Principles, procedures and processes

Question 1

What are the 4 different options for dispute resolution?

Answer 1

Litigation
Arbitration
Mediation
Negotiation

Question 2

What are the key points and characteristics of arbitration?

Answer 2

Semi-formal where a neutral third party (the arbitrator) hears evidence and resolves the parties’ dispute through a final award.

Strict rules of evidence don’t apply.

The arbitrator’s decision (the final award) is legally binding on both sides.

An arbitral award is enforceable if the court gives judgement in terms of the award.

Question 3

What are the key points and characteristics of mediation?

Answer 3

Informal process where a neutral party (the mediator) assists disputing parties to reach a solution.

Mediation is confidential and without prejudice.

Rules of evidence generally do not apply, and parties can bring up anything e.g. hurt feelings.

Mediation is not binding until the parties sign an agreement.

The mediator doesn’t rule on merits but facilitates discussion.

Costs are borne by both parties.

Question 4

What are the key points and characteristics of negotiation?

Answer 4

Informal discussions between the parties. Can take place at any time.

Can take place ‘without prejudice’ so cannot be relied on by the other party or referred to in court.

Includes round-table discussions where parties and their representatives meet to try to settle, usually after disclosure of witness statements and evidence.

Question 5

What is the broad label used for methods of resolving disputes other than through litigation?

Answer 5

Alternative dispute resolution (ADR)

Question 6

The Court of Appeal has directed legal professionals to encourage clients to attempt ADR. Name 3 practical considerations related to this?

Answer 6

• Courts have a duty to ensure cases are resolved in a proportionate, expeditious and fair manner. ADR may help with this goal.
• Solicitors should make clients aware of ADR and its possibility considered throughout a proceeding.
• Failing to consider ADR or participate in it may impact a party’s ability to recover costs of the proceeding.

Question 7

What can defendant do if a claimant commences an action after the applicable limitation period expires

Answer 7

Use the limitation period passing as a defence

Question 8

What is the limitation period for tort (general)?

Answer 8

6 years from the time the act occurred.
Or if the tort was not apparent when it occurred is 6 years from when the claimant gained knowledge of the tort.

Question 9

What is the limitation period for personal injury – tort?

Answer 9

3 years from event or knowledge.

If the victim dies then 3 years from date of death or 3 years from the deceased’s personal representatives gaining knowledge of the tort.

Question 10

What is the limitation period for negligence claim for latent defects in property – tort? And what is the long stop?

Answer 10

6 years from accrual and 3 years from earliest date the potential claimant knew or reasonably ought to have known material facts necessary to bring an action alleging negligence.

Longstop so no action can be brought more than 15 years after the act or omission alleged to have caused the damage.

Question 11

What is the limitation period for contract?

Answer 11

6 years from when the breech occurs.

Note: a construction contract with a make good clause does not prevent a simple contract action within the limitation period.

Question 12

When does time stop running for limitation period purposes?

Answer 12

When the claimant delivers the properly completed claim form to the court with a request to issue proceedings and the correct fee

Question 13

Effect of mistakenly naming defendant on limitation period?

Answer 13

If the defendant has been correctly identified but mistakenly named, it may be possible to alter the name of the defendant in the claim.

Question 14

Effect of under 18 on limitation period?

Answer 14

If the claimant is a minor the limitation begins to run on their 18th birthday.

Question 15

Effect of mental capacity on limitation period?

Answer 15

If the claimant lacks mental capacity at accrual of the cause of action the limitation clock doesn’t start running until certification that the claimant is of sound mind. BUT if they had capacity and lose capacity during the limitation period the clock doesn’t stop running.

Question 16

Effect of fraud/concealment on limitation period?

Answer 16

The limitation period begins when the claimant discovers the fraud or concealment or could have with reasonable diligence.

Question 17

What do pre-action protocols set out?

Answer 17

The steps that each party should take before commencing a legal action. There are a number of dispute-specific protocols.
Personal Injury protocol is one example.

Question 18

What are 3 examples of when it’s justifiable to issue proceedings without following the relevant protocols?

Answer 18

• Limitation period is almost over
• Court order is required to preserve evidence or assets
• Concern that the defendant may seek to issue proceedings in another country to avoid UK courts.

Question 19

When can a party make a pre-action application for disclosure of documents?

Answer 19

If the documents requested would be disclosed under standard disclosure and could assist in disposing of a claim without needing to issue proceedings

Question 20

When can a party make a pre-action application to inspect property?

Answer 20

If property is/may become the subject matter of the proceedings; or is relevant to the issues that will arise in relation to the proceedings.

Question 21

What is the purpose of the Practice Direction?

Answer 21

Courts expect litigants to follow the guidelines in the Practice Direction when no specific protocol applies.

Question 22

What is the first step of the Practice Direction?

Answer 22

Claimant is to write to the defendant with concise details of the claim. Suggested timeline for the defendant to reply is within 14 days for a straightforward claim; up to three months for a complex claim.

Question 23

What is provided for in the Practice Direction?

Answer 23

Parties should disclose key documents, consider using a single, joint expert and consider ADR.

Question 24

If party fails to follow the relevant protocol or the Practice Direction then what are three likely consequences?

Answer 24

• Stay of proceedings – to allow the Practice Direction or the step in the specific protocol to be complied with
• Ordering the non-compliant party to pay the costs or part of the costs of the other party
• Restricting interest on the claim (when non-compliant party is the claimant)

Question 25

When must claims start in the County Court?

Answer 25

All unless the total value of the claim exceeds £50,000 for personal injury or £100,000 for other claims

Question 26

When does the County Court Money Claims Centre (CCMCC) issue claims? (Not value)

Answer 26

Issue all claims for debt where the sum sought is certain, known as specified claims. These are commenced by completing a money claim form.

Most other claims (unspecified claims for damages) also start in the CCMCC.

Question 27

What do CCMCC typically do following receipt of a defence or admission and the where to?

Answer 27

Transfer the claim to the hearing centre local to:
* The defendant’s home address (if the defendant is an individual)
* The claimant’s preferred hearing centre (if the defendant is a company)

Question 28

When may High Court issue claims?

Answer 28

Claims exceeding £50,000 for personal injury claims and £100,000 for other claims.
Although they may be filed in County Court instead e.g. if a simple case of breach of contract.

Question 29

When is it appropriate for High Court to issue claims?

Answer 29

• The financial value of the claim is high;
• The issues, remedies or procedures will be complex; and/or
• The outcome of the claim would be important to the public in general.

Question 30

What are the three divisions of the High Court?

Answer 30

1. Chancery
2. Family
3. King’s Bench

Question 31

What does Chancery court deal with and two specialist courts?

Answer 31

Equity and trusts, commercial fraud, taxes, IP, contentious probate, business disputes, professional negligence.

o Bankruptcy Court – specialist court
o The Companies Court – specialist court

Question 32

What does Queen’s Bench court deal with and two specialist courts?

