DR (+ )

Question 1

CPR

Answer 1

The CPR are the rules that pervade all of litigation. They must be complied with, or sanctions might be imposed.

Question 2

overriding objective

Answer 2

overriding objective of the rules is to deal with cases justly and at proportionate cost

Part of furthering the overriding objective is that the court will actively manage cases .

Question 3

importance of pre-action considerations

Answer 3

Once proceedings have been commenced it is rarely possible to stop them unless a settlement is reached by the parties or one party is prepared to abandon its position and pay the opponent’s costs.

So it is important to make all necessary investigations, inquiries and analysis before commencing proceedings.

Question 4

pre-action considerations

Answer 4

limitation period

case analysis

funding

conduct

Question 5

pre-action considerations: case analysis

Answer 5

Firstly, a party will need to carry out a case analysis to make sure that it has a coherent legal position and the evidence to establish its position. Every fact which is in dispute in the proceedings must be proved. The burden of proving any particular issue of fact or law generally falls on the party who asserts it.

As it is the claimant who is asserting the claim, the claimant must prove duty, breach, causation and loss, and in practical terms the burden of proof therefore falls primarily on the claimant.

The claimant must prove a fact on the balance of probabilities , meaning establishing that it is more likely than not to have happened.

Question 6

pre action considerations: limitation periods

Answer 6

PI: 3
other tort: 6 years

Part of carrying out a case analysis is identifying at an early stage when the limitation period expires. Proceedings must be issued within the limitation period or it is likely that the defendant will have a defence to the claim under the provisions of the Limitation Act.

In a personal injury claim, the claim must be commenced within three years of the latest of the date when the cause of action accrued, or the date of knowledge of the person injured and there are detailed rules about date of knowledge.

In other tort claims, and in contract claims, the limitation period is 6 years after the date on which the cause of action accrued.

Question 7

pre action consideration: funding

Answer 7

legal aid funding

before/after the event insurance

third party funding

conditional fee arrangement

damages-based agreements

private funding

professional funding

Question 8

pre action considerations: conduct

Answer 8

letter of claim

response

disclosure of key documents

negotiations and/or settlement proposals

taking stock before issuing proceedings

Question 9

pre action considerations and conduct overview

Answer 9

• The Civil Procedure Rules underpin all of litigation.
• Their overriding objective is for cases to be dealt with justly and at proportionate cost.
• The court and the parties must help to further this overriding objective.
• Parties must carry out a case analysis at an early stage in a dispute including considering limitation issues
• The burden of proof lies primarily on the claimant.
• Any fact must be established on a ‘more likely than not’ basis.
• Each party should consider how it will fund the litigation.
• Parties should comply with the rules on pre-action conduct before commencing proceedings.

Question 10

which court?

Answer 10

high court

county court
- PI <50k
- non PI <100k

other claims, consider
- value
-complexity
- importance to the public

Question 11

wrong court

Answer 11

the court can transfer the proceedigns to the right court

BUT

there could be a costs sanctions

Question 12

why does it matter when the claim form is issue?

Answer 12

limitation period –> proceedings are issued –> period for serving the claim form: 4 months

The date of issue of the claim form is important. It stops time running for limitation purposes – so the issuing of the claim is what has to happen before the end of the limitation period. And it starts the clock for a new deadline – the deadline in which the claim form must be served.

Question 13

rules governing service

Answer 13

claim form

other documents

Question 14

rules governing service of the claim form (and particulars of claim)

Answer 14

methods of service of claim form
- personally on D
- delivering or leaving the doc at a permitted address
- first class post
- fax
- electronic method (eg email)
- document exchange (DX)

But fax and email can only be used where the defendant has indicated that this is acceptable. In many cases, service by post is a perfectly adequate method of service.

Question 15

deemed service

Answer 15

claim form: second business day after completion of the relevant step in CPR 7.5

other documents
- post/DX: second day after posting if a business day (otherwise, net business day)
- instant method (personal service/email/leaving at address)
– before 4.30pm on business day = same day
– otherwise, next business day

The CPR uses the concept of deemed date of service whereby the rules prescribe the date the court considers a document to have been served, irrespective of the date it was actually received by the recipient. The rules for the claim form differ from the rules for other documents.

The rules state that a claim form is deemed served on the second business day after completion of the relevant step in CPR 7.5. We looked at the relevant steps above – so, for example, the relevant step when serving by post is posting the claim form. So the claim form would be deemed served the second business day after it was posted.

Where a method that should be instant is used, like personal service, fax, email or leaving it at an address, then if this happens before 4.30pm on a business day, it is deemed served immediately. Otherwise, it is deemed on the next business day. So fax it on 4.25pm on a Friday, it is deemed served on that same Friday. Fax it at 5pm on a Friday, or 11pm on a Friday, or midday on a Sunday, then it is deemed served the next business day – ie the following Monday.

Question 16

to issue proceedings

Answer 16

a claim form and court fee must be taken to court

The claimant needs to take the claim form to court to be issued and sealed – one copy for the court and one copy for each claimant and defendant.

Question 17

the necessary step to serve the claim form must be completed before

Answer 17

12.00 midnight on the calendar day 4 months after the date of issue of the claim form (england and wales)

Assuming the proceedings are being served in England and Wales, the time limits provide that the ‘relevant step’ to serve the claim form by the chosen method of service must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form. The relevant step depends on the method of service, but for service by post, the relevant step is posting the claim form. For personal service, the relevant step is leaving the claim form with the individual concerned.

Question 18

the particulars of claim must be

Answer 18

served with the claim form or

within 14 days of the service of the claim form (and also within the four month if england/wales)

Question 19

If the claimant has done all this, it has a sealed claim form in its hand with a claim number. The next step is

Answer 19

to serve this on the defendant.

Question 20

If the claimant is not going to be ready to serve the claim form in that period of time

Answer 20

the claimant will need to apply for an extension of time.

This needs to be done before the deadline is reached, and good reasons must be shown.

If the application is made after the deadline, this will only be permitted for the exceptional reasons stated in the rules.

If the claim form is not served within the deadline and the court does not grant an extension, then new proceedings will need to be commenced.

Question 21

• The necessary step to serve the claim form must be completed before

Answer 21

12.00 midnight on the calendar day four months after the date of issue of the claim form

Question 22

counting time

Answer 22

day on which period begins is not included

day on which the period ends is included unless the period ends on an ‘event’

period of 5 days or less - do not count weekends

court office closed? in time if done on next open day (only applies to acts which need to be done at the court office)
- Finally, if after applying the three rules set out above, the conclusion is that something has to be done on a Sunday or any other day when the court office is closed (including bank Holidays), the act will still be in time if done on the next day that the court office is open. This only applies to acts which need to be done at the court office.

Question 23

response within 14 days after particulars of claim/claim form deemed served (DDS)

Answer 23

4 options

1 – defence

2 – acknowledgement of service
- within 28 days of DDS
- defence due / extension agreed or court
- up to 28 days more (56 total DDS)
- defence

3 – acknowledgement of service: dispute jurisdiction

4 – admitting the claim

The initial response must come within 14 days of deemed service of the claim form / particulars of claim.

If the acknowledgement of service is filed but the defendant wishes to file a defence, the time period for doing so is extended to 28 (rather than 14 ) days after deemed service of the particulars of claim.

if the defendant fails to respond, judgment may be entered against the defendant automatically.

Question 24

response within 14 days after particulars of claim/claim form deemed served (DDS)

Answer 24

4 options

1 – defence

2 – acknowledgement of service
- within 28 days of DDS
- defence due / extension agreed or court
- up to 28 days more (56 total DDS)
- defence

3 – acknowledgement of service: dispute jurisdiction

4 – admitting the claim

The initial response must come within 14 days of deemed service of the claim form / particulars of claim.

If the acknowledgement of service is filed but the defendant wishes to file a defence, the time period for doing so is extended to 28 (rather than 14 ) days after deemed service of the particulars of claim.

if the defendant fails to respond, judgment may be entered against the defendant automatically.

Question 25

no response?

Answer 25

claimant can apply for judgement in default

This is a judgment like any other, and means that the claimant has won, but it is given for the procedural reason that the defendant has failed to respond to the proceedings, not due to any consideration of the merits of the claim.

If the claim is for an unspecified sum, then the judgment will be for a sum to be assessed, and the court will set out a timetable leading to a hearing at which the court will decide the sum to be paid .

Question 26

the Defendant does not need to respond until

Answer 26

it has received the particulars of claim

These could be included with the claim form or served at the same time as it, or they may follow shortly after service of the claim form

Question 27

The defendants response must come within

Answer 27

14 days of deemed service of the particulars of claim

Question 28

Why would a party choose to file an acknowledgement of service?

