts?
Applicant has not come to court with clean hands
Equity will not act in vain (no point in an injunction)
Court will be unable to enforce an order (cannot order specific performance in some circumstances)
In applying for an interim injunction under pt 23 (freezing order / security for costs), what documents must be filed at court?
Application notice
Evidence in support (witness statement) setting out
- cause of action
- injunction sought
- why injunction is necessary
- if application is being made without notice and why
A draft order setting out the order sought
If an interim injunction is being made with notice, what document must be served in the other side and when?
Application notice
Evidence
Draft order
Served on respondent at least 3 days before the hearing (possible to issue an application on notice by giving informal notice to the OS)
If an interim injunction is being made without notice, what document must be filed and when?
Application notice
Evidence
Draft order
Filed at the court at least 2 hours before the hearing
What must be shown to be granted a freezing order?
Applicant has strong, arguable case.
Respondent has assets in the jurisdiction, and legally owns these.
Real risk that respondent will dispose of those assets.
In arguing that there is a real risk that respondent will dispose of their assets if a freezing order is not granted, what factors can demonstrate risk?
- defendant has been dishonest
- defendant has defaulted on a debt in the past
- defendant has started to remove/dispose of assets
- defendant is resident in a jurisdiction where it is difficult to enforce English judgements
- defendant lives in an offshore tax haven
How long is a freezing injunction effective for?
Effective for 7 days (until the return date)
What must be argued to be successful for a security for costs order?
The applicant (usually the defendant) must show that the claimant falls within at least one of these categories:
- Claimant is resident out of the jurisdiction / jurisdiction where it is difficult to enforce English judgements
- Claimant has changed their address to evade consequences of litigation
- Claimant has failed to give an address, or has given an incorrect one
- Claimant is a company or LLP and there is reason to believe it cannot pay the defendant’s costs if ordered to do so
- Claimant has taken steps to put assets beyond the court’s reach
- Claimant is acting as a nominal party (e.g., as an assignee) and cannot show it can pay costs
- There is some other reason why it is just to make an order
What are some considerations taken into account when a court decides whether to exercise their discretion for a security for costs order?
- whether defendant’s claim is bona fide (i.e., if claimant obviously has means to pay)
- whether defendant is making the application simply to oppress a genuine claim (slowing down tactic)
- whether there has been any delay by the defendant
- whether it can be argued that the claimant’s insolvency is due to the defendant’s conduct
- the overriding objective
What is the usual amount awarded in a security for costs order? Any alternative option?
Around 75-80% of the estimated costs
Sometimes, court can instead decide to award security up to a sum that represents the estimated total costs that might be incurred by the defendant to enforce the order
What happens if the court decides a security for costs order shouldn’t have been granted / claimant wins at trial?
Money will be returned with interest
What are the main forms of security in a security for costs order?
- payment into court
- payment to the applicant’s solicitor
- bank guarantee
- undertaking to pay
What documents must be filed at court when applying for a security for costs order?
- Application notice
- Evidence in support (witness statement)
- Draft order
- An undertaking by the applicant to lay damages if it turns out the order shouldn’t have been made
If a party has been ordered to provide security for costs but fails to do so, what can be done?
The defendant can apply for a stay if the claim until security has been provided
What does the overriding objective seek to include?
- ensuring parties are on an equal footing and can participate fully
- saving expense
- proportionality in relation to money involved / importance of the case / complexity of the issues / finances
- ensuring the case is dealt with expeditiously and fairly
- allowing an appropriate share of the court’s resources
- enforcing compliance with rules / practice directions / orders
In deciding which track to allocate a claim to, what factors will the court have regard to?
- financial value of the claim
- nature of the remedy sought
- complexity of the case
- number of parties
- amount of oral evidence
- views expressed by the parties
- circumstances of the parties
Who decides which track the case will proceed to?
Parties will state on their claim form which track they think the case should be allocated to, but the court will provisionally decide which track the case will be suitable for once a defence has been filed and will serve notice of this on the parties
Once parties have received notice of the proposed track allocation, what must they file and serve?
Directions questionnaire
Proposed directions
Dates for case management conference
Costs budgets
What does a directions questionnaire set out?
- which court the parties think the case should be allocated to
- list of witnesses
- whether any experts are required
- estimate for the length of trial
- parties provide a list of appropriate directions
- parties confirm compliance with the pre-action protocols
- parties are asked whether they want to settle (offered a 3-month stay of proceedings)
What is the deadline for filing a directions questionnaire?