Answer 32

Defamation, breach of contract, negligence/personal injury, land possession, non-payment of debt.
o Technology and Construction Court specialist court for claims against engineers, architects, surveyors etc.
o Commercial Court specialist court for complex business disputes especially international trade claims.

Question 33

For High Court cases claims will be issued out of the Royal Courts of Justice (High Court in London) unless the claimant does what?

Answer 33

Indicates on the claim form, they wish to claim out of a District Registry and which Division.

Question 34

What does issuing a claim form do?

Answer 34

Commences a proceeding

Question 35

Who serves the claim form on the defendant?

Answer 35

The claimant decides whether the court or they will

Question 36

Process if the court is to serve proceedings on the defendant?

Answer 36

Must include one copy of claim form for each defendant named plus one copy for the court.
The court will send a Notice of Issue to the claimant confirming the date the court issued the claim.

Question 37

What is included on a claim form?

Answer 37

• Claimant and defendant’s full names and addresses
• Brief details so the court can see what the claim is about in general terms
• Value of the claim (amount sought as remedy)
  o If for a specified sum (a debt claim) state the amount
  o If court will have to assess damages state what claimant expects to recover, this will determine which track case if likely to be allocated to. In estimating value the claimant should disregard interest, costs, contributory negligence and any counterclaim.
• Specify the court that the claimant would prefer to hear the claim
• Signed statement of truth (usually signed by the claimant but the solicitor may sign)

Question 38

What must accompany a claim form?

Answer 38

The appropriate court fee

Question 39

What is the court fee?

Answer 39

If the claim is £10,000-£200,000 this is 5% of the value of the claim. For claims above £200,000 the fee is capped at £10,000.

Question 40

When must witness evidence be served?

Answer 40

With the claim form. Any evidence in support must contain a statement of truth.

Question 41

When is a Part 8 Claim used?

Answer 41

when the claim doesn’t involve a substantial dispute of fact and has a different process for issuing the claim

Question 42

What does claim form for a Part 8 Claim state?

Answer 42

The questions the claimant wants the court to decide, the details of the claim being made, and (if the claim is being made in a representative capacity) the capacity of the representative.

Question 43

How much information should the claimant’s Particulars of Claim provide?

Answer 43

Enough information to identify the issues and parties so that the judge may give directions. Ensures the trial can proceed promptly, fairly and proportionately.

Question 44

What should Particulars of Claim for a contract claim include?

Answer 44

• Parties to the agreement
• Nature of the agreement
• Terms that may have been breached
• Facts showing the breach and losses
• Remedy sought
• Statement of truth

Question 45

What should Particulars of Claim for road accident claims/ personal injury claims include?

Answer 45

• Brief description of the collision/event (including date, time and place)
• Allegations of negligence
• Details of any relevant conviction
• Details of injuries
• Schedule of past and future losses
• Remedy sought
• Statement of truth

Question 46

What should Particulars of Claim for a employer liability tort claim include?

Answer 46

• Facts establishing an employer to employee relationship
• Description of the circumstances of the injury
• Allegations of breach
• Details of any relevant conviction
• Details of injuries
• Schedule of past and future losses
• Remedy sought
• Statement of truth

Question 47

What other specific points if applicable should be to included in a Particulars of Claim?

Answer 47

• If claiming interest the basis, the percentage applicable, the date the claim for interest ends and the total amount claimed
• Allegations of fraud
• Any illegality
• Any misrepresentation
• Any breach of trust
• Notices of knowledge of a fact
• Details of unsoundness of mind or undue influence
• Details of wilful default
• Facts concerning the defendants failure to mitigate loss or damage.

Question 48

Who’s permission is required to remove, add or substitute a party?

Answer 48

The court’s permission - unless the claim form has not been served.

Question 49

Who can make an application to remove, add or substitute a party?

Answer 49

By an existing party; or a person who wishes to become a party

Question 50

What must an application to remove, add or substitute a party include?

Answer 50

Must be supported by evidence; and made under Part 23

Question 51

What is required to add or substitute someone as a claimant?

Answer 51

Their consent in writing; and that consent, and the proposed amended claim form and particulars of claim, have been filed with the court

Question 52

Who must an order for the removal, addition or substitution of a party be served on?

Answer 52

All parties to the proceedings; and any other person affected by the order

Question 53

Who will be responsible for the costs of applying to add a new party by amendment unless the court decides otherwise?

Answer 53

The party applying

Question 53

When the court makes an order for the removal, addition or substitution of a party what can it give?

Answer 53

Consequential directions

Question 54

How will court normally serve a claim form within the jurisdiction

Answer 54

Court will usually serve by first class post and claimant may also serve by first class post.

Question 55

What will accompany service of claim form?

Answer 55

1. The claim form
2. Notice of funding
3. The defendant’s response pack

Question 56

What is the result of defendant nominating solicitors to accept service?

Answer 56

The proceedings must usually be served on the nominee

Question 57

If the defendant is a company where can claim be served?

Answer 57

Delivery or posting to the registered office is okay

Question 58

How long until claim form is deemed to be served?

Answer 58

Indisputable presumption that the claim form is deemed to be served on the second business day after it has been mailed, personally delivered, faxed, emailed, or sent by DX.

Question 59

What must claimant’s solicitor do after serving claim form if they choose to serve?

Answer 59

Need to file a certificate of service within 21 days of service.

Question 60

What classes as serving the defendant in person for individual, company and partnership (only if not nominated solicitors)?

Answer 60

• Individual – leaving proceedings with individual being served
• Company - leaving proceedings with person holding senior position eg company director
• Partnership - leaving proceedings with a partner or a person who has control or management of the partnership at its principal place of business

Question 61

When can serve by fax?

Answer 61

Only if party or their legal representative has indicated in writing that they are willing to accept service by fax, the party has given the fax number (note inclusion on firm’s writing paper would be considered express notice unless indicated to the contrary), and fax number is within jurisdiction.

Question 62

When can serve by Document Exchange DX?

Answer 62

Only if party’s address for service includes a DX, DX is on the party’s writing paper, and no explicit indication that service will not be accepted by this method.

Question 63

When can serve by email?

Answer 63

Only if express consent to service by email and the party has provided the email address for service.

Question 64

What should do for serving if defendant’s whereabouts are unknown?

Answer 64

Send proceedings to defendant’s last known address, if claimant has made reasonable enquiries to ascertain the defendant’s address.

Question 65

What affect does serving a claim form outside the jurisdiction have on time limits?

Answer 65

Time limit for serving the claim form is extended to 6 months.

Question 66

When is the court’s permission not required to serve outside of jurisdiction?

Answer 66

If the defendant resides in Scotland or Northern Ireland.

Question 67

What is the time limit for serving proceedings once claim form issued?

Answer 67

Before midnight four months after its date of issue

Question 68

Under what circumstances can an application be made for the time limit for serving proceedings once claim form issued be extended?

