full deck Flashcards
what is the overriding objective?
to enable the court to deal with cases justly and at proportionate cost
what must the claimant prove
- duty, breach, causation and loss for negligence
- duty (existence and terms of contract), breach, causation and loss for contract
what must the defendant prove
- contributory negligence (if any)
- why D’s version of the facts is correct (and that C’s version must therefore be wrong)
when may the court treat matters as established without evidence being brought
into court?
- Formal admissions: In the statements of case; or in response to a notice to admit facts.
- Presumptions: For example: res ipsa loquitur (‘the facts speak for themselves’).
This means that where the thing is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management have proper care, it affords reasonable evidence that the accident arose from want of care. In other words, it signifies that further details are unnecessary; the facts of the case are self-evident. - Inferences of fact: Common sense conclusions drawn from primary facts.
what costs might parties incur during litigation?
- solicitor’s fees
- disbursements
what are disbursements?
fees other than the solicitor’s fees
- Court fees
- Counsel’s fees
- Expert’s fees
- Other costs
what is the general rule in relation to costs?
the unsuccessful party will pay the successful party’s costs
can the court make a different order / depart from the general rule on costs?
yes, taking into account:
- conduct of the parties (incl ADR and offers to settle)
- has the party succeeded on all its case, or only part?
as a general rule, how much can be recovered in costs?
only a reasonable and proportionate sum
what happens if a judge does not make an order as to costs?
each party will simply pay its own costs
what happens if a judge gives ‘no order as to costs’?
each party will simply pay its own costs
what does the indemnity principle provide?
party will not be able to recover a sum in excess of their liability to their own solicitor
what are ‘inter-party costs’?
the actual figure for costs awarded by the court which one party has to pay the other party
what are ‘non-party costs’?
the court can award costs against a non-party to the proceedings
when do non-party costs usually arise?
where there is a litigation ‘funder’
what do the courts consider before ordering non-party costs?
- non-party costs are exceptional
- is it just to make the order?
- if the non-party funds and also substantially controls / benefits from proceedings, the non-party will pay the successful party’s costs
what does ‘costs follow the event’ mean?
the unsuccessful party pays the successful party’s costs (i.e., general rule)
can a successful party be refused costs if it failed to engage in ADR?
However, the burden is
on the unsuccessful party to show why there should be a departure from the general rule for this particular reason.
unreasonable refusal does not automatically result in a costs penalty, but is considered as part of the parties’ conduct
what is the standard basis?
The court will allow costs which: The court will allow costs which:
* have been proportionately and reasonably
incurred; and
- are proportionate and reasonable in
amount. - any doubt is resolved in favour of the
paying party. - not uncommon for only 60% of costs to be
recovered from the paying party.
what is the indemnity basis?
- have been reasonably incurred; and
- are reasonable in amount.
- any doubt is resolved in favour of the
receiving party. - not uncommon that the receiving party
will receive 70 – 80% of its legal costs from the
paying party.
in either case, will costs unreasonably incurred or unreasonable in amount be allowed?
no
what is meant by proportionate? (standard basis)
Costs will be proportionate if they bear a reasonable relationship to:
(a) The sums in issue in the proceedings;
(b) The value of any non-monetary relief in issue in the proceedings;
(c) The complexity of the litigation;
(d) Any additional work generated by the conduct of the paying party; and
(e) Any wider factors involved in the proceedings, such as reputation or public importance.
how long does a party have to comply with a costs order?
Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of:
- the date of the judgment or order if it states the amount of costs;
- if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount; or
- in either case, such other date as the court may specify.
fixed costs generally apply to which situations?
unless the court orders otherwise:
- uncontested disputes;
- enforcement
proceedings; - small claims;
- specialist areas (Sections II to VII of CPR 45 - beyond scope)