28 days after receiving notice of proposed allocation (FT, IT, MT)
14 days after receiving notice of proposed allocation (SCT)
What is the purpose of a case management conference?
Identify the issues in dispute between the parties
Make directions to enable the case to proceed to trial
Interim applications are heard here
Cost management
When must a disclosure report be filed, and what does it include?
At least 14 days before the CMC
- describes the documents briefly
- estimates the cost of standard disclosure
- states the type of disclosure the party wants
- is verified by a statement of truth
When must a party agree a proposal in relation to disclosure?
At least 7 days before the CMC
When preparing a costs budget, what must be included? What about costs incurred before the CMC?
- details of costs already incurred
- estimates of fee earners and hours in each stage of the case
- estimated disbursements
** costs incurred before cannot be approved by the court, but court can comment on these
What are the deadlines for filing costs budgets?
Filed with the directions questionnaire where the value of the claim is less than £50,000
In all other cases, must be filed 21 days before the first CCMC
What is the consequence of a party failing to file a full costs budget?
They will be deemed to have filed a budget comprising of applicable court fees only
What happens if parties cannot agree appropriate case management directions?
They must submit their proposals along with their agreed directions at least 7 days before the CMC
What are some consequences as a result of non-compliance with court orders?
- costs management / costs capping order
- debarring a party from adducing evidence / relying on witness statements / relying on expert evidence
- limiting / raising interest payable
- requiring a party to make a payment into court
What is the test for an unless order?
OS has failed to comply with a rule / order
Applicant has complied
It is in the interests of justice that the order be granted
Granting an order would be in line with the overriding objective
How much of an extension can be agreed by parties for compliance with particular rules/directions?
28 days
Which deadlines can parties not vary by agreement?
Date for CMC
Date for return of pre-trial checklist
Date for trial
What if more than a 28-day extension is required?
Parties can agree a draft order and file it for the court’s approval with a covering letter
What is the test for relief from sanctions?
Denton three-stage-test:
- Breach was neither serious nor significant
- There was good reason for the breach
- Breach did not prevent litigation from being conducted efficiently and at proportionate cost
If a party intends to rely on hearsay, what must they do?
Give notice of their intention to the other side
How is notice given for adducing hearsay?
If hearsay is contained in a witness statement, notice is deemed to be given when witness statement are exchanged
If not, the deadline for giving notice is the last date for serving witness statements
What does a hearsay notice set out?
- identifies the hearsay evidence
- states the party’s intention to rely on the hearsay evidence
- gives reasons why the witness will not be called?
What can the recipient of a hearsay notice do?
- request further particulars
- apply to the court for an order to call the witness (within 14 days of receiving the notice)
- call evidence to attack the credibility of the witness (OS must be informed of intention within 14 days)
What factors will the court consider in deciding the weight of hearsay evidence?
- whether it would be reasonable to produce the maker of the statement
- whether original statement was made at the same time as relevant matters
- if there is multiple hearsay
- any motives to conceal/misrepresent
- whether original statement is an edited account
- potential bias of the witness
- vagueness
- performance of the witness when giving evidence
- apparent accuracy
- specific issues that evidence is attempting to address
What is the effect of facts being admitted in a statement of case?
They fall outside of the issues in dispute
Up to how long before trial can a party serve notice requesting their opponent to admit certain facts?
21 days before trial
What is the effect of a witness statement in relation to evidence?
A signed witness statement acts as evidence-in-chief, and is admissible as evidence that would have been given orally
What formalities must a witness statement comply with?
- be in witness’s own words
- state in whose behalf the statement is made
- give initials and surname of witness
- give number of statement in relation to the witness
- give date statement was made
- give date of any translation
- be divided into numbered paragraphs
- explain process by which statement has been prepared
- be verified by statement of truth
When can a witness statement be used for a purpose outside of the current proceedings?
- When witness gives their consent in writing
- When court gives permission
- When statement used in evidence at a public hearing
What does a witness summary include?
- name and address of the witness
- known evidence that would have been in the witness statement
- unknown evidence that the witness would have been questioned
What is the consequence of a false statement in a witness statement that is verified by a statement of truth?
