Questions Drill Flashcards
When can a claim form issued for service outside the jurisdiction must be served?
within 6 months
When can you file defence if you have filed an acknowledgement of service?
28 days
When can you file defence if you have not filed an acknowledgement of service?
14 days
When can you file an acknowledgement of service within jurisdiction?
14 days after particulars of claim
When should particulars of claim be served?
same time or within 14 days of issuing a claim form
Is a letter from the woman’s solicitor to company’s solicitor making an offer of 40k pound in respect of quantum which is not marked as “without prejudice save as to costs” disclosable in the proceedings?
No - genuine attempts to settle an existing dispute are not disclosable
Is a letter from the woman’s solicitor to the company’s solicitor regarding the circumstances of the accident and marked as “without prejudice” disclosable in proceedings?
Yes, simply labeling the document “without prejudice” will not bring it within the ambit of without prejudice privilege if it is not in substance a genuine attempt to settle an existing dispute.
Can you refer to past convictions of a defendant when filing a particulars of claim as a claimant?
Yes, if they are relevant.
What are the conditions for pre-action disclosure?
both parties are likely to be a part of subsequent proceedings;
if proceedings started, defendant’s duty by way of standard disclosure would extend the documents which applicant seeks disclosure;
disclosure is desirable in order to dispose fairly of the anticipated proceedings, save costs, assist the dispute without proceedings.
Are heresay witness statements admissible in court?
Yes but when you serve the heresay witness statement, you should give oral evidence and give the reason why the winess will not be called.
What happens when you issue a counterclaim and a Part 36 offer?
You need to specify if Part 36 offer accounts for the counterclaim.
When can you call the maker of a heresay statement to be cross-examined?
Within 14 days of receiving the notice from the other party to rely on heresay evidence.
Can you sign a witness statement on your client’s behalf?
No, witness statements should be signed by the client personally.
Which costs are recoverable if the Part 36 offer is not accepted but valid?
All costs from the date of the Part 36 offer to trial
When can a witness summons be served?
at least 7 days before trial - or after with the permission of the court
How much should Part 36 offer be to be valid?
It should at least match whatever court awarded
A solicitor is advising a claimant in breach of contract claim who intends to seek summary judgment. If successful costs of the application are fixed under CPR. Can the solicitor request higher costs?
Although the costs are fixed, higher sum can be requested but the client must cover any short fall as per the engagement letter terms.
When is the best time to serve a witness summons to a witness to give oral evidence at trial?
As soon as you receive the Notice of Trial Date
What is the difference between the court assessing costs on “standard basis” vs “indemnity basis”?
Indemnity basis cost assessment is when the other party’s conduct has been obstructive, in the indemnity costs assessment the court will allow for the costs which were reasonably incurred and reasonable in amount, and resolve any doubt it may have in favour of the receiving party. In the standard basis, court will also give regard to proportionality.
When does the limitation period for personal injury claims start from?
The moment of claimant’s knowledge of the defendant’s potential negligence i.e. hospital.
What is a search order?
allows applicant to enter into respondent’s premises to check documents, information material copy, remove detain etc. The primary purpose is to preserve evidence in circumstances where there is a risk that the other order for the delivery up or preservation of documents would not be sufficient because there is a risk the respondent may alter, destroy or forge documents prior to disclosure.
What determines the jurisdiction if there was no contract?
Where the advice given, contract entered into or loss suffered.
If the terms of a written contract + oral terms are disputed what should be attached to the particulars of claim?
The copy of the written contract itself and the oral terms, what has been said, when and by whom. Merely stating the express and implied terms is not enough (although that also must be done).
Up to which quantum of damages can be claimed through a claims notification form issued to the defendant’s insurer through the claims portal as per The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents?
Quantum valued less than 25,000 pounds excluding interest.
If you are issuing a claim against a partnership, who is the defendant?
The claim form should state the business name of the partnership as defendant.