Answer 28

The most likely reason is that the defendant will then obtain an additional 14 days from deemed service of the particulars of claim to file a defence. So filing an acknowledgement of service has bought the defendant some extra time. The defendant originally needed to file its defence within 14 days of deemed service of the particulars of claim , but after filing an acknowledgement of service , this period is extended to 28 days after the deemed date of service of the particulars of claim.

A second reason is if the defendant wishes to dispute the court’s jurisdiction - either because it contends that the proceedings should have been commenced in a different jurisdiction (such as a different country), or because the defendant contends that the dispute should have been referred to arbitration instead. The acknowledgement of service will then be followed by an application indicating the basis on which the defendant disputes the court’s jurisdiction. There is space on the acknowledgement of service for the defendant to indicate the reason why it is acknowledging service.

Question 29

What if the defendant is still not ready?

Answer 29

In those circumstances, the defendant can seek the claimant’s agreement to an extension of up to a further 28 days for the filing and service of the defence (so a total of 56 days from deemed service of the particulars of claim). If the claimant does not agree to this, or the defendant needs even more time, the defendant will need to apply to court.

Question 30

admiting the claim

Answer 30

Note that it is possible to admit part of a claim. In those circumstances, a defence will need to be filed in relation to the part not admitted.

Finally, there is the option of admitting the claim. If the defendant does not wish to dispute the claim or has no credible defence, they may respond to the particulars of claim by admitting either the whole or part of the claim. Again, this must be done within 14 days of deemed service of the particulars of claim.

Following the admission, if the claim is for a specific amount of money, the court will enter judgment for the amount claimed.

If the claim is for an unspecified amount of money, for example a personal injury claim where the financial compensation for the injuries needs to be determined by the court, then judgment will be entered in relation to liability (ie it is established that the defendant is liable to compensate the claimant), but the amount to be paid will still need to be determined, and there will be a subsequent hearing and judgment in relation to that amount, following directions by the court.

Question 31

options for D after judgment in default (due to lack of response)

Answer 31

It is very important to distinguish between a judgment in default which is wrongly entered, and one which is correctly entered.

Broadly, a judgment in default is wrongly entered if the claimant was never entitled to it. This could be because the proceedings were never properly served (and therefore the time limits for responding did not start to run). It could be because the time limits did start to run but they hadn’t passed at the time judgment in default was entered (presumably the claimant has miscalculated the time limits somewhere). Or it could be because in fact the defendant had responded appropriately to the proceedings by filing a defence. In any of these situations, because the claimant was not entitled to the judgment in default, the court must set it aside.

If the claimant was entitled to judgment in default (ie it was correctly entered), the defendant can still apply to have that judgment in default set aside, but it will need to show it has a real prospect of successfully defending the claim or that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend.

Any delay in making the application will make it less likely to succeed.

Question 32

responding to proceedings summary

Answer 32

• A defendant should respond within 14 days of service of the particulars of claim
• The defendant can respond by filing and serving a defence.
• Alternatively, the defendant can file an acknowledgement of service, which extends the period for filing the defence from 14 to 28 days.
• The parties can agree a further extension of up to a further 28 days (56 in total).
• There are rules in the CPR which govern ‘counting time’, and in particular which clarify the meaning of ‘clear’ days and whether to count weekends
• It is also an option to admit the claim, leading to judgment on the whole claim, or judgment on liability for a sum to be assessed.
• A party who fails to respond to the particulars of claim in time may face a default judgment. They can apply to set this aside, but if properly entered, the defendant will need to show a real prospect of success in defending the claim, or another good reason to set aside the judgment.

Question 33

statements of case

Answer 33

The statements of case are the documents by which both the claimant and the defendant set out their positions. They are therefore prepared , filed and served at an early stage in the proceedings.

What the statements of case do allow is for the parties and court to clearly identify the points of dispute so that the matter can proceed through the evidence stages to trial smoothly. It is important to get the statements of case right, as that is no guarantee that it will be possible to amend them later, and any amendments that are allowed can cause wasted time and costs.

FACTS relied on and the factual allegations made in support of that party’s case

not evidence (this will be considered at a later stage when documents and witness statements are exchanged)

not law (This will be argued by the advocates in their submissions)

Question 34

statemetns of case: claimants vs defendant

Answer 34

claimant
- claim form
- particulars of claim
- (reply)
- (defence to counterclaim)

defendant
- defence
- (counterclaim)

Question 35

claim form content

Answer 35

parties names and addresses

nature of the claim

remedy sought

statement of value and justification for high court (if appropriate)

The claim form is generally a brief document. It sets out the parties’ names and addresses and a great deal of care must be taken to ensure that the names are written out correctly. It sets out a brief statement of the nature of the claim , but only in a few sentences (and this is not to be confused with the particulars of claim which are much more detailed). It sets out the remedy sought (generally a sum of money). And it must include a statement of value. If the claim is for a specified sum, the claim form can state the sum claimed. If it is not for a specified sum , the claimant should indicate that the claimant expects to recover less than £10,000, between £10,000 and £25,000, or more than £25,000 , the significance of these figures being that they represent the boundaries of the different tracks for allocation purposes , which are considered in a different presentation. Alternatively, if absolutely necessary, the claim form can indicate that the claimant cannot say how much it expects to recover. If the claim is being commenced in the High Court, the claim form must indicate that the claimant expects to recover more than the lower limit justifying claims being issued in the High Court (which differs for personal injury and non personal injury claims) or other reason for issuing proceedings in the High Court.

Question 36

particulars of claim

Answer 36

duty breach causation and loss

PI claims: C’s DOB, details of injuries, schedule of past and future expenses and losses

written agreement: attach

oral agreement: details

claim for interest

The particulars of claim set out the facts underpinning the claimant’s claim. They are more detailed than the claim form and in terms of length can be anything from a paragraph or two to many pages. Given that they have to set out the basis of the claimant’s claim, they will normally set out the facts establishing duty, breach, causation and loss, although some claims will be conceived differently. There are also particular rules for particular types of claim. Personal injury claims need to set out the claimant’s date of birth and injuries, and to include a schedule of past and future expenses and losses. Where a claim is based on a contract, the contract should be attached if it is in writing, whereas if the contract was formed orally, the particulars of claim should set out the words spoken, by whom, to whom, when and where they were spoken. Finally, the particulars of claim should include a claim for interest. The detail included in the interest calculation depends on whether the claim is a specified claim (in which case the claim for interest can be more detailed and specific) or an unspecified claim. There are of course various formalities, formatting points and conventions to be followed when particulars of claim are drafted.

Question 37

defence

Answer 37

responding to particulars, paragraph by paragrah

x3 responses

1 – admit

2 – deny: need reasons and different versions of events

3 – require proof (if something which the defendant does not know)

NO RESPONSE = admit

other matters: limitation, mitigation, counterclaim, set-off

If the defendant admits an allegation, the claimant is not required to prove it. Anything which is not disputed or which is uncontroversial should be admitted.

Denials should be used to dispute facts which if they had occurred would have been within the defendant’s knowledge ie things which the defendant knows or reasonably believes did not happen because if they had have happened it would have known about them.

Question 38

statement of truth

contempt of court

Answer 38

All statements of case, claim form, particulars of claim, defence and others, include a statement of truth. This is a particular form of authorisation by the person at the client signing the document (or authorising the solicitor to sign it) that they have an honest belief in the truth of the document. Signing a statement of truth without such an honest belief can lead to sanctions, including a finding of contempt of court and, ultimately, imprisonment.

Question 39

unclear statement of case

Answer 39

apply to strike out

apply for summary judgement

ask for clarification

use the procedure in CPR 18 – request further information
- make a formal request before applying to court
- confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand opponents case

. Also, where a party requests clarification or further information in relation to a statement of case, the response to that request is itself a statement of case and must be verified by a statement of truth , reflecting this formality and importance.

Question 40

statements of case summary

Answer 40

• The purpose of a statement of case is to set out the facts relied on and the factual allegations made in support of that party’s case.
• The most common statements of case are the claim form, particulars of claim and the defence.
• The claim form sets out the parties’ names and addresses, the nature of the claim, the remedy sought, a statement of the value of the claim and a justification for issuing in the High Court (if appropriate).
• The particulars of claim set out the key facts underpinning the claim: normally the facts establishing duty, breach, causation and loss.
• The defence responds to the particulars paragraph by paragraph, admitting, denying (with reasons) or requiring proof of each element.
• A party can serve a Part 18 request or apply to court for further information about a party’s case.