Party can receive:
An unlimited fine
And
Custodial sentence of up to 2 years
What is the consequence of a witness statement/witness summary not being served within the deadlines?
Witness may not be called to give evidence at trial unless court gives permission
If a party would like to call an expert, what information must they provide the court with?
- estimate of the costs of calling the expert
- name of the expert
- expert’s field of expertise
- issues to be addressed
What are some arguments against appointing a single joint expert?
- case is high value / complex
- there is likely to be a range of opinion
- a single expert may not conclusively deal with all matters
- a conference may be required with legal representatives / witnesses / experts
- privilege (instructions or an expert are not privileged)
If a party would like disclosure of the instructions given to the opposing party’s expert, what can they do?
They must make an application stating that they have reasonable grounds for believing that the instructions were inappropriate or that expert has not given a complete account of their material instructions
If an expert would like to ask for the court for specific directions, who must they serve notice of this on and when?
- on their side solicitors (7 days before submitting to the court)
- to all other parties (4 days before submitting to the court)
What is the consequence of a party failing to disclose an expert’s report to the other side?
They will be unable to rely on the report
If a party would like to submit questions to their opponent’s expert, when must they do this?
Within 28 days of service of the report
If an expert has received questions from the opposing party, when must they answer?
There is no set deadline for them to answer, but a reasonable time must be specified
What is the consequence of an expert not responding to the opposing side questions?
The court may order that the report cannot be relied upon / expert fees are not recoverable
What is the purpose of a joint statement between experts?
The purpose is to narrow the issues between the experts and identify any action which may be taken to resolve any points of disagreement
Can discussions between experts when making a joint statement be used in court?
No, discussions are without prejudice
Do agreements reached between experts bind the parties?
Not unless they agree
What does a joint statement between experts set out?
Extent of agreement between them
Points of disagreement and reasons why
Action which may be taken to resolve any points of disagreements
Any material issues not raised
What happens if a party does not want to use an expert’s report at trial?
The other side can still use it
If an expert puts forward an unfavourable report, what can a party do?
Seek to discredit it / persuade the court not to put much weight on it
If a party would like to switch to a second expert, what must they obtain?
Court permission
What is a likely condition that the court will impose before a party is allowed to switch to another expert?
That the first report is disclosed
What is disclosure?
Telling a party about the existence of a relevant document
What must a party disclose?
A list of all documents that are / have been in their possession or control
What does it mean when a document is within a party’s control?
- document that is currently in party’s physical possession
- document that a party has the right to take possession of (held at another location)
- document that a party has a right to inspect or copy (e.g., employee laptop)
What documents must a party disclose under standard disclosure?
Documents on which they rely
Documents which
- adversely affect their own case
- adversely affect another party’s case
- support another party’s case
Documents required to be disclosed under a relevant practice direction
How can standard disclosure be varied?
In writing by the parties (can agree to limit / dispense with)
What factors are considered when undertaking a search for disclosable documents?
- Reasonableness
- Number of documents
- Cost
- Complexity
- Significance of documents
- Proportionality
- Overriding objective
If a party does not want to search for a particular document, what can they do?
They can state in their disclosure statements that they have not searched for it and why
If a disclosure search produces a disproportionate number of documents, what can be done?
A party can re-examine the search criteria - if amendments are made, they must inform the other party asap of why the changes are necessary
What is legal advice privilege?
- Communications between a lawyer and their client
- Sole/dominant purpose is giving / receiving legal advice
- Litigation does not have to be in prospect
What is litigation privilege?
- Communications between a later / client or lawyer / client / third party
- Dominant purpose is to obtain legal advice / evidence / information for use in litigation
- Litigation is in prospect
What is common interest privilege?
- There is common interest between the owner of the privilege and the recipient of the privileged material
- Every recipient has a common interest, so privilege is maintained
- The common interest was present at the time of disclosure
What is without prejudice privilege / without prejudice ‘save as to costs’?
Without privilege = communications as part of a genuine attempt to settle (the fact that communications exist is disclosable, but the substance of the conversations cannot be disclosed).
‘Save as to costs’ = court has no knowledge of communications during trial, but when the court considers what order to make on costs after judgement, the correspondence can be disclosed.
What are the three responses to disclosure exchange?
- I have control of the documents and I do not object to you inspecting them.
- I have control of the documents but I do accept to you inspecting them (and reasons why)
- I have had the documents, but they are no longer in my control
What is the effect of failing to disclose a document / withholding inspection?
