DR2 Flashcards
1
Q
Civil cases - who does burden of proof lie with and any exceptions?
A
Claimant
Exceptions
- defendant also convicted of criminal offence (related to the civil case)
and arguing they were wrongly convicted
(D must prove on balance probs) - con neg - D must prove
- mitigation of loss - D must prove
2
Q
Standard of proof in civil cases?
A
Balance of probabilities
(i.e. more than 50% chance)
3
Q
General rule on how evidence must be proved at trial in civil cases?
Theory vs practice?
A
By oral evidence
In practice a lot of the evidence is in writing
4
Q
What does CPR require of a party wishing to call a witness?
A
Serve witness statement on other parties setting out facts witness would be allowed (ie admissible and relevant) to give orally at trial
5
Q
What happens if witness statement not served on other parties? (civil trial)
A
Witness only allowed to speak with court’s permission, which court would rarely give
6
Q
What can you do if a witness statement cannot be obtained from witnesses seeking to rely on?
Conditions/requirements?
(other than summons)
How to apply?
A
Apply to court WITHOUT NOTICE for order to serve a witness SUMMARY, containing:
- W’s name and address
- Evidence the witness can provide (if known);
or if not known
- Matters on which witness would be questionned at trial
Think ignore the below:
evidence = have docs etc. questionned = have knowledge
If granted, can compel to attend trial by serving witness summons
(e.g. abroad / doesn’t want to give)
7
Q
Form and content of a witness statement in civil law?
imp
A
- Title of proceedings, statement number, date and name of witness
- Address, occupation, whether witness on behalf of employer or own business, and if so name of the business and whether they are a party to proceedings
- Paragraphs should be numbered and all numbers in numbers not words (e.g. 5 people instead of five people),
EXCEPT dates (16 January instead of 16 01) - Chronological
- Set out evidence want to provide
- Should be in first-person/own words as far as possible
- Indicate what evidence is from own knowledge and which is based on information and belief, naming source if appropriate
- How they came to make the witness statement (e.g. face to face with solicitor)
- not just made it with solicitor, but HOW - Formally exhibit any attachments
- Statement of truth (signed by witness)
8
Q
Can witness statement’s statement of truth be signed by a legal representative?
(civil cases)
A
No
E.g. of what statement looks like:
“‘I believe that the facts stated in this witness statement are true. 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’.”
9
Q
What happens if witness statement cannot be provided in English?
(civil cases)
A
Draft in own language, with translation (and date of translation) included within the statement
10
Q
When are witness statements usually delivered?
A
Simultaneously
A few weeks after disclosure
11
Q
What will witness do at civil trial before giving evidence?
A
- stand in witness box
- take the oath or affirm
- be shown a copy of their statement
- confirm contents are true
12
Q
How does examination of witness in civil trial work?
A
Witness gives evidence
- if witness statements exchanged in accordance with court directions, evidence itself IS the examination-in-chief
So it is v important that their statement is comprehensive!
Court may permit additional examination in chief
Cross-examination
Sometimes re-examination
13
Q
Can a witness give evidence that is not in their witness statement at civil trial?
A
General rule no
Unless court permits
- rare and only if good satisfied that good reason why evidence not dealt with in statement itself
(eg new relevant matter arose after statement served)
14
Q
What are affidavits?
Are they the same as witness statements?
When are they used?
A
Sworn statements of evidence
Not same as witness statements.
Swear or affirm before solicitor (not their own) or other authorised person
Applications for freezing injunction or search order
15
Q
When is evidence relevant (and therefore admissible)?
(CPR)
A
Evidence inadmissible if irrelevant
Relevant if:
- addresses facts which are in dispute; or
- have to be proved by party calling witness
16
Q
Is opinion evidence admissible at civil trial?
A
General rule - no
e.g. couldn’t admit “I imagine it is faulty but not seen it” (speculation so not perceived and no expert)
Exceptions:
- facts PERSONALLY PERCEIVED
- ok if only give opinion to bring together relevant facts personally perceived by them
- should really just list the facts which led them to reach conclusion
- must not draw conclusion from their evidence as this is role of court
e.g.:
- could give evi that was “driving around 60 mph” or was “drunk”
(but better to say “was stumbling and appeared drunk”)
- couldn’t say “too fast”
- e.g. could not say heard someone say the D was “stupid” conclusion drawn but from what we cannot say - not based on a perception. -
Expert evidence
- permitted to express opinions on matters qualified in
17
Q
What is hearsay evidence (civil)?
A
- a statement made outside court;
- which is repeated in court;
- to prove the truth of the matter stated.
And:
- must be relevant fact or admissible opinion
- oral or written
- main thing is whether reason asking trial judge to rely on the evidence is to reach a decision in the case
e.g.:
- trying to include evidence that the other driver said “I’m sorry, I just didn’t see you”
- trying to adduce evidence that holiday maker told would be “quiet and peaceful”, not hearsay because not repeating to show truth of statements - adducing to show she was lied to.
18
Q
Criminal vs civil hearsay
A
Criminal = statement (fact or opinion) not made in oral evi relied on as evi matter within it
Civil = out-of-court statement repeated in court to prove truth of matter stated
19
Q
First-hand vs multiple hearsay useful example (just for understanding not to revise)
A
First-hand: Mary keeps a diary and record what she sees one day.
Her diary is used at trial to prove truth.
Multiple hearsay: Mary records what she was told by Lucy. Her diary is used at trial to prove truth of what Lucy said.
20
Q
Is hearsay evidence admissible in civil proceedings? Any requirements of party relying on it?
A
Admissible
As long as serve witness statement (which contains the hearsay) on the other party
21
Q
What may opponent do if been told hearsay evi being relied on (civil)?
A
- ask court to order maker of original statement attends for cross-examination; and/or
- serve notice of intention to attack the credibility of the hearsay evidence
(ie if witness does not attend, will attack credibility of statement)
22
Q
Is it hearsay if a witness isn’t attending trial?
What must be done here by party using that witness’ evidence?
A
Yes - if not attending and just adducing their written statement, that is hearsay evidence.
Serve ‘hearsay notice’ at same time serve WS
- where inform W not being called oral evi and why.
Other side can still then apply to court for order that attend or serve notice of intention to attack credibility
Think can ignore this
Unless hearsay statement is within exchanged WS and will be calling witness, do not needs a separate hearsay notice (implied).
23
Q
If party does not comply with hearsay notice requirements, is the statement still admissible?
Any other implications?
(civil)
A
Yes
But the failure may be taken into account in costs order or when considering how much weight to give to statement itself
24
Q
How much weight will be attached to hearsay statements compared to other forms of evidence and why?
A
Less weight because out-of-court statements not made on oath and more times repeated, more room for error.
Because maker not present, can’t be cross-examined too.
25
What must court consider in assessing weight to attach to hearsay evidence in civil trials?
