General Matters Flashcards
1
Q
What is the overriding objective?
A
To deal with cases justly and at proportionate cost.
2
Q
In the context of the overriding objective, what does ‘justly and at proportionate cost’ mean? (6)
A
- Ensuring that parties are on an EQUAL FOOTING;
- SAVING EXPENSE;
- Dealing with the case in ways which are PROPORTIONATE (e.g. to amount of money involved, complexity, financial position of each party);
- ensuring that it is dealt with EXPEDITIOUSLY AND FAIRLY;
- allotting to it an APPROPRIATE SHARE OF THE COURT’S RESOURCES;
- ENFORCING COMPLIANCE with rules, practice directions and orders.
3
Q
Who must further the overriding objective?
A
The parties and the court.
4
Q
Give examples of how the court can further the overriding objective. (11)
A
- Encourage the parties to co-operate with each other;
- identify the issues at an early stage;
- deciding promptly which issues need full investigation and trial and disposing summarily of the others;
- deciding the order in which issues are to be resolved;
- encouraging the parties to use the ADR procedure (if appropriate);
- helping the parties to settle the whole or part of the case;
- dealing with as many aspects of the case as it can on the same occasion;
- dealing with the case without the parties needing to attend court;
- making use of technology; and
- giving directions to ensure that the trial of the case proceeds quickly and effectively.
5
Q
A personal injury claim of £75,000 in future losses and £15,000 of General PSLA - in which court would this case be started?
A
A personal injury claim over £50,000 MAY be started in either the County Court or the High Court.
6
Q
Which of the following do you not take into account when determining the value of a claim for purposes of court allocation?
- General damages;
- Interest;
- Past losses;
- Future losses;
- Costs;
- Contributory Negligence;
- Counterclaims.
A
You do not take into account:
- Costs;
- Interest;
- Contributory Negligence;
- Counterclaims;
- Recovery of benefits under the SSA 1997.
7
Q
What is the limitation period for a Personal Injury claim?
A
3 years.
However, the court may disapply the limitation period if it is equitable to do so, and when the balance of prejudice favours disapplying the limitation period.
8
Q
When does time start accruing in a personal injury claim?
A
From the date the injury was suffered
OR
when the claimant had knowledge that the injury had been suffered.
(A case can turn on what the claimant ought reasonably to have done to ascertain knowledge of the injury).
9
Q
When does time start accruing in a tort claim (when it is not for personal injury)?
A
From the date when the damage occurs.
OR
If LATENT DAMAGE - from the date the claimant became aware of the damage.
10
Q
What is the limitation period for a Tort claim? And how does it differ if LATENT DAMAGE?
A
6 years.
If latent damage, then it is 3 years from the date of knowledge - however there is a longstop of 15 years from the date of the relevant act.
11
Q
What is the limitation period for a contract claim? When does time start accruing?
A
3 years. It starts accruing from the date of the breach.
12
Q
What is the limitation period for a contribution claim? When does time start accruing?
A
2 years. Time starts to accrue from the date of settlement or the main judgment.
13
Q
What is the limitation period for a Judgment?
A
6 years.
14
Q
If a child of 16 suffers an injury caused by negligence on her birthday (10 April 2015), when will the limitation period start accruing?
A
10 April 2017. Time does not start to accrue until the child turns 18.
15
Q
Sally has suffered a wrong, but she is not sure who exactly did it - what should she do?
A
Norwich Pharmaceutical Orders. These are made against a person who has become ‘mixed up’ in the wrongdoing, and can facilitate the disclosure which will allow Sally to know who she should be suing.
16
Q
What is the procedure for bringing a Norwich Pharma Application?
A
Part 8 claim against the Facilitator, and an Interim Application to the court.
17
Q
When will a court grant a Norwich Pharmaceutical Order?
A
The applicant must show that:
- a wrong has arguably been carried out against them;
- there is a sufficient cause and good reason for making the order
- the respondent has facilitated the wrong’s commission;
- the respondent is likely to be able to provide the relevant documents.
18
Q
Who pays the costs for a Norwich Pharmaceutical Order?
A
The claimant who makes the application - but may be recovered in the main proceedings if it was deemed foreseeable.
19
Q
Finish this: Norwich Pharmaceutical Orders are seen as a “Last …… “
A
A last resort - they will not be granted if the information is available through other means.
