Procedure Flashcards
List the stages of litigation.
- Statements of case.
- CMC.
- Disclosure.
- Exchange of evidence.
- Trial on liability.
- Trial on quantum of damages.
- Awarding of costs.
State the overriding objective.
For the court to deal with cases justly and at proportionate cost.
Explain the statements of case stage of proceedings.
The defendant completes a claim form, concisely stating the the nature of the claim and the remedy sought. The level of damages claimed (if appropriate) should be stated.
Within 14 days, the details of the claimant’s action must be set out in the Particulars of Claim. All facts and arguments are to be set out in full here (not true for non-IPEC cases). The claimant must state here if he wants the claim to be allocated to the small claims track.
Within 4 months of filing the claim form, either the court or the claimant will “serve” the claim form and Particulars of Claim on the defendant, along with an Acknolwedgement of Service form. If the claimant is the one serving the claim form, he must file a certificate of service within 21 days of him serving the claim form/Particulars of Claim. If he does not do this, he is not able to obtain a judgement in default if the defendant then fails to file something he is supposed to. However, this requirement is lifted if the defendant files his Acknolwedgement of Service on time.
The defendant must file the Acknowledgement of Service within 14 days of service of the claim form/Particulars of Claim. Within a further 14 days, he may then file a defence. Alternatively, a defence can be filed within 14 days of service of the claim form/Particulars of Case instead of an Acknowledgement of Service. The defence can include a counterclaim.
If the claimant has picked the small claim track but the defendant wants the multi-track, or vice versa, then the defendant can contest that as part of his defence. If so, the court will send the parties a questionnaire with a response due date. Each party must complete this by the deadline and then serve a copy to the other party within 14 days. The court will then allocate the case to whichever track they think is most approproate.
Similarly, if the defendant wants an entirely different court to handle the matter, the court handling the case at this stage (which is the court the claimant initially brought the claim to) will consider the argument and make a decision.
The claimaint has 14 days from the defence/counterclaim to respond to it.
NB all statements of case filed by any party must be accompainied by a “statement of truth”, which is signed by the party (or his solicitor) and states that the party putting forward the document believes all facts stated in it are true.
Compare the small claims track and the multi-track of IPEC.
Small claims track: cases up to £10,000; copyright; trade marks; passing off; unregistered designs; breach of confidence; no cost shifting; no interim injunctions; usually a district judge handling the case.
Multi-track: cases between £10,000 and £500,000; patents; registered designs; cost shifting available; interim injunctions available.
Explain the CMC stage of proceedings.
The CMC is a conference held after the statements of case stage, where the judge basically sits the parties down to discuss the case. The judge will use this to ascertain what the real issues are and to set a date for the trial. The length of the trial may also be decided. The judge will also check up on everyone’s progress and hear any concerns the two parties have (e.g., if the defendant objects to one of the claimant’s witnesses). If a party wants to submit new evidence beyond what was mentioned in the statements of case, the CMC is where they get to discuss that with the judge. The judge can give the parties instructions or “orders” during the CMC.
Explain the disclosure stage of proceedings.
Following the CMC, the court may order the parties to disclose to each other any documents or materials relating to a particular issue. The issues for which disclosure is required will be identified at the CMC.
Disclosure just means that notice is given that the document exists. The other party can then request to see the document if they want to.
Note that this is the only disclosure available at IPEC in order to save costs. It’s called specific disclosure since it is only for specific issues as determined at the CMC. Other courts have standard disclosure, where parties have to disclose all documents which may be relevant to the case by default.
Compare the standard and indemnity bases of cost shifting.
Standard basis: doubt about the reasonableness of the costs incurred/claimed is resolved in favour of the party paying the costs.
Indemnity basis: doubt about the reasonableness of the costs incurred/claimed is resolved in favour of the party receiving the costs.
NB the indemnity basis is typically used when the paying party has acted in bad faith.
What are the cost limits at IPEC?
£50,000 for the trial on liability.
£25,000 for the trial on quantum of damages.
List the different acceptable methods of service.
- Personal service (physically giving it to someone from the receiving party).
- First class post.
- Delivering the document or leaving it at a permitted address.
- Document exchange.
- Fax.
- Other electronic means (only if the receiving party or their solicitors consent in writing).
NB for a company, you can do any of the first three, where the documents must be left with a senior officer of the company and delivery/post must be to the trading address or registered address of the company.
What is substituted service?
If service cannot be effected because, for example, the claimant does not know the defendant’s address, then the court can order service to take place via a different method or at a different address, even if this would normally be against the rules.
What is the process for requesting interim relief?
They file an application notice stating what order is sought and why. The notice must be verified by a statement of truth. Any evidence relied upon must also be filed.
The evidence and application notice must be serived to any other parties. (NB the application is not served to the defendant and is made in private for ex-partes injunctions, freezing injunctions and search orders.)
In most cases, the application notice must be served at least three full days before the court is to deal with the application.
The application is heard by a judge. All evidence given at the hearing must be given as a sworn affidavit (witness statements are not enough).
An unjustified delay in making the application or during any part of the process is usually fatal to the application (interim relief is for emergencies only, and if you delay it suggests that it is not an emergency).
For an interim injunction specifically, the applicant has to give a cross-undertaking in damages.
How does one appeal interim and final decisions from IPEC?
Interim decision: appeal to High Court (Chancery Division).
Final decision: appeal to Court of Appeal.
State the “balance of convenience” test.
From American Cyanamid v Ethicon - for determing whether to grant an interim inunction.
- There must be a serious issue to be tried, and the claim is not frivolous/vexatious (i.e., there must actually be a reasonable chance of the claimaint showing that there has been an infringement).
- Damages must not be an adequate remedy.
- Weigh the damages to the claimant if no injunction is granted against the damage to the defendant if an injunction is granted.
- If other factors are equal, there is a preference to maintain the status quo.
- As a last resort only, consider the merits of the claimant’s case (i.e., whether it seems like there is an infringement).
What are ex-partes injunctions?
An ex-partes injunction is an interim injunction ordered without the defendant being informed about the action in advance or heard by the court.
This is for extreme emergencies only (i.e., if you’ve found out that someone is going to infringe tomorrow).
They are only granted for a few days to give time for the defendant to be notified and an application to extend the injunction to be made with notice to the defendant (interpartes).
In addition to the cross undertaking, the applicant has to give undertakings to commence infringement proceedings as soon as possible and to notify the defendant of the ex-partes application as soon as possible so that an interpartes hearing can be arranged.
What are the pre-conditions for the granting of a search order?
- An extremely strong prima facie case.
- The damage, potential or actual, must be very serious for the applicant.
- There must be clear evidence that the defendants have in their possession incriminating matter and there must be a real possibility that such matter would be destroyed if notice were given.
- The harm likely to be caused by search order cannot be out ot proportion to the objective of the search order (which is to sieze evidence of infringement).
- The applicant must make a full disclosure of all the facts (otherwise the applicant will be in contempt of court).
