DR Flashcards
When would a solicitor advise against ADR?
1) it is obviously inappropriate - e.g. because an injunction is required
2) the other party is unlikely to cooperate in the process
3) the other party cannot be trusted to comply with an award
*essentially, when it appears that it will inevitably fail - but note that parties will need to be able to justify their stance not to engage in ADR or risk penalities being imposed
What are the advantages of mediation?
*cost and speed - although clients should not be given the impression that mediation comes at “bargain basement” prices as parties will need to pay the third party for their services, in comparison to litigation and arbitration, it will cost less and the process is quicker [possible to undertake on short notice, subject to availability of mediator and parties]
*parties can choose the procedure to follow as there are no legal requirements or need to comply with precedent, statute, case law - v flexible process + ability to withdraw
*privacy
*preserves business relationships due to the non-confrontational characteristic of mediation
*mediator may be able to assist the parties to arrive at realistic and workable terms of settlement (commercial reality), including arrangements that a court could not order
[the fact that negotiations have failed does not mean mediation will not succeed]
What are the disadvantages of mediation?
*mediation will not be appropriate where client needs a ruling on a point of law or an injunction is required
*allegations of fraud or other commercially disreputable conduct generally unsuited
*there are no formal procedures for disclose of documents and evidence, therefore there may be a risk of an unjust decision with parties arriving at a resolution without knowing all the facts
*if client requires public vindication, privacy is a disadvantage as they will lose the opportunity to demonstrate they were not at fault
*a party who decides to walk away will be pleased they can do so, whereas the other party is likely to be unhappy without a resolution
*agreement is not automatically binding and a client would not be able to enforce it [would need to be formalised to be enforceable in court]
When can parties submit to an arbitration?
1) when parties are contractually bound to use arbitration - e.g. clause in contract
2) parties may agree to arbitration once a dispute has arisen and may choose their own arbitrator with the relevant expertise
What are the advantages of arbitration?
*likely to be quicker than going to court and cheaper
*less formal procedures
*decision is made by an impartial third party with expertise in the matter
*arbitration takes place in private - therefore retaining confidentiality, which is particularly important when parties wish to preserve business relationship/ensure customers or competitors are unaware of dispute/outcome
*solutions reached are often more practical than those a court has power to order
*decision will be binding on both parties - once a decision has been reached, the winning party to an arbitration can apply to the High Court for permission to enforce the arbitration award as if it were a court judgment under s.66 Arbitration Act 1996
What are the disadvantages of arbitration?
*dispute may not receive the depth of investigation it would receive in courts
*certain remedies, such as injunctions, are not available
*decision is binding with v limited rights of appeal
What are the advantages of litigation?
*breaks deadlock between parties
*binding decision which can be enforced
What are the disadvantages of litigation?
*normally the most expensive process of dispute resolution
*usually the slowest method of dispute resolution, save when dealing with cases in the fast track
*inflexible process managed by the court as to the steps the parties must take and the timetable for doing so
*enforcement is often more complicated and expensive than arbitration awards
How will a court assess a party’s refusal to take part in ADR?
consider whether the refusal was unreasonable, taking into account
1) the nature of dispute
2) merits of case
3) extent to which other settlement methods have been attempted
4) whether the costs of ADR would be disproprotioantely high
5) whether any delay in setting up and attending ADR would have been prejudicial
6) whether the ADR had a reasonable prospect of success
burden of proof on party to show that refusal is unreasonable - court has stressed that silence in the face of an invitation to participate in ADR would generally be regarded as unreasonable (however, this is not automatic - e.g. if ADR had no reasonable prospect of success and would only add to costs)
What are the tracks in which the court will allocate a claim to?
small claims track: up to £10,000
fast track: £10,001 to £25,000
intermediate track: £25,001 to £100,000
multi-track: over £100,000
What happens when a party brings a claim after the limitation period has expired?
defendant will have a technical defence to the claim + burden on claimant to prove that time has not expired
[claimant is not prevented per se from issuing a claim form + serving the proceedings on the defendant]
What is the limitation period for breach of contract?
6 years from the date of breach (e.g. delivery of goods that are not of satisfactory quality) but important to check whether a different limitation period is specified in the contract as this would override (and is usually shorter than the statutory limitation period)
What is the limitation period for tort claims? + special rules on personal injury
6 years from when tort is committed - e.g. when loss is sustained (NOT e.g. breach of duty in negligence)
*exception personal injury: 3 years from when damage occurs (i.e. cause of action accrues), or the date of knowledge (i.e. the first date when the claimant knew, or might reasonably be expected to have known, certain facts, including seriousness of injury, cause, identity of defendant), or 18th birthday [depending which date is the latest] - no long-stop provision!
