DR weak areas (SQE 2)

Question 1

Who is responsible for preparing the trial bundle? What should be included?
Rule regarding content?

Answer 1

Claimant
All docs likely to be referred to at trial - placed into paginated and indexed files
Content should be agreed as far as possible - any areas of disagreement, summary of points in dispute should be included

Question 2

If costs are awarded on the standard basis, what is considered? Indemnity basis?

Answer 2

Standard:
- costs which have been proportionately and reasonably incurred;
-and proportionate and reasonable in amount
Doubt is resolved in favour of paying party

Indemnity:
-costs which have been reasonably incurred; and
-are reasonable in amount
Doubt is resolved in favour of receiving party

Question 3

Limitation periods:

1. Personal injury
2. Fatal accidents
3. Negligence which is not personal injury
4. Contribution
5. Disability
6. General tort
7. General contract
8. Judgments

What is the date of knowledge?

Answer 3

1. 3 years from later:
   -date of cause of action accrued
   -date of knowledge of person injured
2. 3 years from later:
   -date of death
   -date of knowledge of dependent
3. -6 years from cause of action accrued
   -3 years from when had requisite knowledge to bring claim
   15 year long-stop limitation
4. 2 years from:
   -date when judgment was given imposing liability on first party, or
   -if first party agreed to make payment, date on which amount to be paid was first agreed
5. Starts to run when disability ends:
   2 years in contribution claims
   3 years in personal injury or fatal accidents
   6 years in other cases
   (under disability if minor or lack mental capacity)
6. 6 years after cause of action accrued
7. 6 years after cause of action accrued
8. Six years when judgement became enforceable

Date of knowledge -
PI - injury was significant, attributable to alleged wrongdoing, identity of D

Other- material facts about the damage

Question 4

How to address person in claim where:

partnership
sole trader
LLP
Company
Trust
Deceased person
Children

Answer 4

Flagstones (a firm) and/or (1) Fred Flagtone (2) Nisha Katon

John Flagstone (trading as John’s Café)

Flagstones LLP

Rockstone Limited

Trustees (no necessary to add beneficiaries - order will bind beneficiaries)

Against PRs, or if no grant:
-‘the estate of’ the deceased
-claimant must apply to court for order appointing a person to represent deceased

All docs should be served on litigation friend (except claim or doc seeking to appoint litigation friend by court order)
In Claim form:
-child:Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
-protected party: Adam Black (a protected party by Clara Dunn his litigation friend)

Question 5

What should the statement of truth say if D is
an individual?
A company?

Following this?

Answer 5

Individual: ‘I believe that the facts stated in this claim form are true[statement of truth]’
Company: ‘The D believes that the facts stated in this defence are true. [statement of truth]. I am duly authorised by the D to sign this statement’

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

Question 6

If the claim is for an unspecified amount but there is some idea of what value it will be, what should be written in the claim form?

What about if no idea?

Answer 6

Claimant expects to recover less than £10,000,
between £10,000 - £25,000, or
more than £25,000
more than £100,000

I cannot say how much I expect to recover

Question 7

What is disregarded when considering value of claim

Answer 7

Interest
costs
counterclaims
set-off
contrib neg
state benefits of D

Question 8

Set out the standard particulars of claim structure

Answer 8

1) Introduce each party. ‘At all material times the C was a … and the D was a …’
2) Set out relevant duty, including necessary background facts. ‘By a contract dated 24 October 2019, the Claimant and the Defendant agreed that the Claimant would sell to the Defendant computers for the price of £200,000’
3) Specify breach. ‘In breach of the express term of the contract referred to in paragraph 4 above, the Defendant did not pay’
4) Plead causation. ‘As a result of the breach referred to in paragraph 5 above, the Claimant has suffered loss’
5) Set out loss. ‘The Claimant claims the sum of £200,000’
6) General statement at the end (prayer)
‘AND THE CLAIMANT CLAIMS:
-damages of X under para 13
-Interest of X under para 14
7) statement of truth. I am duly authorised by C/D to sign this statement…
8) Name, signature, date, position of person signing

Question 9

What does D actually do to acknowledge service?

Answer 9

Form for acknowledging service sent - in the form,
confirms name correctly stated and gives address for service of docs
Confirms whether they intend to defend all/part of claim

Question 10

What will a judgment comprise of in specified claims? Unspecified claims?