Answer 68

An application can be made to extend the period of validity by the claimant but only during the original period of validity and the court will grant this only in exceptional circumstances.

Question 69

When will service by an alternative method or at an alternative place be possible?

Answer 69

The court may permit if the party can show a good reason for the order.

Question 70

What are the options for defendant responding to a claim?

Answer 70

Admitting the claim
Acknowledging service and filing a defence and/or counterclaim
Disputing the court’s jurisdiction
Discontinuance or
Settlement

Question 71

What amount can a defendant admit a claim?

Answer 71

May admit parts or all of the claim

Question 72

If a defendant admits a claim what can they still deny?

Answer 72

The amount of the loss

Question 73

What happens if a defendant only admits part of the claim?

Answer 73

Can file a defence to the other parts.

Question 74

What happens if defendant admits damages subject to liability ie admit the amount of damages but deny liability?

Answer 74

If the claimant can prove liability they will then recover the agreed damages.

Question 75

Can admitting a claim be withdrawn?

Answer 75

May be withdrawn with permission of the court

Question 76

If defendant proposing to argue that service was not valid when should they raise this?

Answer 76

Need to indicate this on the acknowledgement of service and make an application to set service aside within 14 days

Question 77

What does filing an acknowledgement of service give the defendant?

Answer 77

An additional 14 days to admit or file a defence

Question 78

How long can parties agree to extend the time for filling a defence?

Answer 78

For an additional 28 days (a maximum of 56 days from the deemed date of service of the particulars).

Question 79

If filing a defence how must defendant respond to each paragraph of the Particulars of Claim in one of three ways?

Answer 79

1. Admit the truth of the paragraph (claimant won’t have to prove this)
2. Deny the truth of the paragraph – state reasons or set out an alternate version of events (claimant must prove their facts)
3. Make a non-admission neither admit nor deny the paragraph because fact(s) alleged are outside the defendant’s knowledge (claimant must prove their facts)

Question 80

If personal injury claim what response is required with medical report if filing a defence?

Answer 80

Respond if admits, deny or non-admission as a whole not per paragraph

Question 81

If defendant may disputes the claimant’s statement of value what should they do?

Answer 81

Say why and if possible provide their value.

Question 82

If defendant wants to use limitation as a defence what should they do?

Answer 82

State the date that the defendant alleges that the limitation period expired with reasons why.

Question 83

What is a counterclaim?

Answer 83

A defendant’s claim against the claimant for losses arising from the same set of circumstances involved in the claimant’s claim

Question 84

Conditions for a counterclaim?

Answer 84

• Must be brought within the same set of proceedings
• Is brought by an existing defendant against the claimant
• Is a monetary claim in its own right

Question 85

How can defendant dispute a court’s jurisdiction after receiving the claim form and particulars of claim?

Answer 85

By checking a box in the acknowledgment of service

Question 86

If defendant disputes a court’s jurisdiction what must they do after informing the court via acknowledgement of service?

Answer 86

Defendant must then make an application to challenge the court’s jurisdiction supported by written evidence within 14 days after filing the acknowledgement of service.

Question 87

When can the court enter a default judgement?

Answer 87

If the defendant fails to file a defence within the time limits

Question 88

A defendant can make an application to set aside a default judgement if they can show what three things?

Answer 88

• They acted promptly
• They have a real prospect of successfully defending; and
• There is some other good reason why the judgement should be set aside.

Question 89

When must the court set aside a default judgement?

Answer 89

• The judgement was entered into before the expiry of the time to respond
• The claim has already been paid or settled
• The judgement was entered whilst the defendant’s application to strike out or obtain summary judgement was pending; or
• The judgement was entered whilst the defendant’s request for time to pay was pending.

Question 90

If party decides they want to discontinue a claim before trial what must they do?

Answer 90

File and serve a notice of discontinuance.

Question 91

What are the cost implications if claimant discontinues a claim?

Answer 91

They are liable to pay the costs of the defendant in defending the action. Subject to the application of qualified one-way costs shifting applicable to personal injury claims.

Question 92

If the parties settle before trial what must they do?

Answer 92

Record their agreement in a consent order which then will issue, this makes the agreement enforceable

Question 93

What is a Tomlin order?

Answer 93

Type of consent order which confirms the parties have agreed a stay because they have reached a settlement, along with a schedule confirming amounts to be paid and by who. This includes a stay of proceedings so if a party defaults on the terms proceedings can pick up where they left off without need to file new proceedings.

Question 94

What are the time limit for defendant to respond to particulars of claim?

Answer 94

Defendant has 14 clear days from the date the particulars of claim are deemed to have been served

Question 95

What happens if defendant fails to respond to particulars of claim in time?

Answer 95

The claimant can obtain judgement.

Defendant cannot take part in the hearing unless the court gives permission.

Question 96

What name does claimants response to defendant have?

Answer 96

Statement of Case

Question 97

When is a reply prepared?

Answer 97

Is optional so usually only prepared if something has been raised in the defence that requires a response.

Question 98

What is a Part 20 Claim?

Answer 98

A defendant’s claim against third parties who might be liable to the claimant or defendant, and counterclaims against the claimant.

Question 99

What is a third-party claim?

Answer 99

A claim that a person not party to the action has caused the claimant’s losses

Question 100

What happens if third-party claim found liable to the claimant?

Answer 100

Then another party to the claim should be liable to repay the whole amount (indemnity) or some (contribution) to the defendant.

Question 101

What is a counterclaim against another third party?

Answer 101

A defendant’s monetary claim against a third person who isn’t part of the proceeding arising out of the same facts as the main action.
Note: this can only be made by order of the court.

Question 102

When does a Part 20 claim need court permission and when doesn’t it?

Answer 102

If the defendant files a Part 20 claim with their defence they do not need court permission, if filed at another time they do.

Question 103

When must a defence to a part 20 claim be served?

Answer 103

Within 14 days of the deemed date of service of the Part 20 Claim

Question 104

Who may make a request for further information from an other party?

Answer 104

Any party

Question 105

Why would a party make a request for further information from another party?

Answer 105

To clarify a matter in dispute or for additional information related to a matter

Question 106

Process for making a request for further information from another party?

Answer 106

Should first request from the other party but if the other party doesn’t respond within a reasonable time can then make an application to the court.

Question 107

Under what 5 grounds can a party object to a request for further information about statements of case?

Answer 107

• Request is unnecessary, irrelevant, or improper
• Responding party is unable to provide information or clarification
• Party requesting the information did not give sufficient time to reply
• The expense of complying with the request would either be disproportionate to the claim or contrary to the overriding objective of the CPR
• Responding party is protected from answering by existing privilege.

Question 108

After a Statement of Case has been served a party can amend it only with what?

Answer 108

The written consent of all parties or the permission of the court.

Question 109

When will amendment to add a new party be allowed by the court?

