DR - 6 - Cost and Appeals

Question 1

Trials and Appeals

Answer 1

-

Question 2

Witnesses

Answer 2

Should be asked
-dates cannot attend
-notified of trial without delay.

Given to court on directions questionairre and in pre-trial checklist.

If doubt witness summons should be served
Requires witness to
attend to give evidence or
produce documents to court.

Served at least seven days before date on which witness required to attend court. Binding - if fail to appear may be fined or in High Court imprisoned for contempt
Summons served y court, witness must be offered or paid;
a sum reasonably sufficient to cover their expenses
-a compensation for oloss of time

Question 3

Preparations for trial

Answer 3

Fast track and multi-track;
Pre-trial checklists;
-ensure all parties complied with directions and ready to proceed
-must be filed no later than 8 weeks before trial date
-Judge will review checklists - listing hearing on fast track and pre-trial review on multi-track.
-If fails to comply court will order must be done in seven days otherwise claim, defence and counterclaim may be struck out.

Heavy case (longer than 10 days trial) judge may order review to personally check matters. Both sides representatives attend.

After court will’
give a time estimate and set timetable for trial (if necessary)
fix place of trial
confirm actual date of trial or state which week it will begin

Question 4

Trial bundles

Answer 4

• Documents judge needs (made easier to access)
  No longer than 250 pages.

Claimant or lawyer will prepare.

Filed between seven and three days before start date.

Should include key documents
-claim form and statements of case
-case summary and chronology
-request for further info and responses
-witness statements
-notice of intent to rely on hearsay evidence
-expert reports and responses
-directions orders
-any other necessary documents

Supply to other parties and for use by witnesses.

Multi-track CASE SUMMARY;
-review party submissions of fact in relation to each of issues with reference to evidence
-set out propositions of law to be relied upon.

Question 5

The trial

Answer 5

Court room etiquette - stand when speaking in open court. Witnesses title and surname (children first).

Modes of address;

County court - circuit judge (Your Honour), District Judge (Judge)
High court - Judge (My lord/lady), District judge (Judge)

Court of appeal - Lord Justice (My lord/lady)

Supreme court - Supreme Court Justice - My lord/lady

Witnesses do not set out evidence orally but rely on statement. Non-leading more common.
Cross-examination usually leading or closed questions.

Country court throughout country (fast and multi-track). High Court based at Royal Courts of Justice in London but District Registeries in many cities act as trial centres.

More complicated need timetables, fast track should only last one day.

Question 6

Procedure

Answer 6

Opening speeches -
permitted C may give speech setting out background and facts in dispute

Examination in-chief; C and witness of fact called first, oath or affirm, identify statement in trial bundle and confirm truth. Every word treated as evidence.
Amplify (if permission ) open questions.
Expert evidence as directed previously by court

Cross examination;
Opponent advocate - discredit or get favourable evidence. Closed quetion

Re-examination;
by own advocate, only open.

Closing speeches;
D advocate will make closing speech followed by C. Summarise law and facts in favourable light.

Judgement - immediately or later (if complex)
Takes effect from day unless specified differently
Liability and then reasons for findings.

If C wins need to consider remedies;
Usually money (quantum)
Specified claim - total calculated
Unspecified - judge consider each category of damage.

Rule on interest.

Costs for party (usually losing side).
Fast-track summarily assess amount
Multi-track later hearing (detailed assessment).

Must be paid within 14 days. Enforcement action may be taken

Question 7

Hostile and unfavourable witnesses

Answer 7

If delibaretly refusing;
Ask judge to declare hostile witness
- Advocate may not attack witness credibility or cross examine as if they were witness from other side.

Question 8

Appeals

Answer 8

Private - correcting mistakes
Public - upholding trust in system.

Grounds (permission to appeal);
Real prospect of success or other compelling reason.
E.g important question of law or general policy at stake.
If to CA or SC important point of principle or practice

Seconds appeals (permission from Court of Appeal itself

Question 9

Procedure

Answer 9

CPR Part 52;
- end of trial, judge may grant permission
-if unsuccessful or none made party can apply for permission from appeal court itself. On paper. Must be listed for hearing no later than 14 days after relevant direction if cannot be fairly determined without parties.

21 days to appeal against Country Court or High Court decision
28 days to apply for leave to appeal from Court of Appeal to Supreme Court.

Destinations

District judge of Country Court -> Circuit Judge of Country Court
Master or district judge of High Court -> High Court Judge
Circuit Judge -> High Court Judge
High Court judge -> Court of appeal

Question 10

Leapfrog appeals

Answer 10

Skips one court.
So appeals to County or High to CA
Or appeals usually in CA to SC.

Raises important principle or practice, some other compelling reason.
Sometimes from High to SC

Two stages;
-Grant of leapfrog certificate by trial judge
-Grant of permission to appeal by SC.