Answer 10

Specified:
-Amount of claim
-Interest since date of issue
-court fees
-fixed costs

Unspecified:
-Judgment on liability only (later hearing for quantum to be decided - will include interest and provision for costs)

Question 11

Is an allegation deemed admitted in a defence if not addressed in a money claim? Non-money claim?

Answer 11

money claim - deemed not admitted
Non-money claim - deemed admitted

Question 12

Default judgment:
When must the court set aside judgment?
When may it set aside judgment? Appropriate test?

Answer 12

Must = If judgment is wrongly entered
May = if judgment was correctly entered
-D had a real prospect of defending claim (‘a real prospect of successfully defending the claim’ - not enough to show just an arguable defence); or
-it appears there is some other good reason why judgment should be set aside or varied or D should be allowed to defend

Question 13

Counterclaims:
-Where should it be included?
-What must it deal with?
-What should be payable alongside?

Answer 13

Normally follows on from defence (doc is then entitled ‘defence and counterclaim’
Essentially particulars of claim - must comply with same rule including duty, breach, causation, loss

Court fee

Question 14

Reply:

What should it be filed with usually?
Where should it be in terms of order of statement of case?

Answer 14

The directions questionnaire
The last statement of case

Question 15

Permission or no permission?

1. Classic counterclaim
2. Counterclaims against a person other than D
3. Claims for a contribution or indemnity from an existing party
4. Other additional claims

Answer 15

1. filed and served at same time as defence (no p), any other time (p)
2. P always required regardless of when filed
3. Filed and served at same time as defence or – if the additional claim is made against a party added to the main/substantive claim at a later date – within 28 days after that party files its defence (no p), any other time (p)
4. Other additional claims - filed before at same time as defence (no p), other time (p)

Question 16

If an additional claim is made, what should the defendant party do?

What should happen if additional claim is served on someone not already a party? What if they don’t reply?

Answer 16

Serve a defence until the normal time limits

Additional claim form should be accompanied by acknowledgement of service and response pack - not possible to apply for default judgment (other than in exceptional circumstances)

Question 17

if the substance of a statement of case is changed by an amendment, what should happen?

Answer 17

Should be re-verified by a statement of truth

Question 18

(1) general amendments to statements of case
(2) amendments removing, adding or substituting parties

Permission required if? :
Statement of case already served
Statement of case not served
Limitation period expired

Answer 18

Statement of case already served
(1) only amend with written consent of all other parties, or with permission of court
(2) C will require court’s permission if claim form already served

Statement of case not served
(1) Can do without courts permission
(2) Can do without permission (as long as claim form not served)

Limitation period expired
-Court permission required - will only allow if the amendment arises out of the same facts (or substantially the same facts) as a claim in respect of party seeking permission to amend has already claimed a remedy (onus is on applicant to show proposed amendment falls within this_
-Court permission required - court will only allow if
(1) limitation period was current when proceedings started,and
(2) Addition or substitution is necessary:
either
-new party is substituted for one that named in claim form by mistake, or
-claim cannot be properly carried on/by/against original unless new party added or substituted, or
-original party died or had bankruptcy order made against them (liability passed to new party)
Summary - amendments in relation to name might be allowed by someone with whole new identity not allowed

Question 19

What is the procedure for applying to court for permission to amendment?

Principles considered?

Answer 19

File an application notice at court, alongside proposed amended statement of case

Can be dealt with at hearing (or by written submissions if all parties consent)

If permission granted, amended statement of case should be filed within 14 days of order granting amendment]

Principles:
-overriding objective - justly and proportionate cost
-defence - will not be allowed if proposed amendment shows no prospect of success
-Court may reject amendment if implausible, self-contradictory, allegation unsupported by evidence

Question 20

What is the test considered by the court for adding parties?

Answer 20

Where limitation hasn’t expired - is the amendment ‘desirable’

Question 21

Request for further info:

What should be done first?
Then what is procedure?
Response

Answer 21

Voluntary basis first
If not resolved - app to court. Served on other party with date to respond
Response - written, dated, signed and include statement of truth

Question 22

What are the procedural safeguards for without notice hearings?

Answer 22

1. App explain why no notice given
2. Applicant must draw court’s attention to arguments + evidence in support of respondent’s position
3. After hearing, applicant ASAP serves respondent with:
   -Application notice
   -evidence in support
   -order
4. other party has 7 days to make an application to set aside or vary

Question 23

Procedure for security for costs?