Answer 109

If it can be shown that adding them will allow the court to resolve all the matters in dispute or to resolve a connected matter

Question 110

When will amendment to order a person to cease to be a party be allowed?

Answer 110

If not desirable for them to be a party in the proceedings

Question 111

When will amendment to substitute a new party for an existing party be allowed?

Answer 111

If the existing party’s interest or liability has passed to the new party; and it’s desirable to substitute so that the court can resolve the matter in dispute.

Question 112

When should interim application be made?

Answer 112

As soon as it’s apparent that an interim application is necessary or desirable.

Question 113

On how much notice should an interim application be made?

Answer 113

On at least three clear days’ notice

Question 114

When is normal notice period for interim application not required?

Answer 114

If there’s a good reason to not give it such as it will give the other party an opportunity to dispose of evidence or assets

Question 115

If notice isn’t given for interim application what can party the order is issued against do?

Answer 115

Has seven days after the order is served on them to make an application to have it set aside. If an application is made without notice by error the court is likely to dismiss it and order the solicitor who made the application to pay the other side’s legal costs associated with the application.

Question 116

What are the evidence requirements for interim application?

Answer 116

All evidence relied on in support of the application should be in writing and filed at the court with the notice.

Question 117

What is required to be filed and served no later than two days before the interim application hearing?

Answer 117

A case summary and proposed draft order

Question 118

What is the purpose of summary judgment application?

Answer 118

Application asks the court to enter judgement for the applicant without proceeding to trial.

Question 119

What must applicant show in summary judgment application?

Answer 119

1. the other party has no real prospect of success; and
2. there is no compelling reason why the case should proceed to trial

Question 120

When in proceedings can a party apply for summary judgement?

Answer 120

During proceedings.

Cannot be made before the defendant has received the particulars of claim and served an acknowledgement of service or defence.

Question 121

What happens if the claimant applies for summary judgement before the defendant has filed a defence?

Answer 121

The defendant doesn’t need to file a defence until after the summary judgement hearing although they may wish to append a defence to a witness statement opposing the application to help defeat it.

Question 122

What are the typical evidence for application for summary judgement?

Answer 122

Applicant usually includes written evidence to support the application which must be served on the other party at least 14 days before the hearing. The opposing party must serve evidence in response at least 7 days before the hearing.

Question 123

What is the purpose of interim payment application?

Answer 123

Application for the court to order some payment before the court gives a final determination on the claim.

Question 124

What are the grounds for an interim payment application?

Answer 124

• defendant has admitted liability
• claimant has obtained judgement but the sum to be paid has not been assessed
• court is satisfied that if the action proceeded to trial the claimant would obtain judgement for a substantial sum

Question 125

When in proceedings can a party apply for interim payment application?

Answer 125

The claimant cannot make an application until the time for filing an acknowledgement of claim has passed.

Question 126

What are the typical evidence for application for interim payment application?

Answer 126

The application must be supported by evidence served with the application at least 14 days before the hearing.

Question 127

What should applicant do before making interim payment application?

Answer 127

Invite the other party to make an interim payment before making an application.

Question 128

What should an application for interim payment application include?

Answer 128

Sum sought, matters it is sought for, an estimate of the expected judgement and if a personal injury claim a schedule of loss detailing both past and future loss.

Note: isn’t necessary to show financial need.

Question 129

What are the outcomes for interim payment application?

Answer 129

Court can award a reasonable proportion of the likely amount of the final judgement.
Court must take contributory negligence into account (if relevant).

Question 130

What is the purpose of interim injunctions?

Answer 130

Ask the court for an order requiring a party do something (mandatory) or prohibiting the party from doing something (prohibitory)

Question 131

How are interim injunctions enforceable?

Answer 131

Through contempt proceedings. Which could lead to two years imprisonment or assets removed.

Question 132

What happens if notice not given to other party for interim injunction?

Answer 132

Can obtain interim injunction without notice of hearing to the other party. But if notice not provided then another hearing will be set within a few days of first hearing to give the enjoined party the opportunity to explain why shouldn’t have been granted

Question 133

What is the level of jurisdiction for high court and county court interim injunctions?

Answer 133

High court can grant any type of injunction.
County court has limited jurisdiction

Question 134

What are the 6 grounds to seek to discharge an interim injunction?

Answer 134

• applicant failed to provide all relevant information
• applicant failed to comply with terms of the injunction
• facts do not support the injunction
• injunction is oppressive
• a material change in circumstance since the injunction was granted; or
• claimant has failed to prosecute the claim with speed after obtaining the injunction.

Question 135

What is the purpose of a freezing injunction?

Answer 135

Prohibits person from disposing of specified assets.

Question 136

What must be shown for a freezing injunction?

Answer 136

• justifiable cause of action
• claimant has a good, arguable case
• defendant has assets in the jurisdiction; and
• real risk that the defendant may dispose of those assets before judgement can be enforced

Question 137

What court can freezing injunction be made at?

Answer 137

Only be made to the High Court.

Question 138

What undertaking usually needed in freezing injunction?

Answer 138

Usually requires the party who sought it to make an undertaking to pay damages if the injunction was improvidently granted and to notify the enjoined party and third parties (such as banks) of a right to seek a variation from the order.

Question 139

What is the limit for freezing injunction?

Answer 139

Should be for no more than the underlying claim.

Question 140

How can enjoined party seek a discharge?

Answer 140

By offering security for the claim or showing the injunction was obtained on the basis of material non-disclosure.

Question 141

What is the purpose of a search order?

Answer 141

If it’s clear the defendant will not obey the disclosure rules and may seek to destroy incriminating documents or property. Search order would allow the other party to search for and potentially seize evidence that the party might otherwise destroy.

Question 142

What is the purpose of an independent supervising solicitor search order?

Answer 142

Is usually appointed to explain the order to the enjoined party and to explain their rights

Question 143

What are the grounds of a search order?

Answer 143

• strong prima facie case on the merits of the case
• reasons for claiming the enjoined party might hide or destroy the evidence
• clear evidence that the property/documents are in the enjoined party’s possession

Question 144

What court can freezing injunction be made at?

Answer 144

Applications can only be made to the High Court.

Question 145

What undertaking usually needed in search order?

Answer 145

Claimant’s solicitor will have to give an undertaking to return the original documents within two days and to secure the property taken.

Question 146

What notice is given for search order?

Answer 146

By nature sought without pre-hearing notice to the enjoined party.

Question 147

Under Civil Procedure Rules what is the overriding objective?

Answer 147

Enabling the court to deal with cases justly and at a proportionate cost.

Question 148

When deciding which track to allocate a case what do court do with sums not in dispute?

Answer 148

The court ignores them

Question 149

What are the values of dispute for small claims track?

Answer 149

Up to £10,000 in dispute (or up to £1,000 in dispute in a personal injury case).

Question 150

When may court allocate claims with higher value to the small claims track?

Answer 150

If the parties agree.

Question 151

What are the costs restriction for small claims track?