20
Q
Mr Kipling wants to bring a claim against a child. Who should he make the claim against?
A
The child.
However, the child will then need to find a Litigation friend for the purposes of the litigation.
21
Q
Who can serve as a Litigation Friend to a child? What must they undertake to do (if the child is a claimant)?
A
The litigation friend must be
- Someone who can act fairly and with competence during the litigation process;
- Not have an interest adverse to that of the child;
- Must undertake to pay costs which the child may be ordered to pay (if the child is a claimant)
22
Q
Can the court appoint a litigation friend to a child?
A
Yes - but only if there is no competent and qualified litigation friend who has put themselves forward already.
23
Q
Mr Kipling has agreed a settlement with a child who has a Litigation Friend before action has been commenced - does the court have to approve it?
A
The settlement is not binding until the court has approved it.
Mr Kipling should make a Part 8 claim to the court in order to approve it.
24
Q
Mr Kipling has agreed a settlement with a child who has a Litigation Friend appointed by the court AFTER action has been commenced - does the court have to approve it?
A
The court MUST approve the settlement - it will not be binding until it has been approved.
Application for approval will be made under Part 23.
25
If Mr Kipling wants to bring a claim against a person now deceased, who will represent the deceased person in the proceedings?
If the deceased person has no living representation, the court can either order the case to proceed in his absence or appoint a person to represent the estate of the deceased.
26
What are the consequences of the time limitation period expiring?
The Defendant can raise the defence of 'time-barred' - and they may apply to the court to have the case struck off as an abuse of process.
27
Rupert the Bear thinks he might have a case against someone (Paddington) - but he is not sure if it is worth pursuing a claim. What should he do?
- First, he should follow the pre-action protocol. Issue a letter before claim to Paddington, and ask them to provide more information so that he may better formulate his particulars of claim/decide whether or not to sue.
- If Paddington does not appropriately respond, Rupert can consider making a Pre-action disclosure application. This means applying to the court to issue an order that Paddington disclose the relevant documents. They are somewhat unusual, and usually only used in medical negligence or commercial technical cases.
28
What is the procedure for making a pre-action disclosure application? What must be included with the application?
- Issue a pre action application notice
- Include evidence (a witness statement)
- Give notice to the respondent at least 3 clear days before the hearing.
29
On what basis will the court decide an application for pre-action disclosure?
1. The court will consider whether it has jurisdiction to issue the order
- Are both parties likely to be part of future proceedings?
- Are the documents likely in possession of the respondent?
- if proceedings were brought, would the documents likely be in the respondent's standard disclosure obligations?
2. The court then exercises its direction to make the order.
- Are the documents likely to support the claimant's claim?
- are the documents 'train of inquiry' documents?
- has the applicant shown some reason to believe he has suffered a compensatable injury?
30
Who pays the costs for an application for pre-action disclosure?
Usually the applicant - but potentially the court will pass costs onto the respondent if it takes the view that the respondent forced an application unnecessarily (i.e. refused to give the docs which they knew would be ordered).
31
Can you amend a claim form before service?
Yes - the party can amend the claim form without seeking the court's permission.
32
What happens if a party wants to disallow an amendment which has been made to a claim form once they are served with it?
They can apply to disallow any amendment made to a statement of case before service WITHIN 14 DAYS of being served with the particular document.
33
AMENDMENT INVOLVING A CHANGE OF PARTIES POST-SERVICE? Can this be done?
Yes - but only with the court's permission.
The party applying for the amendment must show it is just and proportionate to make the change (and there must be a real prospect of succeeding on the claim).
34
AMENDMENT NOT INVOLVING A CHANFE OF PARTIES POST-SERVICE? How can this be done?
Yes - with the consent of both parties or the court's permission (if they deem it to be just and proportionate).
35
Who normally serves the claim form if it is being made in the County Court?
The court (usually by first class post).
36
What should be served along with the Claim form?
- Response Pack.
| - Particulars of Claim ( or a note saying it will follow within 14 days).
37
What are the four stages of the Service Hierarchy?
1. Is there a practice direction, Rule or statute which gives a specified method of effecting service?
2. Has the defendant's solicitor stated that they are instructed to collect service and given an address to which service should be made?
