Problem questions

Question 1

If a Defendant wishes to raise a limitation issue, in what document should they do it, the defence of AOS?

Answer 1

In the Defence

Question 2

Is the applicant required to show need for an application for interim payment?

Answer 2

No, but it is a factor that the court will consider. It is normally granted when liability is admitted but quantum is disputed.

Question 3

What is the applicant in a litigation required to apply for before the Court will consider striking out a defence or claim, imposing costs, debaring the defaulting party from relying on the evidence involved

Answer 3

An unless order

Question 4

When can the Claimant make an application for summary judgment?

Answer 4

As soon as the Defendant files the AOS

Question 5

What is the test for when summary judgment will be granted?

Answer 5

A party must show that the other party has no real prospect of success and that there is no other compelling reason why the case should be disposed of at trial

Question 6

What are the timescales for summary judgment/ interim payment application written evidence?

Answer 6

Claimant’s evidence: 14 days before hearing
Defendant’s evidence in reply: 7 days before hearing
Claimant’s reply: 3 days before hearing

Question 7

What is the test for setting aside a default judgment?

Answer 7

That there is a real prospect of success AND a good reason why the judgment should be set aside.

Question 8

What must the Defendant do if a claim is served on them and they wish to dispute the Court’s jurisdiction?

Answer 8

A defendant who wishes to dispute a court’s jurisdiction must tick the relevant box on the acknowledgment of service form indicating they wish to dispute jurisdiction, supported with written evidence, within 14 days of the deemed date of service. The defendant must not file a defence until after the court has heard the application. Filing a defence is likely to be taken as submission to jurisdiction that would negate the challenge.

Question 9

What are the interest provisions on court judgments?

Answer 9

High Court judgments carry interest at 8% per annum

County Court judgments over £5000 carry interest at the same rate as the High Court.

County Court Judgments under £5000 carry no interest but a judgment over £600 can transfer to the High Court for enforcement.

Question 10

What is an oral examination?

Answer 10

An order for an oral examination is used to force the losing party in a case to come to court to provide information about its means and assets

Question 11

How long do the parties have to return a Directions Questionnaire?

Answer 11

28 days

Question 12

What is the party’s search duty under standard disclosure?

Answer 12

Each party is required to make a disclosure statement certifying that they believe the search they made was reasonable (proportional) and explain why a particular search may not have been carried out. The document is signed by the party, who is subject to contempt proceedings if they make a false statement.

Question 13

When must a notice to admit facts be served?

Answer 13

no later than 21 days before trial.

Question 14

What happens if the parties can’t agree on a single joint expert?

Answer 14

The court will expect the parties to agree, but if they cannot, it will choose from a list of experts the parties provide. The parties will then jointly instruct the expert, and the expert will send their report to both parties

Question 15

Disclosure: what happens if a party destroys evidence?

Answer 15

If a document that should be disclosed has been removed or destroyed by a party, their solicitor is under a duty to inform the court and the other party of the existence of the document and the reason for the destruction or removal, and the court is entitled to draw an adverse inference from the fact that the party has failed to preserve a relevant document.

Question 16

What is an order for standard disclosure and when will it be used?

Answer 16

Fast-track and PI multi-track.

A party is under a duty to disclose documents (within their control) on which they will rely plus any documents which affect their case adversely, affect the other party’s case adversely, or support the other party’s case.

Parties must make a reasonable and proportionate search for documents.

Question 17

What is a security for costs order?

Answer 17

It is a Court order made when the defendant is concerned that the claimant will not be able to pay the D’s costs if they lose.

The Court will grant the order if the the defendant can show the claimant resides outside the jurisdiction, the claimant is a company and there is reason to believe it will not be able to pay, the claimant has taken steps with regard to its assets to make it difficult to enforce an order for costs

Question 18

What are the costs implications if a C makes a Part 36 offer, the D rejects their offer, and the C then beats that offer at trial?

Answer 18

The court may for the period after the time the offer expired: (1) award interest on the entirety of the claim at an enhanced rate of up to 10% above the base rate and (2) award costs on an indemnity basis with an enhanced interest rate of up to 10% above the base rate. The court may also (3) impose additional damages of not more than 10%.

Question 19

What is the effect of a charging order made to enforce a judgment?

Answer 19

It will take effect as an equitable mortgage, but the claimant will have to apply to the Court for an order of sale

Question 20

In what circumstances will a court grant an application for interim payment?

Answer 20

if judgment has been obtained for damages to be assessed and the court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum

Question 21

May a party ask the Court to vary a directions order?

Answer 21

Yes, but the application must be made within 14 days of the order

Question 22

Is it possible to apply for substitution or addition of a party after the expiry of the limitation period?

Answer 22

Yes, only if the limitation period was current when the proceedings were started AND the addition is necessary. Necessary will be:

• The new party was meant to be the party but the C filled in the D’s name wrong by mistake
• The claim cannot properly be carried on unless the new party is added or substituted
• The original party has died or had a bankruptcy order

Question 23

Is it possible to add, remove or substitute a party?

Answer 23

Yes, if the court finds it is desirable to do so so that the Court can resolve the issue

Question 24

What must the Court find in order to grant an application for a freezing injunction?

Answer 24

A judge will grant a freezing order if (1) there is a justifiable cause of action; (2) the claimant has a good, arguable case; (3) the defendant has assets within the jurisdiction; and (4) there is a real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced

Question 25

What happens if a defendant admits the claim?

Answer 25

The court will issue a judgment order. If the defendant pays the judgment within 14 days, they can avoid the court recording the judgment in the court register of judgments.

Question 26

What is the process for applying for specific disclosure?

Answer 26

A party who is unhappy with disclosure because they have reason to believe relevant documents exist which were not disclosed may make an application for specific disclosure. However, before making the application, the party should write to the other party, asking for the documents and explaining, among other things, why they believe the party has the documents and why it is reasonable and proportionate for the documents to be disclosed.

Question 27

What must be shown for the Court to grant an order to strike out?

Question 28

Is permission from the Court required in order to instruct an expert?

Answer 28

Yes, The parties to a dispute may seek expert evidence whenever a claim involves issues that are not within the ordinary experience of the judge and the expert’s special skill, knowledge, or training would help the judge to understand the issue. However, the court has the power to control the role of experts as part of the overriding objective to deal with cases at proportionate cost, and so the parties must seek permission from the court to hire an expert.

Question 29

Can experts be instructed in each track?

Answer 29

Yes.

Small claims and fast track - single joint expert encouraged

Multi-track - parties may instruct their own experts unless Directions call for a single joint expert. If the parties cannot agree, then the Court will choose from a prescribed list.

Question 30

What are the costs implications if a Claimant rejects a Defendant’s Part 36 offer and subsequently beats that offer at trial?

Answer 30

The defendant will be required to pay the claimant’s costs of the entire proceedings.

Question 31

How long must a Part 36 offer remain open?

Answer 31

The shortest period is 21 days. However, a Part 36 offer can be accepted at any time, even after expiry of the relevant period, so long as the offeror has not withdrawn it.

Question 32

When must bundles be filed before a trial?

Answer 32

Between 3-7 days before the trial