Answer 23

Normal rules relating to interim apps apply

In addition:
-App should state which ground(s) or enactment applies
-Must be supported by evidence (usually in witness statement):
-Ground of app
-Factors in exercise of court’s discretion
-likely costs of trial
-amount of security requested

Court has complete discretion to decide amount. Considers factors:
-amount of D’s likely costs
-Costs incurred, future costs
-delay
etc

Question 24

What will happen if an injunction is granted at a without notice hearing?

Answer 24

Court will grant for a limited period and fix a second hearing called a return date

Question 25

Costs:

What is summary assessment?
What is detailed assessment?

Answer 25

Summary:
-Both parties prepare statement of costs. File and service on each party not less than 24hrs before hearing
-Court will hear parties short submissions and decide sum

Detailed:
-Receiving party serves notice of commencement and a copy of its bill of costs on paying party
-Points of dispute should be served on receiving party within 21 days
-If parties cannot agree - receiving party file a request for a detailed assessment hearing (costs officer will determine sum)

Question 26

What are the 3 grounds for strike out?

Answer 26

a) statement of case discloses no reasonable ground for bringing or defending claim

b)statement of case is an abuse of court process or likely to obstruct just disposal of proceedings (using process for significantly different from ordinary and proper use)

c)Failure to comply with rule, PD or court order

Question 27

What is the test considered in Denton for relief from sanctions?

Answer 27

1. If the breach is neither serious nor significant then relief should be granted (whether imperilled future hearing or otherwise disrupted litigation)
   2.If breach is serious or significant, consider why default occurred
2. Having considered the reason for default, court should evaluate all the circumstances of case(considering overriding objective)

Question 28

What are the 3 concepts of disclosure?

How are is standard disclosure performed?

Answer 28

1) Is it a document? (defined widely)
2) Is/was it in the party’s control?
-Is/was in physical possession of party
-Party has/had a right to possession of doc
-Party has has/had right to inspect or take copies of doc
3) Does it fall within standard disclosure?
Relies on
Adversely affects it own case
Adversely affects another party’s case
Support another party’s case
Required by relevant PD

Performed: list of required docs served on other (falls into 3 parts - I have control of docs but I object/do not object to you inspecting them, I have docs but no longer in my control)

Question 29

What 2 circumstances can redaction be carried out?

Answer 29

Blanking out parts of doc

(1) Clear and distinct part attracts privilege but remainder does not
(2) Info is totally irrelevant to dispute

Question 30

When is privilege waived?

Answer 30

1) Waiver of part will waiver over whole of doc (unless it deals with entirely different subject matter) - cannot cherry pick certain parts
2) waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court / opponent too.
o Example: waiver of the privilege attaching to a solicitor’s letter of advice may also result in privilege being lost in respect of letters from the same solicitor dealing with the same issue.

Question 31

Definition of
Legal advice privilege
Litigation privilege
Without prejudice communication

Answer 31

Legal advice: Confidential communication between lawyer and client and was prepared for the dominant purpose of giving/receiving legal advice

Litigation: Doc which is confidential communication between lawyer and client or between one of them and a third party, where the dominant purpose of the doc is to obtain legal advice, evidence or information for use in conduct in litigation which was reasonably in prospect

Without prejudice: Doc whose purpose is a genuine attempt to settle (need not be marked without prejudice and even if it is, doesn’t mean it necessarily attracts protection!!!)

Question 32

Pre-action disclosure:

When will court make an order for pre-action disclosure?

Answer 32

a)Respondent likely to be party to subsequent proceedings
b)Applicant likely to be party to those proceedings
c)If proceedings had started, respondent’s duty by way of standard disclosure would extend to docs or classes of docs which applicant seeks, and
d) pre-action disclosure is desirable to i) dispose fairly of proceedings, ii) assist the dispute to be resolved without proceedings, or iii) save costs

Question 33

When will a Norwich Pharmacal order be granted?

Answer 33

a) A wrong must have been carried out by an ultimate wrongdoer
b) there must the need for an order to enable action to be Brough against the ultimate wrongdoer
c) person against whom order is sought
(i) be more than witness/bystander
(ii) be able to provide info necessary to enable ultimate wrongdoer to be sued

Order must be necessary and proportionate

Question 34

What is the procedure for an app of specific disclosure?

What else does this apply to?

Answer 34

App must:
-Specify order sought, listing docs sought in order (more specific = more likely to be granted), and
-be supported by evidence

pre-action, non-party, Norwich pharmacal

Question 35

Witness statements (see notes for precedent):

What is the general rule on opinion evidence (and exceptions)?
How should it be drafted?
What must it include?