3. Has the defendant given an address to which service should be made?
4. Does the Claimant know the defendant's usual or last known address?
38
When can a party serve a statement of case using fax or email (or other electronic method)?
When the intended recipient has stated in writing that they are willing to accept service by a particular fax or email address.
The intention can be shown by:
- A FAX NUMBER on the WRITING PAPER of a solicitor who has stated they are authorised to accept service.
- An EMAIL ADDRESS on set out on the WRITING PAPER of a solicitor BUT only when they have clearly stated that the email address can be used to effect service.
- An email address/fax ID which is given on any statement of case previously served.
39
What should a party do who wishes to serve a claim form but do not know the defendant's last known address (and other methods of service are not possible)?
They should firstly take all reasonable steps to effect service on the defendant (including reasonable searches to find an address for the defendant).
Then, they may make an application to the court for service to be made by an alternative method. The court will consider if this is good reason for allowing the alternative method, including whether reasonable steps have been taken.
Alternatively, the court may decide that steps taken so far by the claimant have already effected service, notwithstanding any PREJUDICE to the defendant by allowing this.
In exceptional cases the court may dispense with the requirement to serve on the defendant altogether.
40
What should a party do if they have not yet served the claim form and the 4 month time limit is about to run out?
PRIOR TO TIME LIMIT RUNNING OUT - make an application to the court for an extension of the time limit.
The court will decide whether the claimant has acted reasonably and diligently in trying to serve the claim form. They will base their decision on the overriding objective.
41
When will the court allow a party to serve the claim form after the 4 month time limit has expired?
The claimant should make an application to the court who will then decide whether the claimant has acted reasonably and diligently in trying to serve the claim form AND that the claimant has ACTED PROMPTLY in bringing this application.
Incompetence or oversight of a solicitor is unlikely to be seen as acting reasonably.
42
How can a party prove to the court that they have effected service?
It can obtain a Certificate of Service and provide to the court. However, this will not be necessary when all parties have provided an Acknowledgement of Service.
43
2nd Business day after relevant act - is this for deemed date of service of claim form or particulars of claim?
Claim form.
| Particulars of Claim - 2nd day providing that day is a business day.
44
What MUST a defendant do within 14 days of receiving the particulars of claim?
File an acknowledgment of service or a defence or an admission.
45
If a defendant files an acknowledgement of service on the 12th day after service, how long will they have to serve the particulars of claim?
28 days from the deemed date of service.
46
True or false - the defendant will never have more than 28 days to file a defence?
False - the parties may agree to extend the deadline for serving a defence by a further 28 days (after the initial 28 days allowed once an acknowledgment of service has been served).
The court may also extend the deadline for serving a defence of its own accord.
47
If the defendant fails to file a defence after 28 days (or an acknowledgment of service after 14 days) then the claimant can do what?
File for a Default Judgment.
48
When does a defendant need the court's permission to file a counterclaim against the claimant?
If it is made after serving the defence. The court will determine whether the amendment would be just and proportionate once the defence has been served.
49
What happens if a claimant fails to file a response to the defendant's counterclaim?
The defendant may file for a default judgment in respect of the counterclaim.
50
Does the defendant or the claimant need permission from the court to file a claim against an additional third party?
Yes, if it is made AFTER service of the defence - and it must be served on the party within 14 days of the additional claim form being issued. The application is brought under Part 20.
The court will decide whether to allow this amendment based on:
- whether there is a connection between the additional claim and the original claim (including if the damages sought are substantially the same)
51
What happens if a third party does not respond to a Part 20 claim?
There is no chance of a default judgment.
However, the third party will be taken to have admitted the claim, and will be liable to pay any damages determined by the court.
52
What is the procedure for bringing a Default Judgment against a child or protected person?
The applicant must make a Part 23 application, and persuade the court to enter a default judgment at a hearing.
Also the case if it is a spouse suing another spouse.
53
What is the procedure for entering a Default Judgment against an adult Defendant?
The applicant writes to the court and requests a Default Judgment. If they effected service themselves, they must file a Certificate of Service with the application.
54
If a Default Judgment has been entered against a Defendant in claim for an unspecified sum, how much will they receive in damages?
The court will determine the amount at a hearing. They may allocate a track for the case.
55
How will the court decide a Default Judgment which has been entered against one of more than one defendants?