What are the special time limit rules for negligence claims (not involving personal injuries)?
limitation period will be:
a) 6 years from the date on which the cause of action accrued, or
b) 3 years from the earliest date which the claimant had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action (material facts about the damage in respect of which damages are claimed, that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence, identity of the defendant)
c) an action shall not be brought after 15 years from the date of the negligent act/omission (e.g. breach) - long-stop!
Should you sue a defendant who is on the verge of bankruptcy or liquidation?
no, as this would be a pointless exercise with enforcement of any judgment virtually impossible - if client has any concerns about the prospective defendant’s ability to pay, further enquiries should be made
What are the objectives of the Practice Direction on Pre-Action Conduct and Protocol?
1) initiate and increase pre-action contact between the parties
2) encourage better and earlier exchange of information so parties are in a position where they may be able to settle cases fairly and early without litigation
3) enable proceedings to run to the court’s timetable and efficiently if litigation does become necessary
What is the extent of information expected by the courts to be exchanged between parties pre-action?
sufficient information to:
1) understand each other’s position
2) make decisions about how to proceed
3) try to settle the issues without proceedings
4) consider a form of ADR to assist with settlement
5) support the efficient management of those proceedings
6) reduce the costs of resolving the dispute
*parties are not to use the Practice Direction or any of the protocols as a tactical device to secure an unfair advantage over another party or to generate unnecessary costs - where costs incurred are disproportionate, they will not be recoverable as part of the costs of the proceedings
What happens if someone knowingly makes a false statement in a pre-action protocol letter?
they may be subject to proceedings for contempt of court
What should the claimant include in their letter of claim?
1) the basis on which the claim is made
2) summary of facts
3) what the claimant wants from the defendant, and if money, how the amount is calculated
How long does the defendant have to respond to the claimant’s letter of claim? What should be included in the response?
Practice Direction states that the defendant should respond within a “reasonable time” - 14 days in straightforward cases and no more than three months in a very complex one
note that letter could set a time limit within which the defendant should respond, and in any event, it is sensible for a defendant to comply with the time limit stated in the letter and thereby minimise the risk that the claimant could issue proceedings without further recourse (assuming that the time limit is reasonable)
reply should state:
1) if the claim is accepted
2) if the claim is not accepted, the reasons why and an explanation of which parts are disputed
3) whether the defendant is making a counterclaim (with details of the counterclaim if being made)
What else must the parties do when sending the letter of claim or response?
disclose key documents which are relevant to the issues in the dispute
How should a party decide what steps to take to ensure compliance with the Practice Direction and its objective to ensure efficiency?
only reasonable and proportionate steps should be taken by the parties to identify, narrow, and resolve the legal, factual and/or expert issues
What should parties do if the dispute is not resolved after they have followed the Practice Direction?
review their respective positions to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimants issue proceedings
What will happen if a dispute proceeds to litigation and it is uncovered that a party did not comply with the Practice Direction?
*the court will take into account non-compliance with a relevant pre-action protocol or the Practice Direction when giving directions for the management of proceedings
court may order
*parties are relieved of the obligation to comply or further comply with the pre-action protocol or Practice Direction
*the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or Practice Direction
*impose sanctions, including
1) an order that the defaulting party pay the costs, or part of the costs of the other party
2) an order that the defaulting party pay those costs on an indemnity basis
3) depriving a defaulting claimant (who has been awarded a sum of money) of interest on award (or part of them) or award interest at a lower rate
4) an order for a defaulting defendant (where the claimant has been awarded a sum of money) to pay enhanced interest on the sum awarded (not exceeding 10% above the base rate)
What are some of the specific requirements in the Pre-Action Protocol for Debt Claims? Who does this Protocol apply to?
1) potential claimant must give full information on the debt owed, including an up-to-date statement of account with details of interests and charges and how the debt can be paid
2) standard reply form, information sheet and financial statement forms that are annexed to the protocol can be included to encourage settlement
3) debtors are given 30 days to respond + creditor should allow for extra time if necessary for the debt to seek legal or debt advice or in order to pay
*protocol applies to any business that brings a claim against a debtor who is either an individual or a sole trader
What are some of the specific requirements in the Pre-Action Protocol for Professional Negligence?
1) party to notify the professional in writing of any intended claim (preliminary notice) - should contain information about the claimant, a brief outline of the claimant’s grievance, and if possible, a general indication of the financial value of the potential claim
*professional should be instructed to inform their insurers immediately and acknowledge the preliminary notice in writing within 21 days of receipt
2) claimant should send letter of claim (as with other claims)
*professional must acknowledge in writing within 21 days of receipt and thereafter, they have 3 months to investigate and respond
3) letter of response from defendant setting out whether the professional admits the allegations and if not why, with accompanying documents (or a letter of settlement if professional intends to make proposals for settlement of all or part of the claim)
*if letter of response denies and there is no letter of settlement, it is open for the claimant to start proceedings
How can we discern what the choice of law is for a particular dispute?