Answer 35

Not admissible - confined to stating facts

Unless:
(1) perceived fact
(2) expert opinion

Must be in client’s own words (but drafted by lawyer)

Opening paras:
-State name, address occupation, fact that witness is party/employee of party, process through which statement prepare (face to face/telephone)

Info and belief paragraph (‘I make this witness statement from matters within my knowledge or belief … where I refer to information told by others, those matters are true to the best of my knowledge’)

Witnesses can refer to docs - ‘I refer to … marked as exhibit X’

Statement of truth

Question 36

What extra should be included if a witness statement for an interim hearing?

Answer 36

Confirm reason for statement near beginning of info and belief paragraph:
‘I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment’

At end before statement of truth, what witness would like court to do about interim app:
“In the circumstances, I submit to the Honourable Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgment should be dismissed.”

Question 37

Affidavit:

What is an affidavit?

Format?

What is put at end?

Answer 37

Written statement of evidence that is sworn before a person authorised to administer affidavits

Content same as witness statement

Include ‘state on oath’: (then same info as info and belief para)

When referring to docs: ‘there is now shown me marked “CH2” …’

Jurat at end:
-be signed by all deponents
-be completed and signed by person before whom affidavit was sworn
-contain full address of person before whom affidavit was sworn
-follow immediately from text

[Signed: [deponent signature]

Sworn at [address]

On [date]

Before me:
Signed ………… ]

Question 38

When must notice be given/not given for hearsay?

Answer 38

1. In witness statement from person who is to give oral evidence at trial - no formal notice required
2. In witness statement from person who is not giving oral evidence - other party be informed with reasons why they are not giving evidence at trial
   3.In all other cases, formal notice must be given
   -identify hearsay
   -state party wishes to rely on it
   -reason why witness will not be called

Question 39

What is required if a party wishes to adduce expert evidence at trial?

Answer 39

Court order

Question 40

Expert report

What should be included?

What should be included at end?

Answer 40

Must:
1. be addressed to court (not instructing party)
2.Set out expert’s qualifications
3. Set out details of any material relied, including whether within own knowledge or relying on test/experiment of another (give qualification of other person)
4.Summarise range of options and contain summary of conclusions reached by expert
5. Statement of truth

Question 41

Are letters of instructions to experts privileged? Are content of discussion between experts?

Answer 41

No
Yes (without prejudice)

Question 42

What are the rules that a Part 36 offer should follow?

2 more rules specific to D’s offers?

Answer 42

a. be in writing
b. make clear pursuant to Part 36
c. Specify a period of not less than 21 days at which D will be liable for C’s costs if accepted
d. State whether it relates to whole or part of claim
e. State whether it takes into account any counterclaim

D’s offers:
a. must be an offer to pay a single sum of money
b. D’s offer to pay at a date later than 14 days following acceptance will not be treated as Part 36 unless other party accepts offer

Question 43

Consequences of discontinuance?
Procedure?

Answer 43

C liable to pay D’s costs up to point of discontinuance on standard basis

-File notice of discontinuance at court
-Serve a copy on every party
-Discontinuance takes effect from date of service

Question 44

ADR

Arbitration, mediation

1. What is the definition of the process?
2. Can the parties choose the 3rd party?
3. Does process promote amicable solution?
4. Binding?
5. Legally correct solution achieved?
6. Can court enforce resolution?
7. Private?
8. Costly?
9. Time-consuming?

Answer 44

1. Arb - an impartial independent third party decide the outcome of the dispute
   Med - a confidential process to facilitate resolution through an impartial third party
2. Yes for both
3. Arb - no just as contentious as court, med - more likely to preserve relationship
4. Arb - yes unless otherwise agreed, med - no
5. Arb - likely, med - more likely to be commercial
6. Arb - yes, med - depends on way settlement recorded
   7.yes for both
7. Arb - same as litigation, med - cheaper
8. arb - can be quicker but not guaranteed, med - quick

Question 45

When is a Tomlin Order used?

How is it structured?

Answer 45

When parties wish to keep key settlement terms confidential and/or
Agreed settlement goes beyond those that court could generally offer

Part1 - ‘Order’
Public section: Actions to be taken by court e.g. stay of proceedings

Part 2 - ‘Schedule’
Confidential -terms of agreement and provisions beyond limits of dispute

Question 46

Preparation for trial

What trials need a pre-trial checklist? What is included?

