Disputes - Medium Likelihood Flashcards
What is the test for strike out? And when is it appropriate?
Used where claims do not amount to a legally recognisable claim or defence.
The Court MAY strike out a statement of case where:
- The Statement of Case discloses no reasonable ground for bringing or defending the claim:
(i) Particulars of claim which are incoherent, disclose facts which do not amount to a legal claim or do not set out the basis of the claim.
(ii) Defence which is a bare denial or sets out facts which would not be a legal defence if true.
- Statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings (e.g. vexatious litigant)
- Failure to comply with a rule, practice direction or court order.
What is the test/process for requesting further information?
Initial approach voluntary basis - CPR 18:
(i) Serve written request on the other party stating a reasonable response date
(ii) Should be restricted to matters which are reasonably necessary and proportionate to allow the requesting party to prepare its care/understand the opponent’s case
If initial request fails, apply to the court:
- making an interim application. If the party does not respond within 14 days, application can be made without notice and no hearing will be required.
What is the process at track allocation hearing? Different tracks, allocation principles and structure
Four tracks - small claims, fast track, intermediate track and multi track
Allocation - notice of proposed allocation, parties complete a directions questionnaire
Allocation principles:
(i) complexity
(ii) Claim value (disregard amounts not in dispute, interest, costs, contributory negligence)
(iii) remedy
(iv) number of parties
(v) value of any counterclaim
(vi) amount of oral evidence
(vii) importance of the claim
Structure - CPR 26.7
- Set out the facts of the case
- identify normal track (based on value)
(i) Small track - £0-£10,000
(ii) Fact track - £10,001-£25,000 (and only last one day and expert limited to one expert per party with max 2 fields (so four total) with permission of the court.
(iii) Intermediate - £25,000-£100,000 (last max three days, likely limited to two experts per claim)
(iv) Multi: £100,000 plus
- Decide whether there is good reason to depart for whatever reason
- Conclude
What is the test for an application for pre-action disclosure?
CPR 31.16
Court may order pre-action disclosure, but this does not mean that it must:
- The respondent is likely to be a party to subsequent proceedings
AND
- The applicant is also likely to be a party to subsequent proceedings
AND
- If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents which the applicant seeks
AND
- Pre-action disclosure is desirable in order to:
(i) Dispose fairly of anticipated proceedings
(ii) assist dispute to be resolved
(iii) Save costs
What is the test for standard disclosure?
CPR 31
- Is it a document?
- Is it within the party’s control/was it?
- Does it fit the test for standard disclosure?
(i) documents on which they rely
(ii) documents which adversely affect their own case/another party’s case
(iii) documents which support another party’s case
What is the test for specific disclosure?
31A PD 5.4
Grounds to order a disclosure/search/disclose any documents:
- the opponent has not complied with existing disclosure obligations (inadequate/breach)
- Applicant wants documents earlier than current directions provide for
- Applicant wants something more
Court will have regard to:
(i) Circumstances of the case
(ii) overriding objective
(iii) will make an order as is necessary to ensure obligations are property complied with
What is the test for third party disclosure?
CPR 31.17
- Documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings (test for standard disclosure)
AND
- Disclosure is necessary in order to dispose fairly of the claim or to save costs.
Court must consider the overriding objective and costs involved with disclosure
What is needed for an application to serve outside of jurisdiction?
CPR 6.37
To get Court’s permission:
- Claimant needs to meet one of the jurisdictional gateways: 6B PD 3.1:
(i) Claim is made for a remedy against a person domiciled in England and Wales;
(ii) Claim is made in respect of a contract where the contract:
(a) was made in England and Wales; or
(b) Governed by law of England and Wales; or
(c) contains a term to the effect the court shall have jurisdiction to determine any claim in respect of the contract
(iii) Claim is made in respect of a breach of contract which was committed in England and Wales
(iv) Claim is made in tort where:
(a) damage was sustained within jurisdiction; or
(b) Damage which has been sustained results from an act committed or likely to be committed within the jurisdiction
AND
- The claim must have a reasonable prospect of success (same standard as summary judgment = more than merely fanciful, imaginary or false, arguable but not necessarily probable)
AND
- England and Wales must be the proper place in which to bring the claim - means this is the natural place to bring the claim:
(i) witnesses in England and Wales
(ii) D is normally resident in England and Wales
(iii) Risk of foreign government interference or unfair trial abroad
What is the rule in relation to governing laws and contract?
Rome I
- Parties choice
- Articles 4(1)a-h
(i) Sale of goods = seller’s habitual residence
(ii) Provision of services = service provider’s habitual residence
(iii) contract relating to land = where the land is
(iv) distribution contract = distributor’s habitual residence
- Characteristic performer’s residence
- Manifestly more closely related
What is the test for the governing law in relation to tort claims?
- have parties validly chosen which law should apply?
- Both habitually live in the same country
- Where the damage occurred
- Manifestly more closely connected
What is the test for governing law where there is a conflict within the UK?
- Exclusive jurisdiction - eg land is always determined in relation to where it is
- Jurisdiction clauses/agreement clauses
- Submission to jurisdiction
if none of the above apply, general rule is that the person domiciled in a part of the UK should be sued in the courts of that part
What are costs in any event?
The party in whose favour this order is made is awarded its costs of the interim hearing form the other party regardless of who eventually wins at trial
What are costs in the case?
The party who gets costs at trial will recover its costs of the interim hearing from the other party ie usually the party that wins will recover costs
What is no order as to costs?
Each party will bear its own costs of the hearing.
What are costs reserved?
The decision about who pays the costs of interim hearing is put off to a later occasion. If no decision is later made then the cost will be in the case.
What is claimant or defendant’s costs in the case?
Claimants costs: if claimant is successful and receives an order that it should be entitled to its costs at the end of the trial, it can include the costs of the interim application. If defendant is awarded costs, claimant does not have to pay defendant’s costs of the interim application.
Defendant’s costs is the same but in reverse.
What is costs thrown away?
If judgement or order is set aside, the party in whose favour this costs order is made is entitled to the costs incurred as a result of the judgement or order being set aside. Rationale is that the judgment or order should never have been made so the party at fault should be punished by having to pay the costs of it being made and set aside.
What is costs of and caused by?
Party must pay the costs resulting from something that party has done e.g. costs incurred by the defendant resulting from a claimant amending its particulars of claim.
What is costs here and below?
The party in whose favour the costs order is made is entitled not only to that party’s cost in respect of the proceedings in which the court makes the order but also those of the lower court (appeal cases)