Grounds of appeal
-Appeal court grant an appeal?
Decision of lower court was either;
Wrong (as to law, interpretation of facts or exercise of discretion
Unjust due to a serious procedural irregularity in the proceedings of the lower court.

Question 11

Costs

Answer 11

-Receiving and paying party

Question 12

Cost

Answer 12

Solicitors charges, disbursements (court fees, expert fees and even pre-action costs).

Question 13

Cost management

Answer 13

Cost budget setting out cost incurred and anticipated. (Multi-track)

Effects of cost management order on multi-track
-cost awarded on standard basis. will recover amount of last approved or agreed budgeted costs
-or persuaded not good reason to do so - not incurred or less than budgeted
-Cost awarded on indemnity basis and incurred cost will be assessed in usual way by court unless agreed.

Question 14

Procedure

Answer 14

Small claim - not recoverable and so costs payavle will only relate to disbursements

Fast-track - cost usually be summarily assessed

Multi-track - detailed assessment of cost carried out.

Fixed costs -
CPR fix amount of cost may recover.
Know in advance, unlikely to recover all.
Default judgement, enforcing judgement,
Application for summary may be possible for parties to agree higher sum.
Fast-track advocate who prepares and appears at trial.

Summary assessment;
Court determines at end of hearing.
Unless good reason not to
-at conclusion of fast track trial
-any other hearing that has not lasted more than one day
Parties must file and serve statement of costs no less than TWO days before fast track trial and at least 24 hours before interim hearing.
Parties should agree costs if possible.

Detailed assessment -
Insufficient time, multi-track.
3 months of date of judgement or order, receiving party must serve on paying party Notice of Commencement with bill of costs and evidence in support.
If wish to challenge;
21 days to serve points of dispute (paying party)
Receiving party has 21 days to file reply
Receiving party must file request for assessment hearing within three months of expiry of period for commencing detailed assessment proceedings
If costs claimed less than £75,000. Court undertakes a provisional assessment where judge decides what costs are allowable in absence of parties.
If either party are unhappy with provisional assessment may request oral hearing within 21 days. If fail to receive adjustment by at least 20% ordered to pay costs of hearing

Question 15

Interim parties cost

Answer 15

Between the parties
Summary judgement, setting aside default judgement or strike out partys statement of case. Each hearing cost must be considered.
Judge assess who to pay costs of application and usually summarily assess amount

Question 16

Factors in assessing the cost CPR r44.4

Answer 16

(a) the conduct of the parties and the efforts made to try and resolve the dispute;
(b) the value of any money or property involved;
(c) the importance of the matter to the parties;
(d) the complexity of the matter;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place and circumstances in which the work was done; and
(h) the receiving party’s last approved or agreed budget

Question 17

Approach to determining cost on standard basis

Answer 17

Stage 1 -
Bill on line by line basis, scrutinising each point in turn. Unreasonably incurred or unreasonable in amount disallowed.

Stage 2 -
Proportionality of factors listed in Part 44
If not scrutinise various categories of cost - disclosure or factual evidence to decide further reduction.

Question 17

Must look at standard or indemnity basis

Answer 17

Standard basis -
Proportionate to matters at issue (reasonable relationship to sums in issue, value of non-monetary relief, complexity, any additional works).
Disproprotionate costs may not be allwoed.

_- Reasonably incurred
-Item reasonable in amount
-Then go to factors above.

Question 18

Indemnity basis

Answer 18

Awarded as penalty for courts displeasure with manner in which party behaved throughout.
Cost must be
-reasonably incurred
-reasonable in amount
Any benefit of doubt given to receiving party (e.g. when disputing expert costs for receiving party).

-On standard basis court will only allow those costs that are proportionate to matters in issue. No test of proportionality on indemnity basis.
-Any doubts resolved in favour of receiving party on indemnity basis, and paying party on standard basis.

Question 19

Non-party costs

Answer 19

Court may make order non-party meets costs (Part 46).
Exceptional (non-party must be real party interested in litigation or responsible for brining proceedings).
Third party funders in formal context.
Third party must be added as party to proceedings and may attend hearing when court determines issue of costs.

Question 20

Security for costs

Answer 20

D may never fully recover cost (they have no choice in litigation)
Court has discretionary power to make on order for security for costs if;
- it is satisfied having regard to all circumstances of case it is just to make such an order
-one or more of conditions in Part 25 applies

Defendant has conditions at disposal;

Claimant resident under 2005 Hague Convention State;
resident outside of jurisdiction and not resident in convention (EU and UK).
Normally and habitually live.
Companies - where centre control and management located.

Impecunious company;
Evidence of company financial assets and likely cost of litigation.

Claimant taken steps to make enforcement difficult;
Moving out of country, taken steps towards their assets.

