DR 9 - Case & Costs* Flashcards
1
Q
What is the overriding objective when it comes to costs?
A
To deal with a case justly and at a proportionate cost.
2
Q
When can the court make a costs order?
A
At the end of any interim hearing
At the end of trial
NB: the court has full power to determine by whom and to what extent costs of proceedings are to be paid
3
Q
What happens if the judge does not make an order as to costs?
A
Each party pays their own costs
4
Q
What are solicitor-client costs?
A
Costs payable by the client to the solicitor under the contract retainer
5
Q
What are inter-party costs?
A
The actual figure for costs awarded by the court which one party has to pay the other.
6
Q
What is the indemnity principle?
A
A party will NOT be able to recover a sum in excess of their liability to their own solicitor.
7
Q
What are Non-party costs and when are they made?
A
- Costs awarded AGAINST a person who is not party to the proceedings e.g. funder
- When the court considers them to be JUST
- Where the non-party both funds but ALSO substantially controls or at any rate is to benefit from the proceedings (effectively litigation funders)
8
Q
Does the court have discretion when considering costs and what will it consider?
A
Yes - complete discretion as to:
- Whether costs are payable by one party to another;
- The amount of those costs; and
- When they are to be paid.
It will discuss the parties conduct (e.g. ADR) and whether the party has succeeded on some issues.
9
Q
What is the general rule for costs payable
A
Costs follow the event - i.e. the loser pays the winner.
However, the court has COMPLETE discretion so can depart from it.
10
Q
When will the court depart from the general rule that the costs follow the event?
A
Will take into account a number of factors, including:
- The parties’ conduct (including in relation to ADR / offers to settle)
- Whether a party has succeeded on only some issues / part of the claim
11
Q
What does the court have discretion over when awarding inter-party costs?
A
- Whether the costs are payable,
- The amount of the costs,
- When they are to be paid
12
Q
What is the Standard basis for the amount of inter-party costs?
A
Costs which:
1. Have been proportionately and reasonably incurred, AND
- Are a proportionate and reasonable amount.
NB: Any doubt is resolved in favour of the PAYING party.
13
Q
What is the Indeminty basis for the amount of inter-party costs?
A
Costs which:
- Have been reasonably incurred; AND
- Are a reasonable amount.
NB: Any doubt is resolved in favour of the RECEIVING party
(normally pays more than the standard basis)
14
Q
When is the indemnity basis used for inter-party costs?
A
normally used to mark disapproval by the court
15
Q
When will costs be proportionate? 5 points
A
if they bear a reasonable relationship to the following specified criteria:
a) The sums in issue in the proceedings;
b) The value of any non-monetary relief in issue in the proceedings;
c) The complexity of the litigation;
d) Any additional work generated by the conduct of the paying party; and
e) Any wider factors involved in the proceedings, such as reputation or public importance.
16
Q
How will the court decide the amount of costs after considering the Standard or Indemnity basis?
A
Court will consider:
- All the circumstances of the case (including conduct of the parties)
- Complexity
- Place where & circumstances in which work was done
- The receiving party’s last agreed/approved budget
17
Q
What is the standard time for paying costs?
A
UNLESS court orders otherwise, within 14 days of:
- the date of the judgement OR order if it states the amount of costs.
- the date of the certificate which states the amount due (if a decision about the quantum is made later)
- such other date as the court may specify
18
Q
In which cases does “Qualified one way cost shifting” occur
A
Where claims for damages relate to Death and Personal Injury
19
Q
What is “Qualified one way cost shifting”?
A
- If the claimant wins the case, or any aspect of it, they may recover and enforce cost orders obtained in the usual way.
- If the claimant loses the case or any aspect of it, cost orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
20
Q
When will “Qualified one way cost shifting” not apply to cases involving Death or Personal Injury?
A
If proceedings have been struck out on the grounds that:
- no reasonable grounds for bringing the claim;
- abuse of the court’s process and/or
- The conduct of the claimant (or someone acting on behalf of the claimant with the claimant’s knowledge of such conduct) is likely to obstruct the just disposal of proceedings
- Claim is fundamentally dishonest. here the permission of the court is needed to enforce costs against the claimant
21
Q
Which cases do fixed costs apply to?
A
all small claims, fast and intermediate track cases
22
Q
When is the “Summary assessment procedure” used and what are the deadlines?
A
Involves the court determining costs payable IMMEDIATELY at end of hearing.
- Statements of costs (preferably N260) should be given to the other party not less than 24 hours before the time fixed for the hearing.
UNLESS good reason not to do so, court should use this in:
- Fast-Track at end of trial (usually costs of whole case)
- other hearing which lasted no more than a day (usually only costs of application).