Answer 151

Recoverable costs are restricted to fixed costs and reasonable expenses in attending. Expert fees are restricted to a total sum of £750.

Question 152

What are the values of dispute for fast track?

Answer 152

Cases with between £10,000 and £25,000 in dispute (or personal injury cases above £1,000).

Question 153

What timeframe must trial take place within for fast track cases?

Answer 153

Within 30 weeks of allocation

Question 154

What evidence method is typically used for fast track?

Answer 154

Most evidence is written. Witness evidence via statements that is given to the judge without need to testify in court.

Question 155

What expert method is typically used for fast track?

Answer 155

Use of single joint experts is encouraged if experts needed.

Question 156

What are the costs restriction for fast track?

Answer 156

Trial judge will usually summarily assess costs at the conclusion of the trial, the parties are required to submit costs schedules ahead of the hearing.

Question 157

What are the values of dispute/characteristics for multi-track?

Answer 157

Cases with at least £25,000 in dispute or cases with less but where the trial will last more than one day.

Question 158

What timelines do fast track directions normally provide?

Answer 158

1. Disclosure is to take place within 4 weeks
2. Witness statements are to be exchanged within 14 weeks
3. Pre-trial checklists are to be sent out at 20 weeks and returned at 22 weeks
4. Trial at 30 weeks

Question 159

Multi track directions are usually given at the Case Management Conference and will usually require parties to file what three things and when?

Answer 159

1. Disclosure reports at least 14 days before the conference
2. Costs budgets 7 days before the conference; and
3. A case summary setting out the main issues in the case

Question 160

What do multi-track directions normally include?

Answer 160

• Encouragement for the parties to consider ADR
• Disclosure requirements
• Number of witnesses the parties may call and provision for exchange of witness statements, and
• Cost budgeting provisions which will either approve or amend the parties submitted costs budgets

Question 161

Under case management system what are sanctions for not following them?

Answer 161

• Striking out the claim, defence or counterclaim of the party who failed if an ‘unless order’ was issued by the court on application of the party seeking compliance.
• Imposing costs or increased interest on defaulting party
• Requiring a defaulting party to pay money into court
• Debar the defaulting party from relying on evidence.

Question 162

Under case management system when can a party apply for relief from sanctions?

Answer 162

If they had good reason for non-compliance (such as serious illness).

Question 163

A Costs and Case Management Conference is a procedural hearing where the Court will do what?

Answer 163

• Check that previous deadlines and directions have been complied with by the parties;
• Ensure that the issues are identified and understood between the parties;
• Consider if any issues between the parties can be narrowed before trial;
• Order case management directions up to trial; and
• Consider estimated costs of the dispute and consider how proportionate the costs are to the value of the dispute.

Question 164

What is direct evidence?

Answer 164

Oral evidence from a witness who perceived the facts

Question 165

What is circumstantial evidence?

Answer 165

Evidence that does not directly establish a fact but allows the court to decide whether a particular fact existed.

Question 166

What is hearsay evidence?

Answer 166

A statement made out of court offered in evidence to prove the truth of what is being said in the statement. Hearsay can be oral or written.

Question 167

If hearsay evidence used what must trial judge indicate?

Answer 167

The weight they attached to hearsay

Question 168

What is multiple hearsay?

Answer 168

Out of court statement saying something someone else has said

Question 169

How much weight does court put on hearsay evidence?

Answer 169

Court puts less weight on hearsay evidence, which will vary on circumstances including if multiple hearsay

Question 170

What affect does witness affirming statement in court have on weight given?

Answer 170

Witness statement is hearsay but a witness affirming it in court makes it treated as if it was spoken in court and will serve as in court evidence

Question 171

What happens if a witness unable to attend court but the party wishes their statement to be considered?

Answer 171

It will be treated as hearsay.

Question 172

What must side putting forward hearsay do?

Answer 172

Serve notice on the opponent of their intention to rely on the hearsay

Question 173

What classes as notice of hearsay for witness attending the trial?

Answer 173

Service of the witness statement itself constitutes notice

Question 174

What classes as notice of hearsay for witness not attending the trial?

Answer 174

The party must serve a formal document giving notice

Question 175

If party served with a hearsay notice seeks to attack the witness’s credibility at trial what must they do?

Answer 175

Must serve notice of intent to do so within 14 days of receiving the hearsay notice.

Question 176

What happens if party who have called a witness then chooses not to call the witness at trial?

Answer 176

The opponent may still refer to the witness’s statement, the court will treat this as hearsay

Question 177

If party believes a document produced by the opponent is not authentic what should they do?

Answer 177

The party can serve a notice to prove the document at trial.

Question 178

Can a party rely on previous incidents or conduct as evidence of similar conduct in the case in question?

Answer 178

Yes

Question 179

What is the burden on claimant?

Answer 179

To prove their claim on the balance of probabilities

Question 180

What can an expert do that others witnesses can’t?

Answer 180

Give opinion evidence all others can only testify to facts they perceived

Question 181

What type of opinion evidence can expert give?

Answer 181

Evidence derived from special knowledge, skill or training that is not within the ordinary experience of the judge.

Question 182

Who may qualify as an expert witness?

Answer 182

Anyone with knowledge or experience in the particular field, formal degree not necessary.

Question 183

What duty do expert witnesses owe the court?

Answer 183

To exercise independence, integrity and impartiality. This overrides any duty owed to the person who instructed them or who is paying their fee.

Question 184

What must expert witnesses be able to demonstrate?

Answer 184

The basis of their opinion and conclusions.

Question 185

What’s the general rule for giving expert evidence?

Answer 185

Is given in a written report addressed to the court and they do not attend court.

Question 186

When can expert witness give oral evidence?

Answer 186

If likely to impact the outcome, it will assist the judge, there is a risk of injustice if the evidence is not tested and the costs of the experts attending are not disproportionate

Question 187

What are the courts powers to remove, add or substitute parties in existing proceedings?

Answer 187

May do so on its own initiative.

Question 188

What should parties try to agree on for experts?

Answer 188

A single joint expert unless there is a good reason not to

Question 189

What will court do if parties can’t agree a single joint expert and no good reason?

Answer 189

The judge will choose from a list provided by the parties

Question 190

Who pays for the single joint experts?

Answer 190

The parties share the fee of the expert until conclusion and allocation of costs to the losing party.

Question 191

How do the single joint experts inform the parties of their findings?

Answer 191

Sends their report to both parties.

Question 192

What is a discussion between experts?

Answer 192

A without prejudice meeting of the experts to identify the issues they agree and disagree

Question 193

When is a discussion between experts used?

Answer 193

If parties each have their own expert the court may order one

Question 194

When in proceedings can a discussion between experts take place and procedure?

Answer 194

Meeting can take place at any time and can take place over the phone. Legal representatives shouldn’t be present.

Question 195

What is the procedure for witness evidence?