First will consider:
1. What **issue** does hearsay address?
2. How **imp is that issue** in case?
3. **Any other evidence** address that issue?
4. Is the evidence more **probative** than any other evidence could reasonably obtain?
Also statutory guidelines are to consider **all circumstances**, including:
1. How **reasonable and practicable** would have been to secure the witness' attendance?
2. **How long** after the relevant event was it?
(sooner = more reliable)
3. Less reliable if **multiple** hearsay
4. Made in **collaboration** with another/edited?
5. **Motive** to conceal or misrepresent - e.g. to impress employer?
6. Did they **attempt to prevent** proper evaluation
e.g. late notice of intention to use the hearsay - so other party had little opportunity to consider
26
How may court restrict use of expert evidence in civil case?
- limiting number of experts or the number of issues can use expert evi for
- not allowing use of any experts
- making parties agree on experts
- limiting to written reports
27
What will court consider in deciding whether to permit use of expert evidence and what evidence will they need to do so? (civil)
is it **necessary** to help decide an issue in dispute?
Consider
- value of claim 💸
- proportionality ∺
- likely costs of using expert 🤑
Need:
- name of expert if poss
- field person is expert in 🌾
- expert's knowledge and experience 🔬
- issues expert will address
(think of it as a CV being tailored to the trial/what will address)
e.g. my name is luk. field building surveying. RICS 4 years. issues = whether local reservoir could be XYZ.
28
Duties of expert witnesses, inc who duty is to?
(inc duty of something they are NOT supposed to do)
- duty to court to provide objective and unbiased opinions on matters got expertise in
- duty is not to assume role of advocate
overriding duty to court but still have duty under SOGA to take reasonable care and skill
29
What will court consider in determining whether should have a single joint expert? (civil)
1. **proportionate** to have separate experts for each party on a particular issue
2. SJE likely to make **quicker and cheaper** to resolve
3. likely to be a **range** in expert **opinion**?
4. consider quantum, liability and causation
- e.g. quantum often appropriate for SJE
- but if quantum is the main issue in dispute, may need separate
30
who chooses single joint expert?
if parties can't agree, court based on list prepared by parties
(remember that reg book? well that isn't actually that helpful here because the parties create the list anyway so not sure why I've added that)
31
Standard order for expert evidence in fast track?
SJE
Cost shared (as always case for SJE)
And evidence normally given via written reports - expert not permitted to give oral evidence
32
Standard instruction of experts in multi-track? What will be considered in deciding what court should order in terms of SJE or separate?
Separate instruction of experts
Consider amount in dispute, importance to parties and complexity of the issue
(if disproportionate cost - SJE)
33
What does court do if separate experts are ordered?
(civil)
How long each party got to put Qs?
Additional directions - may give:
- Deadline for EXCHANGE
- Allows parties **28 days** to put written QUESTIONS to expert re clarification of their report
- may order **WP DISCUSSION** between experts in absence parties so can identify things like extent of agreement/disagreement
- Order experts to prepare **WRITTEN JOINT STATEMENT** (following discussion) stating what agree/disagree on/why - sent to parties
- Whether they should give **ORAL** evidence
(nb WP discretionary power of court and tbh I imagine most of these are)
34
Formalities for expert's written report? (civil)
i.e. what should contain and look like
(part 35)
1. Addressed to court
2. Qualifications
3. Materials relied on
4. **Facts and instructions**
5. WHO conducted any studies etc - their qualifications and if supervised?
5. Summarise any range of opinions and reasons for own
6. Summarise conclusions
7. Statement that understand their **duty to court**, complied with this and **aware of requirements of Part 35** and related guidance
8. Statement of truth
35
Statement of truth for expert report civil
(Drafting)
I confirm that I have made clear which facts and matters referred to in this report are within my knowledge and which are not. Those that are within my knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer."
36
Effect of expert failing to comply with rule 35/CPR rules?
If serious, party can't rely
But usually court just considers breach in assessing how much weight to attach to the evidence.
Trial judge may report expert to their governing body at end hearing depending on seriousness of breach
(although if they tell porkies they will be done for contempt of court - same for anyone who does statement of truth!)
37
professional conduct requirements for an expert in civil trial?
dothey need to say instructions?
set out all instructions been given so can tell their opinions aren't prejudiced
e.g. surveyor instructed to value on a quick sale would value differently than at general valuation
so solicitors should be aware that instructions aren't privileged
38
what will court order for expert in fast track?
single joint expert
in form of written report
apply to court if can't decide on fee arrangements / who to pick
oral expert evi in exceptional circumstances / court satisfied IoJ
either party can ask expert Qs
39
expert evi small claims usual order
TYPICAL DIRECTIONS
= parties not being allowed to rely on an expert’s report without express permission from the court.
Not allowed oral evi unless IoJ necessary
40
what must you do if asked expert Qs
send copies of qs and replies to court and other party
41
can expert witness be employed by party relying on them?
yes
(although court will, as always, need to be satisfied that expert is sufficiently aware of their responsibilities to the court esp re unbiased/objective opinions)
42
are complaints about defendant relevant / admissible?
e.g. surveyor and client complaints about similar issue?
complaints received in 6 months before survey?
referring to the construction method then being described as defective
43
can expert be instructed on a conditional or contingency fee basis (civil cases)?
No -
if they are contingent on nature of expert evi or outcome of cases should not be offered /accepted
interferes expert's overriding duty to court and independence
44
any exception to usual formalities on what an expert report should look like in civil case?
In professional negligence claim - D is allowed to give their own expert opinion on what they did or did not do that is said to amount to negligence
No need to be in a Part 35 format - D's witness statement will suffice.
45
3 types of evidence in civil trial?
1. Documentary
(standard disclosure - which means list not show- and inspection)
(only inspect if not privileged)
2. Witness
3. Expert
46
would witness be allowed to say “the car failed to stop because the driver was speeding”
no
speeding is tipping over the edge - could probs say was going over the speed limit - but is drawing conclusions from this
47
what happens if witness does not complete statement of truth? can they give evidence at trial?
court has discretion and MAY (!) allow witness to give evi at trial
48
Will witness giving oral evidence be allowed to amplify witness statement and/or give evidence relating to new matters which have arose since WS served?
(Civil)
only if there is **good reason**
e.g. if quantum in dispute/loss of future earnings and started a new job few days before trial then would be permitted
49
How should you inform court of witness' availability?
(civil)
- Directions questionnaire
- Pre-trial checklists
50
If not sure whether witness will attend voluntarily, what should you do?
(explain what it is)
advantage
(civil)
Seek witness summons.
This requires to attend court to give evi and/or produce docs to court.
:) judge more sympathetic to adjournment if W does not attend
51
When should witness summons be ISSUED?
(and what if not done in this timeframe)
(civil)
7 letters in W!
