Procedure Flashcards
Service of claim (outside UK)
Deadline: 6 months since issuance of claim with courts
if the court gives permission. Permission may be granted if:
1) for contract – if it is made or breached in England, exclusive jurisdiction clause in England or English law is governing law;
2) for tort – act causing damage is in England or loss is suffered in England;
Service of claim (UK)
Deadline: 4 months since issuance of claim with courts
Even if D is only briefly in the country, can be served
Causes of Action
- Contract - breach of express and implied terms
- Tort - breach of duty of care
Contract claims
Every contract needs offer, acceptance, consideration and intention to create legal relations.
Breach of either express or implied terms (of prior dealings, fact or law - SGA and SGSA).
Breach of warranty (damages only), breach of an innominate term (depends on the severity of the breach - can be considered a warranty or a condition), or breach of condition (termination of contract and damages possible).
Causation = the But For test in Hadley - natural and probable result of breach OR within reasonable contemplation.
Damages - what the result would have been if the contract was performed.
Tort claims
- Duty of care exists - Caparo test - foreseeability of damage, proximity of relationship between the parties and it is reasonable, fair and just to impose this duty.
- Breach of duty of care - standard is reasonable care
- Causation - the But For test, except intervening acts
- Damage - personal injury and property damage - YES, psychiatric damage - different tests for primary and secondary victims; pure economic loss - NO, unless negligent misstatement (special relationship test in Hedley)
- Remoteness of damage - the Wagon Mound Nr. 1 Test for foreseeability of damage
Limitation Periods
Breach of contract - 6 years since breach
Breach of duty of care - 6 years since damage suffered.
Personal Injury / Death - Consumer Protection - 3 years since damage or knowledge.
Pre-Action Conduct
PD on PAC - steps taken by all parties before initiating a court claim to clarify their positions and limit the scope of the claim. Specific protocols depending on the case - e.g. injury, professional misconduct, etc.
Non-compliance with PDPAC
Not mandatory, but can be a basis for an order for sanctions, e.g. stay of proceedings, strike out a statement of claim, costs on the indemnity basis
Standard protocol in pre-action
Letter before claim - facts of the case, damages, interest claimed
Response by other party - 14 days in straight-forward cases and 3 months in more complex scenarios
Overriding Objective CPR 1.1
Court’s general duty to further the overriding objective by dealing with litigation justly and at proportionate cost by:
- Ensuring parties are on equal footing and participate fully in proceedings and can give their best evidence
-Saving expense
-Ensure compliance with court orders, rules and practice directions
-Make proportionate use of court resources
-Deal with the proceedings expeditiously and fairly
-Proportionate dealing with cases depending on their financial value, complexity of issues, importance of issues, etc.
Cases allocated to County Court
Must be brought in County Court:
-if cases are with financial value in dispute up to 100,000 GBP
-in personal injury cases < 50,000 GBP
-money claims only
Cases allocated to High Court
Must be brought in High Court:
-if cases are with financial value in dispute over 100,000 GBP
-Probate matters over 30,000 GBP
-Equity claims over 350,000 GBP
-Defamation, IP, PR removal, etc.
Concurrent jurisdiction
Claims for more than 100,000 GBP can be tried in both County and High Court - the claimant can choose where to commence the case.
Almost usually in County Court unless:
-Unusual complexity of the issues, e.g. technical
-Of high value
Track Allocation - CPR 26.13
9 Factors for allocation: NINE CFO CV
Financial value estimate excludes any amount not in dispute, any contributory negligence claim, interest or costs.
If there is a counterclaim - take the largest of the two.
Cost recovery:
-In lower courts - less likely, fixed sums only
-Fast + Intermediate - fixed sums
-Multi-Track - more flexibility
-Longer trial in higher track cases
-More senior judges in higher track cases
Types of Tracks
Small Claims Track: up to 10K GBP, up to 1,500 GBP for pain, suffering and amenity; up to 5,000 GBP for traffic accidents
Fast Track: up to 25K GBP, up to 1 expert per field per party (max 2 fields); trial doesn’t take more than 1 day in court.