23
Q
What is the process for a “detailed assessment” of costs? 4 steps & deadline
A
- The court orders the detailed assessment.
- The receiving party serves a notice of commencement and a copy of its bill of costs on the paying party.
- Points of dispute should be served on the receiving party by the paying party within 21 days of service of the notice of commencement.
- If not agreement reached, the receiving party should file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.
24
Q
What are the 8 types of interim cost order?
A
- Costs in any event - paid regardless of who wins
- Costs in the case - paid if win
- Costs reserved - decision delayed til later
- C or D’s costs in the case - If D is awarded costs at trial, C does not have to pay D’s costs of the interim application (vice versa).
- Costs thrown away - if a judgment or order is set aside, the party in whose favour this costs order is made is entitled to the costs incurred
- Costs of and caused by - must pay the costs resulting from something that party has done
- Costs here and below
- No order for costs (or if no order made) - each party bears own costs
25
What are interim order for Cost in any event?
Person owes cost of interim hearing regardless of whether they later win or not.
26
What are interim order for Cost in the Case?
Person who gets costs at the trial will recover the costs for the interim hearing.
27
What are Claimants cost in the case?
If Claimant wins, they get the costs at the end of the trial in respect of the interim order. If the defendant wins, the claimant will not have to pay their costs in relation to the interim order.
Opposite applies for a Defendant's cost in the case.
28
What are interim order for Costs thrown away
Where a judgement or order is set-aside, the party who wins gets costs including costs incurred in respect of the original order and their costs in getting the order set-aside.
29
What are interim order for "Costs of and caused by"?
A party must pay the costs resulting from something the party has done; for example costs incurred by the defendant resulting from a claimant amending its particulars of claim.
30
What are interim order for "Cost here and below"?
The party in whose favour the costs order is made is entitled not only to that party's costs in respect of the current proceedings, but also to that party's costs of the proceedings in any lower court.
* In the case of an appeal from a Divisional Court the party is not entitled to any costs incurred in any court below the Divisional Court.
31
Can the court's make orders of its own initiative?
YES - can terminate a case or provide new directions WITHOUT either party taking a step.
32
When should any application be made e.g. to stay, set aside or vary an order?
If the court does not specify - within 7 days of the date on which the order was served on the party making the application.
33
What does it mean when a court "strikes out"
"Strike out" is the deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party.
34
Can the court "strike out" of it's own initiative?
Yes. The court MAY strike out on it's own initiative OR on the application of a party (made asap)
35
What is the difference between a "strike out" and a "default judgment"?
- Strike out focuses on the statement of case and so covers cases which do not amount to a legally recognisable claim or defence. The case or issues are weakly pleaded.
- Default judgement is the consequence of a defendant failing to respond to a claim. The court does not consider the merits of the case when ordering a judgement in default.
36
What are the grounds for "strike out"?
a) The statement of case discloses no reasonable grounds for bringing or defending the claim. 💩
b) The statement of case is an abuse of the court's process, or otherwise likely to obstruct the just disposal of proceedings. 👺
c) There has been a failure to comply with a rule, practice direction or court order (i.e. conduct). 👨⚖️
37
Can costs be claimed in respect of a "strike out"?
Normally yes.
If the court makes an order that unless something is done the statement of case will be struck out, and then the party doesn't do that thing, the other party can normally claim costs by filing a request with the courts.
38
When can sanctions imposed by the court take effect?
1. Immediately
2. Make an 'unless order'.
- This provides for an automatic sanction if the order is not complied with by a specific time set out in the order.
- MUST specify date & time within which the act must be done.
39
General rule in relation to the time specified by a court order for a party to do an act - can it be varied?
It MAY be varied by written agreement of the parties.
UNLESS a rule or practice direction provides otherwise or the court orders otherwise.
40
What are the limits on the parties' ability to vary a 'unless order' following a sanction made by the court? (exception to the rule re varying time specified by a court order for a party to do an act)
Where a rule, practice direction or court order:
a) Requires a party to do something within a specified time, and
b) Specifies the consequences for failure to comply.
- The parties can only extend by up to 28 days if:
both parties agree to the extension by prior written agreement (i.e. before the deadline), AND
- This does not put at risk any hearing date.
(unless the court orders otherwise)
41
What are the CPR considerations of the court if relief from sanctions are sought?
Under the CPR the court will consider the need
- For litigation to be concluded efficiently and at proportionate cost,
- To enforce compliance with rules, practice directions and orders.
An application for relief MUST be supported by evidence.
42
How should the court approach its considerations on whether relief from sanctions should be granted?
