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Litigation skills 2 > Exam > Flashcards

Exam Flashcards

1
Q

What is the overriding objective?

A

to enable “the court to deal with cases justly and at a proportionate cost”

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2
Q

What kind of facts do you NOT need when filing a claim?

A

non relevant, conclusions, evidence

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3
Q

explain DBCL/RICL - D/R (1/4)

A

what duty/right existed?

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4
Q

explain DBCL/RICL - B/I (2/4)

A

what was the breach that broke the duty/right?

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5
Q

explain DBCL/RICL - C (3/4)

A

what was the result of the breach of the duty?

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6
Q

explain DBCL/RICL - L (4/4)

A

what can be claimed? accounts of profit OR damages

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7
Q

what is the time limit for a defendant to respond to a claim?

A

14-90 days

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8
Q

what needs to be included in the defendants letter of response to a claim?

A

(1) whether the claim is accepted or not
(2) if not, (2a) why, (2b) explain
(3) counterclaim (opt)
(4) agreements to ADR
(5) exchange of key docs if required

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9
Q

what are the consequences of not complying/not responding to a claim letter?

A

deemed as admittance to claim (or the part of the claim that was not addressed)

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10
Q

what are the penalties of not complying/not responding to a claim letter?

A

(1) case management directions
(2) cost sanctions
(3) deprivation of interests
(4) lower or enhanced interest (ie no interest on damages awarded)

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11
Q

what is the fee value you need to pay the court when filing a claim?

A

5%, capped at 10k

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12
Q

what can you do if you don’t know the value of the claim?

A

can leave blank - will be deemed as unlimited and (1) you need to pay 10k max fee, and (2) need to specify a minimum value so court can allocate the claim

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13
Q

what is the high court system?

A

supreme, appeal, high court - KBD, family, chancery div (IP, IPEC, patents)

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14
Q

what is the general small claims track?

A

0-10k value
1/2 day hearing
no cost recovery

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15
Q

what is the fast track?

A

10-25k value
1 day hearing
fixed recoverable costs
not in IPEC

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16
Q

what is the intermediate track?

A

25-100k value
3 day max hearing
fixed recoverable costs depending on complexity
not in IPEC

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17
Q

what is the general multi-track?

A

100k+ value
loser pays costs (reasonable and proportionate)

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18
Q

what claim value do you need to start in the high court system?

A

100k

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19
Q

what claim value do you need to start in IPEC?

A

0+

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20
Q

what claim tracks are available in IPEC

A

small and multi

21
Q

what type of IP can the IPEC small claims track deal with?

A

copyright, TMs, passing off, UDR (UK and EP), confidential info

22
Q

what type of IP can the IPEC small claims track NOT deal with?

A

patents
Reg designs
semiconductor topography
plant varieties

23
Q

what is the IPEC multi-track

A

10-500k value
capped costs 60k
can deal with all IP
3 day max trial

24
Q

what remedies can you NOT get in IPEC small claims track?

A

interim injunction
orders for pre-action disclosure
freezing orders
search and seizure orders

25
Q

what considerations are there for picking IPEC over other courts?

A

size and cost of case (500k cap)
fast
specialist judges
short trial
capped costs
conduct
value of costs
remedies
complexity
public importance

26
Q

list some types of ADR

A

mediation
negotiation
arbitration
UKIPO opinion or early neural evaluation
expert determination
do nothing/stop/pay/concede
media pressure

27
Q

list some advantages of ADR

A

creative commercial solutions
preservation of relationship
speed
cost
avoiding litigation risk
expertise from mediator etc
confidentiality
lack of precedent value
finality (no appeal)
apologies

28
Q

list some disadvantages of ADR/why you might go to court instead

A

publicity
precedent
limited solutions
dishonesty
enforcement
penal notice
judgement
highest quantum

29
Q

what is mediation?

A

facilitated negotiation

30
Q

what is the cost split of mediation?

A

50/50 unless otherwise agreed

31
Q

set out the mediation process

A

voluntary
mediation agreement (set our process)
plenery session
opening statements
in separate rooms, parties talk with mediator
agree on a settlement/solution or not

32
Q

what are the reasons to refuse mediation?

A

halsey factors
(1) nature of case
(2) merits/complexity of case
(3) cost of mediation
(4) prospects of success

33
Q

what are the normal cost rules in court?

A

loser pays
conduct taken into account (eg reverse cost orders etc)
reasonable and proportionate
IPEC capped costs

34
Q

what must you not do under R14.1 (conduct)

A

do not submit:
unsupported facts/contentions (no evidence)
unjustifiable contentions prima facie
allegations of fraud

35
Q

in what circumstances can you make an allegation of fraud

A

if clearly instructed
AND
prima facie supported by credible material
(does not preclude bad faith allegations)

36
Q

if you are in breach of code or at risk of being in breach, what should you do?

A

decline to do as instructed
cease to act
(in assessment:
ID conduct issue, explain, set out approach)

37
Q

what is a part 36 offer?

A

a type of offer to settle before going to court

38
Q

how do you make a part 36 offer and what are the requirements?

A

in writing
state it is intended to be a part 36 offer
make it clear which part of the claim it refers to
must be open for at least 21 days
defendant agrees to pay claimant’s costs to the date of acceptance

39
Q

if the claimant fails to beat a defendants part 36 offer at trial, what are the consequences?

A

defendants gets:
costs (ie loser pays rule reverses) from date on which period for acceptance of offer expired, and
interests on costs

40
Q

if the claimant beats its own part 36 offer at trial, what are the consequences?

A

claimant gets:
interest on sum of money awarded not exceeding 10% above base rate (not applicable to interest)
costs starting with date on which period of acceptance expired (includes recoverable pre-action costs)
interest on costs not exceeding 10% above base rate
additional amount in damages (75k max, calculated by 10% of first 500k plus 5% of any damages above that figure)

41
Q

what type of documents MUST you disclose?

A

on which you rely
which are adverse to your party or any others
required to be disclosed by a relevant practice direction

42
Q

what type of documents do you NEED to disclose?

A

within your control
that you can access/find with a reasonable and proportionate search

43
Q

what are the stages of evidence?

A

disclosure
inspection
witness of fact
expert report

44
Q

what docs do you need to disclose in IPEC?

A

docs which the court specifies (specified in CMO), ie limited disclosure

45
Q

what factors need to be taken into account for legal advice privilege wrt documents?

A

must be confidential
between legal advisor and client
created for sole or dominant purpose of obtaining legal advice

46
Q

who qualifies as a ‘client’ for legal advice privilege?

A

eg senior individuals of a company who instruct/get advice from the lawyer(s)

47
Q

what factors need to be taken into account for litigation privilege wrt documents?

A

must be confidential
created in respect of existing litigation or litigation which is in reasonable prospect
created for the sole or dominant purpose of obtaining legal advice or evidence in respect of litigation (or aid to its conduct)

48
Q

what are the general principles of legal professional privilege?

A

privilege belongs to client (can be waived by client, not lawyer)
once privileged, always privileged (unless accidentally or deliberately waived)
confidentiality (unless dislcosed)

Litigation skills 2 (1 decks)

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