all contracts should have a ‘governing law clause’ clearly stating what law will govern the contract in order to avoid uncertainty should a dispute arise - this is usually open to parties to nominate (exception: UCTA 1977) + this clause would prevent contentious litigation even before the proceedings have properly commenced as establishing applicable law would need to be decided as a preliminary matter
under Rome Regulation:
*contract for goods - usually governed by the law of the country where the seller has habitual residence
*contract for services - usually governed by the law of the country where the service provider has its habitual residence
How can a party ensure that proceedings can only commenced in a specific jurisdiction?
rely on Hague Convetion 2005 (UK, EU countries, Mexico, Singapore, Montenegro): which requires the court designated in an exclusive jurisdiction clause of a contract to hear the case and for any proceedings in another contracting state to be dismissed
How can jurisdiction be established under common law?
1) by serving the defendant within the jurisdiction (England and Wales) - the mere presence of the defendant indicates their acceptance of the nation’s jurisdiction; however, the defendant could object on the ground that the English courts are not the most appropriate for resolving the dispute
2) if proceedings are issued and a defendant cannot be served with documents in the jurisdiction, permission of the court must be obtained to serve them outside + this may be granted when contract made/breached in England and Wales, is governed by English law; in a tort claim, where the act causing the damage was committed in England and Wales, or the loss was sustained here [where there is a jurisdiction clause in the contract, no need permission]
*claim has a reasonable prospect of success
*good arguable case that one of the jurisdictional gateways apply
*English court is the proper forum
How does the Practice Direction/pre-action protocols and limitation periods interact?
they do not alter the statutory time limits for starting court proccedings - if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in the Practice Direction or relevant pre-action protocol, parties should apply to the court for a stay of the proceedings while they do comply
When may proceedings be started in the High Court?
if value exceeds £100,000 (or for personal injury claims, value exceeds £50,000)
What should be considered when determining whether to start claims in County Court or High Court?
value; complexity of facts, legal issues, remedy or procedure; whether the outcome is important to the public in general
What types of cases does the King’s Bench Division deal with?
primarily actions in contract and tort
What types of cases does the Chancery Division of the High Court deal with?
disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law
What are the specialist courts of the High Court?
*Technology and Construction Court: for complex national and international claims concerning buildings, engineering and surveying
*Commercial Court
When do proceedings commence?
when the claimant/their solicitor send a claim form (Form N1) and other relevant documents (e.g. particulars, copy of contract in contractual claims) to the appropriate court to be issued
How should parties be named on the claim form? (individuals, sole traders with business names, partnerships, companies)
parties’ name and status must be described accurately with full address and postcode - failure could result in proceedings being struck out
*full unabbreviated name and title + if defendant died before proceedings commenced: the personal representative of [name] deceased
*sole traders: if a business name is used, include it - e.g. Antony Tucker T/A (trading as) Marble Designs
*partnership: should be sued in the name of the firm rather than by naming individual parties and include (a firm) at the end
*companies: correct registered name and address and this should be checked by carrying out a company search (e.g. look for small details, such as whether ‘Limited’ or ‘Ltd’ is used)
What should be written under the sub-heading of “Brief Details of Claim” on page 1 of Form N1?
concise statement of the nature of the claim and remedy sought (e.g. there was a contract dated X, defendant was in breach by Y; claimant seeks damages estimated at Z)
What information should be included under the sub-heading of “Statement of Value” on page 1 of Form N1? (specified v unspecified claims)
*for specified claims, precise figure should be calculated, including interest that has accrued (only if they have an entitlement, e.g. under a contract)
*for unspecified claims: “I expect to recover”
(a) in County Court: state whether they expect to recover not more than £10,000, more than £10,000 but not more than £25,000, more than £25,000, or that they cannot say how much they expect to recover
- in cases for personal injuries in County Court, claimant must also state whether the amount expected to recover as damages for pain, suffering and loss of amenity is more than £1,000 [if claim is for not more than £5,000]
(b) in High Court, write “claimant expects to recover more than £100,000/£50,000” to confirm proceedings have been started in the correct court
- when calculating, possible awards of interest/costs, contributory negligence, and counterclaims should be ignored
When can you put the defendant’s solicitors’ details on Form N1?
when either the defendant or their legal representative have confirmed in writing that the latter have been instructed to accept service of the court proceedings on client’s behalf
*the fact that solicitor acts for a defendant does not mean they have an implied authority to accept service
*written notification does not need to be a standalone document - but advisable, as there could be potential for dispute as to whether there had, in fact, been any notification, and in the event of such a dispute, it will be for the claimant to establish that notification was given (assessed objectively)
where written notification is received, service of claim form MUST be effected on the solicitor (unless limited company - in which case, can be to their registered address instead)
What should be written in the “Financial Summary” box of Form N1?