Intermediate Track: up to 100,000 GBP, trial doesn’t take more than 3 days in trial if managed reasonably, max 2 experts per party, max of 3 parties.
Multi-track: if none of the other tracks apply
Issuing and serving proceedings: Part 8 Claim (Form 208)
Alternative filing for front-loaded and fairly undisputed matters of fact. No default judgment possible.
Issuing and serving proceedings: Part 7 (Form N1)
Normal civil cases.
Issuing a claim form – Form N1 + Particulars of Claim (unless PoC served separately – PoC served within 14 days of deemed service of Form N1; together if the claim is straight-forward) + any relevant supporting documents
Add, substitute or remove a party to a claim - CPR Part 19
An existing party to a claim can make an application, but no one can be added as a claimant without their express written permission filed with court.
Permission is required, unless the claim form is not served yet.
Grounds:
-within limitation period - yes, for all options
-outside of the limitation period - can only add or substitute a party if the case was initiated during the limitation period and the original party was added by mistake or died or a new party inherited the interest of this claim from the original party.
Service of the Claim Form
Within 4 months of the date of issuing proceedings with the court via Form N1
When has deemed service taken place?
Second business day after the day it was sent
“Business day” = any day but Saturday, Sunday, bank holiday, Christmas Day and Good Friday
Methods of service
Personal service – e.g. handing the papers to them
First class post or document exchange (DX) – only first class post satisfies the requirements of the CPR for service; alternatively – Doc Ex unless stated otherwise
At a specified place – at a specific address
Fax or other electronic means – the party being served must specifically confirm that they accept service by fax/email
Another method specified by court – e.g. by voicemail or by text message —> the court can authorise
Service of Claim outside of jurisdiction
Within 6 months of issuing the proceedings and must ask the court for permission
Exception: contract clause for English jurisdiction clause – no need for permission
Service of Statements of Case
Method: Personal service , At a specific address, Fax/email
- If before 4:30pm on a business day, on that day; If not, on the next business day
Method: First class post/DX
-On the second day after it was posted if it was a business day
-If not, on the next business day
Service of Particulars of Claim
-At the same time as the claim form OR
-14 days after the service of the claim form (no later than 4 months after the issue of the proceedings/issue of the claim form)
Responding to a claim – CPR Part 9
Within 14 days of service of PoC the defendant MUST do something:
-Admit claim
-File acknowledgement of service (Part 10) and file full defence (Part 15) within 28 days of service of PoC
-File full defence (Part 15), maybe with a counterclaim (Part 20)
-Ignore proceedings (then Claimant can apply for a default judgment)
Upon agreement between the parties, an additional 28 days may be granted to file a defence. In total, 56 days since PoC served. No more can be granted without the court’s permission.
Disputing the court’s jurisdiction, CPR Part 11
Must be done ias part of the acknowledgement of service (to be served within 14 days of receiving the PoC). Then D has 14 days since filing the AoS to submit their reasons for challenging the jurisdiction.
If accepted by the court – court has no jurisdiction —> the case comes to an end.
If not accepted by the court – D has another 14 days to file an acknowledgement of service + potentially defence after that.
Discontinuance
Claimant bears the costs unless otherwise agreed “save as to costs”.
Claimant needs to serve a notice of discontinuation to Defendant.
Settlement
Pre-action – not possible for Claimant to recover their legal cost (unless agreed - “save as to costs”).
Post-action – preferable that the settlement agreement is recorded in a court order or judgment; two types:
-Consent orders – by consent by both parties, signed on behalf of their lawyers; is publicly available; enforceable as a court order. Disposes of part of whole proceedings or stays the proceedings.
-Tomlin orders – confidential matters usually put in a separate document/schedule. Proceedings are stayed – paused. The scheduled terms of the Tomlin order are not part of the court order, so cannot be directly enforced by the court. Can sue for breach of contract.
No new proceedings need to be initiated if any party doesn’t adhere to the agreed terms.
Tomlin orders are preferred if the terms are complex and confidential.