Question 41

interim applications

Answer 41

Interim applications are applications for orders or directions made to the court, usually in the ‘interim’ period between the commencement of proceedings and trial. Some interim remedies can be applied for before the commencement of proceedings.

Examples of interim applications are varied, but include extending the time period for taking a particular step in the proceedings, applying to amend a statement of case, requiring the other party to provide further information, requesting specific disclosure of a document and seeking permission to rely on expert evidence.

Notwithstanding that interim applications can be made at any stage in the proceedings, the overriding objective will normally require an interim application to be made as early as possible.

Question 42

interim applications – with notice procedure

Answer 42

normal procedure for making an interim application

application/evidence/draft order
court gives a date
A serves documents to R 3 days before hearing
(R responds asap)
(A replies asap)
statements of costs 24 hours before hearing

Firstly I issue an application notice at court, and also file evidence in support of that application. I attach a draft order, so the order that I want the court to make ie an order granting an extension of time for the filing and serving of my defence, and possibly also an order that the claimant should pay my costs of the application.

When I issue that application at court, the court will give me a hearing date at which the court will decide that application.

Then I serve those documents on the other party, the claimant. I must do that at least three clear days before the date which the court has set for the hearing.

The claimant may well want to oppose my application, and to file evidence opposing the application. It must do so as soon as possible, filing and serving that evidence.

If I wish to rely on evidence in reply, I must then file and serve that as soon as possible.

At the hearing the court may want to determine that one party should pay the other party’s costs in relation to the application, in which case it will need to know what those costs are , so the parties file and serve statements of costs 24 hours before the hearing as well.

Then there is a hearing at which the court decides whether or not to grant the extension of time for filing and serving the defence, and whether one party should pay the other party’s costs in relation to the application.

Question 43

interim applications – without notice procedure

Answer 43

applicant only but mitigation x2 (disclosure + second hearing with R)

It is possible to make an application without notice, meaning without telling the other party. In this case, the application is prepared and issued at court, but it is not served and the respondent has no opportunity to respond to it or to appear at the hearing. At the hearing, the court hears only from the applicant. Obviously, this is not generally how justice is done , and this procedure can only be used when justified.

Examples of when this procedure might be appropriate are if the application is extremely urgent , or if the object of the application would be defeated by giving notice eg search order.

To mitigate the potential unfairness of this procedure, in the respondent’s absence the applicant must give full and frank disclosure of matters relevant to the hearing even if adverse to the applicant’s position. The application and evidence will be served on the respondent after the hearing. In relation to some kinds of application, if the court grants an order at a without notice hearing, it will also arrange a second hearing to decide whether the order should continue, and the respondent will be able to attend and make representations at that hearing.

Question 44

interim applications – summary judgment

Answer 44

SJ enables the court to dispose of weak cases or issues without the need for a full trial

The claimant can apply for summary judgment ie for the court to determine that the claim has succeeded. The defendant can also apply for summary judgment ie for the dismissal of the claim. And summary judgment can be sought in relation to the whole claim or in relation to specific issues .

Question 45

grounds for summary judgment

Answer 45

the claimant has no real prospect of succeeding on the claim or issue

OR

the defendant has no real prospect of successful defending the claim or issue

AND

there is no other compelling reason why the case or issue should be disposed of at trial – for example that the respondent needs further time to investigate the matter, or there are difficult questions of fact or law, or the claim is highly complex.

The party applying for summary judgment needs to show that the other party has no real prospect of success on the claim or issue to which the application relates. In addition, the party applying for summary judgment needs to show that there is no other compelling reason why the case or issue should be disposed of at trial.

Question 46

interim applications – summary judgment – with notice procedure

Answer 46

summary judgement more time than default rules of interim applications

14 (serve) - 7 (response) - 3 (reply)

So the application notice and supporting documents must be served on the respondent at least 14 days before the hearing, if the respondent wishes to file on evidence in reply this must be filed and served seven days before the hearing, and if the applicant wishes to file and serve further evidence in reply this must be filed and served at least three days before the hearing.

If an application for summary judgment relates to the entire claim and is successful, the claim is at an end. If an application for summary judgment relates to the entire claim and it is unsuccessful, the claim continues as it originally would. If the application for summary judgment relates to particular issues only, then whatever the outcome in relation to those issues, the claim will need to proceed towards trial in relation to the remaining issues at least.

Question 47

security for costs (interim application)

Answer 47

D against C for costs

Security for costs is an application made by a defendant (the applicant) who is concerned that the claimant (the respondent) does not have sufficient funds to meet the defendant’s costs should the claim by successfully defended.

CPR 25.13(1)(a): having regard to all the circumstances of the case, it is just to make an order

AND

CPR 25.13(1)(b): one or more of the conditions set out in CPR 25.13(2) are satisfied

A relatively common condition is that the claimant is a company and there is reason to believe it will be unable to pay the defendants costs if ordered to do so - generally because the claimant is in a poor financial position. An alternative condition is that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it – for example, intentionally moving them into jurisdictions overseas in which it is particularly hard to enforce a judgment of the English and Welsh courts .

Question 48

interim payment (interim application)

Answer 48

C against D (re substance of the claim)

an interim payment is a payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant

Court only in specific circumstances x3:
- D has ADMITTED LIABILITY to pay damages (or some other sum of money) to the claimant OR

• the claimant has OBTAINED JUDGMENT AGAINST THAT DEFENDANT FOR DAMAGES TO BE ASSESSED (or for a sum of money other than costs) to be assessed OR
• if it is SATISFIED that, if the claimant went to trial, the claimant would obtain judgment for a SUBSTANTIAL AMOUNT of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim

Question 49

interim payment (interim application) – with notice procedure

Answer 49

interim payments same timing as summary judgments

Just like summary judgment, this type of application has special timings, and they are in fact the same timings as in an application for summary judgment. So the application notice and supporting documents must be served on the respondent at least 14 days before the hearing, if the respondent wishes to file any evidence in reply this must be filed and served seven days before the hearing, and if the applicant wishes to file and serve further evidence in reply this must be filed and served at least three days before the hearing.

Question 50

Interim injunction

Answer 50

An injunction is only awarded when just, and it is an equitable and discretionary remedy.

By way of guidelines to the exercise of that discretion, an injunction will only be considered if there is a serious question to be tried – a genuine underlying claim.

If damages at trial would be an adequate remedy for the applicant, an interim injunction is unlikely to be awarded.

If damages would not be adequate for the applicant, but the respondent could be adequately compensated with damages if it transpires that an injunction is wrongly granted, then this points in favour of granting an injunction.

If damages would be adequate for neither party, the court will consider the balance of convenience, balancing the potential injustice to each in party in refusing or granting an injunction to make a decision.

Question 51

Interim injunctions - procedure

Answer 51

Interim injunctions are a powerful and disruptive remedy, with particular procedural safeguards.

A court will often decide to grant an interim injunction only if the applicant offers a cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction

• for example, if proceedings are discontinued, or the injunction is discharged before trial, or if it is decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do.

The application for an interim injunction, like any interim application, can be made without notice if this is justified but the court will fix a second hearing in order to hear from the respondent, and to decide whether to keep the injunction in place.

An application can be made before a claim is issued if this in the interest of justice, but the applicant will be required to undertake to issue a claim form immediately.

Question 52

interim applications – summary

Answer 52

• Interim applications are applications made before the dispute reaches trial.
• An application is made by filing an application notice, evidence and usually a draft order at court, and then serving this on a respondent, who may file evidence in reply. The application is then determined, usually at a hearing. In limited circumstances, an application can be made without notice – without giving the other side a chance to respond.
• An application for summary judgment is an application to bring a weak claim or issue to an end without it going to trial.
• An application for security for costs is made by a defendant, and aims to make the claimant put aside a sum of money which will be available to satisfy any future costs order that might later be made in the defendant’s favour.
• An application for an interim payment is made by a claimant, and seeks a payment of a sum of money in relation to the claim in advance of trial.
• An application for an interim injunction seeks an order for the respondent to do or not do something pending trial.

Question 53

stages of litigation

Answer 53

9 stages + interim applications/settlement before trial

pre-action considerations and conduct

claim form and particulars of claim

acknowledgement of service and/or admission / defence / defence and counterclaim

allocation, case and costs management

disclosure

witness statements

expert reports

preparations for trial and trial

enforcement or appeal

Question 54

allocation

Answer 54

3 tracks

small claims track: 10k or less (special rules of PI)

fast track: up to 25k and trial 1 day max + oral expert evidence one per party in two fields max (Note that the limit is on the number of experts that can give evidence orally, not on the number of experts that can give evidence in writing)

multi-track: everything else

Note that these rules help you determine which is the normal track for a particular dispute. The court can allocate a claim to a track which is not the normal track, if the importance or complexity of the claim justifies this.