*amount claimed (for specified claims, including interest + for unspecified, a genuine estimate)
*court fee payable (calculated based on statement of value + max: £10,000)
*legal representative’s costs - fixed for specified money claims + for other claims, insert “to be assessed”
Where must a claimant declare its vulnerabilities or those of a witness?
on page 2 of the claim form - state whether they are vulnerable and if so how + information must be provided on the support/adjustments they wish the court/judge to consider
What vulnerabilities should be taken into consideration?
[include but not limited to]
*age, immaturity, lack of understanding
*communication and language difficulties (literacy)
*physical disability or impairment, or health condition
*mental health condition or significant impairment of any aspect of individual’s intelligence or social functioning, including learning difficulties
*impact on individual of the subject matter of case - i.e. trauma
*relationship with party or witness (consider possibility of sexual assault, domestic abuse)
*social, domestic, or cultural circumstances
What does the court aim to so with regards to the participation of vulnerable parties or witnesses? + What are some possible special measures to be taken in pursuit of its aim?
identify vulnerabilities at the earliest possible stage of proceedings and ensure, so far as practicable, parties are on an equal footing and can participate fully in proceedings + give their best evidence
example special measures:
*preventing a party/witness from seeing another by using screens
*allowing a party/witness to give evidence remotely by video conference
*hearing a party/witness’s evidence in private
*dispensing with the wearing of wigs and gowns
*admitting pre-recorded video evidence
*questioning a party/witness through an intermediary
Who can sign the statement of truth?
*any of the partners or a person having the control or management of the business may sign for a partnership
*a person holding a senior position - e.g. director, secretary, chief executive or treasurer, may sign on behalf of a company
- when signing on behalf: must add “I am duly authorised by the [party] to sign this statement
legal representative may sign + this will be taken as their statement that:
(a) the client has authorised them to do so
(b) they have explained to the client that in signing the statement of truth, the solicitor is confirming the client’s belief that the facts stated in the document are true
(c) client was warned of the possible consequences if it should subsequently transpire that the client did not have an honest belief in the truth of those facts (and could be prosecuted for contempt of court)
*legal representative must sign in their own name, but also state the capacity in which they sign, adding the name of their firm where appropriate
What happens if the statement of truth is not signed?
court may strike out the document and claimant will be precluded from relying upon document’s content
Who serves the claim form after it has been issued?
general rule is that court will serve claim form unless claimant notifies the court that they will serve it (doing the latter will buy more time)
When must the claim form be served on the other parties?
by midnight on the calendar day 4 months after date of issue of claim form (step required to be completed)
What are the methods of service?
(1) personal service: physically handing the claim form to the defendant (if partnership, left with a partner or someone who has the control/management of the partnership)
(2) first class post or document exchange
(3) fax or other means of electronic communication (e.g. email)
(4) other methods authorised by the court - e.g. sending a text message, leaving a voicemail
When can you serve a claim form by fax/DX/email?
when party to be served has expressly confirmed that they are willing to accept service in their manner
*fax/DX with solicitor: fax/DX number on their letterhead is sufficient [NOT when its party’s headed paper]
What factors does the court take into account when considering methods of service not specified in Part 6 CPR?
(a) reasons why an application for an alternative method was sought
(b) what alternative method or place is proposed
(c) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed
Where should the claim form be served to if defendant has not given an address for service/did not authorise solicitors to accept service?
*individual: usual or last known residence
*sole trader: usual or last known residence, or principal or last known place of business
*individual being sued in the name of a partnership: usual or last known residence of individual, or principal or last known place of business of the partnership
*LLP: principal office of the partnership, or any place of business of the partnership within the jurisdiction that has a real connection with the claim
*company: principal office of the company, or any place of business of the company within the jurisdiction that has a real connection with the claim
What is the ‘step required’ for each method of service?
(1) personal service: effected
(2) first class post/DX: posting letter or leaving with DX provider
(3) fax/electornic method: sending the email or other electronic transmission
What is the concept of deemed service?
when the document is taken to have arrived (for calculating time limits in relation to steps following service)
When is a claim form deemed to have been served?
the 2nd business day after completion of the relevant step
What are the rules for deemed service for other documents other than claim form?
for first class post/DX: second day after it was posted, provided that day is a business day (if not, the next business day) - the first day after does NOT need to be a business day
for all other methods:
(a) if served before 4:30pm on a business day, that day
(b) if not, the next business day
When does the particulars of claim need to be served? (i.e. defendant received it)
within 14 days after the deemed service of the claim form, but no later than 4 months after the date of issue of claim form (long-stop)
When must the permission of the court be sought to serve a claim form out of the jurisdiction? + What must accompany the claim form in such circumstances?
outside states other than Scotland & Northern Ireland and no English jurisdiction clause + must be accompanied by a notice setting out the grounds on which the claimant is entitled to serve it outside the jurisdiction with evidence that England and Wales is the proper forum (e.g. breach occurred in England/Wales, excessive costs/delays of the case being heard in a foreign court)
Who can apply to have a party added, substituted or removed?