Answer 195

Generally evidence at trial should be from witnesses who have provided a signed statement setting out their evidence.

Statement must have been endorsed with a statement of truth and served on the opponent in accordance with the directions order

Witness will then attend court to give evidence and can be questioned by the other side on contents of their statement (cross-examination).

Question 196

What happens if it’s not possible to obtain a witness statement before the exchange date specified in the directions order?

Answer 196

A party may seek court permission to serve a witness summary which identifies the witness and summarises the factual issues the witness will cover

Question 197

What happens if witness statement not served?

Answer 197

Person wishing to call them cannot call them unless can show a good reason for the failure.

Question 198

What is an affidavit?

Answer 198

A witness statement signed with more formality as must be sworn normally in front of a solicitor, can be used as evidence.

Question 199

Under standard directions parties are required to provide disclosure at what stage in the proceedings?

Answer 199

Before exchange of witness statements.

Question 200

What duty is there under disclosure?

Answer 200

Duty to inform the opposing side of the existence of all documents (physical or electronic) relevant to the litigation. The duty continues throughout the litigation.

Question 201

Duty of disclosure extends to any document within the party’s control, control is what?

Answer 201

• Physical possession of the document;
• Right to possession, right to inspect or right to take copies; or
• Had the document in their possession but no longer have it.

Question 202

What is the court’s expectation over search for documents in disclosure?

Answer 202

For each party to make a reasonable and proportionate search for documents. The level of this depends on the nature of the case, its value and its importance.

Question 203

What are a solicitors professional conduct issues regarding disclosure?

Answer 203

Under a duty to advise clients of disclosure obligations, if client will not comply the solicitor must cease to act.
If a document is removed or destroyed the solicitor is required to inform the court and the other party of its existence along with the reason for its destruction, note: the court is entitled to draw an adverse inference from this.

Question 204

What does a disclosure statement include?

Answer 204

Details the extent of the search made.

Person signing certifies that they understand the duty to give disclosure and have carried this out to the best of their knowledge.

Must declare that they believe the extent of the search made is reasonable and explain why any particular search may not have been carried out.

Question 205

Who must make a disclosure statement ?

Answer 205

Each party

Question 206

If a party is not content with opponents disclosure how can they challenge it (4 ways)?

Answer 206

• Apply for specific disclosure
• Serve a Notice to Admit Facts
• Apply for an unless order (if opponent continues to disregard their obligations under the CPR)
• A Request for Information

Question 207

Disclosure gives automatic right to inspect unless the party with the documents claims what three things?

Answer 207

• Privilege;
• Document no longer in their control; or
• Would be disproportionate to allow inspection

Note: documents can be redacted to remove irrelevant or confidential information.

Question 208

For fast track and personal injury multi track cases, standard disclosure requires each party to identify and inform the other side of the existence of what documents?

Answer 208

• Documents which the party intends to rely
• Documents that adversely affect the party’s case
• Documents that adversely affect the other party’s case
• Documents that support the other party’s case

Question 209

Parties are required to file and serve a disclosure list divided into what three sections?

Answer 209

1. List of documents in its control that they do not object to the other party inspecting
2. List of documents in its control that they object to the other party inspecting, including reasons for objecting
3. List of documents no longer in their control, stating when they were last in their control and where they are now.

Question 210

What is the difference in disclosure in non-personal injury multi-track claim?

Answer 210

Court requires each party to prepare a disclosure report which must be filed at least 14 days before the first Case Management Conference or otherwise with the Directions Questionnaire.

Parties are encouraged to try to agree the scope of disclosure but otherwise disclosure is similar to that outlined above.

Question 211

How flexible is disclosure for the court?

Answer 211

Court may alter the standard disclosure order as it sees fit, including dispensing with disclosure altogether.

Question 212

Standard directions usually allow how many days from directions order to serve list of documents and how many days for inspection to take place?

Answer 212

28 days from the date of the directions order for the parties to serve their list of documents.

Order will routinely require that inspection takes place within seven days.

Question 213

What is specific disclosure?

Answer 213

Require another party to disclose specific documents if they have reason to believe the party didn’t make adequate disclosure.

Question 214

How is specific disclosure requested?

Answer 214

Party can make an interim application for specific disclosure

Application should include evidence in support.

Question 215

Before specific disclosure requested party should make written request for information first including what?

Answer 215

• Description of documents sought and why they are relevant;
• Why it’s reasonable and proportionate for the documents to be disclosed;
• Grounds for believing they exist; and
• Safeguards that can be provided (e.g. to protect trade secrets)

Question 216

Against who is pre-action disclosure available?

Answer 216

Prior to issue of proceedings an application for disclosure is usually only available against a person who is likely to become a party to the proceedings.

Question 217

What does Electronic disclosure include?

Answer 217

emails, electronically stored documents, information in databases etc. and deleted electronic documents.

Question 218

What is the purpose of an electronic disclosure questionnaire?

Answer 218

To enable the parties to investigate, categorise and agree the nature of documents held electronically

Question 219

At what point is an electronic disclosure questionnaire completed?

Answer 219

When appropriate parties will complete electronic disclosure questionnaire at the same time as the disclosure list

Question 220

What should parties do if disagree about electronic disclosure?

Answer 220

Parties should discuss and agree the extent of the search and only refer to judge at first Case Management Conference if they can’t agree.

Question 221

What does privilege entitle a party to do?

Answer 221

Withhold evidence from production to a third party, opponent or the court.

Question 222

What does party holding privileged document still have to do?

Answer 222

If privileged document is in existence must still be disclosed but the party holding it has the right to withhold it from inspection

Question 223

What are the four types of privilege?

Answer 223

1. Legal advice privilege
2. Litigation privilege
3. Common interest privilege
4. Without prejudice privilege

Question 224

What does legal advice privilege protect?

Answer 224

Communication between a client and their solicitor.

Question 225

What does litigation privilege protect?

Answer 225

Communication with third parties (such as experts and barristers) relating to pending or contemplated litigation.

Question 226

When does common interest privilege occur?

Answer 226

When there are multiple defendants or group actions. The parties may send privileged documents to each other and claim still privileged from inspection by other parties.

Question 227

What does without prejudice privilege protect?

Answer 227

Discussions regarding potential settlement that the parties agreed were not to be referred to in court.

Question 228

What does public interest immunity protect against?

Answer 228

Disclosure of documents on the basis that disclosure might harm the nation or the administration of justice

Question 229

Who does waiver of privilege belong to and what does this mean (disclosure)?

Answer 229

Privilege belongs to the client and can be waived only by the client.

If a solicitor accidentally sends a privileged document to the other side the opponent may only use the information with the permission of the court.

Question 230

How may party compel someone to give evidence?

Answer 230

Serving a witness summons on a person

Question 231

What is the process for summoning witnesses?

Answer 231

Party wishing to call the witness must request the court issue the summons at least seven days before the hearing. A separate summons is required for each witness.