Question 55

allocation procedure

Answer 55

defence is filed

notice of proposed allocation

directions questionnaire

allocation to track
- small claims track = directions
- fast track = directions
- multi-track = case management conference + directions

And here is how the court makes the decision as to which track a claim should be allocated to . We pick up the story after the filing of a defence. The court will send out a notice of proposed allocation, indicating the track which it proposes to allocate the claim to , based on the value of the claim. The court will ask the parties to send in directions questionnaires. The directions questionnaires indicate which witnesses and experts the parties intend to rely on, how long they think the trial will last, and some preliminary indications about disclosure. These are all things that the court can use to decide which track is appropriate. If the claim has been provisionally allocated to the fast track or multi-track, the parties also file proposed directions. The court will then allocate the claim to either the small claims track, fast track or multi-track. If the court wants to it can organise a hearing to enable it to decide which track to allocate the claim to, presumably because it can’t make this decision on the basis of the directions questionnaires alone, but this is rare.

Question 56

costs and case management procedure (multi track)

Answer 56

not less than 21 days before CMC: budget

not less 14 days before CMC: disclosure report (except where the claim includes a claim for personal injury in which case there is no obligation to do this)

no less/at least 7 days before first CMC: draft directions + budget discussion report

Question 57

cost and case management conference

Answer 57

Budget + disclosure report + draft directions + budget discussion report

Question 58

product of CCMC

Answer 58

directions + costs management order

Question 59

small claims track implications

Answer 59

For example, on the small claims track, a party is rarely allowed to recover anything substantial from the opponent in relation to legal costs, and the usual formal rules of evidence will not apply at trial. This track aims to accommodate litigants who do not have legal representation. On the fast track, for example, there are relatively standard directions that the court will often give, in the hope that this will avoid excessive costs being incurred at the case management stage.

Question 60

mutli track

Answer 60

In such a case, rather than giving directions based solely on what is in the parties’ directions questionnaires, the court may well list a case management conference.

Question 61

A disclosure report indicates

Answer 61

indicates documents that may exist, where and with whom they are located, the scope of electronic documents and the broad range of costs that would be involved in giving standard disclosure.

The parties can also use the disclosure report to indicate that they want a different order for disclosure ie not standard disclosure.

The purpose of this document is clearly to help the court decide what disclosure order to make at the case management conference.

Question 62

draft directions

Answer 62

The other document to be filed at CMC is a set of draft directions so the court knows in advance of the hearing what directions each party is seeking. If the parties can agree all of the draft directions, the court might vacate , meaning cancel, the case management conference and make directions in the form requested by the parties.

Question 63

CMC: budget

Answer 63

The budget includes a statement of costs already incurred but its primary purpose is to set out an estimate of the future costs. So each party is required to look ahead at what will be required for the case management stage, for disclosure, for witness statements, for trial and so on , and to estimate the legal costs that will be incurred in each of those stages.

Question 64

budget discussion reports

Answer 64

The parties discuss budgets. So if I was acting for a defendant, I would receive the claimant’s budget 21 days before the first case management conference, and I would go through that and consider whether what the claimant has estimated it is going to spend is proportionate. If I think it is , I’m going to advise my client to agree the figures in the budget. If I don’t think so, I’m going to discuss that with the representatives for the claimant. And then after that discussion, the discussion is going to be recorded in a discussion report, which will show which bits of the claimant’s budget the defendant has agreed, and which bits the defendant disagrees with.

Exactly the same will happen in relation to the defendant’s budget, my own client’s budget, which would have been served on the claimants 21 days before the first case management conference.

The budget discussion report is filed 7 days before the CMC.

So by the time we get to the case management conference, the court has a budget from each party, and a budget discussion report showing what the other parties think in relation to that budget.

Question 65

a costs management order

Answer 65

the court can make a costs management order and indeed will do so unless it is satisfied that litigation can be conducted justly and proportionately without such an order

A costs management order records two things. Firstly, it records the extent to which budgets are agreed.

If the parties agreed figures there, the court won’t change them it will just record that agreement.

But in relation to elements of the budgets that are not agreed, the court will set the figures.

Now what the court can’t do via this mechanism is control the costs between a party and its own solicitor. So, for example, let’s assume I am a solicitor acting for the defendant, and let’s assume that the court fixes the costs for witness statements for the defendant at £8,000. This does not mean that the only legal costs the defendant can incur with me in relation to witness statements are £8,000. That’s our business . But it does mean that the court has identified in advance that £8,000 pounds is a proportionate sum to be incurred in relation to witness statements, and by implication anything more is not a proportionate sum. And when the court does come to assess costs at the conclusion of the matter, if the claimant is paying the defendant’s costs for example, then the court will not allow the defendant to recover more than the figure in the budget unless satisfied that there is a good reason to do so.

Question 66

court orders can impose sanctions when the party fails to file cost budget

Answer 66

The court rules provide a specific sanction for a party that fails to file a budget when ordered to do so, normally 21 days before the case management conference. The sanction is that the party is automatically treated as having filed a budget comprising of only the applicable court fees. If the court then approves this budget in a costs management order, the starting point in any future assessment is that the party can only recover the applicable court fees. In practical terms this would be utterly disastrous and so the requirement to file a budget on time should not be overlooked.

Question 67

revisit budget

Answer 67

In those circumstances, the defendant should revise its budget, submit it to the claimant for agreement if possible, and then in any event submit it to court for the court to consider the proposed revision. The court may allow revisions based on significant developments in litigation, but will not allow revisions simply to correct inaccuracies in the original budgeting process.

Question 68

case and costs management summary

Answer 68

• Claims are allocated to one of three tracks: this affects the rules that apply to the claim and the way the claim is likely to be managed by the court.
• If a claim is allocated to the multi-track, there is generally a more complex case and costs management procedure than adopted on the other tracks.
• This involves filing a disclosure report 14 days before a CMC, and draft directions 7 days before the CMC.
• On the costs side, a party will need to file a budget 21 days before the first CMC and a disclosure report 7 days before the CMC.
• Where budgets have been filed and served, a court will consider these when deciding what directions to give.
• The court might make a costs management order, which indicates the proportionate costs for each stage of the proceedings, and a court later assessing costs will not award more than the figures in the costs management order unless there is good reason to do so.

Question 69

costs: general rule + exception

Answer 69

unsuccessful party pays the succesful party’s costs

By way of exception to this general rule, in cases concerning personal injury or death, the rules of QOWCS apply. These provide that if the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.

Question 70

when does assessment of costs take place

Answer 70

summary assessment (for court to assess the costs, the parties would have filed statements of costs at least 24 hours before the hearing)
- hearing of an interim application <= 1 day
- fast track cases

detailed assessment: other cases

Question 71

interim costs order

Answer 71

type of interim application

interim costs orders
- cost in any event
- no order as to costs
- costs in the case

There are various types of interim costs order that the court can make. A common one is an order for costs in any event , for example that the defendant should pay the claimant’s cost of the application in any event . This means that regardless of what happens at trial, the defendant is paying the claimant’s costs in relation to that application. So that really is separating the cost of the application out from anything that happens at trial. An order of no order as to costs, means that no party can recover the costs of the interim application from the other party, and again that remains the case regardless of what happens at trial. That’s not such a common order. A slightly different idea is to make an order for costs in the case. If the court makes this interim costs order, it is saying that the costs of this application should be paid by the party that pays the costs following the trial so effectively the costs of the interim application are just lumped in with the costs of the action as a whole and paid by whoever pays those costs. This might be appropriate where the court does not think that either party is successful in relation to the interim application, or an interim hearing is more of a case management or procedural matter than something contentious and therefore it would be inappropriate to order one party to pay the other party’s costs of that interim application immediately.

Question 72

costs summary

Answer 72

• Litigation is usually expensive: a party will likely incur costs in relation to solicitor’s fees, counsel’s fees, court fees, expert’s fees and other costs
• The court has a broad discretion to order one party to pay another party in relation to the costs they incur.
• The general rule is that the unsuccessful party pays the successful party’s costs.
• The court will rarely allow a party to recover all the costs it incurred: it will usually only allow recovery of what is reasonably and proportionately incurred and reasonable and proportionate in amount.
• The court will normally carry out any such quantification process immediately following an interim hearing of one day or less, or following a fast-track trial – this is ‘summary assessment’.
• In other cases, the quantification process follows a separate procedure – ‘detailed assessment’.