At least 7 days before they are due to attend court
Otherwise, court permission required
(nb it is still issued by court if have done within the required timeframe)
52
What happens if witness doesn't attend court despite summons being served? (civil)
County Court - fine
High Court - may be imprisoned for contempt of court
may also be liable for wasted costs arising from non-compliance
53
When is court permission required for a witness summons?
What does this mean you must do in practice?
Permission needed if
serving less than 7 days before witness due to give evidence
Not sure where below has come from:
*Want W to give evi in court or produce document either:
a) on a date other than fixed trial date; or
b) at a hearing other than the trial
- probably best without notice because quicker*
54
Who serves witness summons?
Practical implication of this on the party who applied for the summons?
usually the court
- unless party requests that they serve themselves
Either way:
party must **deposit** money to be **paid / offered** to witness at court office
(nb court issues)
55
Requirement for witness summon to be valid (aside from time limits):
Witness offered or paid
1. A sum covering expenses in getting to and from court 💰
2. Compensation for lost time from attending court 🕐
eg lost earnings
56
Would you often issue witness summons for an expert?
No - you can do - but expert witnesses are under a duty to keep those instructing them informed of their availability
57
What tracks require pre-trial checklist?
Fast, intermediate and multi-track
58
deadline for pre-trial checklists?
filed at court no later than 8 weeks before trial
(8 letters pretrial)
59
Purpose of pre-trial checklists (ie listing questionnaires) for judges and what judge may find after reviewing?
- check **complied** with directions and trial ready to proceed
- consider if **further** **directions** required
- decide whether **review hearing** needed
i.e. listing hearing in fast track / pre-trial review multi-track
- confirm estimated **trial length**
- set **timetable** for trial
60
Consequences of failure to comply with pre-trial checklist?
A) neither party complies
B) only one part complies
If NEITHER party complies,
- if don't file completed one in 7 days, strike out
If ONE party complies:
- fix hearing to ensure ready for trial
(asumming pre-trial)
61
For what cases may a judge order a pre-trial review?
Trial likely to last longer than 10 days
So can personally check progress
62
What will court do once it has reviewed pre-trial questionnaires?
1. time estimate and **timetable** for trial if necessary;
2. fix **place** of trial; and
3. confirm **date** of trial or **week** will begin
63
Max length of bundle?
Good practice - 250 pages
64
Who usually prepares trial bundle?
Claimant
65
When must trial bundle be filed?
Max 7 but not less than 3 days before start of trial
66
When is case summary requires and who prepares?
Multi-track cases
Cl responsible preparing but should be agreed by BOTH parties if poss
67
What should case summary include?
(aka skeleton argument)
1. disputed issues / what Qs judge needs to answer about them
2. what party says about each issue and what evi will rely on
3. any relevant law
4. Key docs judge should read
(Evie u must watch fb)
(key issues, key law, key docs, key evi)
68
Civil trial etiquette:
When should advocates stand?
How should witnesses be addressed?
Can you 🍟🍔
remain seated for hearings in chambers or before district judges, should stand when speaking in open court.
title and surname eg Mrs Jones
children by first name
no food
69
how should u address judges in civil court
*annoying but need to know*
County Court
- Circuit Judge = Your Honour
(circuit TV you would hear your honour)
- District Judge = Judge
(Amanda)
High Court
- Judge - my lord/lady
- District judge = Judge
CoA
- Lord Justice = my lord/lady
sup ct
- Supreme Court Justice
- my lord / lady
70
non-leading or leading Qs in civil trial?
(consider the diff stages of evi being given)
**C for cross-examination. C for closed.**
Open = non-leading
i.e. what where who why when how
(e.g. where were u on XYZ)
Closed = leading
i.e. yes or no
(e.g. u saw her steal the beans, didn't you?)
exam-in-chief: open only
cross: closed or open - but pretty much always just closed
re-examination (if permitted): open only
**same as criminal**
*(means open Qs more rare in civil trials than criminal bcos witnesses' own evi is usually examination in chief)*
71
what courts do fast and multi-track cases take place in?
County Court (surprised me a little)
High Court can too - main one in London but have district registries in many cities
(so any courts really i think! just that u can elect to have it in high court if over certain amount i think)
72
Usual order of events at a trial?
1. opening speech by claimant's advocate
(think Claimant begins with C, like Criminal)
- usually use case summary
2. claimant's case
3. defence's case
during cl and D's case:
- witness evi (witnesses of fact first and then expert evi)
- any examination-in chief
- cross-ex (always)
- any re-ex
4. closing speeches by both
5. judgment
73
Will additional examination by their own legal rep be allowed for witnesses in civil court?
What can they ask / not ask?
Court permission required?
When may u need this?
Permission judge needs to be obtained
Cannot ask about matter in **dispute** between parties
Would request if, e.g.
- new matters arose
- respond to it
- clarify / give context something
e.g. expert evidence covered something which not covered in WS
can only add open (ie non-leading) qs
74
who gives witness evi first in civil trial claimant or D?
ever varied?
claimant
but court can make alt orders re witness evi
- eg parties experts give evi simultaneously on issue by issue basis
75
who does closing speech first in civil trial?
Defence
Followed by Cl
(summarise law and facts in best light for their client)
76
when will judgment
A) be made
B) take effect
in civil trial?
A) usually at trial but sometimes delayed if case is complex
B) day made unless judge specifies otherwise
77
Order of judgment in civil trial?
1. Determine **liability**
(has Cl proved case)
2. Review evidence and provide **reasons** for decision
3. If D won - end of it.
4. If C won - **remedies**
- Usually pay sum (quantum)
- Unspecified: consider each category of damages in turn and interest
5. **Costs**
- decide if GR (unsuccessful party pays) applies
- fast/intermediate track = fixed
= no costs assessment required - select complexity band and read down to stage at which case ends.
- multi-track
(a) decides who pays
(b) amount decided at later hearing unless parties agree
78
what is quantum?
amount of monetary damages awarded to a successful party in a claim.
79
How long does a losing party in civil case have to pay costs order?
14 days
Unless order specifies otherwise
80
Difference between hostile and unfavourable witness and how to deal w them?
(civil)
Unfavourable = unhelpful to case but for proper reasons
eg forgot what happened
-just have to accept that risk exists when calling witnesses
Hostile = suddenly unwilling to support party who called them
- eg deviating from witness statement
eg refuse to answer
Overcome hostile witnesses:
- ask court to declare them as hostile witness
- can then cross-examine them as if were for other side
- can also **attack their credibility
(but not their character/prev convictions)**
81
Grounds for granting permission to appeal
Court considers:
1. appeal has **REAL** prospect for success
***OR (!!!!!!!!!!!)***
2. some other **compelling** reason
(realistic not fanciful)
eg imp Q of policy which higher court should consider
; AND
(**CoA or SC**) imp point of **principle or practice**
82
Who grants permission for first appeal and when?
(trial judge or appeal court)
usually ask trial judge - end of trial
If not granted or never asked - can apply appeal court
83
How will appeal court deal with request for an appeal?
i.e. u have requested to them that they accept your appeal
What about CoA?