Question 232

What payment procedures are there when summoning witnesses?

Answer 232

Witness entitled to conduct money for travel and lost time which must be sent along with the summons request.

This must be sufficient to cover the cost of the witness getting to and from court and amount of income will lose (maximum £67).

Additional sums are payable for subsidence or overnight stay.

If the conduct money is not included and tendered to the witness the witness summons is not effective.

Question 233

What happens if a summoned witness fails to attend?

Answer 233

They will be held in contempt of court.

Question 234

In a multi-track case the trial court will typically set a pre-trial review hearing 10 weeks before trial is anticipated. What will Judge set?

Answer 234

• Timetable for the trial
• Number of experts who may give evidence; and
• Number of witnesses who may give evidence.

Question 235

What must parties file and serve before the pre-trial review hearing?

Answer 235

An agreed (when possible) case summary and list of issues. Can’t be over 500 words, should clearly specify the issues of fact agreed, what’s in dispute and provide a synopsis of the evidence that the parties believe is required at the trial.

Question 236

How many trial bundles are required?

Answer 236

Claimant’s solicitor must prepare at least 6 trial bundles for all trials.

Question 237

When must trial bundles be filed?

Answer 237

Must be filed 3-7 days before trial

Question 238

What must trial bundle include information about?

Answer 238

the parties, the case summary, a schedule of issues, witness statements, expert reports and similar.

Question 239

What is the usual trial format?

Answer 239

1. Opening submissions for the claimant (by claimant’s advocate)
2. Opening submissions for the defendant (by defendant’s advocate)
3. Consideration of any preliminary issues
4. Claimant’s witnesses give their evidence
5. Claimant’s experts give their evidence
6. Defendant’s witnesses give their evidence
7. Defendant’s experts give their evidence
8. Claimant’s counsel makes closing submissions on behalf of the claimant
9. Defendant’s counsel makes closing submissions.

Question 240

What is the process for witnesses giving evidence and being questioned?

Answer 240

After a witness gives their evidence in chief (usually by affirming their witness statement) they may be cross examined by the opposing party and leading questions are permitted. After cross-examination the party who originally called the witness may re-examine the witness to try to restore credibility, leading questions are not permitted.

Question 241

When does judge give judgement?

Answer 241

May give judgement immediately or reserve judgement for a later date.

Question 242

After judgement handed down the parties may make submissions in relation to what?

Answer 242

Interests, costs, time to pay, stays of execution or for permission to appeal.

Question 243

In a multi-track case how will the parties file a costs budget depending on amounts?

Answer 243

• If claimant seeks less than £50,000 this will be with the Directions Questionnaire
• If claimant seeks more than £50,000 this will be filed at least 21 days before the Case Management Conference.

Question 244

When may a judge make a Costs Management Order (CMO)?

Answer 244

At the Case Management Conference

Question 245

When should new Costs Management Order (CMO) be sought?

Answer 245

Costs cannot unreasonably exceed the CMO so if it looks like they will a new CMO should be sought.

Question 246

What happens if a party fails to file a costs budget?

Answer 246

They will be unable to recover costs

Question 247

Who decides costs?

Answer 247

Costs are at the discretion of the court.

Judge usually makes an order for inter-partes costs (order for loser to pay winner’s costs) when the case concludes.

Question 248

What is the general rule for costs?

Answer 248

The loser in litigation pays the winner’s costs (solicitors’ fees) and disbursements (expenses incurred on behalf of the client).

Question 249

What does indemnity principle mean in costs?

Answer 249

A party cannot recover more from an opponent than they are liable for so cannot recover the solicitors usual fee if they were given a discount fee

Question 250

How does costs assessment work on standard basis?

Answer 250

court allows only proportionate costs and exercises any doubt in favour of the paying party

Question 251

How does costs assessment work on indemnity basis?

Answer 251

Court doesn’t consider proportionality so difficult for the paying party to object to costs unless can say that it was unreasonable for the solicitor to do the work at all. This is usually only used as a type of sanction against a party for incurring unnecessary costs by their conduct.

Question 252

For lower value cases and interim applications how are costs filed and assessed?

Answer 252

A statement of costs must be filed by the parties 24 hours before a hearing or two days before a trial. The judge will make a summary assessment of the costs payable when the hearing concludes.

Question 253

For larger value claims how are costs filed and assessed?

Answer 253

Court is likely to order a details assessment. The winning party prepares a details bill of costs within three months of the judgement or order. If the bill is over 20% the figures in the costs budget the claimant must file a statement with reasons. The paying party then has 21 days to file points of dispute.

Alternatively, the judge may enter a provisional assessment based on the bill indicating an amount the court is willing to approve. If the receiving party is not happy with the amount they can challenge it and ask for a detailed assessment hearing.

Question 254

When is a final costs certificate issued and how long do then have to pay costs?

Answer 254

Once the parties agree on costs or following assessment.
Costs must be paid within 14 days of issuance of the costs certificate by the court.

Question 255

In personal injury claims the claimant cannot be ordered to pay the defendant’s costs unless what?

Answer 255

• The claim was fundamentally dishonest;
• The claimant failed to beat a defendant’s Part 36 offer to settle; or
• The claim was struck out for disclosing no cause of action or abuse.

Question 256

What is a wasted costs order and when may it be used?

Answer 256

Court may require a solicitor or party to pay the costs of the other party if the solicitor acted improperly, unreasonably or negligently.

Question 257

How does non-party costs work?

Answer 257

Court has jurisdiction to award costs in cases involving a non-party. Possible where the non-party funds the proceedings and controls or benefits from them. E.g. promotes and funds proceedings by an insolvent company for own non-party’s benefit will be liable for costs if claim, defence or appeal fails.

Non-party must be added as a party for the purposes of costs only and be given the opportunity to attend a hearing at which the court will consider the matter further.

Question 258

What is a Part 36 offer?

Answer 258

A formal offer to settle a claim.

Question 259

What formalities are there for a Part 36 offer?

Answer 259

Must be in writing and explicitly state that it’s a Part 36 offer. It must specify a period during which it cannot be withdrawn without court permission (minimum of 21 days).

It’s without prejudice (so can’t be referred to in court)

Question 260

What happens if a Part 36 offer is unclear?

Answer 260

The offeree can request a clarification within seven days. If the offeror doesn’t clarify within seven days then the offeree can apply to the court for an order requiring the offeror to clarify.

Question 261

Until when can a Part 36 offer be withdrawn?

Answer 261

Until the offeree has served a notice of acceptance

Question 262

What happens if notice of withdrawal is served before the relevant period expires?

Answer 262

It takes effect when the relevant period expires. If the offeree accepts before the expiry, then the acceptance is valid unless the offeror receives permission to change or withdraw the offer based on changed circumstances or the interests of justice.

Question 263

General rules for accepting a Part 36 offer?

Answer 263

Can only be accepted in writing.

Can be accepted after the relevant period has expired if the offeror has not withdrawn it.