When deciding which claim track to allocate, will court aggregate the claim and the counterclaim?
No.
Up to which amount can claims be allocated to small claims track?
Up to 10k
Which amounts can be allocated to fast track?
10k - 25k
From which amounts can claims be allocated to multi-track?
25k
What is summary judgment?
When the defendant has no real prospect of success, it is a final judgment.
What is the difference between a summary judgment and application to strike out defence?
In an application to strike out the defence, the court ill only look at the statement of case, whereas in summary judgment, the court will look at the claim itself, the defence and all the relevant evidence.
How can you impose sanctions on a defendant that is missing deadlines?
You have to notify the defendant to warn him about your client’s intention to apply to the court for the imposition of sanctions first. Then you can apply.
Which undertakings should the claimant give if they are applying for injunctive relief?
an undertaking to pay damages the defendant sustains which the court ultimately orders the claimant to pay as well as to serve the application on the respondent as soon as practicable and issue the claim on the same, or next working day.
Who decides the number of experts?
The court, expert evidence shall be restricted to which is reasonably required to resolve the proceedings.
How many experts are allowed in intermediate track?
Up to two per party.
Who can attend experts’ discussions?
Nobody, unless ordered by court or both parties and experts agree.
When can notice to admit facts be served?
no later than 21 days before trial
What is a notice to admit facts?
It is a notice to another party requiring him to admit facts specified in the notice. If the other party does not respond, the court will have regards to it when exercising its discretion as to costs. So it is a way to put pressure on the other party.
If someone provided you with a draft witness statement but did not sign it and will not what can you do?
You should apply for permission to serve a witness summary. A party who is required to serve a witness statement for use at the trial, but is unable to obtain one, may apply for permission to serve a witness summary instead - it has to be served at the usual time.
When should a notice to prove a document is real be served?
Within 7 days of disclosure. A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves a notice that he wishes the document to be proved at trial.
What is a notice to admit documents on claimant/defendant?
It is the same as the notice to prove authenticity of documents.
What happens to costs when a claimant chooses to discontinue a claim?
The claimant will be liable for defendant’s costs unless court orders otherwise where the burden would be on the claimant to demonstrate that they should not be liable.
Does offer to pay in installments constitute a valid Part 36 offer?
No, in order to constitute a Part 36 offer, the full amount must be paid within 14 days of the offer. But the court will give regard to this.
Who hears the appeal of a decision made by a Circuit Judge?
A High Court Judge
When is the deadline for the service of witness summons?
7 days from the trial, but with consent from the court can be less.
When can a bankruptcy petition be served?
If the debtor is unable to pay or has no reasonable prospect of being able to pay.
When is a debtor deemed unable to pay for the purpose of satisfying the service of bankruptcy petition.
1- creditor has served on the debtor a statutory demant in the prescribed form requiring payment of debt and at least 3 weeks have passed or (b) an attemt at the execution of the judgment debt has been returned unsatisfied in whole or in part.
Can a litigation friend accept settlement?
No, where a claim is made by or on behalf of a child of protected party against a child or protected party, no settlement, compromise or payment and no acceptance of money paid into court shall be valid without the approval of the court.
What is required for litigation privilege to apply to a document?
1- Must be a communication between the lawyer and the client or between either of them and a third party
2- made for the dominant purpose of litigation
3- relate to litigation which is pending, reasonably contemplated or existing
Who has to prove their case?
The claimant on the balance of probabilities.
How can default judgments set aside?
The court may set aside the judgment if the defendant can demonstrate that he has a real prospect of successfully defending the claim
What happens when you disclose part of a document which is privileged?
You will waive privilege to the opinion as a whole.
What does it mean when a Judge orders “costs in the case”?
The winning party can recover the costs of application from the losing party.
What does it mean when a Judge orders “costs in any event”?
The defendant will recover his costs of the application irrespective of any other award of costs which may be made in the proceedings.
What does it mean when a Judge orders “costs reserved”?
