DR (+ ) Flashcards

Question

no response?

Answer 1

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 .

Answer 2

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

Answer 3

14 days of deemed service of the particulars of claim

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

- 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.

Answer 9

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)

Answer 10

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

Answer 11

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.

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

- 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.

Answer 17

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.

Answer 18

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.

Answer 19

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.

Answer 20

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 .

Answer 21

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.

Answer 22

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.

Answer 23

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 .

Answer 24

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

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

* 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.

Answer 29

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

Answer 30

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.

Answer 31

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.

Answer 32

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

Answer 33

Budget + disclosure report + draft directions + budget discussion report

Answer 34

directions + costs management order

Answer 35

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.

Answer 36

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.

Answer 37

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.

Answer 38

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.

Answer 39

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.

Answer 40

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.

Answer 41

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.

Answer 42

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.

Answer 43

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.

Answer 44

- 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.

Answer 45

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.

Answer 46

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

Answer 47

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.

Answer 48

* 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'.

Answer 49

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.

Answer 50

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.

Answer 51

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.

Answer 52

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.

Answer 53

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

Answer 54

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.

Answer 55

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

Answer 56

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.-

Answer 57

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)

Answer 58

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.

Answer 59

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.

Answer 60

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.

Answer 61

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

Answer 62

- 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.

Answer 63

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

Answer 64

no oral evidence at hearing of interim application

Answer 65

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

Answer 66

- 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.

Answer 67

documentary evidence: disclosure witness evidence: expert and witness of act

Answer 68

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.

Answer 69

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.

Answer 70

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.

Answer 71

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.

Answer 72

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.

Answer 73

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.

Answer 74

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.

Answer 75

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.

Answer 76

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 .

Answer 77

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.

Answer 78

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.

Answer 79

- 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.

Answer 80

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

Answer 81

better relationships less expensive privacy/ confidentiality saves time flexibility of outcomes

Answer 82

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?)

Answer 83

- 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

Answer 84

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

Answer 85

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.

Answer 86

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 its discretion 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.

Answer 87

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.

Answer 88

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.

Answer 89

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 / change during 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.

Answer 90

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

Answer 91

Serve written notice of acceptance on the offeror (CPR 36.11(1)) —> If the case is issued the acceptance also needs to be filed at 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.

Answer 92

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.

Answer 93

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.

Answer 94

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.

Answer 95

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)).

Answer 96

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, the claimant abandons the remainder of 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, the claimant does not abandon the remainder of 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)).

Answer 97

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.

Answer 98

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.

Answer 99

, 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.

Answer 100

, 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.

Answer 101

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).

Answer 102

- 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.

Answer 103

enquiry agents company searches registers: investigate what property someone owns and how much it might be worth

Answer 104

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.

Answer 105

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

Answer 106

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

Answer 107

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.

Answer 108

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.

Answer 109

bankruptcy petition in relation to an individual winding up order in relation to a company collective remedies

Answer 110

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.

Answer 111

- 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.

Answer 112

* 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.

Answer 113

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

Answer 114

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

Answer 115

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

Answer 116

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

Answer 117

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

Answer 118

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.

Answer 119

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

Answer 120

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.

Answer 121

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.

Answer 122

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.

Answer 123

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.

Answer 124

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.

Answer 125

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

Answer 126

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

Answer 127

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