The court will determine if the cases can be dealt with SEPARATELY.
If they can, the court may enter a default judgment against that one defendant and proceed with the case against the others.
If they CANNOT, the court may not enter a default judgment and will proceed with the case against ALL defendants and then DEAL with the application for a default judgment at the same time it DISPOSES of the case.
56
What is the procedure for bringing an application to set aside a default judgment?
These applications are made under PART 23.
Notice should be given to the respondent at least 3 CLEAR DAYs before the hearing. Written evidence should normally be provided.
57
What criteria will the court use when deciding whether to set aside a default judgment?
The court may allow a default judgment to be set aside if:
- The court is satisfied that the applicant has a real prospect of success in the defence;
or
- there is some other good reason why the case should be heard at trial.
The court will also have regard to the DENTON principles:
- What was the effect of the breach?
- What were the reasons for the default?
- What are all the circumstances (including promptness of application)?
58
What are three examples of "some other good reason" for allow a default judgment to be set aside?
- The claimant has acted unnecessarily aggressive;
- There is a serious allegation of misconduct which needs proper investigation at trial;
- A response pack was not served (possibly).
59
When may a Party apply for a Summary Judgment?
Once the Defendant has filed an A of S, or a DEFENCE - unless the court or a Practice Direction allows otherwise.
If the application is made before the Defendant has filed a Defence, then they need not file a Defence.
60
Who will hear the application for a Summary Judgment if it is at the High Court, and who bears the burden of proof?
A Master (and a district Judge at the County Court). the Burden of Proof is on the Applicant.
61
In relation to a Summary Judgment, when must the applicant serve their written evidence and application notice?
At least 14 DAYS before the hearing.
The respondent must then serve their written evidence and response at least 7 DAYS before the hearing.
The applicant can then serve any further evidence at least 3 DAYS before the hearing.
62
What test will the court apply in deciding whether a Summary Judgment should be entered in respect of the whole or part of a claim?
- The Respondent has NO REAL PROSPECT of successfully winning or the defending the claim
AND
- there is NO OTHER COMPELLING REASON as to why the case should be disposed of at trial.
63
What orders can be granted when dealing with a Summary Judgment application?
- Judgment on the claim
- Dismissal of the application
- Striking out or dismissal of the claim
- Conditional Order - where it appears to the court that it is possible but improbable that the claim/defence would succeed.
64
What is meant by "Striking Out"?
A Party may apply to the court to have all or any part of a statement of case struck out of proceedings (could result in the entire claim being struck out).
65
Who can 'strike out' part of a statement of case?
Any of the parties on application to the court or the court itself.
66
When should an application to strike out be made?
As soon as possible and in any event before allocation (if possible).
67
In what circumstances will a court strike out part of a statement of case?
- If there are no reasonable grounds for bringing or defending the claim;
- If the Statement of Case is an abuse of the court's process or would otherwise likely obstruct the course of justice;
- A party has failed to comply with a rule or practice direction or court order.
68
Which track will the court provisionally allocate to a personal injury claim worth £25,000 in PSLA?
The Multi-Track. All PI claims with PSLA over £1000 will be provisionally allocated to the Multi-Track.
69
In money claims, which claims (in terms of value) will be provisionally allocated to the Small Claims Track?
Those with a value not exceeding £10,000.
70
Will a money claim worth £30,000 in damages always be provisionally allocated to the Fast Track?
No - it will usually be provisionally allocated to the Fast Track, as it is between £10,000-£25,000. However, the court can allocate the claim to a higher or lower track on the basis of:
- the nature of the claim
- the importance of the claim to the public
- the amount of oral evidence which will be heard
- the circumstances and the views of the parties
- Complexity of law, facts or evidence.
71
How much notice must a party be given for responding to the Directions Questionnaire in the Small Claims Track?
At least 14 days after the notice was deemed served.
72
How much notice must a party be given for responding to the Directions Questionnaire in the Multi or Fast Track?
At least 28 days after the notice was deemed served.
73
What should a party do if they want to have facts admitted in trial by the other side?
Issue a Notice to admit.
| These must be served no later than 21 DAYS before trial.
74
What happens if a party refuses to admit facts included in a Notice to Admit? How might this effect costs?
The party attempting to have the facts admitted will have to prove them at trial.