A party may not be able to rely on that document later (unless they obtain court permission)
If a party wishes to inspect a document from the other side, what must they do?
Send a written notice to the other side
If a party receives a notice from the other side stating that they wish to inspect a document, when must a party allow inspection?
Recipient of a notice must allow inspection within 7 days of receipt of the notice
When can inspection of a document be withheld?
- document is no longer in the party’s control
- party believe it would be disproportionate to allow inspection
- document is privileged
If there are sensitive documents to be disclosed, what precautions can be taken?
An order can be made:
- restricting taking copies of the documents
- requesting undertakings from recipients not to share documents
- requiring parties to destroy copies when they are no longer needed
Is confidentiality a basis upon which to refuse inspection?
Confidentiality is not a valid basis upon which to withhold inspection
Confidentiality and irrelevance is a valid reason to redact documents
If there is redaction of a document, what can the opponent party argue?
Can challenge the redaction on the basis that the context of the unredacted portion needs to be understood
If a party would like to prohibit parties from accessing their court documents, what can they do?
They can apply to the court to seal the court file
If a privileged document has been provided mistakenly, what is the consequence?
The recipient party cannot make sure use of that document without permission of the court
If it is unclear whether a document has been provided mistakenly, what is the consequence?
The disclosing party may be deemed to have waived privilege
If there is reason to suspect that the document has been provided mistakenly, what should the recipient party do?
They should not read the document, and should notify the disclosing party.
If the disclosing party confirms that the document was produced mistakenly, all copies should be deleted.
When does the duty of disclosure cease to apply?
It does not.
The duty of disclosure continues until the end of the case - any documents should be disclosed immediately
What is a notice to prove?
It is a notice requiring an original document to be provided at trial if a party believes that a document in disclosure has been forged / tampered with
When is specific disclosure used?
When a arty believes disclosure from the opposition was incomplete / inadequate
When does a party have a right to inspection?
If the party has referred to a document within their statement of case / witness statements / expert reports, other party will have a right to inspection
What is a Norwich Pharmacal Order?
Non-party disclosure order
Requires the respondent to provide info and documents, often sought before proceedings are commenced
Usually necessary for the claimant to understand the claim to be bought
What is a witness summons?
An order requiring a witness to attend court to give evidence
Is court permission required for serving a witness summons?
Court permission is required if:
- it is to be issued less than 7 days before trial
- it is requesting attendance at court to give evidence
From when must parties preserve electronic documents first the purpose of disclosure?
From the time litigation is contemplated
What can parties do to reduce the number of documents that they have for manual review? What must they do if they want to utilise this?
They can use disclosure software / technology assisted review
Any technology used must be notified and agreed with the opponent in advance
In which format must electronic documents be disclosed?
In their native format (unless redacted - then can be an image)
If documents are marked ‘without prejudice’, when can they still be disclosed?
If they do not have the purpose of genuinely attempting to settle a dispute
If a party makes an offer and it was ignored, what can be done?
If the opposing party failed to ‘beat’ that offer, the court can take the offer into account when deciding costs
How can a party waive privilege?
Expressly or impliedly by seeking to rely on such material
Sharing the document
Making reference to the document
If one privileged document is waived, what is the effect of this?
This means all related documents are also waived
If a privileged document is provided by mistake, can a party rely on it?
Privilege will be lost if the recipient reasonably thought they were entitled to see the document (but will need court’s permission to use it)
Apart from litigation/legal advice privilege, what specific documents are privileged?
Witness statement drafts
Draft statements of case
Draft communications made before a claim is issued
What information is included in a pre-trial checklist?
Confirmation of compliance with directions
Confirmation of witnesses and experts that will be present at trial
Any changes re the estimated time for trial
Proposed timetable for trial
Estimate of costs incurred and to be incurred
What issues are dealt with at a pre-trial review?
- attendance of any witnesses / experts
- volume / presentation of documentary evidence
- use of electronic bundles
- trial timetable
- any late applications are heard
When should bundles be filed with the court?
At least 3, but no more than 7, days before the trial
What practical information should a witness be told prior to attending a hearing?