Interest in contractual claims
-only if C applies for it
Three ways to claim interest on damages or debt due:
-Interest % specified in the contract
-Commercial debts – the Late Payment of Commercial Debts (Interest) Act 1998 – 8% on top of Bank of England’s base rate on date of payment
-All other cases – the court has discretion via s. 35A Sr Courts Act for High Court cases and via s. 69 County Courts Act for County Court cases.
Purpose of Defence
Narrow down the issues in dispute, do not miss to address an allegation by C; address C’s allegations one by one and itemise it with reference to the PoC. If D misses to address an allegation by C, D is deemed to have admitted it.
If D denies a claim, they need to address it and offer their version of events.
If D does not admit or deny a claim, D must state that D has no knowledge of the statement. then the C has to prove it.
Response to defence is not mandatory for Claimant. They usually only do it when something has been missed in their own PoC.
Difference between Counterclaim and Defence
Counterclaim is filed only if the D has suffered a loss as a result of C’s conduct. If no loss is suffered, but there is a good reason for D not to perform, then only file a defence.
It forms one document with the defence, with defence going first.
Permission to file a counterclaim is not required if filed with the defence. If not, court permission is required.
Requests for further information about statements of case – CPR Part 18
Firstly, parties should try to resolve this amongst themselves via a written request and allow reasonable time for response. Only concise and specific information if reasonably necessary for them to build their case or assess the case to answer.
Secondly, if the party does not respond - reach out to court and make an interim application under CPR 23, Form 244 and attach a witness statement.
Amendments to a statement of case – CPR Part 17
Before serving the statement of case – at any time
If you want to change anything on any statement of case after being served (within the limitation period):
-Only with written consent from all parties, OR
-Only with leave of court
If it is done outside of the limitation period, the court may grant leave only if:
-The name of the party is included by mistake
-The capacity in which a party claims has changed
-Add or substitute a new claim resulting/arising from arguably the same facts as the initial claim
Interim applications under CPR Part 23
Parties are applicant and respondent.
Application notice is Form 244 and attach a witness statement. Also, a draft of the order requested.
Application notice must be sent at least 3 clear days before the scheduled hearing to the respondent.
Applications without notice - documents should be sent to respondent as soon as practicable after they were granted an order.
Applications without notce: freezing injunctions or search orders.
Directions questionnaire: Form N181
The court will serve the parties with a notice of the proposed allocation, asking them to file and serve a completed directions questionnaire by a specific date. Once received, the court will confirm the allocated track based on the answers.
Failure to file a directions questionnaire on time: the court will make an order as it deems appropriate, e.g. order for directions, strike out a statement of case.
Essentially, the court will impose sanctions for non-compliance.
Tips to avoid sanctions
-Consult with the court if following the CPR rules is difficult, impossible or the rules and their application is unclear.
-Apply for a Buffer Order (CPR 3.8(4) ) - try to agree to an extension of a deadline with the opponent directly. Then notify the court if such an agreement is made. It must be in advance and in writing.
-Apply for time extension with court and before the deadline - then the court will assess the application against the overriding objective under CPR 1.1
- Apply for time extension with court and after the deadline - the court will then assess the application against the relief from sanctions test (CPR 3.8 and Denton v White 3-stage test)
What is a Case management conference (CMC)?
It is listed to take place as soon as a claim is allocated to the Multi-Track. It is meant to list all live issues, discuss any steps taken to resolve them, any future steps to be taken for the claim to be handled in accordance with the overriding objective, check the compliance of both parties with court directions.
Case summary is often prepared for the judge to assist in determining the direction of the case at trial. It is a summary of all chronological events to date, any filings/applications/outcomes, agreed issues of fact, issues in dispute, evidence required and by whom. The claimant + their solicitor are responsible for drafting the summary.
Costs management / Costs budget
-Costs budget states all costs already incurred and those that are anticipated within the proceedings.
-The costs budget must be filed either with the directions questionnaire or at least 21 days before the CMC.
-If no costs budget is filed or filed late - the party will be assumed to have claimed only court fees as costs.