Usually on paper i.e. no hearing
But if CoA - list for oral no later 14 days after relevant direction IF don't think can deal with without parties
84
When will second appeals be granted and who by?
CoA would need to grant permission itself
(first 2 same grounds as for first appeals):
AND
3. Raises imp point of **principle or practice**
85
Is there a right to appeal?
No
weird terminology but means there is no automatic right to appeal and is a procedure for obtaining
86
Procedure for appeal under CPR?
(got in other cards)
Process for obtaining permission:
1. request from trial judge at end of trial - judge decides whether to grant
(vision of someone waiving around appeal request at end of trial)
2. if above unsuccessful or never tried,
apply from appeal court itself
- court usually considers on paper
- but if appealing to CoA and CoA considers can't determine fairly w/o parties presence, must list for oral hearing within 14 days
87
how long CA got to LIST hearing to consider an appeal with parties if don't think can't consider application fairly without?
14 days after relevant direction
(presume direction means request for appeal?)
88
How long got to appeal a decision to:
A) County Court
B) High Court
C) CoA
4) SC
**overlap with criminal again here**
CC and HC - 21 days to appeal
(or the period directed by lower court)
CoA and SC - 28 days to apply for leave to appeal
(i.e. must file notice of appeal with appeal court within __ ^ days from date of lower court's decision)
89
Order of who to make appeals to?
(nb - where appeal depends on level of judge WHO DECIDED)
1. District J of County Court to Circuit J of County Court
2. Master or D J **of High Court** to High Court judge
(weird cos feels like master is v high!)
3. Circuit judge to High Court judge
4. High Court judge to Court of Appeal
90
What are leapfrog appeals and when will they be granted?
eg straight from County Court to CoA / High Court to SC
Permission may be granted if
raises **imp** **point principle or practice**
or
some other **compelling reason** why should hear it
(checked that)
usually urgent
general public importance
(see sep card for SC specific extras)
91
Grounds for leapfrog to Supreme Court?
(eg from High Court)
often if **point of law of general public importance** and / or **urgent**
e.g. interp statute or national importance
1. Grant of leapfrog certificate by trial judge; AND
🐸👏📄
2. Grant of permission to appeal by SC✅
(eg Gina Miller)
92
What grounds may appeal court itself grant permission to appeal?
(omg i get it now! not PERMISSION to appeal but grounds for GRANTING appeal ie saying i agree they were WRONG in their decision!)
Persuade:
1. **Wrong** (on law / facts / discretion); or
2. **Unjust** due to serious **procedural** irregularity in lower courts
93
what must re-examination Qs look like?
**only relate to matters raised by cross-examination**
consider carefully whether would acc improve the situation
open Qs only remember
94
what can be inc in costs (civil)?
solicitor's fees
dibs eg court fees
even pre-action costs
95
What will the effect of a Costs Management Order being given usually be (in multi-track)?
1. if standard basis, usually recover last approved **budgeted** costs
2. if standard, only depart budgeted if good reason
- e.g. budgeted not incurred or actual costs much less than budgeted
3. costs awarded on indemnity basis and incurred costs will be awarded in usual way unless agreed
(think this means will do reasonable but not proportionate etc)
96
How are LEGAL COSTS usually dealt with in
- small track
- intermediate
- multi-track
?
i.e. what is recoverable and when determined?
1. small track
- legal costs not recoverable (!!!)
- can only recover dibs
- end of case
2. fast-track and intermediate track
- fixed recoverable costs
- bands inc as complexity does
**higher band and later settlement reached, higher costs** payable
- no costs assessment required
3.. multi-track
- CMO
- detailed costs assessment
97
fast and intermediate track
can costs be changed?
can apply - only awarded "exceptional circumstances"
court may increase costs of paying party or reduce of receiving by 50%
"for unreasonable conduct"
98
Effect of costs being fixed by CPR? (Part 45)
Example of where costs will be fixed.
Adv/disadv for the parties?
- fixes the amount recoverable from losing party
- court limited to awarding the fixed cost
- now applies for intermediate and fast track
eg:
**default judgment**
- costs usually fixed regardless of amount spent
- but sometimes parties agree otherwise and judge usually agrees to differ from this position
:) good for losing party - know how much will pay
:( winning party unlikely to recover all costs
99
If costs are not fixed, what is the name of the thing that court does and explain what it is?
Summary assessment (of costs)
^ court decides what amount at end of hearing.
If can't make summary assessment, detailed assessment.
NB: not usually multi-track (detailed isntead) or small claims (Cos not dibs) or fast or intermed (so fixed). but interim or where last less than one day
100
General rule on when court should make summary assessment of costs?
costs not fixed and court determines amount payable at end of hearing.
would be at any hearing where costs not fixed which lasted NOT more than one day
unless good reason not to.
***so interim and perhaps multi-track one day or less***
101
What should parties do to assist judge making summary assessment, and by when?
File and serve statement of costs
(ie detailed breakdown of costs - done before)
1. No less than 2 days before fast track trial; or
2. At least 24 hours before interim hearing
(just don't see how this is relevant now fixed costs)
102
Is it good practice to leave costs for judge to asses via summary assessment?
Risks with judge deciding so try to agree costs if possible
103
What should happen if judge unable to make a summary assessment of costs?
(eg due to lack of time)
Order for detailed assessment of costs
(nb multi-track - pretty much always do this way anyway)
104
If court ordered a detailed assessment of costs, what must receiving party do?
Serve **NOTICE** of Commencement (of detailed ass. proceedings) on paying party, with
- their **BILL** of costs
- **EVIDENCE** in support, eg receipts
^ i acc remember doing something similar ^
105
What to do if dispute detailed assessment costs?
1. paying party has **21 days** to file points of dispute
2. receiving party has **21 days** from then to file reply
3. RECEIVING party (random) must then **file request** for assessment hearing max **3 months of expiry of period for commencing detailed** assessment proceedings
4. if costs **under £75k** (near TH sal), court provisionally assesses costs **w/o parties**
5. if either party disagrees w court's provisional assessment, can request **oral** hearing within **21 days**
- if doesn't adjust costs in their favour by at least **20%**, must pay costs of hearing
106
what must be cost of claim for court to provisionally assess in absence of parties where dispute over detailed assessment amount?
under £75k
107
How long does receiving party have to request for assessment hearing
Do they have discretion re whether to do this?
3 months of expiry of period for commencing detailed assessment proceedings
As long as they are disputing the paying party's points of dispute, must do this (after filed reply to the paying party)
108
if either receiving or paying party disagrees with court's provisional assessment of costs, what can they do?
any risks with doing that?
request oral hearing within 21 days
- if doesn't adjust costs in their favour, must pay 20% of hearing costs
109
What is inter-partes costs and when will they be considered?