Question 73

limits on costs recovery

Answer 73

A party cannot recover more from an opponent than it is liable to pay in relation to litigation – It cannot make a profit out of the costs .

And the court can allow this recovery of costs by one party from the other .The court has a broad discretion to decide whether to order such costs to be paid, how much and when.

Question 74

limits on costs recovery

Answer 74

A party cannot recover more from an opponent than it is liable to pay in relation to litigation – It cannot make a profit out of the costs .

And the court can allow this recovery of costs by one party from the other .The court has a broad discretion to decide whether to order such costs to be paid, how much and when.

Question 75

assessment of costs

Answer 75

The claimant will now tell the court that its costs in relation to that application were £3,000 pounds and ask for that. But the court does not automatically order the defendant to pay £3,000. The court will assess those costs, and the test the court will normally apply is to ask whether the different items that make up the £3000 were proportionately and reasonably incurred and proportionate and reasonable in amount.

If the claimant’s solicitor spent a disproportionate amount of time on the witness evidence in support of the application, that excessive time will not be recoverable. If the claimant incurred travel expenses which were not reasonably incurred, they will not be recoverable. By the time the court has finished with this process, it is typical for the party receiving costs to only receive perhaps 60% of what it sought in the first instance.

Question 76

summary v detailed assessment of costs

Answer 76

Summary assessment is a more rough and ready process. It involves the judge who has just decided that one party should pay the other party’s costs deciding the precise amount then and there

The alternative form of assessment is detailed assessment. The way this works is that a trial judge or a judge deciding an application would order that one party pays the other party’s costs, to be assessed if not agreed. The judge then does not make any attempt to assess the costs. Instead, if the parties cannot agree these between themselves, one party must start a detailed assessment procedure, which begins by serving a bill of costs, a particular form of statement of costs, on the opponent, the opponent replies to that and there may be some negotiation, and that process finally concludes with the costs being determined by a costs officer. Obviously that is a more complicated, costly and long-winded process, so it is appropriate where there are more substantial amounts of costs at stake.

Question 77

disclosure

Answer 77

stating (to another party) that a document exists or has existed

Question 78

inspection

Answer 78

the party to whom a document has been disclosed – looking at a document. where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection.

Question 79

usual paths to a disclosure order

Answer 79

Whatever disclosure obligation is imposed on the parties by a court order, that duty of disclosure continues until proceedings are concluded.

small claims track:
- disclosure order included in directions given on allocation
- usual order: 14 days before hearing, file and serve documents relying on

fast track
- - disclosure order included in directions given on allocation
- usual order: standard disclosure

multi track (directions are often given following a case management conference rather than automatically on allocation)
- disclosure report filed and served not less than 14 days before CMC (not PI claims)
- conversations between the parties not less than 7 days before the CMC
- court makes appropriate disclosure order: there is no usual order

Question 80

standard disclosure

Answer 80

Standard disclosure requires a party to disclose a document which is or was in their control, and which falls within the test in CPR 31.6 (and which (in broad terms) help or hinder either party’s case.)

is it a document? CPR 31.4: a very broad definition and includes all manner of data and electronic documents, as well as videos and photographs.

is/was it in the party’s control? CPR 31.8: Broadly speaking, a document is in a party’s control if they have it in their possession or have a right to possess or inspect or copy it. And the party also has to disclose documents that were in their control but are not anymore, perhaps because they have been sent somewhere else or have been destroyed.

does it fall within CPR 31.6?
- carry out a reasonable search
(what is reasonable depends on the number of documents involved , the costs involved in this search and the nature of the proceedings)
- list the documents
(note that a disclosure list must include a disclosure statement confirming that the party has carried out its disclosure obligations.-

Question 81

inspections

Answer 81

send copies within 7 days

all inspection within 7 days

a party has a right to inspect a disclosed document except where
- no longer in control
- disproportionate
- right / duty to withhold inspection (eg privilege)

Question 82

types of privilege

Answer 82

legal advice privilege

litigation privilege

without prejudice privilege

So if any of these privileges applies, the disclosing party does not need to let the other party inspect the document. And remember that when the disclosing party lists the documents, it will indicate in the list which documents are privileged, and so the receiving party knows the disclosing party will not let it inspect those documents.

Question 83

legal advice privilege

Answer 83

a document which is confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice

Note that this does not need to be legal advice about litigation.

Legal advice privilege could attach to legal advice about buying a house or selling a company where there is no dispute between the parties. Note however that it does need to be a communication between a lawyer, usually a solicitor or barrister, and a client. Legal advice from someone who is not a lawyer (such as a legally skilled accountant) would not attract this privilege.

Question 84

litigation privilege

Answer 84

a document which is a confidential communication which passed between the lawyer and his client or between them a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect

So note that for this privilege to apply, the document does need to be connected with litigation in one of the ways stated. However, the communication could be with a third party , not necessarily between a lawyer and client.

Question 85

without prejudice privilege

Answer 85

a doc whose purpose is a genuine attempt to settle a dispute

Question 86

disclosure/inspection summary

Answer 86

• An important stage in preparing and exchanging evidence before trial is the process of disclosure and inspection.
  In most cases, the court will order a party to disclose the existence of certain documents to the other parties.
• The most common type of disclosure order is for standard disclosure, which requires a party to disclose documents which are or have been in its control and which (in broad terms) help or hinder either party’s case.
• Once the existence of a document has been disclosed, the default position is that the other parties are entitled to look at the document or to receive a copy of it – this is inspection.
• A party can resist permitting inspection of a document if the document is privileged.

Question 87

witness statemetns – trial

Answer 87

serve a witness statement in advance of trial

oral evidence at trial
- evidence in chief: witness statement
- cross examination by other side
- re examination by own side

Question 88

witness statements – interim application

Answer 88

no oral evidence at hearing of interim application

Question 89

expert evidence

Answer 89

need the court’s permission to adduce evidence at trial

expert evidence restricted to that which is ‘reasonably required’ to resolve proceedings

single joint expert or separate experts

report

questions to expert

meeting of experts

oral evidence at trial

OVERRIDING DUTY TO THE COURT

Question 90

Witness and expert evidence

Answer 90

• If a party wishes to rely on a witness at trial, a witness statement needs to be served in accordance with the court’s directions.
• Witnesses should not generally give their opinions on matters – they should stick to the facts.
• Expert evidence is used to assist the court on matters which require expertise, and they can give opinions.
• Permission is needed to adduce expert evidence at trial, and will only be granted if and to the extent reasonably required to resolve the proceedings.
• In the first instance, experts give their evidence by producing a report. A party can ask questions in writing about a report, and in some cases, experts will meet to discuss matters and may be permitted to attend court for cross examination.

Question 91

types of evidence

Answer 91

documentary evidence: disclosure

witness evidence: expert and witness of act

Question 92

expert v witness of fact

Answer 92

However a witness of fact, that gives evidence via a witness statement, is giving evidence about what they have perceived with their own senses.

Expert witnesses, on the other hand, give evidence about matters of opinion which are within their expertise.

The rules that govern expert evidence are different to the rules that govern witnesses of fact.

Question 93

general rule for fact that need to be proved by the evidence of witnesses

Answer 93

The general rule is that any fact that needs to be proved by the evidence of witnesses at trial will be by oral evidence - so the witnesses need to attend trial and give their evidence orally.

Question 94

evidence in chief

Answer 94

What the rules provide is that the claimant should serve a witness statement in advance of the trial, on the date ordered by the court, which indicates what the delivery driver would say in his evidence in chief.

That witness statement then stands as the evidence in chief at trial - no time is wasted making the delivery driver repeat all of this at trial, and the parties have the advantage that they know in advance what the delivery driver’s evidence is.

The cross examination and re examination do still take place. If a party fails to serve a witness statement, the witness cannot be called to give evidence at trial unless the court gives permission.

Question 95

A witness statement must be verified by

Answer 95

A witness statement must be verified by a statement of truth and a witness who makes a false statement in a witness statement without an honest belief in the truth of that statement may face proceedings for contempt of court.

Question 96

witness statements and interim applications

Answer 96

As well as being used in relation to trial, witness statements are also used in relation to interim applications, but in a different way

If, for example, you are asking the court for an extension of time to do something, you are going to want to explain why the extension should be granted, and this is likely to involve putting evidence before the court – for example, evidence that work is taking longer than expected or that someone involved in the process has been ill.

Often that kind of witness evidence will come from the solicitor representing the litigant themselves.