The costs of application will be decided by the court at a later stage.
What does it mean when a Judge orders “costs in any event” in favour of the applicant?
The claimant will recover his costs of the application irrespective of any other award of costs which may be made in the proceedings.
What does it mean when a Judge orders “no order as to costs”?
The defendant and the claimant will each bear their own costs of the application irrespective of the outcome of the trial.
Can discussions between the experts be referred to at trial?
No, unless both parties agree.
Is the alternative dispute resolution via expert determination binding?
No, expert determination is binding at the option of the parties. They have to agree for it to be binding.
If court orders costs to be assessed on the indemnity basis and the losing party contests these costs, how will the court resolve this?
The court will resolve any doubt as to whether the costs were reasonably incurred in favour of the winning party. Proportionality qualifier does not apply to indemnity basis.
What is a summary assessment of costs?
The judge will assess the amount of costs to be paid at the hearing.
When can a Judge make a summarry assessment of the costs?
1-at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim
2- at the conclusion of any other hearing, whcih lasted not more than a day, in which csase the order will deal with the costs of the application or matter to which the hearing related.
If the respondent to an application for summary judgment wishes to rely on written evidence at a hearing, when should the written evidence be filed and also served to the every other party?
7 days before the summary judgment hearing.
What is a Request for Further Information?
When the statement of case by the other party is unclear you can request it to be clairifed.
When should the recipient of a Request for Further Information respond?
It is for the sender to determine the date by which the other side must respond.
What is a Tomlin order?
Tool to record settlement terms, mainly used when a payment is to be made sometime in the future as the order will stay the proceedings until its terms are satisfied. When breached, parties may go back to the original proceedings.
What is the order of events if court did not give ADR?
Disclosure of documents, inspection, exchange of factual witness statements, exchange of expert reports, discussions between experts, pre-trial checklist, trial
Can you serve defence without receiving particulars of claim?
No. Timer starts after receiving particulars of claim = 14 days without acknowledgement 28 days with.
What is the difference between a warrant of control and a writ of control?
They are the quickest way of enforcing a judgment to take control of goods, warrant of control (County Court) writ of control (High Court).
What is a third party debt order?
Order from court to freeze money - involves extensive court processes.
What is the difference between inspection being withheld and disclosure being withheld?
Withholding disclosure means that the document is irrelevant, inspection withholding means that the document is listed but privileged.
What are the limitation periods for claim of negligence (excl. claim for personal injurt)?
1- six years from the date on which the cause of action accrued; and
2- three years from the earliest date on which the claimant first had both the knowledge required and the right to bring a claim.
When determining the value of a claim for a sum of money, which ones do you include: the balance of debt, interest, budget for costs?
The claimant has to include the balance of debt only - as what he reasonably expects to recover.
Up to how many days can you agree between parties to extend the deadline to file a Defence?
28 days (i.e. double of the defence deadline with acknowledgement)
Once you agree to the extension of the deadline of filing a defence between parties, what should you do to give it effect?
The defendant must notify the court in writing.
As claimant, how can you add an additional defendant to the case?
By application to court.
How can a defendant make an additional claim for contribution or indemnity against someone else?
1- with his defence;
2- any time with court’s permission
When does Practice Direction on Pre-Action Conduct apply?
to disputes which a specific Protocol does not apply
What does the Practice Direction on Pre-Action Conduct require before commencing proceedings?
To have exchanged sufficient information:
to understand each others position
make decisions on how to proceed
try to settle the issue without proceedings etc.
If your client receives a letter from a claimant in line with the Practice Direction on Pre-Action Conduct, how long does he have to respond?
14 days
If you overran your cost budget by 20%, would the court allow these to be recovered from the losing party?
20% is likely to be deemed disproportionate or unreasonable.
Where can you appeal to a decision from a District Judge to wind-up your company?
High Court Judge or a Registrar - for insolvency appeals from a District Judge
Within what period can you apply to have an order by the court to set aside or varied? i.e. to give specific disclosure or to pay claimant’s costs.