Costs between the parties
Will be assessed at:
1. Any interim hearings
(eg summary judgments)
2. Final stage - i.e. when settlement reached or court given its final judgment
110
How will inter-partes costs be dealt with at interim hearings?
(inc when in hearing)
- costs must be considered at end
- usually summarily (immediately) determine who pays how much for that specific hearing
(e.g. application for summary judgment)
(think SUMMARY judgment SUMMARILY assessed)
111
Relevant factors in assessing costs for receiving party?
(to do with reasonableness according to prep task)
(applies whether standard or indemnity basis - which reinforces to me that is do w reasonableness)
1. Value of property involved
2. Complexity of claim
3. Conduct, inc attempts to settle
4. Specialist knowledge/skill required?
5. Importance of claim to the parties
6. Time spent on case
7. Place and circumstances where work done
8. Last agreed budget of receiving party
112
2 basis which costs will be assessed on?
1. Standard
(most cases)
2. Indemnity
113
Costs awarded on standard basis must be ______ .
When will court consider the costs to be _____ ?
Proportionate to matters in issue
114
What will court consider in determining whether costs are proportionate on standard basis?
(part 44 CPR)
*imp*
- **financial value** of claim
- **value** of any **non-monetary** relief in issue
- **complexity** of litigation
- additional work caused by **conduct** of parties
- wider factors eg **reputation** and **public importance**
(if proportionate, total costs allowed. doubt resolved in favour of paying party).
115
Who will any doubt regarding costs on standard basis be resolved in favour of?
PAYING party!
nice. standard.
116
Explain the two-stage approach to assessing costs on standard basis?
court considers
1. if each item claimed was REASONABLY INCURRED and if so, reasonable in AMOUNT
- any unreasonable costs disallowed or reduced
eg expert report prepared before proceedings issued
2. ^ once got overall costs
are they PROPORTIONATELY INCURRED, if so, proportionate in AMOUNT?
(based on factors on earlier queue card)
ANY BENEFIT RESOLVED IN FAVOUR OF PAYING PARTY
if deemed disproportionate, scrutinise various categories of costs to decide if should be **further reduced**
(eg disclosure or factual evidence)
117
Indemnity basis - court must be satisfied that costs are what 2 things?
Who is any benefit resolved in favour of?
1. reasonably incurred; and
2. reasonable in amount
Receiving party
(lots of Rs reasonable and Receiving)
118
2 main diffs between standard and indemnity costs basis?
1. benefit doubt resolved favour of receiving party on indemnity
2. no test of proportionality on indemnity basis
(must just be reasonable)
119
Witness summons must be issued by who.....
(clue: there are 2 options)
- the court where the case is proceeding; or
- the court where the hearing will be held
JUST KNOW IT IS THE COURT OK !
120
what may witness summons require witness to do ?
- **attend** court to give evi; or
- **produce docs** to the court; or
- both
121
how many copies of witness summons should be filed with court?
2
- one for sealing and one to retain on court file
122
if party wants to serve witness summons itself, what must it do?
- notify court in writing that wishes to do so
- offer witness the sum owed
123
witness summons form?
n20
124
time limit for serving and issuing witness summons?
- issued 7 days before trial date
- served on witness at least 7 days before date must attend court
nb
- issuing is when court grants WS
(I think usually pretty automatic unless under 7 days etc)
- serving is delivering on witness
125
things that should be inc in trial bundle
- each party's case summary (ie skeleton argument)
- hearsay notices
- witness statements
- medical reports
- expert reports
-etc
should not contain unnecessary docs and should be agreed where possible
126
risks of inc extra unnecessary docs in trial bundle?
costs may be imposed on party or solicitor personally
may be breaching SRA Code of Conduct rule that solicitor should not waste court's time
127
If don't challenge witness statement in civil case, will you be regarded as accepted it?
Yes
128
kes 36 and 37?
part 36 offer to settle (likely to do)
3-7 days before hearing bundle due
129
why would a party appeal to CoA?
(just included this bcos made appeals make more sense)
A party needs permission from a court to appeal a decision.
general rule is that permission to make a first appeal can be requested from both the lower court and/or the appeal court.
If permission is granted but the appeal is refused, that party then needs permission from the Court of Appeal to make a further, second appeal.
Of course, it’s the same if a first appeal is successful and the disappointed party wants to appeal to the Court of Appeal.
recent County Court fast track case, my client was refused permission by the District Judge, at the first case management conference, to amend their particulars of claim. I asked the District Judge for permission to appeal that decision and permission was refused. I then asked a County Court Circuit Judge for permission to appeal the District Judge’s decision and this was granted.
130
difference between witness statement and witness summary?
can u just submit witness summary?
(notin textbook fyi)
Witness summary = what you THINK witness is going to say if they do go to court
Can serve just a witness summary and no witness statement if there is a court order
Eg say that we can't trace her but this is what they are likely to say
131
In context of budgeting at CMC, what are agreed budgeted costs vs incurred costs?
Are they binding
B for budgeted B for binding.
- Court's assessment of budgeted costs are **binding** when comes to actual costs (ie once know who lost and won)
Incurred costs = anything before CMC
Incurred costs are not assessed at CMC / not binding
Agreed budgeted costs = what said at case management that they anticipate to spend
^ i don't think this is right. costs budget is incurred and budgeted costs. will not depart from costs budget unless good reason.
132
can winning party get court fees back?
yes they are recoverable (form of dibs)
133
difference between grounds for granting permission and grounds for granting appeal?
(civil)
girl this makes sense now
Grounds for **permission** to appeal
1. first appeals - real prospect success or SOCR
2. second appeals
- same but also imp point principle or practice
Grounds for **granting** appeal
- i.e. they agree with the appealer and grant their appeal (so overturn other judges decision)
1. Wrong law/fact/discretion and / or
2. Unjust (serious procedural irregularity)
134
How to refer to opponent in civil case?
Can call Miss Smith etc
Can call "my friend" (solicitor)
Generally barristers = my learned friend
135
when to stand/bow in civil court as a solicitor?
stand when judge enters and leaves
bow when you enter
136
Is court or successful party responsible for obtaining money from losing defendant?
What is enforcer known as ?
Successful party
aka 'judgment creditor'
137
What should be considered about opponent before proceedings commenced?
Enforcement / if they can pay
Investigate **whereabouts** and **assets** of opponents
138
Judgment creditor vs judgment debtor meaning?
Judgment creditor = winning / enforcing party
Judgment debtor = losing party / who needs to pa
139
2 ways to assist in deciding best way to enforce judgment against losing party?
(nb: this is once u have won)
To out more info about their financial situ:
1. Instruct an enquiry agent; and/or
2. Apply to court for order to obtain info from debtor
note: enquiry agent expensive but may be worth it if high value / appear to be hiding assets
140
Procedure for order to obtain info from judgment creditor?