This kind of evidence also goes in a witness statement which is also served in advance of the hearing of the interim application. However, whereas when it comes to trial a witness attends the trial to be cross examined, at the hearing of an interim application the normal rule (which is rarely departed from) is that there is no oral evidence at the hearing. So the witness statement is the only way that the witness gets its evidence before the court in relation to that interim application.

Question 97

witness statements and court discretion

Answer 97

It is important to understand that the court can control the witness evidence to be used in proceedings, for example by limiting the number of witnesses, the length of witness statements or the issues in relation to which witness evidence should be permitted.

Question 98

expert witness

Answer 98

The rules that govern expert evidence are different to the rules that govern witnesses of fact.

The costs of instructing an expert can be quite significant and so the court’s permission is needed to adduce evidence at trial from an expert.

Of course, a party or its solicitors can speak to as many experts as they want, but what the court controls is what evidence can be put forward at trial.

Ideally, a party that wishes to use expert evidence will seek permission to rely on expert evidence in draft directions or at a case management conference, so there will be a direction including permission for expert evidence in the directions given at the case management stage.

If not, an interim application will need to be made for permission to adduce expert evidence.

Question 99

When the court is deciding whether or not to give permission for a party to adduce expert evidence

Answer 99

the court will restrict expert evidence to that which is reasonably required to resolve proceedings – if no expert evidence is reasonably required to resolve proceedings, permission will not be granted for any expert evidence.

Question 100

When the court is deciding whether or not to give permission for a party to adduce expert evidence – If permission is going to be granted

Answer 100

If permission is going to be granted, there are two options.

Each party can be given permission to instruct a separate expert and the result of this is obviously that the court ends up with two expert opinions.

The alternative is that the parties effectively share one expert, a single joint expert, and they work together to instruct that expert, and in due course the court receives just one opinion.

The advantage of a single joint expert is that it is a less costly option, and you do not have to deal with the difficulty of two conflicting opinions, but instructing separate experts has the advantage that the court benefits from a range of opinions. The latter is more likely in higher value or more complex disputes .

Question 101

role of experts

Answer 101

An expert will be provided with copies of important documents such as the statements of case, documentary evidence and witness evidence (as disclosure and exchange of statements of witnesses of fact will already have taken place).

The expert will then produce a report which will be sent to the parties .

If the parties are instructing separate experts, these reports will be exchanged.

That report or those reports then become evidence to be used at trial. In many cases this is all that is required to put the expert opinion before the court.

In some cases, however, there will be further steps. So for example a party receiving an expert’s report may ask questions in writing to clarify bits of the report that are not clear . In addition, if the parties instructed separate experts, there may be a meeting of experts . At that meeting, the experts will discuss their differences and produce a summary of matters that they have managed to agree and matters which they have not managed to agree, with reasons. Finally, the court can give permission for an expert to give oral evidence at trial, which then allows the expert to be cross examined. Just like the court has broad powers to control the way in which evidence from witnesses of fact is given, the court can control whether and when meetings and / or oral expert evidence is required.

Question 102

an expert’s overriding duty is to

Answer 102

the court

not to the party or parties that instructed them.

An expert should be giving an unbiased opinion and never assuming the role of an advocate for a particular side.

Question 103

witness and expert evidence summary

Answer 103

• If a party wishes to rely on a witness at trial, a witness statement needs to be served in accordance with the court’s directions.
• Witnesses should not generally give their opinions on matters – they should stick to the facts.
• Expert evidence is used to assist the court on matters which require expertise, and they can give opinions.
• Permission is needed to adduce expert evidence at trial, and will only be granted if and to the extent reasonably required to resolve the proceedings.
• In the first instance, experts give their evidence by producing a report. A party can ask questions in writing about a report, and in some cases, experts will meet to discuss matters and may be permitted to attend court for cross examination.

Question 104

types of ADR

Answer 104

negotiation: communication process aimed at reaching agreement

mediation: impartial mediator aimed at reaching agreement

early neutral evaluation/expert appraisal/ expert evaluation: give an opinion to both parties, often expert/technical

arbitration: alternative to litigation, governed by rules and statute

expert determination: based in contract, experts determine the dispute / particular issues

conciliation: facilitative, varied meanings

Question 105

why use ADR

Answer 105

better relationships

less expensive

privacy/ confidentiality

saves time

flexibility of outcomes

Question 106

recording a settlement agreement

Answer 106

where proceedings have not been issued: settlement agreement ie contract

where proceedings have been issued
- consent order (plus settlement agreement?)
- tomlin order (plus settlement agreement?)

Question 107

part 36 summary

Answer 107

• Part 36 offers can be made by any party.
• If accepted in the relevant period, the defendant will pay the claimant’s costs.
• If accepted after the relevant period, the usual rule is that offeree pays offeror’s costs after the expiry of the relevant period.
• A part 36 offer can be withdrawn after the expiry of the relevant period, unless it has been accepted.
• If a claimant does better at trial than its own offer, it will normally receive extra costs, interest and a lump sum.
• If a claimant fails to do better at trial than a defendant’s offer, it will normally be required to pay some of the defendant’s costs, and interest on those costs

Question 108

Part 36 offers
who and when

Answer 108

Part 36 offers can be made by either party and they can be made at any stage of the proceedings.

Question 109

part 36 basic concept

Answer 109

Part 36 offers can be made at any stage of proceedings, including before proceedings are issued.

A Part 36 offer can be made by either party.

Question 110

Part 36 offers contrasted with Calderbank offers

Answer 110

Part 36 is quite specific that nothing within Part 36 prevents a party from making an offer in whatever way it chooses, including by making a Calderbank offer:

Key word: ‘Calderbank offer’:An offer, usually communicated in writing, and written ‘without prejudice save as to costs’, such that it cannot be referred to the judge until costs are considered after trial, but at point can be relied upon. Such an offer does not need to comply with Part 36.

Although the specific consequences of Part 36 do not apply the court will have regard to a Calderbank offer when it exercises itsdiscretion on costs(pursuant to CPR Part 44).

However, if a party wants to avail itself of the specific cost consequences and protection afforded by Part 36 it must make the offer in compliance with the rules set out in Part 36.

Question 111

How to make a valid Part 36 offer

Answer 111

Within the rules the party making the offer is defined as the ‘offeror’ and the party receiving the offer is the ‘offeree’.

The rules (CPR 36.5) state that the Part 36 offer must:

1 – Be in writing;

2– Make clear it is made pursuant to Part 36;

3– Specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted (called the ‘relevant period’);

4 – State whether it relates to the whole or part of the claim; and

5 – State whether it takes into account any counterclaim.

These rules apply to both claimants’ and defendants’ offers. There are two further rules that apply to defendants’ offers only (CPR 36.6):
a – With limited exceptions, a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.

b – A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Question 112

When is a Part 36 offer made?

Answer 112

When it is served on the offeree (CPR 36.7(2)).

The rules of service (CPR 6) apply. A party need not wait until proceedings are issued to make a Part 36 offer as they can be made before proceedings have been commenced. This means that pre-issue Part 36 offers have the usual Part 36 consequences (including recoverable pre-action costs) upon acceptance after issue of proceedings or upon judgment being given. Where a Part 36 offer is both made and accepted before proceedings are commenced, the Part 36 consequences of acceptance (CPR 36.13 and 36.14) considered in this element have no effect since the consequences are dependent upon there being extant proceedings. The consequences of a Part 36 offer later in this element assume proceedings have been issued.

Question 113

Withdrawal of a Part 36 offer

Answer 113

If the offer has already been accepted… it cannot be withdrawn, or its terms changed (CPR 36.9(1)).

If the trial has already started…the court’s permission is required to withdraw the offer.

Otherwise, has the relevant period expired?
If yes: The offer can be withdrawn or its terms changed without the court’s permission. The offer can also be withdrawn automatically if its terms state so. This allows the offeror to make an offer that is time limited (CPR 36.9(4)).

If no: Any notice of withdrawal / changeduring the relevant period(CPR 36.10) will take effect at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period. If they do serve notice of acceptance during the relevant period (despite the notice of withdrawal / change) then the offeror can either allow the acceptance or apply to the court for permission to withdraw the offer or to change its terms. This must be done within 7 days of the notice of acceptance or if earlier before the first day of the trial. The court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

Question 114

Consequences of a part 36 offer

Answer 114

If a part 36 offer has been made and it is not withdrawn, two things can happen:

It is accepted – you then need to know the consequences of the acceptance;

It is not accepted – you then need to know whether the court will impose a ‘penalty’ after trial because the offeree did not accept the offer, and if so, what that penalty will / might be

Question 115

How to accept a Part 36 offer

Answer 115

Servewritten notice of acceptance on the offeror (CPR 36.11(1)) —> If the case is issued the acceptance also needs to befiledat court.