- all mobile phones / electronic devices should be switched off
- bow when judge enters / leaves
- do not record or transmit contents of the hearing
- how to navigate trial bundles
- do not use any notes
- listen carefully and answer truthfully
- address all answers to the judge / jury
- use the proper form of address
- do not react to any submissions / evidence
- do not communicate with anyone about the case
What should a witness be told in relation to their witness statement prior to the hearing?
They should be told to read their WS in advance and inform the legal team if they wish to correct or clarify anything
What can a witness summons be used for?
Can require the witness to:
- give evidence at trial
- give evidence at a separate hearing before trial
What steps must be taken to summon a witness?
- Draft a summons (name and address of witnesses)
- File two copies with the court
- Summons are sealed, issued and dated by the court
- Permission required if summons issued less than 7 days before trial
- Court serves the sealed summons
- Party requesting summons must deposit money with the court to travel witness expenses
If a person is served with a summons but does not want to attend, what can they do?
Apply to the issuing court for it to be set aside with at least 2 days notice
If a person served with a witness summons does not comply, what is the consequence?
They will be in contempt of court
If a witness is outside of the UK, can a party compel them to attend by witness summons?
No
A letter of request to the judicial authorities in the foreign country may enable the witness to be examined separately there
What is the general outline of stages of trial?
- Opening statements (claimant then defendant)
- Witnesses of fact (claimant’s witnesses then defendant’s witnesses)
- Expert witnesses (claimant’s then defendant’s)
- Closing submissions (defendant then claimant)
When a witness is asked to give evidence, what practicalities must they follow?
They must sit in the witness box
They will be asked their name
They will be asked to give an oath
During evidence-in-chief, what is a witness asked?
- asked to confirm that their WS is their statement
- asked whether they want to correct/clarify anything in their WS
- asked to explain any corrections/clarifications
Can a witness go beyond their evidence-in-chief?
Witness is allowed to go behind their evidence-in-chief if they have court permission to do so.
Witness can give evidence in relation to matters raised since the witness statement was served during evidence-in-chief
What happens to a witness during cross examination?
Various allegations are put to the witness
Witness is given the opportunity to respond to important allegations
Judges can intervene with their own questions for the witness
What happens during re-examination of a witness?
- Confined to issues from cross examination - cannot bring up new matters addressed in cross-examination
- Used to seek clarification on matters where a witness has given evidence in cross-examination that does not align with their previous evidence
- Witness is taken back to their witness statement
What is involved during judgement?
Judge gives an examination of the relevant facts and evidence
Judge gives an analysis of the relevant legal issues
Judge gives a determination on each issue
Judge comes to a conclusion on each case
What is the effect of a judgement being handed down?
- it stands as a legal determination of all issues
- parties cannot re-litigate the same issues without a successful appeal
- a party cannot bring proceedings in relation to issues that should have been dealt with in the original proceedings
If a party would like to address issues with the judgement, what can they do?
They must provide written submissions by 12 noon on the working day before hand down / consequential hearing
Once judgement is handed down, what should the parties do, and what is the relevant time frame for doing so?
Parties should attempt to agree to a form of order
The agreed order should be filed with court by 12 noon on the working day before the hearing
How does the court determine costs at the end of a case?
- Court hears submissions from both parties
- Judge is shown previous offers of settlement
- Judge considers the overall conduct of the parties
- Judge decides which parties should pay costs
In looking at the circumstances of the case when deciding costs, what does the court look at?
- Conduct of the parties
- complying with PDPAC
- reasonableness of the claim bought
- manner in which a party has pursued their case
- any exaggerations - Whether a party has succeeded on part of their case (even if not wholly)
- Admissible orders to settle
In which applications can only fixed costs be recovered?
- judgement in default
- judgement on an admission
- when defendant pays the sum claimed in full before a defence is due
- actions to enforce a judgement / order
- summary judgement
- strike out
When can a court make an alternative order as to fixed costs?
- party has acted in an inappropriate manner
- fixed costs would not provide proper renumeration
In the small claims track, which costs are recoverable?
- court fee (usually a fixed cost)
- reasonable costs incurred by witnesses (e.g., travel expenses)
- cannot recover solicitor/barrister fees, but may be able to recover a limited amount if represented by a lay representative
- interest (if set out in the claim)
In fast track, which costs can be recovered?
- reasonable solicitor fees
- court fees
- disbursements
- counsel fees
- trial advocacy fees (set amounts depending on complexity)
- interest
Which specific cases in the fast track only allow for fixed costs to be recovered?
