General Flashcards
If whereabouts of D are unknown, where should C serve claim form?
Take reasonable steps to ascertain current address. Otherwise at last known address
In what circumstances can D withdraw admission in a personal injury claim?
When admission came after letter of claim, person can withdraw pre-action admission with consent of the person to whom it was made.
BUT if after commencement of proceedings, will require Court permission.
What is the time limit for an application to set aside a default judgment?
Promptly, 14 days.
When can Claimant discontinue the claim?
At any time
by filing Notice of Discontinuance.
What are 4 valid grounds for objecting to a Part 18 request?
- Request is UNNECESSARY, irrelevant, or improper
- Party is UNABLE to provide the info
- Party given INSUFFICIENT TIME to provide
- Compliance would be DISPROPORTIONATEb and contrary to overriding objective
What is the process for amending a statement of case?
IF parties AGREE - then court will determine on papers
IF parties DISAGREE - then hearing will be held
When should evidence in support of interim payment application be provided?
Within 14 days of the hearing.
What three categories of evidence are listed in the Disclosure List?
- Evidence to which party does not object inspection
- Evidence to which party objects to inpection
- Evidence no longer in party’s control
When does a party have control of evidence for the purposes of disclosure?
- When it is in their physical possession
- When they have the right to possess the item
- When it used to be party’s possession
What are grounds to challenge the automatic right to inspection?
Disclosure of docs gives rise to automatic right to inspection. Can be challenged:
- Privilege
- No longer in party’s control
- Inspection would be disproportionate
When would a court make an application for specific disclosure?
IF Court has reason to believe document may contain info which will assist applicant’s case or damage respondent’s case.
OR
If the Court has reason to believe it will lead to a train of enquiry which has either consequence listed above.
Before making an application for disclosure, what should a party do?
Make a written request to the otherside for the relevant document.
When will a document with multiple purposes between client and a third party trigger litigation privilege?
IF it’s DOMINANT purpose is to prepare litigation
When is a document protected from inspection due to public interest immunity?
If disclosure would harm the nation or the administration of justice.
What happens following mistaken disclosure?
If a party accidentally/inadvertently allows a privileged doc to be inspected, the other party may only rely on it with the permission of the court.
Court will consider interest of justice and overriding objective
What is the effect of a failure to file a witness statement at court?
It means that that witness cannot be called to give evidence in the proceedings.
What is the difference between an affidavit and a witness statement?
Witness statemetn contains a statement of trusth
Affidavit contains an oath - it is sworn before solicitor (or other) who will endorse the statement
**Affidavit usually necessary for things like freezing orders.
What is hearsay evidence?
Eidence (oral or in writing) made out of court with the purpose of proving truth of what is being stated
What is the process of relying on hearsay evidence?
Must give notice to the other party.
The other party can then seek to call the witness to trial (by summons) and must make application 14 days following hearsay notice.
OR party can make appliation within 14 adys to attack the credibility of the hearsay evidence.
What 4 conditions must experts meet?
- Have knowledge not in ordinary experience of the judge
- demonstrate they are regarded as expert in field
- give evidence with a reasonable degree of certainty
- demonstrate the basis of their opinion
What is a Tomlin Order?
- An order which confirms that the parties have agreed settlemetn and that they have agreed to stay the case pending terms of settlements
- Schedule confirming monies owed and date paymetn due
What is a pre-trial hearing? When does it take place? And what are the parties required to provide?
Pre-trial hearings consider extent to which parties have complied with the orders, number of witnesses who will speak during trial etc.
Takes place 10 weeks before trial
Ahead of hearing parties should produce case summary with list of issues (max 500 words)
Should set out which facts are agreed and which are not.
How many trial bundles should claimant’s sols produce?
At least 6
AND must be filed between 3 and 7 days before trial
What is the limitation period for an appeal?
21 days
What are the grounds for appeal?
- The decision is wrong in fact, law or exercise of court’s discretion
- Decision is unjust because of serious procedural or other irregularity
Are there any remedies if you fail to apply to appeal to CoA within 21 days?
Yes, you can make an application for relief of sanction in lieu of an appeal
CoA will consider:
- The seriousness and significance of the failure to comply with the rules;
- Why the default occurred; and
- Evaluate the circs of the case
What is the indemnity principle?
Winner cannot obtain more in costs than are payable to their sols.
Define standard costs
Court consider proportionality and exercises any doubt in favour of the paying party
Define indemnity costs
Court does not consider proportionality and exercises any doubt in favour of the receiving party
If the final bill exceeds the costs budget by XX% then the claimant must file a statement of reasons
20%
*The Court will not depart from the costs budget without good reason
What is a security for costs order?
(what 6 circs render it available?)
An order made by D to ensure that costs are available in case C loses.
Not always available - usually only when C is comapny, or other reasons to believe that C not able to pay.
- C is resident outside jurisdiction;
- C is company + reasons to believe unable to pay
- C changed address after issuing to evade consequences litigation
- C failed to provide address on claim form
- C is a nominal claimant (suing for benefit of someone else)
- C moved assets outside E&W to make difficult to enforce costs order
What is QOCS and what are the consequences?
Qualified One-Way Costs Shifting
In personal injury claims C will not be made to pay costs for D UNLESS
- claim was fundamentally dishonest
- claim was made for financial benefit of another
- claim was struck out for disclosing no cause of action OR abuse.
In what circumstances can a Claimant lose the right to QOCS protection?
When D has made a Part 36 which C turned down.
What are the formal requirements of a Part 36 offer?
- In writing
- Clearly state it’s made pursuant to Part 36 CPR
- Give period when offer can be accepted (the relevant period) no less than 21 days
- States whether the offer relates to the whole or part of the claim and whether it takes into account any counterclaims
In what circumstances can a party withdraw Part 36 offer after acceptance/
Only with Court permission
Must apply within 7 days of acceptance.
Court will consider:
- Whether change of circumstances warrant withdrawal, and
- whether it’s in the interest of justice
What are the consequences of withdrawing a Part 36 offer after the relevant period?
FIne to withdraw. Don’t need permission from teh Court and usually no cost implications.
When is interest payable on court judgments?
High court judgments carry interest of 8%
CC judgments under £5000 usually don’t carry interest.
CC judgments over £5000 usually carry interest at the same rate as High Court
How can a party enforce a judgment that has not been paid?
(5 conditions)
By taking control of goods
EITHER
Writ of Control (HC) or Warrant of Control (County Court)
Creditor can then sell debtor’s assets to satisfy the judgment.
Conditions (5):
1. must give 7 days notice
2. must enter debtor’s stated address only and keep inventory of items seized (cannot seize items necessary for trade or basic domestic needs)
3. must seize within 12 months of notice
4. must sell items within 7 days of seizure.
How can a solicitor deal with a problem witness during trial?
If a witness ends up stating something contrary to they WS, then sol can ask judge to declare witness ‘hostile’ so sol can cross-examine them.
What are examples of strike out app under 3.4(2)(a)
DISCRETIONARY POWER OF THE COURT
The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’
(2) those which are incoherent and make no sense
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
What are examples of strike out app under 3.4(2)(b)?
DISCRETIONARY POWER OF THE COURT
A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.
1.4 A defence may fall within rule 3.4(2)(a) where:
(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or
(2) the facts it sets out, while coherent,** would not amount in law to a defence** to the claim even if true.