(nb: this is once u have already won)
1. **Notice** of application winning party at court
- debtor's details, specific docs
2. Order personally **served** debtor
- within **7 days**, can request reasonable travel **expenses** to/from court
3. Examined by court **officer** or **judge** if winning party requests
^ usually debtor's local **county court**
4. **Swear on oath** on own finances / company of which officer's finances
5. Standard Qs asked - winning party can **request specific** ones
6. Responses are **written** down - debtor requested to sign
141
What happens if judgment debtor fails to attend court following order to obtain financial info?
Judge may committal order
(i.e. imprisonment for contempt of court)
Suspended if then complies with order
142
Methods of enforcement for judgment creditor (winning party)?
1. Charging order
(charge on their land/securities)
2. Take control of (seize and sell) debtor's goods
3. Third party debt order
(require a TP who owes money to debtor to pay directly to creditor)
4. Attachments of earnings order
(employer must make deductions from earnings and pay them to creditor)
143
Is it possible to use one or more enforcement options against judgment debtor?
Can choose one or more if can afford/want to
But some limits
eg if attachment of earnings order in force, need court permission to also take control goods
144
When is it good idea to choose taking control of goods as enforcement option against judgment debtor?
Amount owed can be recovered by seizing possessions of equivalent value
145
If taking control of judgment debtor's goods, where must they be sold?
Public auction
146
Who actually 'takes control of goods' if selected enforcement option by judgment creditor?
(ie who does the seizing / selling)
clue: differs between 2 courts
High Court - HCEO (high court enforcement officer)
Country Court - enforcement officer (bailiffs)
147
Powers of enforcement officers taking control of judgment debtor's goods?
(clue: differs home and business)
Can't force entry in debtor's home
Can use reasonable force if business premises and believe goods are inside
148
What may be seized if taking control of goods (enforcement option)?
usual contents of home or business
eg cars computers cash
Less common but still can seize boats / securities eg share certificates
149
what goods cannot be taken control of by bailiff?
1. '**necessary** items exemption'
(individuals only)
- for basic needs of debtor and fam
- clothes, bedding etc.
2. Items up to **£1350** necessary for work or school
eg tools/computers
*same as CRAR*
2. hire property or hire purchase agreements
*same as CRAR*
3. property **solely** owned by another
- court resolve any disputes re a co-owners entitlement to a share of sale proceeds
150
if seeking to enforce judgment (get loser to pay) via taking control - which court should u go to?
1. Less than £600 - County Court
2. £600 + but less than £5k - either CC or High Court
- if High Court, judgment must be transferred from County to High Court
3. 5k or more
- High Court, except for proceedings under Consumer Credit Act
151
What document must judgment creditor send to county vs high court to request enforce judgment?
CC = warrant of control
HC = writ of control
152
Procedure for enforcing judgment in High Court?
(nb: enforcing means getting loser to pay)
1. winning party issues praecipe (request) and two copies of writ of control and judgment to court office
2. court seals writ and returns one copy to creditor
3. creditor can forward this to HCEO (enforcement officer) for the county where debtor resides / business
153
Procedure for enforcing judgment in County Court?
- creditor files request for warrant of control **at judgment debtor's CC** hearing centre
- enforced by enforcement officer for district where debtor resides/business
154
process for enforcement officers executing writ or warrant of control if debtor needs time?
- Usually immediately remove or take control of goods
- If debtor needs time, can reach **controlled goods agreement**
(debtor acknowledges enforcement agent taken control and debtor agrees not to remove/dispose until paid)
so goods remain on premises for few days - gives one final opportunity to pay.
- if still no payment, goods sold at public auction / surplus returned to debtor
155
Advantages of enforcing judgment via 'taking control goods'?
(ie enf officer seize sell)
:) - High Court - HCEOs paid based on amount collect - so generally successful
:) High Court - interest accrues on debt
:) relatively easy to recover if got goods on site and comm prop - can use reasonable force
156
Disadvantages of enforcing judgment via 'taking control of goods'?
Savvy debtor can refuse entry if dwelling
Logistical difficulties enforcement
Costs of enforcing
+ relatively low re-sale value
^ means can't always recover amount due
(eg car locked in garage)
157
Explain what charging order for judgment creditor is?
- what assets?
- broad effect?
- what might wait for?
**Land or securities** (eg stocks and shares)
Creditor becomes like mortgagee
Charging order hovers on asset until creditor applies for order to sell
May wait until **value** increased to cover judgment debt
(part 73)
158
Can charging order be over land which D jointly owns with another?
Explain.
Also can it be over unsold stock?
Yes
Order will be charge over D's beneficial interest, rather than land itself.
And yes can be over unsold stock
(can get over stocks and shares)
159
What must a judgment creditor do if got charging order on land?
Register charging order at Land Registry or if unregistered, Land Charges Department
160
How would judgment creditor get money from charging order on land?
***apply to court order*** for sale of land charged
judgment satisfied out of sale proceeds
fresh proceedings must be commenced
161
Which court must application for charging order be made to?
£5,000 or less - county court
More than £5,000 - can apply County or High Court
(if applying to county court, must submit to Civil National Business Centre)
162
3 stages of the charging order procedure?
(no explanation - just each stage)
1. Interim charging order (ICO)
2. Final charging order
3. Order for sale
- fresh proceedings must be commenced
163
Explain first stage to charging order procedure - i.e. the ICO?
How long to serve?
How long to request review?
- Judgment creditor **files** application notice and **draft interim charging order** (ICO)
- usually dealt with by court officer w/o hearing
(will make ICO or refer to judge)
- ICO, application notice and any supporting docs must be **served** by C on D within **21 days**
- Debtor has **14 days to request review** decision by judge
164
Deadline for serve interim charging order (ICO), by who / on who and any other docs to serve?
By creditor on debtor
Within 21 days of ICO being made by court officer/judge
ICO, **application** **notice** and any other docs filed in support
165
What must debtor who wishes an ICO to be reviewed by a ____ do?
14 days from ICO being served
Request that court officer's decision is reviewed by JUDGE
166
If a party objects to final charging order (FCO) being made, what must they do and by when?
What would happen once received by court?
(nb: textbook skips traight to this when discussing FCOs)
- File and serve written evidence stating grounds of objection within **28 days** of service of ICO
- Court will then transfer the application to **debtor's home court** for a hearing
- At hearing, court can:
a) make a FCO
b) discharge the ICO or
c) direct trial of issues in dispute.
(debtor 14 days to request review of ICO. 28 days after ICO to object to FCO.)
(if ICO been served and no disputes within 28 days, FCO will be passed I think)
167
Charging order over shares/securities will extend to ______
interest or dividend payable
168
Advantages of charging order as means enforcement?
:) if D **limited available assets** / other options wouldn't allow to recover
:) **interest** accrues so encourages debtor to pay
:) secures the debt, even tho slow
- no other assets secure against, **better slow than not at all**
169
does interest accrue on charging orders (for land AND shares)?
yes
170
Disadvantages of charging orders?