Answer 46

Fast track and multi-track

1. To confirm whether they have complied with the directions given (and, if not, which directions are outstanding and by what date they will be complied with).
2. To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions.
3. To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not, such an order should now be sought by way of application, as outlined in point 2 above.
4. To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed.
5. To give details of dates within the trial period when experts will not be available.
6. To give details of witnesses, their availability and any special facilities they require.
7. To give details of who will present the case at trial and their availability within the trial period.
8. To estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).

Question 47

Preparation for trial

What is included in trial bundle?

Answer 47

1. claim form and all statements of case;
2. case summary and/or chronology where appropriate;
3. requests for further information and responses to these;
4. all witness statements to be relied on as evidence;
5. any witness summaries;
6. any hearsay notices;
7. any notices of intention to rely on evidence which is not;
   a. contained in a witness statement, affidavit or expert’s report
   b. being given orally at trial
   c. hearsay evidence;
8. any medical reports with responses to them;
9. any experts’ reports, with responses to them;
10. any order giving directions for the conduct of the trial; and
11. any other necessary documents.

Question 48

Procedure for

TCG?
Third party debt order?
Charging order?
Attachment of earnings order?

Answer 48

TCG:
-Stage 1: give notice to judgment debtor - write at least 7 clear days before TCG (has 12 months from date of notice)
-Stage 2: Enter premises and secure goods
-Stage 3: Sell goods for bets price that can be reasonably be obtained

Third party:
Third party who objects - File and serve written evidence stating grounds for objection
Interim order made without notice on judgment debtor:
-Served on third party (so cannot pay third party)
-Then served on judgement debtor - followed by on notice hearing
Court decides whether to grant final order

Charging:
Similar process to third party (interim and then final order)

Attachment of earnings:
-Judgment creditor applies filing app in standard form, certifying amount due and paying fee
-Served on debtor, completes reply form and send to court
-Court make an order - serve on debt and judgment debtor’s employer

Question 49

Who does the Hague Convention apply to?

Answer 49

UK,
EU,
Mexico,
Singapore,
Montenegro

Question 50

What is the 6 stage Hague Convention approach?

Answer 50

1. Civil or commercial matter? (public law + crim disputes not covered)
2. Excluded? (consumer and employment matters)
3. Jurisdiction to contracting state?
4. Exclusive jurisdiction? (exclusive v jurisdiction v non-exclusive)
5. In writing?
6. Asymmetric? * An ‘asymmetric’ agreement is one that provides that one party can commence proceedings only in a specific named country, but the other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules (unclear whether fall into Hague or not)

Question 51

What are the consideration for conflict of laws: contract?

Answer 51

If no choice, consider:
a) categories a-h
Most important:
-Sale of goods (seller’s habitual residence)
-Provisions of services (service provider’s habitual residence)
-Contract relating to land (where land is situated)
-Distribution contract (distributor’s habitual residence)

b) If does not fall into categories - applicable law is law where the performing party in contract is resident

c) Court will apply different law if contract is manifestly more closely connected with another country

Question 52

What are the consideration for conflict of laws: tort?

Answer 52

a) choice:
-agreement entered into after event - effective
-agreement entered into before event - only effective if both parties pursuing a commercial activity and freely negotiated the choice of law

b) parties resident in same country:
-both same country = their country’s law regardless of damage
-Not resident in same country - law of country where damage occurred

c) Manifestly more closely connected

Question 53

What is the basic rule relating to conflict of law within UK if no agreement and party hasn’t;t submitted to jurisdiction of one court?

Answer 53

Sue where D is domiciled (categories such as contract, tort are in another flashcard)

Question 54

What are the 2 rules in regard to allocation to fast-track?

Answer 54

Up to £25,000 provided
a) Trial last no longer than a day
b) Oral expert from one expert per party in no more than 2 expert fields

Question 55

What does the disclosure report contain?

Answer 55

Statement of truth

a. Briefly describes what documents exist, or may exist, that are, or may be, relevant to the matters in issue in the case;
b. Describes where, and with whom, those documents are, or may be, located;
c. Describes how any electronic documents are stored;
d. Estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
e. States which of the disclosure directions are to be sought.

Question 56

What are the grounds for summary judgment?

Answer 56

Summary: No real prospect of succeeding/defending claim or issue
AND
No other compelling reason case should be disposed of at trial

Question 57

Grounds for interim payment? What should be done before making a claim at court?

Answer 57

Interim payment:
-D admitted liability to pay damages
-C obtained judgment against D for damages to be assessed
-If claim went to trial, C would obtain judgment for a significant sum against D
Should ask D directly for a voluntary payment first

Question 58

Grounds for security of costs?