The party refusing to admit them may have to pay the costs of proving them (if it was unreasonable to refuse to admit them).
75
What should a party do if they doubt the authenticity of a document they have received through disclosure?
Serve a Notice to Prove on the other side. This puts the disclosing party on notice that authenticity of those documents is in issue.
76
When and who should file the trial bundle before a civil trial?
The claimant should file the trial bundle with the court not more than 7 days before the trial but not less than 3 days.
77
When is a skeleton argument compulsory?
High Court trials (and often used in the County Court trials).
78
Does a claimant have to give an opening speech?
No - the claimant can decide not to, or the judge can dispense with it.
79
If the defendant has submitted a no case to answer, but has not been given the opportunity to give evidence, how will the single justice determine the case?
The judge will ask whether the claimant has no real prospect of success.
Were the submission to fail, the defendant would then be allowed to call evidence in the usual way and present his case.
80
Does the Defence give an opening speech in a civil trial?
Not usually, but the defendant may do so.
81
In what order will multiple defendants present their evidence?
In the order they appear on the record.
82
If the defendant has called evidence, whose closing speech comes first?
The defendant.
83
Can a party introduce fresh evidence once the closing speeches have occurred?
Yes - a judge may accede to this request to reopen if judgment has not yet been given, if to do so would be in keeping with the overriding objective.
84
What power does the CPR give to judges in relation to evidence in a civil trial?
The court may control the evidence in a case by giving directions as to what evidence it wants to hear, on what issues and in what form.
85
What is the general rule regarding the burden of proof in civil case?
He who asserts it must prove it.
86
If the claimant in a negligence claim (road traffic accident) knows that the defendant has a previous conviction for dangerous driving, what should they do?
s11, Civil Evidence Act 1968 - creates a rebuttable presumption that a convicted person (whether on a guilty or not guilty plea) committed the offence in question, unless the contrary is proved (on balance of probabilities).
The claimant may therefore use the conviction has cogent evidence of defendant's negligence.
The Conviction MUST BE PLEADED IN PARTICULARS OF CLAIM.
87
Is a previous acquittal admissible in a civil trial?
Generally not admissible, unless there are exceptional features.
88
When can a non-expert witness express an opinion in evidence?
As a shorthand way of describing things personally perceived, where attempting to differentiate between fact and inference would be difficult, if not impossible (perception evidence).
89
What are the admissibility requirements for an expert witness?
- Expert's opinion must be necessary (because the matter at issue is beyond normal human behaviour and experience)
- Expert must be qualified (does not have to be formal qualifications)
- Experts must keep to their subject
- Courts should exercise caution when knowledge is incomplete or pushing boundaries.
90
If the court has allowed each party to produce their own expert report, can the court order the two experts to work together?
The court may direct without prejudice discussions between the experts, if this would help to identify areas of agreement and narrow the issues in dispute.
In such cases, the experts must normally prepare a statement for the court setting out the issues on which they agree, and on those which they disagree (and why).
91
Can a witness be called when their witness statement has not been exchanged with the other side?
Not unless the court gives permission (depending on the circumstances and nature of the default).
92
Does a party need to exchange all their witness statements with the other side prior to trial?
No - only those of witnesses they INTEND to call at trial.
93
What is the normal status of a witness statement when he is called to give evidence?
His witness statement stands as his evidence-in-chief, UNLESS the court orders otherwise. They may give oral evidence on new matters which have arisen since the statement was made, ONLY with the court's permission.
94
A party who has been served a witness statement from the other side wants to put it in as evidence themselves -can they?
Yes - where the evidence is not adduced at trial in any form the other party may themselves put the disclosed statement in as hearsay evidence.
95
When the hearsay evidence takes the form of a witness statement of a person who is NOT being called to give oral evidence, what must the party relying on that evidence do?
They must, when exchanging the statement, 'inform' the other parties of that intention and explain why the witness is not being called. Formal notice is not required.
On application, the party receiving this statement may request the court's permission for the live witness to attend to be cross-examined.
96
When the hearsay evidence takes some form other than a witness statement, what must the party intending to adduce it as evidence do?
Serve a formal notice to the other side, clearly identifying the hearsay evidence, stating the intention to adduce it and give reasons for not calling the maker of the statement.
Such a notice must be served no later than the time for exchanging witness statements.