7 days of the service of the order - only you were not duly served with a copy of an application notice from the claimant before an order from the court. i.e. claimant served at a wrong address.
To obtain mandatory injunction from the court, what should the claimant demonstrate?
The claimant must show that they would otherwise suffer real harm.
What is a trial bundle?
The purpose of the trial bundle is to place before the court all relevant material and to assist both the lawyers and the court with ensuring a process that is as smooth and expeditious as possible.
When should a trial bundle be sent to the court?
not more than 7 days and not less than 3 days before trial.
When are costs summarily assessed?
The court should make a summary assessment of costs at the conclusion of any hearing which has no lasted more than one day unless there is good reason not to do so.
If you are acting for the defendant and the claimant has served a witness statement but had not called the witness to give oral evidence at trial, how can the claimant rely on this, assuming it is beneficial for him?
Defendant can rely on the witness statement as hearsay. Any party can do this to rely on a witness statement which has not been called in.
If a Part 36 offer is accepted by the defendant, will the claimant be liable to pay expenses of the defendant prior to Part 36?
Yes, even the recoverable pre-action costs. This is different from the Part 36 offer being made and having matched the claim.
What are pre-trial checklists used in multi-track?
it is a questionnaire sent by the court for parties to fill to ensure readiness for trial.
What happens if a party does not fill a pre-trial checklist within the date specified by the court?
the court will give directions as they think appropriate
When will a claim be allocated to the intermediate track?
When the value is between 25k - 100k
the claim is not suitable for small, fast or multi-track
the estimated trial length is three days or less
there will be no more than two expert witnesses per party
the claim involves multiple claimants or defendants
What is a Notice to Produce Documents?
it is asking someone to prove the authenticity of documents
What is a letter of request?
It can be used to adduce evidence from a third party who is out of jurisdiction
Can request for further information be made in relation to disclosure of specific documents?
No, it can help get more information but not specifically the disclosure of a certain document
What is an application for specific disclosure?
When you think the other party’s disclosure is inadequate you can ask them to specifically disclose stuff.
Can litigation friends have adverse interests in the case?
No
What is a third party debt order?
When the court orders a third party, a bank, building society or trade debtor who holds or owes money for or to the judgment debtor to pay the outstanding sum directly to the judgment creditor.
What is a charging order?
It provides the judgment creditor with a form of restriction over land or securities belonging to the judgment debtor in satisfaction of the enforcement sums.
What happens after opening submissions in a trial in high court - fast track?
The claimant presents witnesses of fact
What are the immediate deadlines included in a letter of claim against an architect for negligence?
The defendant should acknowledge the letter of claim within 14 days, confirm its position on liability within 28 days with a meeting of parties with 21 days thereafter pursuant to the Pre-Action Protocol for Construction and Engineering Disputes.
If a claimant dies what happens?
The court will order a person to be appointed to represent the estate of the deceased if no personal representatives have been appointed.
If you are a claimant and the defendant dies, can you automatically rely on the representatives of the estate of the deceased?
No, you should make an application to substitute the deceased.
When should a defence to a counterclaim be served?
Within 14 days of the date of service of the counterclaim.
What happens if you fail to file a defence to a counterclaim on time?
The defendant can obtain a summary judgment.
What does the court do in most cases of default with Directions?
make an Unless Order
What is the deadline to call the maker of a hearsay evidence to be cross-examined?
within 14 days of the hearsay notice
What happens when a court allocates a case to the fast track or intermediate tracks?
It will generally give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial. This includes making an order in relation to disclosure.
When should a claim form be served (within jurisdiction)?
Within 4 months after the date of the issue (hey I have an issue with you).
When should a claim form be served (outside jurisdiction)?
Within 6 months after the date of the issue (hey I have an issue with you).
What is the minimum period a Part 36 offer has to be valid for?
21 days.