- personal injury claims
- road traffic accidents
- employer liability
- public liability
Amounts are specified under the CPR rules
In the intermediate track, which costs can be recovered?
- reasonable, necessary and proportionate disbursements
- counsel fees
- trial advocacy fees (fixed amount)
Explain what is meant by ‘fixed recoverable costs’ in the intermediate track
These are pre-determined costs that are fixed at specific stages of the case.
They are assigned to one of four complexity bands.
In multi track, which costs can be recovered?
- reasonable and proportionate solicitor fees
- reasonable and necessary disbursements
- trial advocacy fees
- costs of interim applications
- costs of case management
- costs of compliance
- interest on costs
On the standard basis, which costs are not allowed?
- costs that were unreasonably incurred
- costs that are unreasonable in amount
- costs that are disproportionate to the matters in issue
In which circumstances are costs proportionate (standard basis)?
Costs are proportionate if they bear a reasonable relationship to:
- the sums in issue
- the value of non-monetary remedies
- complexity
- additional work generated by the party’s conduct
- reputation/public importance
- additional expense due to vulnerable parties
On the standard basis, what happens if there are doubts over whether costs were reasonably and proportionately incurred?
Doubts will be resolved in favour of the paying party
How much can a successful party expect to recover on the standard basis?
Up to 70% of total costs
If costs are assessed on the indemnity basis, how are costs decided?
There is no limit to proportionality
On the indemnity basis, what happens if there are doubts over whether costs were reasonably and proportionately incurred?
Doubts will be resolved in favour of the receiving party
How much can a successful party expect to recover on the indemnity basis?
Up to 80% of their total costs
When will court not allow costs to be recovered in either standard or indemnity basis?
Costs which have been unreasonably incurred or unreasonable in amount
If costs are payable under a contract, what is the presumption?
The costs are presumed to have been reasonably incurred and reasonable in amount - but this is a rebuttable presumption
What are the implications of filing a costs budget when the court decides on costs?
Costs in the approved budgets are deemed to be reasonable
Courts are guided by the budgets but are not bound by them
Approved costs budgets are likely to be the limit in the standard basis
When is summary assessment undertaken and which applications is summary assessment the norm for?
Undertaken at the end of the hearing
Norm for:
- Interim hearings lasting up to 1 day
- Fast track trials
When is detailed assessment undertaken and which applications is detailed assessment the norm for?
Undertaken within 3 months of the final judgement
Norm for:
- applications lasting more than 1 day
- multi track trials
If detailed assessment is ordered, what does the court usually ask for?
Court will usually order an interim payment to the party awarded their costs
When are there no Part 36 costs consequences?
- offer is made less than 21 days before trial
- offer is withdrawn
- offer is amended to make it less advantageous
- offer accepted
What should be looked at when deciding if Part 36 cost consequences apply?
If the outcome at trial was better for the party had they accepted the offer?
If a claimant makes a Part 36 offer + defendant rejects this + offer at trial is better than Part 36 offer, what are the cost consequences?
No cost consequences
Claimant pays the defendant’s costs on the standard basis
If a claimant makes a Part 36 offer + defendant rejects this + claimant wins less than their Part 36 offer, what are the cost consequences?
No cost consequences
Defendant pays the claimant’s costs on the standard basis
If a claimant makes a Part 36 offer + defendant rejects this + offer at trial is less than Part 36 offer, what are the cost consequences?
- Defendant pays claimant’s costs on the indemnity basis
- Defendant pays further costs (10% above base rate of interest), starting with the expiry of the relevant period
- A 10% interest sum is payable on the awarded sum
- An additional amount (up to £75,000) is payable, usually calculated as 10% of the whole sum
If defendant makes a Part 36 offer + claimant rejects this + claimant wins less than the Part 36 offer, what are the cost consequences?
The defendant will pay the claimant’s costs on the standard basis up to the relevant period
The claimant will then pay the defendant’s costs in the standard way + interest from the end of the relevant period onwards
What factors will the court have regard to when determining whether cost consequences apply?
- the stage of proceedings in which the offer was made
- the conduct of the parties
- whether the offer was a genuine attempt to settle
Who is not liable to pay costs?
Pure funders
Can a party pay a Part 36 offer by instalments?
No
What is a calderbank offer?