Answer 58

Security for costs:
Main 3
-C is resident out of jurisdiction (but not resident in jurisdiction bound by Hague Convention)
-C is company + reason to believe it will be unable to pay D’s costs if ordered to do so
-C taken steps in relation to assets that would make enforcement of costs difficult

Other 3:
-C changed address since claim commenced with view to evading consequences of litigation
-C failed to give address in claim form
-C is acting as nominal claimant and reason to believe would not be able to pay costs

Finally, court exercise discretion - ‘with regard to all circumstances, it is just to make such an order’ - consider delay, bona fide and not sham, using app oppressively, C responsible for it own want of means

Question 59

Grounds for interim injunction?

What is a cross-undertaking?

Answer 59

American Cyanamid:

(1) Serious question to be tried? No frivolous or vexatious
(2) Damages be an adequate remedy?
(3) Balance of convenience - considers range of factors as to whether granting or not granting carries lesser risk of injustice

Equitable + discretionary:
(1) Not be granted if serve no practical purpose
(2) ‘clean hands’
(3) consider delay

Court may only grant if applicant offers cross-undertaking to pay damages to respondent for any loss sustained by reason of injunction (if later found that injunction should not have been granted)

Question 60

Give an overview of allocation?

Answer 60

-Defence filed
-Court sends notice of proposed allocation (provisional allocation to track)
-Parties file directions questionnaires
-If claim provisionally allocated to fast or multi track - parties must file proposed directions
-Court will allocate claim to a track and serve notice of allocation
-IF small or fast - court give directions, if multi - give or fix CMC for directions to be considered

Question 61

What is the procedure for making an interim app?

(Time scales on timelines)

Answer 61

Filing an app notice (N244) stating:
-Who is making the app
-What order the applicant wants
-Why the app is asking for that order
-What info the app relies on in support of app
Court fee payable

App notice should include evidence and draft order
Evidence - can either be:
-In app notice itself
-By referring to existing statements of case
-In a witness statement

Question 62

Interim apps:

When does there not need to be a hearing?

When are without notice apps used?

Answer 62

If:
-parties agreed terms of order
-parties agree there should be no hearing
-court does not consider hearing appropriate

Exceptional urgency
All parties consent
Court gives permission
Date for hearing has been fixed and party wishes to make app at that hearing but doesn’t have sufficient time to serve N244 = still should inform other party and court (preferably in writing)

Question 63

Interim apps

Summary judgment - what else must be included with app notice?

Interim payments - what else must be included with app notice?

Answer 63

Summ:
-Statement that app is for summary judgment
-Direct respondent’s attention to CPR which require respondent to serve any evidence at least 7 days before hearing

Interim payments:
Must serve evidence with app notice:
-reasons for believing conditions are satisfied
-Sum of money of final judgment likely to be given
-Sum of money sought
-Items or matters in respect of which interim payment sought

Question 64

Interim apps

What must be served with security for costs app?

Answer 64

Security:
Normal rules apply +
-which grounds apply
-Written evidence (witness statement):
–ground
–factors in exercise of court’s discretion
–Likely costs of trial
–amount of security requested

Question 65

What are the additional procedural considerations with interim injunctions?

Answer 65

Normal rules apply +

Often make order for cross undertaking in damages (should know what this is)

Without notice safeguards (return date - should know what this is)

Apps made before a claim is issued (exceptional urgency):
Only will be granted where:
-urgent; or
-Otherwise desirable to do so in IOJ
App then undertakes to court to issue claim form immediately

Question 66

Tort: tests and wording for:
-Duty
-Breach
-Causation
-Loss

Answer 66

Duty: precedent? If no then - foreseeability of harm (reasonably foreseeable that D’s lack of care would cause V’s harm), sufficient proximity, + fair, just and reasonable

Breach: did D fall bellow standard of care expected? (also Bolam -reasonable professional in that field would have done, De Freitas - reasonable by responsible body of professional opinion, Bolitho - needs to be logical)

Causation: As a result of the breach, V suffered loss
Factual (but for, material contribution - more than negligible contribution) and legal causation (NAIs)

Remoteness: type of damage suffered was reasonably foreseeable at time D breached duty of care (no need to foresee exact way, no need to foresee extent, thin skull)

Question 67

What is the wording of the knowledge and belief paragraph in a witness statement?

Answer 67

‘I make this witness statement from matters within my knowledge or belief … where I refer to information told by others, those matters are true to the best of my knowledge’