Denton Test
When interpreting the CPR the Court will:
1) If the breach is neither serious nor significant, relief should be granted (focusing on delay to the case and the conduct of the litigation)
2) Consider why the default occurred.
3) Having considered the reason for the default, the court should evaluate all the circumstances of the case.
43
When do the rules about relief from sanctions apply?
When a deadline has passed and application is made after deadline.
44
How is an application to set aside default judgment treated in relation to relief?
Treated as an application for relief from sanctions when D is relying on the discretionary ground to set aside judgment in default
45
When considering which track to allocate a claim, what items are disregarded when considering the value of the claim? 4
1. Interest
2. Costs
3. Any amount not in dispute
4. Any contributory negligence
46
When will a case be allocated to the Small claims track?
- Value no more than £10,000
- Claims by tenant against landlord where the value of the claim is less than £1,000
- Special rules for Personal Injury.
47
What are the special rules for personal injury and the Small Claims track?
- Claim is no more than £10,000 AND:
1) if the damages for are valued at no more than £1,000:
- Road traffic claims before 31 May 2021, or
- the claimant was riding a motorcycle (damages value at no more than £1k),
- claimant is a **child** or **protected party**, or
2) other RTC's - the damages for PI are no more than £5,000
3) in any other PI claim, the damages for PI are valued at no more that £1,500.
48
When will a case be allocated to the Fast track?
- Normal track for claims up to £25,000, provided that:
a) trial likely to last no longer than 1 day (5 hours),
AND
b) there will only be ORAL expert evidence from 1 expert per party in each of no more that 2 expert fields.
Note: there can be WRITTEN evidence from more specialists.
49
When will a case be allocated to the intermediate track?
- Normal track for claims up to £100k provided that:
a) the trial is likely to last no longer than 3 days if managed proportionately; AND
b) oral expert evidence is likely to be limited to 2 experts per party
50
When will a case be allocated to the Mutli-track?
all claims that are not allocated to the small claims track or the fast-track.
51
What is the allocation process? 5 steps
1. Defence is filed,
2. Court sends out notice of proposed allocation
3. Parties file directions questionnaires
4. Proposed directions if fast-track/multi-track/intermediate track
5. Court will allocate claim to a track (after hearing if needed)
52
Will court give directions/fix CMC for each track?
Small claims: will usually give directions
Fast track: will usually give directions
Intermediate/multi-track: will give directions OR fix a CMC.
53
What will the proposed allocation require the parties to do?
1. File and serve a directions questionnaire;
2. On the fast track, intermediate track or multi-track, file proposed directions; and
3. For claims under the costs management regime, file and serve a costs budget and an agreed budget discussion report.
NB: will give deadlines
54
What happens if a stay is requested to consider settlement after direction questionnaire has been issued in the multi-track?
- If all parties agree, the claim will be stayed for 1 month
- If only party requests, the court can stay the claim if it considers it appropriate
55
2 different forms for the DQ
Form N180 - small claims
Form N181 - fast track, intermediate track & multi-track
56
What is included on the directions questionnaire? 8 total
a) Whether the parties have complied with the pre-action protocol (if not, why?)🫥
b) Whether they wish to stay to settle, 🤝
c) Disclosure - exchange list of docs 📕
d) Witnesses - name witnesses 🤠
e) Expert evidence - parties need court's permission 🥼
f) Trial - estimate time needed (& notify court if any change)⏱️
g) Costs - file a costs budget 💰(multi)
h) Directions (MUST be filed even where parties have not agreed)🛑
g) other matters:
- Which court the claim should be heard in, 👨⚖️
- Which track the case should be allocated to & complexity band🛤️
- Whether interim applications have been made and whether any are planned
- anything else the parties wish the judge to consider
57
When might a court allocate a case to track other than the normal track for the amount of the claim? Name 8
When considering:
a) The value of the claim 💰
e) The value of any counterclaim 🫵💰
b) The nature of the remedy sought 🎁
c) The likely complexity 🧠
d) The number of parties 🥳
f) The amount of oral evidence 😲
g) The importance of the claim to any persons who are not parties 👀
h) The views expressed by the parties 🤬
i) The circumstance of the parties 🎩
58
What is the primary consideration for the court when identifying the NORMAL track for the claim
Value
59
What costs can be claimed in the small claims track?
- Very limited fixed costs
- Court fees
- Witness expenses
60
What are the 4 standard directions of the small claims track?
a) Parties to file and serve copies of documents they intend to rely on no later than 14 days before the main hearing,
b) Original documents to be brought to the hearing
c) At least 21 days notice of the hearing date
d) The court informed if the case settles between the parties ahead of time.