an existing party or a person who wants to become a party to the proceedings - but no-one may be added or substituted as a claimant unless their consent in writing has been filed at court
When is permission required for adding, substituting or removing a party?
after claim form has been served
Under what grounds can a party be added, substituted or removed?
if application is made within limitation period: when it is desirable to [for substitute, when existing party’s interest or liability has passed to them]
if application is made outside limitation period: only addition and substitution if the limitation period was current when proceedings were started and:
(a) original party was named by mistake
(b) original party has died/is subject to a bankruptcy order and their interest or liability has passed to the new party, or
(c) claim cannot properly be carried on without the new party
What are the 4 things a defendant can do in response to a claim?
(1) file a defence
(2) file an acknowledgment of service
(3) admission
(4) ignore claim entirely, allowing the claimant to apply for judgment in default
How can a defendant admit a specified claim and what can the claimant do in response?
admitting whole claim: defendant must provide details of their income and expenditure and make an offer of payment, either in full or by way of instalments = claimant can reject the defendant’s payment terms and judge will decide appropriate rate of payment, usually in the absence of a court hearing
admitting to part of claim: claimant will have 14 days to consider any offers
(a) accept part admission in full satisfaction of claim and request that judgment be entered by court for that amount
(b) accept part admission but not defendant’s proposals for payment, in which court will decide on suitability
(c) reject offer entirely and proceed with their claim as a defended action
How can a defendant admit an unspecified claim and what can the claimant do in response?
when defendant admits and offers a sum of money, court will serve a notice on the claimant asking whether they accept the figure in satisfaction of claim - if accept, claimant may enter judgment for amount offered / if rejected, claimant will enter judgment for damages to be assessed at a disposal hearing
(do not have to offer money: if defendant makes an admission for an unspecified amount, judgment shall be for an amount decided by the court and costs)
How long does the defendant have to file a defence? (standard)
14 days from (deemed) service of particulars
How long does the defendant have to file a defence if an acknowledgment of service has been filed?
28 days from (deemed) service of particulars - when acknowledgment of service is filed is irrelevant
*any further extension would need court’s permission or opponent’s agreement
How long does the defendant have to file an acknowledgment of service?
14 days from (deemed) service of particulars
What are default judgments and what is the rationale behind them?
ensures that defendants who take no action cannot evade liability for monies owed - claimant can force the issue and obtain a judgment without there being any consideration of the facts invovled
How can a claimant apply for a default judgment?
under CPR Part 12 - claimant must satisfy the court that particulars of claim have been served upon the defendant and they have not filed an acknowledgment of service form or a defence within the relevant time period
*for specified claims, claimant must indicate the date payment was due, calculate an up-to-date total for the interest claimed, and state a daily rate at which interest accrues
*for unspecified claims, court will grant the claimant’s request for default judgment but the case will need to come back before the court to decide the amount of damages payable (disposal hearing)
Can a claimant obtain a default judgment if the defendant has applied for a summary judgment?
no
What are the 2 grounds available for the defendant to set aside a default judgment?
(1) mandatory grounds: court is obliged to set aside a default judgment if it was wrongly entered - e.g. before time for filing an acknowledgment of service or defence expired
(2) discretionary grounds:
*(a) defendant has a real prospect of successfully defending the claim OR
*(b) there is some other good reason why the defendant should be allowed to defend the claim - e.g. defendant was ill or away on holiday, thus could not respond within the time limits (excuses such as pressure of work or misplacement of documents would not be sufficient) - even when relying on ground (2)(b), defendant should include evidence to show that he has a defence with a real prospect of success as this will persuade the court more to set aside the judgment [remember this is a power of the court, not obligation!]
What should the defendant do after default judgment is entered into by the claimant (good practice)?
write to claimant asking them to agree to the judgment being set aside - only upon refusal apply to court using Form N244 with witness statement
What are the possible orders a judge can make in response to an application by the defendant to set aside a default judgment?
(1) defendant succeeds and judgment is set aside
(2) claimant wins and judgment remains in place so they may proceed to enforcement
(3) conditional order is made: judgment is set aside on the condition that the defendant pays monies into court (rare - only used e.g. where court is concerned the defence is being pursued as a delaying tactic where the defendant does not have the money to pay)
Who is liable to pay if:
(1) application on mandatory ground is granted?
(2) defendant establishes discretionary ground of good reason?
(3) defendant establishes discretionary ground of real prospect of success?
(4) application fails?
(1) claimant pays
(2) costs are in the case
(3) defendant pays
(4) defendant pays
When can a claimant discontinue proceedings? - including when is permission required?
*claimant has the right to discontinue all or part of the claim at any time
*court’s permission will be required when it has granted an interim injunction or any party has given an undertaking to the court
*if the claimant has received an interim payment from the defendant, the claimant may only discontinue proceedings if the defendant who made the interim payment gives written consent or the court gives permission
What is the procedure for discontinuance?