Must also be Just to make the order
-Strength of claim and defence
-C’s ability to provide security (if C likely to win my stiffle claim)
-Causes of C’s impecuniosity; caused by D’s behaviour
-Property within the jurisdiction; if have sufficient assets within jurisdiction unlikely
-Timing; order should be applied for as soon as practicable.

Question 21

Procedure

Answer 21

Should write to C first and ask for security voluntarily. If not D should submit notice of application with witness statement in support.
Application states condition exists, just to exercise discretion in favour and justify amount sought.

If granted will specify amount of security, date which C must provide, and form it will take. Usually payment to court.

Question 22

Offers to settle and cost

Answer 22

When settlement reached prior to proceedings, prospective claimant not entitled to recover legal costs unless agreed.
After commenced terms should be recorded in a consent order or a Tomlin order to ensure enforcement proceedings may be issued to recover money

Question 23

Part 36 Offers

Answer 23

Penalty if do not accept good offer court deems to be suitable.

Form -
Be in writing
Make clear pursuant to Part 36
Specify a period or not less than 21 days during which if offer accepted defendant will pay claimants cost
State whether it relates to whole of claim or part of it, and whether it takes account of counter-claim.

Acceptance usually specified to be made in 21 days

Offer made when served on other party. Deemed service applies.
Judge will not be aware until case decided on liability and quantum. Only on cost issue will be produced to Judge.

May be accepted at nay time unless notice of withdrawl. Adverse cost consequences of late acceptance.

If accepted in relevant period sum must be paid within 14 days. If not claimant can enter judgement.
Claimant entitled to cost of proceedings up to date on which notice of acceptance served.
If cannot agree judge will assess on standard basis.

Late acceptance;
-defendant pays claimants cost up to date on which relevant period expired
-claimant pays D’s costs thereafter until date of acceptance

If D accepts C’s offer late D will usually be ordered to pay C’s cost of proceedings up to date of acceptance.

Effect of non-acceptance -
not accepted proceedings will continue. Penalties imposed for not accepting good offer. Imposed from day after relevant 21 day period unless unjust.

Justness-
Circumstances - when offer made, information available to parties, conduct, genuine attempt.

It may be unjust where the offeror has not provided sufficient disclosure to allow the
offeree to make an informed decision; or, for example, the Part 36 offer expired only days
before the trial and crucial allegations that had not been pleaded were raised in the
opening of the case.

Question 24

Outcomes

Answer 24

Part 36 offer
-win at trail and be awarded a sum that equals or beats their own offer
-Win the case but obtain a judgment less than offer
-lose at trail

Question 25

Wins at trial and equals or beats their own offer

Answer 25

Win judgement and penalties imposed on D.
Sanctions imposed in every case unless unjust;

Additional amount (% of damages);
Up to 500k (10% of sum awarded)
Excess of £500,000 and up to £1m (10% of first 500k and 5%)
up to a max of 75k
Remedy non-monetary term sum-awarded refers to cost.
Penalties take effect from Day 22.

Enhanced interest on damages;
Day 22 onwards % rate of interest charged on damages increases to rate not exceedinsg 10% above base rate.

Costs on indemnity basis;
usual order to pay C’s cost on standard basis from date they were incurred up to trial and including judgement.
Effect of P36 is D ordered to pay costs on indeminty basis from D22 onwards.

Interest on indemnity costs;
Interest awarded on indemnity costs as high as 10% above basic rate. In contrast with rule interest not payable on cost incurred before judgement. Runs from D22.

Question 26

Claimant wins but does not beat own offer

Answer 26

No effect as offer pitched too high. No wrong done. P36 has no effect

Question 27

Claimant loses at trial

Answer 27

Ordered to pay costs on standard basis.
No penalties for offer

Question 28

Consequences at trial of D’s P36 offer

Answer 28

Anyone open to offer
Three outcomes
Claimant;
(a) wins at trial and beats the defendant’s Part 36 offer;
(b) wins at trial but fails to beat the defendant’s Part 36 offer; and
(c) loses at trial.

Question 29

C wins at trial and beats Ds offer

Answer 29

D will be ordered to pay;
-amount of judgement pus interest as claimed in particulars of claim
-claimants cost on standard basis
P36 has no effect.

Question 30

C wins at trial but fails to beat D’s offer

Answer 30

Damages awarded equal to or less than offer
Unless just sanctions for C.
Effect of P36;
-D pays claimants costs on standard basis from when those costs were incurred until relevant period expired. D21.
-C pays D’s costs on standard basis from date of expiry of relevant period until judgement
-Interest on those costs (D22 until judgement).
-interest on those costs (a commercial rate of 1% or 2% above base rate adopted).

Split costs order with costs divided with split occurring at expiry of relevant period of 21 days.

Question 31

C loses at trial

Answer 31

General rule to costs would apply and pay costs.
Penalisation on interest on costs from D22 until judgement - usually at 1% or 2% above basic rate.