An offer to settle made ‘without prejudice save as to costs’
What are the advantages of a Calderbank offer?
Offers more flexibility (no Part 36 cost consequences)
Can include an offer ‘inclusive of costs’, giving a specific figure + certainty
When are settlement terms binding?
Once all parties have expressly agreed all the terms.
A court order is needed to bring the proceedings to an end
What is a Tomlin Order? How long can it be enforced?
An order that stays proceedings on terms agreed by the parties
Terms are included in a schedule to the order
Can be enforced without proceedings
subject to a 6-year limitation period
If there is uncertainty surrounding a Part 36 offer, what can the recipient party do (+ timeframes)?
Within 7 days I’d receiving the offer, the recipient can request that it be clarified.
If clarification not received, recipient can apply for an order for the party to do so.
How can a party withdraw a Part 36 offer? Is permission needed?
By serving notice of withdrawal
Permission is not needed if at the end of the relevant period
How can a party withdraw a Part 36 offer before the end of the relevant period?
Make an application to the court
Court must be satisfied that there has been a change in circumstances or that it is in the interests of justice to allow withdrawal
If a party would like to accept a Part 36 offer, how can they do this?
By serving a written notice on the offeror and filing this with the court
When is court permission needed to accept a Part 36 offer?
- When some, but not all, of the defendants accept
- When the trial is still in progress
What does an appeal entail?
A review of the court’s decision - entire case is not reheard
When can new evidence be used in an appeal?
If the court allows it
What factors will the court look at when deciding whether to allow new evidence in an appeal?
- whether it could have been obtained for the original trial
- whether it would have had an important influence on the case
- where it is apparently credible
Which legal points can a party argue in an appeal?
Only point that were raised in the original trial - new points are allowed on an exceptional basis
As well as the court’s decision, what other decision can an appeal be made against?
The court’s case management decisions
** however, the appeal judge would need to be satisfied that the judge’s discretion fell outside the range of reasonable decisions
What are the grounds on which a party can appeal?
- Decision was wrong (in law / wrong exercise of discretion)
- Decision was unjust due to serious procedural impropriety
What are some examples of serious procedural impropriety?
- not giving parties an opportunity to make submissions
- inadequate reasonings for decisions
- judge was involved in previous proceedings
- decision was on a basis that was not pleaded
How can a party appeal?
Party must use an appellate notice with the appeal court
Is there an automatic right of appeal?
No, party must obtain permission by:
- an oral application to the lower court (at hearing when decision is made)
OR
- a paper application to the appeal court
If a respondent wants to appeal / wants to ask the court to uphold the lower court’s decision, what must they do?
File a respondent’s notice within 14 days if receiving the appellate notice / notification for permission to appeal
What are some possible decisions on appeal?
Appeal court can:
- affirm / set aside / vary any order or judgement
- refer any claim for determination by the lower court
- order a new trial / hearing
- make an order for the payment of interest
- make a costs order
When will the CoA five permission for a secondary appeal to a higher court?
If CoA feels that the appeal would:
- have a real prospect of success
- raise an important point of principle or practice
OR
- there is some other compelling reason for the higher court to hear it
What rate does interest accrue at on a money judgement?
8% per annum from the date judgement is given
What is an oral examination by a party, and when is this used in enforcement?
A court order requiring the debtor to attend court and provide information, on oath, about their means
Creditors can attend and ask questions
How can a party find out more about a debtor’s means?
Carry out investigations through information that is publicly available / private investigators
If court grants permission to take control of a debtor’s goods, how long does this order last?
1 year
How is a taking control order enforced?
- Enforcement agents give formal notice of enforcement to the debtor, giving 7 days to pay
- Agents can enter the address stated and must provide an inventory of goods
- Any person claiming ownership of the goods must notify the enforcement agent of their claim in writing within 7 days of taking control
- Enforcement agents must sell goods within 7 days and use the proceeds to discharge the debt + enforcement costs
How is an application made for a third party debt order?
Stage 1: interim order
- creditor applies without notice
- judge deals without a hearing
- judge grants the order
- hearing set for 28 days later where court decides whether to make the order final
Stage 2: final order
copies of the order must be served:
- on third party (21 days before)
- on debtor (7 days before)
Party objecting to the order must file and serve written evidence at least 3 days before
When a charging order is granted, what charge does a creditor have over a debtor’s asset?