61
What are the standard directions of the fast-track? Name 5
Disclosure - 4 weeks following notice of allocation
Witness statements - 10 weeks
Expert statements - 14 weeks
Pre-trial check lists - 22 week
Trial date - 30 weeks
NB: means within X weeks of notice of allocation.
NB: directions/steps allowed will be proportionate to the value/complexity of the claim.
62
What else will be assigned once a case is allocated to the fast track/intermediate track?
Will be assigned a complexity band, which determines the level of (fixed) costs that can be recovered by the Claimant at the conclusion of the case.
Goes from 1 to 4.
63
When will the intermediate track apply? 6 points
1. Cases issued on or after 1 October 2023.
2. PI cases where cause of action arose OR accrued on or after 1 October 2023.
3. The normal track for claims up to £100k (where the case is suitable for neither the small claims nor fast track).
4. The trial is likely to last no longer than 3 days, if managed proportionately.
5. Oral expert evidence is likely to be limited to 2 experts per party.
6. The total length of permitted witness statements and summaries is limited to 30 pages and experts reports to 20 pages (excluding necessary photographs, plans and academic/technical articles which are attached to the report).
64
What must the parties endeavour to do in relation to the intermediate track? Any other deadlines?
The parties ‘must endeavour’ to agree appropriate directions and submit them to the court 7 days in advance of the CMC (if one is listed).
Trial should take place within 30 weeks of allocation (like fast-track).
Parties must also (unless court orders otherwise) file and serve a disclosure report not less than 14 days before the CMC (if one is listed).
65
Can judges allocate more complex cases valued at under £100k to the multi-track?
YES - complex cases
66
When does the costs management regime NOT apply - 4 situations
1. Small claims, fast-track or intermediate track claims 🛤️
2. Claims commenced on or after 22 April 2014 where the amount of money claimed is £10m or more (or valued at that etc.)💰💰💰
3. Claims commenced after 6 April 2016 made by or on behalf of someone under 18 👲
4. Claims that are the subject of fixed costs or scale costs 🧮
67
Does the court have to apply the cost management regime?
NO - can disapply it
OR
Can require compliance EVEN where it does not normally apply.
68
What are the time limits for providing documents ahead of a Case Management Conference?
Ahead of CMC:
- 21 days exchange budgets (£50k+)
- 14 days disclosure report (not PI)
- 7 days draft directions
- 7 days budget discussion report
If claim valued under £50k, budget should be filed with DQ.
69
What is the budget?
An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.
NB: all about FUTURE costs
NB: incurred costs are included but CANNOT be altered by the court.
70
Where is the budget set out?
Set out in prescribed form Precedent H (only first page needed where claim value is less than £50k or budgeted costs do not exceed £25k).
Must be signed with statement of truth.
71
What is included in the budget discussion report - 2 things
The parties indicate:
a) The figures which are agreed and not agreed for each phase of the litigation; and
b) A brief summary of the grounds of dispute.
72
What is included in a disclosure report ahead of a CMC?
A report that:
a) briefly describes what relevant documents exist.
b) Where those documents are
c) How electronic documents are stored
d) estimate of costs of disclosure
e) which disclosure directions are sought
f) a statement of truth
73
What are 'case summaries' in respect of a CMC?
A short doc of not more than 500 words prepared by Claimant and (if possible) agreed with other parties.
74
What should 'case summaries' in respect of a CMC contain?
a) Chronology of the claim ⏱️📖
b) Factual issues agreed and in dispute; AND 👇👍👎
c) the nature of evidence needed to decide them. 📑
75
When should cost budgets be exchanged?
- Less than £50,000 = with parties' **directions questionnaires**
- Over £50,000 = **21 days** before first CMC
- budget discussion report **7 days**
76
Parties are required to discuss budgets with each other. When must the parties file and exchange Budget Discussion Reports?
- £50k- file and swap with trial questions
- £50k+ file and swap budgets 21 days before
- budget discussion 7 days before the first CMC
77
What is included in a Budget Discussion Report?
- A brief summary of the grounds of dispute. ⏱️📖
- The figures which are agreed /not agreed for each phase of the litigation;
👍👎
78
What are the 3 outcomes of a Cost Management Conference?
1. Case management decisions,
2. Cost management orders
3. Assessment if no costs management order
79
What are "Cost management orders" in a Costs Management Conference?
The court will consider whether the budgeted costs fall within the range of reasonable and proportionate costs, and then the CMO will:
1. Record the figures agreed by the parties
2. Where not agreed, record the court's approval of a costs budget, after making appropriate revisions.
80
When may the court make a cost management order?
At any time.
81
Can the court adjust costs which are agreed between the parties?