:( may not be effective or granted if:
- **multiple charges** or mortgages already
(priority)
- D **no** **beneficial** interest
:( if granted:
- can be **slow**
eg other people in the house affected by sale
^
but only option if no other assets !
171
Purpose of third party debt order?
Debtor owed money by TP
Including:
1. bank or building soc accounts in credit
*e.g. debtor refusing to pay but has money in bank account*
2. trade debts
*e.g. owed money for business debt*
Court can make Part 72 order requiring TP to pay CREDITOR (!!!) judgment costs/debts
172
Precondition regarding the debt itself for third party debt order to be made by judgment creditor?
Debt must belong to judgment debtor **solely and beneficially**
maybe remember it as TP almost seems opposite of sole and beneficial!
173
Where should application be made for third party debt order?
The one which judged the original case, unless proceeding were later transferred to a diff court
174
Procedure for third party debt order?
(enforcing judgment)
do u notify o/s?
what happens after application.
timelines?
1. Apply WITHOUT NOTICE
2. Judge makes interim order
- **freezes** bank account or funds held by TP
- no money paid to creditor
- but hearing listed no less **28 days** later
3. Hearing
- court considers objections
- unless good reason, makes order final
(eg good reason - behind rent and using food banks)
175
Advantage and disadvantages of third party debt order?
:)
- w/o notice - only find out when **frozen** - element of **surprise**
:(
- **savvy** debtor aware could happen so **move** funds beforehand
:(
- ineffective if account **not in credit** on day order made
:(
- bank account must be in **sole name**, otherwise fails.
176
Who to apply to for attachment of earnings order?
County Court ALWAYS
(high court no power!)
fr the cmn man !
177
Procedure for attachment of earnings order?
inc what order will contain and which court apply to
1. Apply County Court
(Civil National Business Centre)
2. Court informs debtor, requiring to **pay** or **file statement of means**
3. Court officer (or if insufficient info, judge) makes the order:
- **specified** deduction rate
- **protected** earnings rate
(ie if earnings for a week is below a specified amount, creditor receives nothing for that week)
4. **Order sent to parties and employer**
- employer entitled deduct small **admin sum**
178
What can a party (inc employer) who objects to attachment of earnings order made do?
Apply to court to reconsider by district judge at a hearing
179
Advantages and disadvantages of attachment of earnings orders?
:) **effective** if remain in work
:) can be quick depending on sum/earnings
:( not if unemployed or self-employed
:( if **lose job**, payments stop
:( if **change** job, must repeat process
:( may order **low value instalment** - so long time to satisfy
180
Process for enforcing civil judgment in Scotland and Northern Island?
(inc time limit)
1. obtain **certificate**; and
(i have got my FBR cert!!!!)
2. apply to court in Scotland or NI in **6 months** date issue certificate
(took me approx 6m apply!)
may enforce via local methods
181
Process for enforcing civil judgment in Commonwealth countries?
(time limits for judgments of diff courts)
Judgment must be **final**:
High Court - register within **12 months**
County Court - register within **6 years**
(county has 6 letters)
Failure means creditor loses right to enforce
182
Can you enforce (civil) judgment in non-commonwealth countries?
(nb, there are two ways)
nb: both below points apply if EU if proceedings post 1 jan 2021
1. if **HAGUE** Convention applies
(i.e. parties already have **exclusive** choice of court agreement)
- judgment will be **recognised and enforced** in that country
(so judgment was in england. hague convention it said spain. can enforce english judgment in spain w/o further proceedings. vice versa.)
2. if not ^, common law rules
- creditors ability to enforce **depends on national laws**
- usually must issue **fresh** proceedings with local lawyers
SO
if commencing proceedings where foreign element means enforcement likely issue, consider issuing in that country
183
What is non-party costs order?
Who can/cannot be made against?
Common?
Part ___
Court DISCRETION
Will be the exception.
Non-party meet costs **if apparent losing party unable to.**
Only if non-party is *real party **interested** in proceedings or **responsible*** for bringing proceedings.
no requirement TP improprietry
e.g. family/gofundme contributors w no interest in outcome don't count
e.g. controlling shareholder and director of insolvent company. inter alia had given instructions to solicitors/funded it all
Part 46 (think of it as 10 above part 36)
184
Procedure for bringing non-party costs order?
Before order made:
- TP added as party to proceedings
Then:
- TP must attend hearing where court determines costs
(usually assessed by trial judge)
185
When can court make a security for costs order?
**Part 25**
Court **MAY** (discretion)
1. **JUST** to do so in circumstances; AND
2. One or more conditions met:
A) C resides outside **Hague Convention State**
- EU, Singapore, Denmark, Mexico, Montenegro, UK
(been all except Mexico)
- company = central management
- individual = reside
C) Cl is **IMPECUNIOUS COMPANY**
- reason believe will be **unable to pay** D's costs if ordered
- financial evi required
G)
Claimant took steps which **WOULD** (not might) make enforcement difficult
e.g. dissipated or transferred assets overseas/somewhere unknown to D
eg relocating to Saudi
eg refuse to disclose assets
(nb freezing injunction may be apt here)
186
What is security for costs order?
(inc who can bring)
Protects D if claim brought against them
Requires claimant to pay **deposit**/guarantee
Court discretion
**Cl can request if defending counterclaim**
D to **Part 20** additional claim can bring
(ie contribution/indemnity against TP)
187
What will court consider in assessing JUSTNESS in making security for costs order?
1. **STRONG** defence? 💪
2. Cl a**bility to provide security** ❌🤑.
- C reas protect success, courts reluctant if stifle claim
- **BoP on C**
e.g. if satisfy court no way of raising funds at all to provide the security
(v strong ground for impecuniosity)
*if u are solicitor for D - AVOID this - remember no money because of D's CONDUCT is separate argument.*
3. If Cl got no money (impecuniosity) because of D's **conduct**
4. If applying due to Hague Convention condition but Cl has **sufficient assets** in UK
5. Waited too long to apply
(no fixed time period - just **PROMPTLY** if possible)
188
Procedure for security for costs application?
- D write to Cl ask voluntary security
(same for all interim)
- If can't agree, D submit notice of application **and witness statement** to court
- Must justify amount sought
- Order will state amount, date due and form of security (eg deposit)
(same as most interim! try them then court with WS)
189
Are costs payable if case is settled?
- settle prior to issuing proceedings: not entitled to recover
- litigation commenced: if **consent or Tomlin order **- can issue to recover any costs due under settlement
190
Formalities for Part 36 offer be valid?
1. in writing
2. states its part 36 offer
3. state minimum 21 days to accept ('relevant period')
(nb can be longer than 21 days)
4. if relates to whole or part of claim, and any counterclaim
191
When will part 36 offer be made?
When served on other party
(rules of deemed service apply)
192
Is part 36 offer WP?
WPSATC
so only aware when do costs
193
Is interest included on Part 36 offer?