-A budget discussion report (agreed and disagreed costs amongst parties) is filed at least 7 days before the CMC.
-Parties discuss costs at the CMC. Court reviews costs.
-If costs are unreasonably high, the court can issue a cost management order.
-If after filing a costs budget, the party wishes to revise their costs, they need to have a compelling reason, e.g. a significant and unexpected development.
Witness evidence (CPR Part 32)
Each witness called to give oral evidence must submit a witness statement in advance served on the court and the opposing party. The court will specify a deadline for witness evidence statement submission.
If you didn’t serve the WS on time, the witness cannot give oral evidence in court unless the court grants permission (CPR 32.10).
Evidence must be relevant.
No evidence of opinion allowed - only evidence on facts and in the witness’s own words.
Hearsay evidence
What is it? - A relevant fact or an admissible opinion that is said outside of court but used in court to prove the truth of the stated matter - s. 1 Civil Evidence Act.
Not necessarily inadmissible in civil proceedings, but notice must be given in advance - s. 2 Civil Evidence Act.
-if the witness who gave the statement cannot attend the hearing to be cross-examined, a hearsay notice + witness statement must be submitted to the other party at the same time
-If no notice is sent – hearsay evidence is still admissible but it might not carry the same weight
Challenge the weight of hearsay witness evidence - s. 4 of CEA
-Opponent might attack the maker of the hearsay evidence in their absence: giving notice of the intention to attack hearsay witness within 14 days of receiving the hearsay notice (CPR 33.5)
-Opponent might wish to cross-examine the hearsay witness – give notice within 14 days of receiving the hearsay notice (CPR 33.4)
-Request further information about the hearsay evidence from opposing counsel
Expert Evidence (CPR Part 35)
It is opinion evidence – admissible as they are experts in that specific field. Expert evidence prepared for the purposes of proceedings.
Duties of experts - to assist the court in providing an objective and unbiased opinion on the matter at hand
The 3 I’s of experts = Independence, Integrity, Impartiality
Expert evidence may be admitted only with court’s permission.
Challenge expert evidence
-Expert is not qualified
-Expert is biased towards the prosecution
-Expert report is not reasonably necessary to resolve the proceedings
-Cost of obtaining it outweighs the benefits of admitting it
-Is it genuine evidence or is it controversial?
Challenge witness evidence (generally)
-Court’s power to exclude admissible evidence if it doesn’t align with the overriding objective under CPR 1.1
-Evidence is irrelevant
-Unreliable maker
-Evience is privileged - litigation or legal advice privileged
-Opinion evidence rather than evidence on the facts
-Overriding objective under CPR 1.1
Witness Summons
Compel a witness to give evidence in court or produce a document for court proceedings.
Send a request to attend at least 7 days before a hearing. If earlier than that, court permission is required.
Always consider if the witness will help your case or damage it.
Binding on the witness. Might be fined (in County Court) or found in contempt of court (in High Court) if they refuse to attend court.
Disclosure (CPR Part 31)
Documents exist or have existed. In the party’s control = they have physical possession of them, they have the right to inspect or the right to possess.
Standard disclosure for Intermedia/Fast Track/Multi-Track (PI) cases.
Standard disclosure - Rule 31.6 documents:
-Documents on which the party will rely;
-Documents which they will not rely on – adversely affect their case or the other party’s case, or support the other party’s case.
-Documents that are required to be shared by a practice direction
There is a continuing duty to disclose documents that are relevant until the case is over.
Types of disclosure requests
-Order for specific disclosure - TEST - ICU EAR
-Non-party disclosure - TEST - SAD
-Pre-action disclosure - served on the other party likely to be part of the proceedings, the document is likely to be part of stardard disclosure and disclosure is desirable to resolve/clarify/dispose of the mattter timely and save costs.
Legal Professional Privilege
-Advice privilege (the purpose is to seek legal advice; it is between the client and the client’s solicitor)
-Litigation privilege (any advice or document/evidence produced for the purposes of litigation; it is between the client’s solicitor and a third party)
-Without prejudice correspondence: no privilege claimed on it; the point of this – the trial judge is unaware of the contents.