There is no prescribed form for this — a letter will be sufficient.

Important:An offer remains open for acceptance unless it has been withdrawn (CPR 36.11(2)). This remains the case even after the relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.

Question 116

Consequence of accepting a Part 36 offer.

Answer 116

Stay —The claim will be stayed and will not continue to trial – CPR 36.14(1)).

Settlement sum —For any Part 36 offer which is, or includes, an offer to pay / accept a single sum of money, the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing (36.14(6)), failing which the claimant can enter judgment against the defendant (CPR 36.14(7)).

If the Part 36 offer does not include an offer to pay / accept a single sum of money, then in the event that a party fails to comply with whatever was agreed, the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings (CPR 36.14(8)).

Costs —The cost consequences of acceptance depend on when the offer was accepted, as shown on the next pages.

Question 117

part 36 – Cost consequences of acceptance in the relevant period

Answer 117

If accepted before the expiry of the relevant period, the claimant is entitled to its costs of the proceedings up to the date the notice of acceptance was served on the offeror (CPR 36.13(1)).

The rationale for this cost consequence of accepting an offer is that the claimant will receive a sum of money in settlement and has therefore ‘won’ its claim and so should be entitled to its costs of the proceedings. This is the case regardless of which party made the offer to settle.

Question 118

Cost consequences of acceptance outside the relevant period

Answer 118

If accepted after expiry of the relevant period, then (see CPR 36.13(4)):

a) The court will determine liability for costs unless the parties agree them; BUT

b) The court must, unless it considers it unjust to do so, order that—
- the claimant be awarded costs up to the date the relevant period expired; and
- the offeree to pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

The rationale is that the claimant has ‘won’ its claim in the sense that the defendant is making a payment to the claimant, and so the claimant should have its costs up to the end of the relevant period. However, from the end of the relevant period up to when the offer was accepted, the offeree (which could be the claimant or the defendant) should pay the costs as a punishment for not accepting within the relevant period when it had the chance.

Question 119

Cost consequences: special rules where the offer was made less than 21 days before trial

Answer 119

Different rules apply where an offeree accepts an offer but the offer was made less than 21 days before trial. In this situation, if the parties do not agree liability for costs the court must determine liability (36.13(4)).

Question 120

Accepting a Part 36 offer which relates to part of a claim

Answer 120

It is possible to make a Part 36 offer which relates to part of a claim only (CPR 36.5(1)(d)). Special rules apply if such an offer is accepted.

If, at the time of acceptance, theclaimant abandons the remainderof the claim… the claimant will only be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders otherwise (CPR 36.13(2)).

If, at the time of acceptance, theclaimant does not abandon the remainderof the claim… the liability for costs will be determined by the court, unless the parties can reach an agreement about the liability (CPR 36.13(4)).

Question 121

part 36 intro

Answer 121

Part 36 offers must be marked as such, be in writing, state whether they apply to the whole / part of claim / any counterclaim and state a period of at least 21 days when the defendant will be liable for the claimant’s costs if accepted.

A Part 36 offer cannot be withdrawn after it is accepted, and there are limits on withdrawing it within the relevant period.
After the end of the relevant period, a Part 36 can be withdrawn.

If a Part 36 offer is accepted, the claim is stayed and the settlement sum must usually be paid within 14 days.

If the Part 36 offer was accepted within the relevant period, the claimant is entitled to its costs up to the date notice of acceptance was served on the offeror.

If the Part 36 offer was accepted after the relevant period, then the court will determine costs (unless the parties agree) but unless unjust the court must award the claimant its costs up to the expiry of the relevant period and the offeror its costs from that point onwards.

Question 122

Consequences of unaccepted Part 36 offers at trial – summary

Answer 122

Claimants’ offers and defendants’ offers have different consequences.

You first need to consider whether an unaccepted offer triggers any consequences — this depends on comparing the sum awarded at trial to the sum contained in the offer.

If the claimant fails to beat a defendant’s offer, the penalty is the claimant being ordered to pay the defendant’s costs from the date the relevant period expired, and interest on those costs.

If the claimant does the same or better than its own offer, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum.

All these consequences are ‘unless the court considers it unjust’ to impose them.

All these consequences need to be seen in the context of the ‘normal’ costs rules in CPR 44 which will apply where Part 36 is silent or where there are no Part 36 consequences at all.

Question 123

If the claimant fails to beat a defendant’s offer

Answer 123

, the penalty is the claimant being ordered to pay the defendant’s costs from the date the relevant period expired, and interest on those costs.

Question 124

If the claimant does the same or better than its own offer

Answer 124

, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum.

Question 125

Open claimant’s and defendant’s offers effective at the same time

Answer 125

What if both the claimant and the defendant have made Part 36 offers, neither of which have been accepted when the matter goes to trial? You just need to consider each offer in turn.

Consider the examples already provided where the defendant’s offer was £2mil and the claimant’s offer was £3.5mil.

If the judge awards, say, £4mil then as the claimant has won the same or more than their offer (of £3.5mil) the claimant’s offer takes effect and Part 36 will apply (CPR 36.17(4)). The defendant’s offer has no effect as the claimant has won more than the defendant’s offer (of £2mil).

If the judge awards, say, £3mil, then neither offer has any effect. The claimant’s offer (of £3.5mil) has no effect as the claimant has not won the same or more than their own offer. The defendant’s offer (of £2mil) has no effect because the claimant has not won the same or less than the defendant’s offer. Costs are likely to be awarded in this situation under the normal principles (CPR 44.2).

If the judge awards, say, £1mil, then as the claimant has won the same or less than the defendant’s offer (of £2mil), the defendant’s offer takes effect and Part 36 will apply (CPR 36.17(3)). The claimant’s offer has no effect as the claimant has not won the same or more than their own offer (of £3.5mil).

Question 126

part 36 – summary

Answer 126

• Part 36 offers can be made by any party.
• If accepted in the relevant period, the defendant will pay the claimant’s costs.
• If accepted after the relevant period, the usual rule is that offeree pays offeror’s costs after the expiry of the relevant period.
• A part 36 offer can be withdrawn after the expiry of the relevant period, unless it has been accepted.
• If a claimant does better at trial than its own offer, it will normally receive extra costs, interest and a lump sum.
• If a claimant fails to do better at trial than a defendant’s offer, it will normally be required to pay some of the defendant’s costs, and interest on those costs.

Question 127

investigating an opponent’s means

Answer 127

enquiry agents

company searches

registers: investigate what property someone owns and how much it might be worth

Question 128

order to obtain information from a judgement debtor

Answer 128

only after judgment

debtor/officer attends court

standard list of questions, can be added to, and must produce documents

If they don’t attend court, they may be held to be in contempt of court.

Question 129

taking control of goods

Answer 129

enforcement officer seizes goods

sells them

uses proceeds to satisfy debts

cannot seize goods if someone other than the judgement debtor owns/has an interest in them

basic domestic items/tools of trade are exempt

Question 130

attachment of earnings orders

Answer 130

the court order the judgement debtor’s employer to make the appropriate the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor

Question 131

charging orders

Answer 131

a form of charge taken over land (or other specified assets) which secures a judgment debt

does not, itself, produce any money

stays in place until property sold, at which point debt paid from proceed

can apply for an order for sale

This is an attractive option where someone’s only substantial asset is their house.

A charging order can be obtained notwithstanding that someone else has an interest in the property, for example the debtor’s partner, but only the debtor’s share is effectively charged.

Question 132

third party debt orders

Answer 132

third party must pay to the judgment creditor some or all of a debt owing to the judgement debtor by the third party

use to obtain money in a bank account

So if someone owes the judgment debtor money, they are ordered to pay it to the judgment creditor instead.

Note that if the judgment debtor has money in a bank account, this is a debt owed by the bank to the judgment debtor, and the appropriate enforcement mechanism is a third party debtor requiring the bank to pay this to the creditor instead. You do not used a taking control of goods order to seize this money.

Question 133

insolvency proceedings

Answer 133

bankruptcy petition in relation to an individual

winding up order in relation to a company

collective remedies

Question 134

stay of execution

Answer 134

limited grounds only

Finally, note that the court does have the power to stay, so to pause, the enforcement of a judgment / order – this is called a stay of execution. However, there are only limited circumstances in which the court will do this – the exception, rather than the rule.