Can be accepted during trial if the judge gives permission.

Question 264

What happens if a Part 36 offer accepted within the relevant period?

Answer 264

• Defendant will pay the costs of the claim to the point of acceptance; and
• The costs will be assessed on the standard basis if the parties cannot agree them.

Question 265

What happens if a Part 36 offer accepted after the relevant period?

Answer 265

• Defendant accepting claimants: the court will decide liability for costs if the parties cannot agree
• Claimant accepting defendants: the defendant’s liability to pay the claimant’s costs runs only up to the end of the relevant period (21 days after offer made).

Question 266

What happens if Claimant rejects a Part 36 offer and Claimant secures an award greater than the defendant’s offer?

Answer 266

Offer has no effect on the costs awarded

Question 267

What happens if Claimant rejects a Part 36 offer and Claimant secures an award less than the defendant’s offer?

Answer 267

Defendant will usually be ordered to pay the claimant’s costs on the standard basis up to the expiry of the relevant period; and the claimant will likely to be ordered to pay the defendant’s costs on the standard basis incurred after the expiry of the relevant period.

Defendant may also be awarded interest on the costs.

Question 268

What happens if defendant rejects a Part 36 offer and Defendant secures an award greater than the claimant’s offer?

Answer 268

defendant will likely be ordered to pay the interest of the entirety of the claim at an enhanced rate for the period after the time for acceptance expired, costs for this period likely assessed on the indemnity basis, additional damages of up to 10% for the first £500,000 and 5% for amounts above may be available.

Question 269

What happens if defendant rejects a Part 36 offer and Defendant secures an award less than the claimant’s offer?

Answer 269

Offer has no effect on the costs awarded

Question 270

What happens if rejects a Part 36 offer served pre-issue?

Answer 270

If the party wins the case the court may allow the party to recover the cost of pre-action work as well as litigation costs.

Question 271

When may defendant make an interim application for a security for costs order?

Answer 271

If the defendant is concerned that the claimant will not be able to pay the defendant’s costs if the defendant wins

Question 272

If a security for costs order is granted what may claimant be required to do?

Answer 272

Pay money into court or provide a bond.

Question 273

When is a security for costs order available only if?

Answer 273

• Claimant is a resident outside the jurisdiction;
• Claimant is a company or other body and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
• Claimant has changed address since the claim with a view of evading the consequences of litigation;
• Claimant failed to provide an address or gave an incorrect address on the claim form;
• Claimant is acting as a nominal claimant (someone suing for the benefit of another person); or
• Claimant has moved assets outside of England and Wales to make it difficult to enforce an order for costs against them.

Question 274

Why can only a defendant bring a security for costs order?

Answer 274

As the defendant cannot stop the claimant bringing proceedings whereas a claimant will make a judgement as to whether the defendant is worth suing or not.

Question 275

What is general position for order for payment of legal costs on small claims track?

Answer 275

The court will generally make no order for payment of legal costs.

But situations where costs payable to a successful party are fixed:
* Lower value road traffic accident claims
* Small claims cases or money claims
* Employer’s liability claims

Question 276

What are costs position on fast track claims?

Answer 276

Fixed trial costs

Question 277

Where can permission to appeal be sought from?

Answer 277

Either the court where the decision was made or the court the appeal will be taken from.

Question 278

Process for making appeal?

Answer 278

Party has 21 days from time the decision is handed down to request permission to appeal. The application for permission can be made orally immediately after the judge has made the decision or given the order.

Party wishing to appeal must send: an appeal form to the court, copy of the sealed order, subject of the appeal and the application notice.

Can have a rolled-up hearing which considers whether to grant the application for the appeal and if approved also the appeal itself.

Question 279

What happens if permission for appeal not sought within 21 days?

Answer 279

Party can make an application to the Court of Appeal for retrospective permission which is treated as an application for relief from sanctions. Party must show that this is reasonable in the circumstances.

Question 280

What are the grounds for appeals?

Answer 280

1. The decision is wrong in fact, law or the exercise of the court’s direction; and/or
2. The decision is unjust because of a serious procedural or other irregularity in the proceedings

Note: an appeal hearing is limited to a review of the decision, a party cannot rely on evidence that was not available at the original hearing without permission.

Question 281

What is the purpose of oral examination in enforcement of money judgments?

Answer 281

A judgement creditor (the successful party) may apply for an order requiring a judgement debtor (the losing party) to attend an oral examination in court to provide information about their means and assets.

Question 282

What is the process of oral examination in enforcement of money judgments?

Answer 282

Judgement creditor must serve the court order personally on the judgement debtor at least 14 days before the oral examination hearing.

Must also file an affidavit at least 2 days before the hearing providing details of service and stating how much remains unpaid.

Question 283

Methods of enforcement of money judgments?

Answer 283

A writ of control (High Court) or warrant of control (County Court)
Third-party debt order
Interest in land
Attachment of earnings order

Question 284

In enforcement of money judgments what does a writ of control (High Court) or warrant of control (County Court) allow and the process?

Answer 284

Is issued by the court to an enforcement agent, this allows them to take control of a judgement debtor’s property in order to sell it to satisfy the judgement:
* Creditor must give the debtor at least 7 days’ notice of the intention to take control of goods
* Creditor’s control agent can enter only the stated address and must provide an inventory of any goods seized
* Goods must be seized within 12 months of the notice
* The agent must sell the seized goods within 7 days and proceeds used to discharge the debt plus enforcement costs
* Cannot seize equipment used in debtor’s trade or household items necessary for basic domestic needs.

Question 285

In enforcement of money judgments what is a Third-party debt order?

Answer 285

If the judgement debtor has money in a bank the creditor can obtain this so bank pays the money instead of the debtor.

Question 286

In enforcement of money judgments what is interest in land for Method of enforcement?

Answer 286

if a judgement debtor has an interest in land a creditor may obtain a charging order which will give the creditor the right to apply for an order for sale. This can apply even if the land is in joint ownership.

Question 287

In enforcement of money judgments what is attachment of earnings order for Method of enforcement?

Answer 287

if the judgement debtor is an individual in regular employment a creditor may apply to the County Court for an attachment of earnings order to compel the debtor’s employer to make regular deductions from the debtor’s earnings and then pay them into court.

Question 288

Procedure and mechanisms for effecting valid money enforcement in another jurisdiction?

Answer 288

Debt recovery is easier if the debtor is within a country which has a reciprocal agreement with England and Wales, or there is a term in the contract giving courts in England and Wales jurisdiction.

Debtor in an EU country – if a contract gives England and Wales jurisdiction the creditor can issue a claim in the UK.

Debtor outside the EU – if the country has a reciprocal agreement with the UK a creditor is permitted to trace the debtor and enforce the claim in that country with the court’s permission. If country in has no reciprocal agreement and not a party to any of the applicable conventions will be difficult to enforce a judgement debt against a debtor.