Purpose of Trial Bundles
Usually prepared by the claimant’s lawyer (as much possible in agreement with the other party)
Will include all key documents needed by the judge to decide on the case
Need to be filed with court between 7 and 3 days before the trial date
Mode of address to judges
Circuit Judge – Your Honour
District Judge – Judge
CoA/Supreme Court – My Lord
Nature of judgments
-On liability
-On quantum (amount of money legally payable in damages)
-On interest
-On costs
Interim application costs
At the end of the interim application the judge will decide how to award costs for this specific stage.
Final costs
-On the standard basis - reasonably incurred, reasonable in amount and proportionate to the matters/issue at hand. In case of doubt, the court will favour the paying party.
-On the indemnity basis - reasonably incurred and reasonable in amount. In case of doubt, the court will favour the receiving party.
In both cases: if the costs are reasonably incurred but not reasonable in amount, the amount may be reduced or disallowed.
Non-party costs (CPR 46)
The court has full discretion - only if the 3P was the reason for the proceedings and had an interest in the outcome.
How to do it?
-Add the 3P as a party to the proceedings before the order; they can join the hearing to discuss costs.
Part 36 Offer
Offer for settlement with strict conditions and strict penalties for non-compliance
Requirements for Part 36 Offer: Claimant equals/beats their offer
-In writing
-Clear it is a Part 36 offer
-Allow for a period not less than 21 days for acceptance by the other party (“the relevant period”)
Consequences of Part 36 Offer: Claimant wins and beats their own offer
Depends on whether the claimant wins at trial and beats their own offer, or not.
-Claimant equals/beats their offer - Claimant is awarded damages + 10% of the first 500,000 GBP of damages and 5% on any additional up to 1mil with a maximum of 75,000 GBP.
-up to Day 21 - C receives costs on the standard basis + interest on damages as specified in the PoC
-from Day 22 on - C receives interest on damages (at max 10% over the base rate), costs on the indemnity basis and interest on costs (at max 10% over the base rate).
Consequences for Part 36 Offer: Claimant wins but doesn’t beat their own offer
C is awarded damages and interest as per PoC.
-up to Day 21 - D pays C’s costs on the standard basis
-from Day 22 on - C pays C’s costs on the standard basis + interest on those costs
Appeal
No AUTOMATIC right to appeal in civil proceedings.
Two ways to apply for a permission for an appeal:
-At the end of the trial by the trial judge
-Request permission from the appeal court itself
Grounds:
-The case has a real prospect of success (realistic)
-There is any other compelling reason to allow the appeal (e.g. important matter of law, the matter is of general importance to the public)
Timelines for appeal
After a decision before any other court – 21 days
To appeal a Court of Appeal decision to the Supreme Court – 28 days
Leapfrog appeals
From High Court to Court of Appeal and from High Court to Supreme Court
Leapfrog certificate from trial judge + Permission from Court of Appeal/Supreme Court judge
Grounds:
Very important matters of practice/law and importance general question/there is some urgency.
Grounds for successful appeals
The verdict was wrong (as to law)
The verdict was unjust (as to procedural irregularity)
Oral examination - Money judgments (CPR Part 71)
The winning party files an application with court for an order to obtain additional information about the losing party’s finances + attach judgment/specify how much money they owe.
Order is served on the debtor who has to attend a local County Court hearing centre and be examined by an officer of the court.
Debtor can request reimbursement of travel expenses from / to court within 7 days of receiving the order.
Debtor to answer questions under oath, read and sign the statement.
If they don’t show up in court, the judge can make a committal order against them.
Methods of enforcement of judgments
Taking control of goods – as part of business premises = Cannot break in in a home and cannot take personal chattel
Charging orders = on land – registered in the Land Registry (registered land) or at the Land Charges Department (unregistered land) OR Property is over 5,000 GBP
Third party debt orders – a third party who owes money to the debtor to pay it into the creditor directly
Attachment of earnings – an order into court that compels the debtor’s employer to deduct some amount and send it directly to the creditor.