No
82
When will the court not issue a Cost Management Order following a Cost Management Conference?
Where it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO
83
What does is mean if the court approves the costs budget?
It is an indication that the budgeted costs are reasonable and proportionate.
84
When can a court depart from the last agreed Costs Management Order when awarding costs?
It is satisfied that there is good reason to do so.
85
Can a party recover a greater sum of costs than it has incurred?
NO
The budget becomes a 'cap' on what can be recovered.
86
What costs are included in a costs budget
- Solicitor charges🤓
- Incurred costs, 👈
- Disbursements☝️
- Estimated future costs,👉
87
What happens if there is no Costs Management Order in place
The receiving party MUST explain why if there's a difference of 20% or more between costs claimed & budget.
The court MAY reduce the recoverable sum if the paying party reasonably relied on the budget.
88
Where a CMO is granted, when will the court divert from it?
If there is good reason to do
89
What happens if there is a significant development in the trial that effects the costs budget?
- An amended budget should be submitted to the other parties for agreement;
AND
- The amended budget then needs to be submitted to the court for consideration.
NOTE: this is for 'significant developments' not for messing up the budget in the first place.
90
What happens if there's a failure to file a budget when required to do so?
They are automatically treated as having filed a costs budget consisting of only the applicable court fees
UNLESS the court orders otherwise.
91
When is a detailed costs assessment used?
- Where hearing lasts for more than one day.
- Judge leaves the quantification to a later date by a costs officer
92
What is the order of allocation process for Small Claims?
a) Defence filed
b) Notice of proposed allocation
c) Both parties file Directions Questionnaire
d) Notice of allocation
e) Court will give directions
93
What is the order of allocation process for Fast Track?
a) Defence
b) Notice of proposed allocation
c) Both parties file Directions Questionnaire **& Proposed directions**
d) Notice of allocation
e) Court will give directions
94
What is the order of allocation process for Multi Track?
a) Defence
b) Notice of proposed allocation
c) Both parties file Directions Questionnaire & Proposed directions
d) Notice of allocation
e) Court will give directions or Fix a date for a CCMC.
The CCMC process is then:
a) prepare a costs budget for claims between £50k and £10m - **21 days** ahead of CMC
b) Disclosure report - **14 days** before CMC
c) Budget discussion report - **7 days** before CMC
d) Agreed/proposed directions - **7 days** before CMC
The CMC will then produce Directions & may issue Costs Management Order
95
What are the considerations of the court in the case Management Conference?
- Whether the claim is clear,
- Whether statements of case need to be amended
- What disclosure is required
- What evidence is required
- Whether further information is required
- Whether it is just and will save costs to split the trial between one or more preliminary issues.
96
Which tracks use the Case Management Conference
Multi track & intermediate track????
97
Who should attend the CMC? 2 requirements? What if they fail to attend?
LEGAL REPRESENTATIVE - they MUST
1. Be familiar with the case
2. Have sufficient authority to deal with any issues likely to arise (like discussing directions / identifying issues).
If such a representative does NOT attend and the CMC is postponed as a consequence, it is likely to result in a wasted costs order (a costs order payable by the solicitor as opposed to by the client).
* The court can also order the client to attend the CMC.
98
What case management powers does the court have?
- Extend/shorten time for compliance with a rule, practice direction or court order.
- Adjourn hearings or bring them forward
- Require a party or their legal representative to attend court
- Stay the whole or part of the proceedings or judgement
- Order any party to file and serve a costs budget
99
What are the considerations of the court in the case Management Conference?
- Whether the claim is clear,
- Whether statements of case need to be amended
- What disclosure is required
- What evidence is required
- Whether further information is required
- Whether it is just and will save costs to split the trial between one or more preliminary issues.
100
What is 'costs reserved'?
The decision of who pays costs of interim hearing is put aside to a later date
101
What obligation are parties under ahead of any CMC?
To try to agree directions beforehand
- satisfies overriding objective
102
If the parties have agreed all the directions required for the future management of the case and the court is satisfied of the appropriateness of the directions, what can the court do?
VACATE the CMC i.e. cancel it.
If parties have been unable to agree directions, the CMC will be used for the court to give directions.
103
In multi-track cases, must both parties produce a disclosure report in readiness for the CMC? What else must be filed?
YES - unless the claim includes a claim for personal injury.
NB: not less than 14 days before the first CMC, each party must file and serve a report verified by a statement of truth.
- disclosure report - Form N263.
- or EDQ (electronic) - N264.
104
When should a party make an application to court e.g. for permission to amend a statement of case?
As soon as it becomes apparent that it is necessary or desirable