*get written consent from all other claimants or get court permission
*file and serve a notice of discontinuance (Form N279) on the parties to the proceedings and if consent was required, a copy of this must be attached to the notice
*will be discontinued on date of deemed service of notice + claimant will be liable for the costs of proceedings unless court orders otherwise (costs will be payable on the standard basis unless the defendant makes a successful application to the court for an order for payment on the indemnity basis)
How should a settlement be recorded if it is reached after proceedings have started?
in a court order or judgment (this is so that enforcement proceedigs may be commenced if agreement is not honoured) - however, an application to the court could be avoided by drawing up a consent order or judgment for sealing by a court officer (although court retains the power not to approve the order, in practice, it will only be referred to a judge if it appears to be incorrect or unclear)
How must a consent order be drawn up (i.e. formalities)?
drawn up in the terms agreed, must be expressed as being “by consent”, signed by the legal representatives acting for each of the parties to whom the order relates
What is a Tomlin order (when might it be used) and what terms are contained therein?
if parties want any terms to be confidential (as consent orders are open to public inspection) and/or parties want terms that are beyond the powers of a court to order
*Tomlin orders consist of a consent order (that stays proceedings on agreed terms with liberty to apply) and a schedule (terms of settlement which do not need to be approved by the court are not enforceable by the court as a judgment - instead contractual considerations apply)
*liberty to apply: allows any party to apply to the court for the stay to be lifted and the court can be asked to enforce the settlement if a party does not perform its part of the agreement [i.e. no need to start new court proceedings to enforce terms]
*payment of costs or detailed assessment of costs: where parties want amount of costs to be assessed (checked and calculated) by the court - this must go in the order itself
*must be signed by parties’ solicitors
How can a defendant dispute jurisdiction of the court?
wish to dispute must be stated on the acknowledgment of service and defendant has 14 days after filing acknowledgment of service to make a challenge
*if court grants application, service of claim form will usually be set aside and proceedings come to an end
*if court refuses the application, original acknowledgment of services ceases to have effect and defendant must file a further acknowledgment within 14 days
If statements of case are drafted by a legal representative, how should the documents be signed?
(1) drafted by a legal representative = sign in their name
(2) drafted by a legal representative as a member of employee of a firm = sign in the name of the firm
What information should be set out in the particulars of claim?
facts on which the claimant relies
What are the key elements in a particulars of claim where the claim is based on a breach of contract?
(1) confirm status of parties - to establish terms implied by SGA 1979 or SGSA 1982
(2) set out the chronological events explaining what has occurred - including pre-contractual matters
(3) highlight the existence of contract
(4) details of any express/implied terms relied upon
(5) alleged breach and particularised: e.g. include what should have happened/standard that should have been met + what happened instead
(6) factual consequences
(7) damage and loss alleged and particularised/itemised: to make clear exactly what is being claimed from defendant and how it is calculated
(8) interest claimed
(9) statement of truth
*do not include points of law or expert evidence
What must be served with the particulars of claim in a claim for breach of a written contract?
copy of contract or documents constituting the agreement + any general conditions of sale incorproated in the contract should also be attached
What should be set out in the particulars of claim where claim is based upon an oral agreement?
set out the contractual words used and state by whom, to whom, when and where they were spoken
What should be set out in the particulars of claim where claim is based upon an agreement by conduct?
specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done
What are the three ways in which interest can be claimed?
court may award interest only if it is claimed
(1) under contract itself [specified]
(2) for commercial debts (B2B): under Late Payment of Commercial Debts (Interest) Act 1998 [8% per annum above the Bank of England’s base rate on the date the debt became due for payment] [specified + possible to claim compensation for inconvenience of having to recover debt under 1998 Act]
(3) court discretion [specified or unspecified]
*High Court: under s.35A Senior Courts Act 1981
*County Court: under s.69 County Courts Act 1984
“the Claimant claims interest on the damages referred to in paragraph XXX above pursuant to [statutory provision] at such rate and for such period as the court thinks fit”
for specified claims, interest must be precisely calculated: amount accrued from breach to date of issuing proceedings + daily rate of interest
How should the defendant respond to the particulars of claim in its defence? + what else might be included in the defence?
for each allegation, defendant must state whether it is denied, not admitted, or admitted
*when denying, they must state their reasons for doing so and their own version of events if different from that given by the claimant
*not admitted where defendant has no knowledge of the particular matter alleged
*missing an allegation has the effect of it being deemed as accepted
if the defendant alleges contributory negligence or a failure by the claimant to mitigate losses, these should be made and detailed in defence
What are the formalities for the defence?
must include:
*name of court
*claim number
*parties
*title (i.e. DEFENCE)
*date and signature of solicitors in the name of the firm
*statement of truth
*details of who is to be served and where
What are the additional claims that can be brought under CPR Part 20?