Creditor will have an equitable charge.
Creditor will rank as an equitable mortgage, and this gives them the right to apply for an order for sale.
If a party wants to enforce an English judgement out of the jurisdiction, what must be obtained?
Party must apply to the English court for a certificate containing details of the judgement.
This will only be granted when the right to appeal has expired.
How can a party enforce a judgement out of the jurisdiction?
Party can apply to the foreign court to register the judgement
Once the judgement is registered, it will have the same effect as if it were a local judgement
If a party wants to enforce an English judgment in the Scottish/NI court, how can they do this?
Party must make an application to the Scottish/NI court to register the judgement within 6 months of the date of issue of the certificate
If a party wants to enforce an English judgment in a court that is in a contracting Hague convention country, how can they do this?
Contracting states will recognise and enforce a judgement
However, contracting states can refuse
When can a contracting Hague convention state refuse to enforce a judgement?
- agreement was null and void under law of chosen court
- party lacked capacity to the agreement under the law of the chosen country
- original proceedings were not notified to the defendant in time
- judgement obtained by fraud
- judgement is incompatible with their public policy
- judgement is inconsistent with another judgement between the parties
If a party wants to enforce an English judgment in a court that is in a commonwealth country, how can they do this?
Certificates of judgement obtained should be filed in those countries
If a party wants to enforce an English judgment in a court is not a Hague contracting state/not a commonwealth country, how can they do this?
It may be necessary to commence new proceedings to enforce a judgement.
If a party would like to enforce an out-of-jurisdiction judgement in the English court, how can they do this? Which timeframes must they comply with?
By applying without notice to the High Court for registration of the foreign judgement
Application must be made within 1 year to 6 months of the judgement
What must be provided for an application to register an out-of-jurisdiction judgement in an English court?
- an authenticated copy of the judgement
- a translation of the judgement
- a witness statement in support of the judgment
What is a Part 36 offer?
Formal offers to settle an action / part of an action (important tactical tool)
Which mandatory requirements must a Part 36 offer comply with?
- made in writing
- state whether it takes into account any counterclaim
- specify a period of up to 21 days (relevant period) within which the paying party will be automatically liable for the receiving party’s costs if the offer is accepted
- state whether it relates to all or part of the claim (and if so, which part)
- state that it is being made pursuant to CPR Part 36
What is a key feature of a Part 36 offer?
It is made in a ‘without prejudice, save as to costs’ basis - they are not disclosable to any third party.
Does a Part 36 offer mean that the offering party is liable?
No, a Part 36 settlement is not an admission of liability.
If Part 36 offer is
made by a claimant
+
rejected by the defendant
+
claimant loses
what is the cost consequence?
No cost consequences - claimant will need to pay defendant’s costs on standard basis
If Part 36 offer is
made by a claimant
+
rejected by the defendant
+
claimant wins less than their offer
what is the cost consequence?
No cost consequences - defendant will need to pay claimant’s costs on standard basis
If Part 36 offer is
made by a claimant
+
rejected by the defendant
+
claimant wins same/more than their offer
what is the cost consequence?
Defendant pays claimant’s costs
+
Penalties (from the expiry of the relevant period onwards):
- interest on all / part of the sum at up to 10% above base rate
- costs on the indemnity basis
- further costs up to 10% of the amount awarded
If Part 36 offer is
made by a defendant
+
rejected by the claimant
+
claimant loses at trial
what is the cost consequence?
Claimant will need to pay defendant’s costs
If Part 36 offer is
made by a defendant
+
rejected by the claimant
+
claimant wins more than the offer at trial
what is the cost consequence?
No cost consequences - defendant pays claimant’s costs
If Part 36 offer is
made by a defendant
+
rejected by the claimant
+
claimant wins same/less than the offer at trial?
what is the cost consequence?
Defendant pays the claimant’s costs up to the end of the relevant period
Claimant pays the defendant’s costs plus interest from the end of the relevant period up to trial
What are the general % of recoverable fees under a DBA?
50% generally (includes VAT and counsel fees, but no other disbursements),
35% on employment cases (includes VAT, but not counsel fees or their disbursements)
25% on personal injury and clinical negligence claims (includes VAT, but not applicable on damages for further pecuniary losses).
What is the consequence if the DBA cap is exceeded?
If cap is exceeded, DAB becomes unenforceable, and client has no costs liability