Question 135

enforcement – summary

Answer 135

• Each party should consider the opponent’s financial means at the earliest opportunity – not wait until it has an order that it wants to enforce
• Such information can come from enquiry agents, publicly available registers and other sources.
• After a judgment has been obtained, a judgment debtor can be required to attend court to answer questions and provide documents about their finances
• Enforcement methods include:
• Seizing goods
• Ordering the debtor’s employer to pay money to the creditor
• Putting a charge on the debtor’s real property
• Ordering a third party to pay a debt owed to the debtor to the creditor instead
• Ultimately, a judgment creditor may pursue a bankruptcy petition / winding up petition if a debtor does not pay a judgment debt.

Question 136

appeals – summary

Answer 136

• A party needs permission to bring an appeal. This can be sought from the lower court orally and from the appellate court using an appellant’s notice.
• Permission will only be granted where the appeal has a real prospect of success or there is some other compelling reason why the appeal should be heard.
• An appellant’s notice sets out the basis of the appeal, and also contains the request for permission if needed.
• An appeal can be brought on the grounds that the decision of the lower court was wrong or unjust.
• The appellate court does not carry out an entirely fresh rehearing, and will not hear new evidence: it reviews the lower court’s decision.
• Appeals go up the judicial hierarchy: County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.

Question 137

Appeals go up the judicial hierarchy

Answer 137

County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.

Question 138

when will permission be granted for appeals?

Answer 138

there is no automatic right of appeal and the general rule is that permission will be required to proceed

x2

1 – apply for permission from the LOWER COURT at the time when the decision to be appealed is made – done ORALLY (parties are already before a judge)

OR

2 – make the application to the APPEAL court later – done in WRITING. within 21 days of the date of the lower court’s decision

Question 139

when will permission be granted for appeals?

Answer 139

there is no automatic right of appeal and the general rule is that permission will be required to proceed

x2

1 – apply for permission from the LOWER COURT at the time when the decision to be appealed is made – done ORALLY (parties are already before a judge)

OR

2 – make the application to the APPEAL court later – done in WRITING. within 21 days of the date of the lower court’s decision

Question 140

appeal – procedure

Answer 140

permission granted by lower court?

yes: file appelant’s notice within period specified by the court, indicating permission already granted = appeal proceeds towards a determination

no
- file appelant’s notice within 21 days of decision, including requesting permission
- permission usually considered on paper
- if refused on paper in CC/HC, usually a right to a hearing re permission (if still no permission, appeal cannot proceed)
- if permission granted = appeal proceeds towards a determination

Question 141

grounds for appeal

Answer 141

x2: Either that the original decision was wrong, or that it was unjust.

wrong
- error of fact
- error of law
- error in the exercise of discretion

unjust
- procedural
- other irregularity

BUT no new evidence or live witnesess

Question 142

routes of appeal

Answer 142

see diagram in notes

one appeals to the next stage up in the judiciary, and the stages are County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, and Supreme Court.

A second appeal is always to the Court of Appeal, unless the Court of Appeal made the decision being appealed, in which case it is to the Supreme Court- the Court of Appeal can’t hear an appeal against its own decision.

Question 143

appeal – permission

Answer 143

permission will only be granted where the court considers:
- that the appeal would have a real prospect of success; or
- that there is some other compelling reason why the appeal should be heard

This is the test for first appeals. For second appeals, so an appeal of an appeal, the test is more limiting

Question 144

Disputing or submitting to the court’s jurisdiction

Answer 144

A party can argue that the court does not have jurisdiction at all, or that the court should decline to exercise its jurisdiction.

To argue this, the party will need to attack the basis on which the claimant asserts that the court does have jurisdiction and/or argue that the courts of England and Wales are not the proper forum for the claim.
Procedurally, a party wishing to do this should file an acknowledgement of service indicating an intention to dispute jurisdiction, and then make the necessary application to court within 14 days after filing that acknowledgement.

Submitting to the court’s jurisdiction is the opposite of disputing it. If a party submits to the court’s jurisdiction, it cannot later argue that the court does not have jurisdiction.

To avoid submitting to the court’s jurisdiction, a defendant served with proceedings must not take any steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction, as set out earlier in this element. The party must not, for example, file a defence.

Question 145

Summary in relation to conflict of laws: contract

Answer 145

Rome I applies to contracts entered into on or after 17 December 2009.

Parties are free to choose which country’s laws apply to their dispute.

In the absence of choice, there are specific provisions in Article 4 which stipulate which country’s laws apply to various types of contract, including:
Sale of goods — law of country where seller habitually resides

Provision of services — law of country where service provider habitually resides

If the contract is not one of the types of contract listed in Article 4, the applicable law is that of the country where the “characteristic performer” (usually the party getting paid) has its habitual residence.

Conclusions reached via these routes (not by the ‘choice’ provisions) can be displaced if the contract is ‘manifestly more closely connected’ with another country.

Question 146

Summary in relation to conflict of laws: tort

Answer 146

Rome II applies to events giving rise to damage which occur on or after 10 January 2009.

After the tortious event, parties are free to choose which country’s laws apply to their dispute.

Before the tortious event, parties are free to choose which country’s laws apply to their dispute only if both pursuing a commercial activity and the choice is freely negotiated.

In the absence of choice, if both parties habitually reside in the same country, that country’s laws apply.
Otherwise, the law of the country in which damage occurs applies.

Conclusions reached via these routes (not by the ‘choice’ provisions) can be displaced if the tort is ‘manifestly more closely connected’ with another country.

Question 147

jurisdiction within the uk

Answer 147

Questions of jurisdiction and conflict of laws can arise as between parts of the UK – so between England/Wales, Scotland and Northern Ireland.

The question of which country’s laws apply is decided just the same way as for any other jurisdiction (explained in other elements).

In relation to jurisdiction:
Generally, disputes about land must be heard in the part of the UK where the land is.

If the parties have agreed which part of the UK has jurisdiction, that agreement will be upheld.

If a party submits to the jurisdiction of a particular part of the UK, it will have jurisdiction.

If none of the above apply, very generally a defendant must be sued in either a) the part of the UK where they are domiciled, or b) the part of the UK where the goods were to be delivered / services provided / harmful tortious event occurred.

Question 148

Part 20 claims

Answer 148

CPR 20 contains detailed provisions in relation to the different types of counterclaim and additional claims that can be made after a claim (the ‘main claim’) has started.

Part 20 claims often include a party (other than the claimant) claiming a contribution or indemnity from another existing party in the main claim or from a new party.

New parties that become involved in additional claims in this way will be referred to as ‘Third Party’, ‘Fourth Party’ and so on.

The indemnity or contribution is to cover amounts that the party claiming it is ultimately ordered to pay to the claimant in the main claim.
An indemnity equates to a 100% contribution.

In some circumstances permission will be needed from the court to make a Part 20 claim. All the relevant documents will be served on all parties.

Parties who are on the receiving end of a Part 20 claim must respond to it or they risk default judgment in some types of claim or being deemed to have admitted the claim and being bound by the judgment in the main claim so far as it is relevant to the Part 20 claim.

Question 149

Hearsay

Answer 149

All evidence that is relevant to the facts is generally admissible.

There are some special rules governing some types of evidence, including hearsay.

Hearsay is an oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.

As hearsay is second-hand evidence and therefore more likely to be unreliable, there is a notice requirement to provide a warning to the court and to the other party of its use and the ability to challenge its credibility.

A party who receives a hearsay notice can request particulars of the hearsay, call for cross-examination of the witness, challenge the weight of the hearsay or attack the credibility of the evidence.

There are special notice rules for the use of plans, photographs and models being used as evidence.

There are special rules relating to convictions as evidence in civil proceedings

Question 150

qualified one-way costs shifting

Answer 150

PI only
very advantageous

if C successful and court makes cost order in their favour, D will pay C’s costs on basis ordered

if D successful, not able to recover their costs from C

D can recover only if x3
- claim is on balance of probabilities fundamentally dishonest
- claim struck out for no reasonable grounds or C has unfairly/unreasonably used
- C failed to beat D’s part 36 offer

Question 151

refusal of ADR

Answer 151

factors x6 (nature, merits, attempts, costs, delay, success)

duty to CONSIDER

refusal may be justifiable (but simply preferring litigation is not good enough)

adverse costs order

Halsey v Milton Keynes General NHS

factors:
- nature of the dispute
-merits of the case
- extent to which other settlement methods have been attempted
- whether costs of ADR would be disproportionately high
- whether any delay in setting up and attending ADR would have been prejudicial
- whether ADR had a reasonable prospect of success