*additional claims are any claims other than the claim by the claimant against the defendant
(1) counterclaim
(2) claim for indemnity
(3) claim for contribution: i.e. joint wrongdoers
*all 3 claims can be made against the claimant or against any other person
When will the defendant need permission to make a counterclaim against a claimant/person other than the claimant?
no permission is needed to serve if defendant files the counterclaim with defence - otherwise, can make a counterclaim at any time with court’s permission
*defendant can make a counterclaim against a person other than the claimant: must apply to the court for an order that that person be added as an additional party (application for order can be made without notice) - court’s permission will be required if not issuing additional claim at the same time or before service of defence
When and how can claim for indemnity/contribution be made?
against an existing party:
*defendant must have filed an acknowledgment of service/defence
*no permission required to serve if claim is made at the same time as defence or where a new defendant enters the proceedings, claim against that defendant is made within 28 days after that defendant files their defence
against new party:
*no permission needed if made before or at the same time as the defendant filing defence
What will the court consider when deciding whether to permit an additional claim or dismiss + whether additional claim should be dealt with separately?
*the connection between the additional claim and the claim made by the claimant against defendant
*whether the additional claimant is seeking substantially the same remedy which some other party is claiming from them
*whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings: not only between existing parties, but also between existing parties and a person not already party OR against an existing party not only in a capcity in which they are already a party
How can statements of case be amended if the limitation period is still current?
(1) after filing but before service: amendments may be made any time
(2) after filing and service: amendments can only be made with (a) written consent of all parties, or (b) permission of the court
*always advise to get consent first - only when it is refused, go to court
*when applying to court, applicant should file a copy of the statement of case with proposed amendments together with an application notice - court has discretion (will take into account the overriding objective of dealing with the case justly and at proportionate cost - i.e. will balance injustice to applicant if not amended and injustice to other (opposing) parties if amendment permitted)
How can statements of case be amended if the limitation period has expired?
amendment in three circumstances:
(1) to add or substitute a new claim if this arises out of the same or substantially the same facts as an existing claim
(2) to correct a genuine mistake as to the name of a party
(3) alter the capacity in which a party claims
*court to exercise discretion
What does CPR Part 18 provide for?
at any time, the court or the parties may request further information and, if successful, a party will be ordered to clarify any matter that is in dispute or give additional information in relation to any such matter
How can a request for further information be made?
(1) party seeking clarification or information should serve on the other party a written request + should state a date by which the response to the request should be served (date must give the party a reasonable time to respond - usually 14 days)
(2) request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare his own case or to understand the case he has to meet
(3) requests must be made, as far as possible, in a single comprehensive document and not piecemeal
*if request is brief and reply is likely to be brief, can use letter - and if this is done, letter should distinguish itself from other that might routinely be written in the course of a case - e.g. state it contains a request under Part 18 and deals with no matters other than the request
*if separate document: headed with the name of court, title and number of claim, state it is a Part 18 Request, identify the requesting party and the other party, dated
How should a party respond to a request under Part 18?
*response must be in writing, dated and signed by responding party or his legal representative
*where the request is made in a letter, responding party may give his response in a letter or in a formal reply
*should be verified as a statement of truth - treated as a statement of case
*served to all parties and filed with court
*if party objects to complying with the request or part of it or is unable to do so at all or within the time state in the request, he must inform the requesting party promptly and in any event within that time
When can you make an application for an order under CPR Part 18?
if request is not responded to or cannot be complied with
*court may grant an order if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case/understand the case against them
What should parties do before applying to the court for an interim application?
seek to resolve matters between themselves so as to comply with the overriding objective and avoid the imposition of costs penalties
What is the procedure for an interim application? (what to be included in application notice)
*under Part 23 CPR
*applicant must complete an application notice (Form N244 to be used)
*specify name of court, claim number, parties’ names
*indicate what order is being sought and why - although there is no specific requirement to provide evidence, as a matter of practical reality, it will be necessary to set out facts relied upon [evidence can be put in page 2 of Form 244, but if there is insufficient space, a witness statement may be filed]
*should attach a draft of the order sought to assist judge
When must a copy of the application notice be served on the opponent? [general rules for interim orders]
deemed service must be at least 3 clear days before the court hearing - generally, as soon as practicable after filing
*as specified period is less than 5 days, weekends + Bank Holidays do not count for clear days
What should the parties do if they reach an agreement on the order?
apply to the court for an order to be made by consent without the need for attendance at the hearing - parties must provide the court with any material it needs to be satisfied that it is appropriate to make the order
When could an interim application be made without notice?
*there is exceptional urgency
*the overriding objective of the CPR would be best achieved by making an order without notice
most commonly, when applicant is applying to freeze their opponent’s financial assets or to search their premises
How should an application without notice be made?