Yes
If u are writing part 36 letter to o/s - should say
"for clarity, inclusive of interest"
or "exc interest"
Up to day 21 - according to standard rate on particulars of claim
From day 22/relevant period up to date of judgment - enahnced interest of no more than 10% above base rate
[you claim interest when bringing a claim. includes that.]
194
How does time limits apply on part 36 offers to settle?
Usually require accept in 21 days
- can allow for longer
But even then, unless offer withdrawn, can be accepted after this period
(will be cost consequences if late)
Need to withdraw if you are the claimant even if 21 day passed if would no longer want to accept that offer
eg claim inc in value
195
If Part 36 offer accepted within relevant period, when must sum be paid to claimant?
Implications if not paid within then (clue: costs)?
Within **14 days** of acceptance
Other party can enter judgment and entitled to costs up to date of acceptance on standard basis
(unless agree costs).
196
If Claimant accept DEFENDANT'S part 36 offer on or before end of relevant time period, what will you be entitled to?
What if can't agree on this?
- amount offered (pay within 14 days)
- legal costs **up to date of acceptance** on standard basis
- or apply to court **to assess costs** if don't agree (eg if think cl's costs too high)
197
Consequences of late acceptance of part 36 offer?
Proceedings stayed.
1. If Cl accepts late
- awarded costs up until time limit to accept expires
- **pay D's costs thereafter** until accepted
2. If D accepts late
- pay all Cl's costs of **proceedings** up to date of **acceptance**
(not that deep tho cos even if accepted within 21 days, still pay costs up to acceptance.
Both:
- STANDARD basis.
- must be paid in 14 days.
^ unless parties agree otherwise
198
If unreasonably refuse part 36 offer, from what day will penalties start being imposed?
day period for acceptance expires
(i.e. day 22 or equivalent)
199
when would court not impose penalties due to refusal of part 36 offer?
UNJUST, considering:
- terms of offer
- stage in proceedings offer made
- info available at time of offer
- conduct - refused give info to assess offer?
- genuine attempt to settle
(rare i think)
- eg offeror not provided sufficient disclosure to make informed decision
- offer expired only days before trial and crucial allegations that not pleaded raised in opening of case
200
Three possible consequences at trial where CLAIMANT made a part 36 offer?
1. Win at trial and awarded sum which equals or beats own offer
(good because win AND penalties imposed)
2. Win case but obtain judgment less than offer
- part 36 no effect
(must have pitched too high so reasonable to refuse)
3. Claimant loses
- part 36 has no effect
201
If claimant made a part 36 offer which was refused, and then wins at trial and awarded sum more than or equal to offer, what must D pay?
1. DAMAGES
- 500k 10%/1m 5% - 75k
2. UP TO DAY 21
- INTEREST on damages as claimed in particulars (from date of loss up to day 21)
- standard basis costs
3. FROM DAY 22
- INTEREST on damages at max 10% above base rate
- costs on indemnity basis
^ or if fixed (fast/intermed), ***35%*** uplift on fixed recoverable **COSTS**
(instead of indemnity)
- Interest on costs max of **10%** above BR
202
What additional percentage is payable on DAMAGES if Cl wins and Part 36 applies?
a) damages up to and inc £500,000 - additional 10%
b) damages over £500k and up to 1m - 10% on first 500k and 5% thereafter
MAX 75k
(if not awarded damages, will be of 'sum awarded')
203
Part 36 - what COSTS penalties apply where Cl judgment more favourable or equal to C's offer?
From Day 22 onwards:
- COSTS from this period until judgment on indemnity basis
^ or fixed (intermed/fast) - 35% uplift instead
- interest on those indemnity costs max 10% b/r
- INTEREST on DAMAGES at max of 10% above b/r at court's discretion
- 500k 10% stuff (see sep queue card)
204
Will Claimant who succeeds in litigation usually be expected to pay D's costs?
No
Exception - Part 36
205
If claimant wins at trial win equal to or less than D's part 36 offer, what will they be ordered to pay?
Name for this order.
fyi ive checked and this is right that covers where equal to
Unless **unjust**, court order that
- up to day 21, D pays C's costs on standard basis (usual)
- from **day 22** to judgment:
1. Ds costs on **standard** basis; and
2. interest usually at **1% or 2%** above base rate
^ if fixed costs:
- D pays fixed costs up to **stage** where period expired
- C pays thereafter + usually interest 1 or 2% above BR
'split costs' order
206
Costs where Claimant loses at trial and part 36 offer was made by D?
Pay D's costs; and
Interest from day 22 until judgment usually 1% or 2% above base rate
207
are costs payable for security for costs application?
yes
usual costs position on interim application applies
ie loser pays winner's costs
208
If security of costs order but claimant is saying their assets all held by others on their behalf, are you prevented from going after them?
May be able to go for the equitable interest
(faff to show)
209
Can part 36 offer be made before proceedings?
Is there a last date to make offer?
A Part 36 offer may be made at any time, including before the commencement of proceedings.
No limit - could make on court steps - but costs bite would be limited.
(nb: earlier make the better cos costs consequences)
210
tip on working out 21 days
it is 3 weeks
so say if it was a tues
would be 3 weeks on weds for 22 days i think
211
how should the following be laid out on a claim form:
- individual
- sole trader
- partnership
- company
- deceased
- under 18
Mrs Rehana Waheed
If use business name, include it
- e.g. 'Andrew Tucker trading as Marvel Designs'
Partnership:
Justice & Co - a firm
- don't name individuals
- name and then follow by suffix - a firm.
Arrow Engineering Ltd
- be sure to check whether they use Ltd or Limited
Name of administrators or executors, or 'personal representatives of [name] deceased' if not
‘Mr Joe Bloggs as the representative of Mrs Sharon Bloggs (deceased)’.
U18
- liti friends
"Alice Bloggs (a child by Mr Joe Bloggs his litigation friend)"
- no liti friend
"Alice Bloggs (a Child)"
212
is court fee standard across all cases?
no can be impacted by amount claimed
(max 10k)
213
if assisting client drafting witness statement what must they say
that they made with assistance
and how
e.g. face to face
eg
‘I made this witness statement with the assistance of my solicitor face to face.’
214
should u say "in my opinion D was drunk" (wit st)
no as better talk about senses etc
(even tho can say it - better not to)
e.g.
"he was slurring his words"
"falling over"
215
DR witness statement:
‘I was informed that the Claimant had left the office at six o’clock on Friday, 07/02/202X.'
wht should it say?
WHO informed
Do as a figure
George informed me... 6pm on Friday, 7 February 202x
216
Should you introduce expert evi in witness st? (DR)
No
(so shouldn't be saying I refer to copy of surveyor's report XYZ)
217
Effect of fixed recoverable costs in prep for fast and intermediate track
What abotu VAT?
No costs budget required
No cost assessment
Parties just need to select the correct band and read down to the 'stage' at which the case settles
(net of - ie before adding - VAT and court fees)