*evidence must explain why notice was not given
*applicant has a duty of full and frank disclosure - cannot take advantage of the respondent’s absence at the hearing and must draw the court’s attention to evidence and arguments they reasonably anticipate the respondent would wish to make
What must be done if an order is made on an application without notice?
copies of court order, application notice, and supporting evidence must be served on the respondent as soon as it is practicable to do so - respondent may then apply to set aside or vary the order within 7 clear days of service of the order upon them
When should telephone hearings be used for interim applications?
actively encouraged as a whole (along with video conferencing hearings)
*if time estimate for hearing is 1 hour or less, conduct by telephone if possible
What cost orders can the judge make at the end of an interim application?
(1) [name party’s] costs: party named will be entitled to their costs and these are normally summarily assessed and ordered to be paid within 14 days - order when there is a clear winner
(2) costs in the case - no party is named and neither party can recover costs
*the party in whose favour the court makes an order for costs at the end of the proceedings is entitled to that party’s costs of the part of the proceedings to which the order relates
*can be ordered even if there is a clear winner as court will take into account the conduct of the parties and circumstances of making the application
*e.g. court makes a conditional order
(3) no order as to costs - each party is to bear their own costs of the interim application irrespective of costs orders made at the end of proceedings [usually in a ‘draw’ where there is no clear winner/party at fault]
Who can apply for a summary judgment?
claimant or defendant
When can a claimant apply for a summary judgment?
*claimant may not apply for summary judgment until the defendant against whom the application is made has filed an acknowledgment of service or a defence UNLESS permission from court
*if party applies for summary judgment before a defendant has filed a defence, the defendant need not file a defence before the hearing - if application is not granted, court will give directions as to the filing and service of defence
What are the grounds for summary judgment?
(1) claimant has no real prospect of succeeding on the claim / defendant has no real prospect of successfully defending the claim, and
(2) there is no other compelling reason why the case should be disposed of at trial
*common reasons: the need to allow more time for the matter to be investigated, claim or defence is of a highly complicated/technical nature so it can only be properly understood with all evidence that would be available at a full trial, need to hear from witnesses (esp if one of the central issues is disputed oral evidence)
*burden of proof on applicant
When must the respondent be given notice of the hearing?
at least 14 clear days before hearing date + must also include information on the issues which it is proposed that the court will decide at the hearing
If the respondent wants to serve evidence/applicant wishes to rely on further evidence at hearing, when must these be filed/(deemed) served?
*respondent: at least 7 clear days before hearing
*applicant: at least 3 clear days before hearing
What possible orders are available on a summary judgment?
(1) judgment on claim - i.e. claimant has succeed in their application and matter will proceed to enforcement
*for specified claims: court may award fixed costs under Part 45, but applicant can request a higher figure as their costs usually exceed these and ask for summary assessment of costs
*for unspecified claims: winner is granted their costs and these will be summarily assessed and a further (disposal) hearing will be listed to assess the damages payable by the defendant
(2) striking out or dismissal of claim - i.e. defendant has succeeded in their application to dispose of the claimant’s claim and case comes to an end
*court will normally order that the claimant pays the defendant’s costs of the whole claim (subject to summary assessment)
(3) application is dismissed - unsuccessful party will pay the successful party’s costs of the summary judgment hearing + case will proceed towards trial
(4) conditional order
When is a conditional order granted?
*where it appears possible that a claim or defence may succeed, but improbable that it will do so
*where e.g. one party’s version of events was not impossible to believe, but there are justifiable doubts to it
party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step (to ensure that party is genuine in their desire and ability to pursue matter)
What is the primary aim of interim injunctions?
maintain status quo until trial (they remain in force until trial or until further order) + only granted when damages are not an adequate remedy for the applicant
What must be established in order for a freezing injunction to be granted?
(1) applicant has a good arguable claim that they are seeking to support with the freezing injunction
(2) defendant has assests within the jurisdiction
(3) there is a real risk that the respondent will dispose of their assets so as to defeat the enforcement of an eventual judgment
(4) applicant has sufficient evidence as to the existence and location which the injunction, if made, would affect
+ just and convenient to grant freezing injunction
What must be established in order for a search order to be granted?
(1) applicant appears to heave a strong prima facie case
(2) applicant will suffer (or continue to suffer) serious harm if the order is not made
(3) respondent has incriminating materials in their possession which cannot be obtained by other means
What will the court consider when deciding on whether to grant an interim injunction?
*American Cyanamid case sets out guidelines
(1) is there a serious question to be tried? [is there a real issue between the parties that is supported by evidence?]
(2) are damages an adequate remedy?
(3) does the balance of convenience lie in favour of granting or refusing injunction?
(4) are there any special factors at play?
What must the applicant undertake to the court if an interim injunction is granted?
to pay any damages that the respondent sustains by reason of the injunction if it subsequently transpires that the injunction ought not to have been granted
