Revision Guide - Ch. 1 - 12 Flashcards
What are the 4 primary processes for resolving disputes in the UK?
- Litigation
- Negotiation
- Arbitration
- Mediation
What is litigation?
Taking legal action through the court system, with formal rules of evidence.
A judge will resolve the parties’ dispute
What is negotiation?
Involves informal discussions between the parties to resolve their dispute which may take place at any time.
The parties resolve their dispute.
Any correspondence that form part of the negotiation can be ‘without prejudice’.
Includes round-table discussions
What does it mean to be ‘without prejudice’?
Cannot be relied on by the other party or referred to in court.
What are round table discussions?
Parties and their representatives meet to try to settle, usually after disclosure of all witness statements and evidence
What is arbitration?
Semi-formal procedure in which a neutral third party hears the evidence and resolves the parties’ dispute through a final award.
<> strict rules of evidence don’t apply
<> arbitrator’s decision is legally binding on both sides
When is an arbitral reward enforceable in England and Wales?
If the court gives judgment in terms of the award
What is mediation?
Informal process in which a neutral third party assists disputing parties in reaching a resolution.
<> confidential + without prejudice
<> rules of evidence don’t typically apply, and parties can bring up anything (such as hurt feelings)
<> mediator doesn’t rule on merits but rather facilitates the parties’ discussion
Is mediation binding?
Mediation isn’t binding unless the parties sign an agreement
Who bears the cost of mediation?
Costs are borne by both parties
What is Alternative Dispute Resolution?
ADR - broad label given to methods of resolving disputes other than through litigation
What is the overriding objective?
Courts have a duty to ensure that cases are resolved in a proportionate, expeditious, and fair manner.
What is the impact of failing to consider ADR, or to participate in it?
It might impact a party’s ability to recover costs of the proceedings
What might the court do if there ins’t enough time to comply with directions and undertake ADR?
They may suspend the court timetable –> granting a stay
What is the limitation period for a tort claim not involving personal injury?
Must be brought within 6 years from the time the action accrued (when the tortious act occurred).
If the tort wasn’t readily apparent on accrual, then 6 years from when the claimant gained knowledge of the tort
What is the limitation period for a tort claim including personal injury?
3 years from accrual or knowledge
What is the limitation period for a tort claim where the victim died from the tort within 3 years of the accrual date?
3 years from the date of death, or
3 years from when the deceased’s personal representative gained knowledge of the tort.
What is the limitation period for a negligence claim for latent defects in property that existed at the time construction was completed but that wasn’t apparent at the time of completion?
Can be brought up to the later of:
i. 6 years from accrual of the action, and
ii. 3 years from the earliest date on which the claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence.
However, there is a long stop - no action may be brought more than 15 years after the act or omission alleged to have caused the damage
What is the limitation period for bringing a contract claim?
6 years - limitation period begins to run when the breach occurs
What is the effect of shorter limitation clauses in a construction contract to ‘make good’ defects?
It doesn’t prevent a simple contract action within the normal 6 years period.
- It applies only to the duty to ‘make good’.
When does time stop running for limitation period purposes?
When the claimant delivers the properly completed claim form to the court with a request to issue proceedings together with the correct fee.
When may it be possible to alter the name of the defendant on a claim form?
If a claim is issued before expiry of the limitation period, if the defendant has been correctly identified but mistakenly named.
What can the claimant do if a new defendant is named after the limitation period expires + the defendant raises the limitation defence?
The claimant can ask the court to disapply the period (which is at the court’s discretion).
When does limitation begin to run if the claimant is a minor?
Begins to run on the claimant’s 18th birthday
When does the limitation period begin to run in cases of fraud or concealment?
When the claimant discovers the fraud or concealment or could have done so with reasonable diligence.
What do pre-action protocols do?
Set out steps that each party should take before commencing a legal action.
What happens if no dispute-specific protocol applies?
The courts expect litigants to follow the guidelines set out in the Practice Direction on Pre-Action Conduct and Protocols (the ‘Practice Direction’)
What does the Practice Direction say the first thing a claimant should do is?
Write to the defendant with concise details of the claim
What does the Practice Direction say the defendant should do when they receive initial details of the claim from the claimant?
Reply within 14 days for a straightforward claim; up to 3 months for a complex claim.
Under the Personal Injury Protocol, what should the claimant’s letter of claim include?
- Clear summary of facts
- Details on the impact of the claimant’s injury on daily life
- Hospital attended, with relevant reference number, and
- An indication of financial losses, such as they are known at this stage.
When must the defendant respond to the claimant’s letter of claim under the Personal Injury Protocol?
What may the response include?
Within 21 days.
Response may indicate that the defendant desires to investigate, in which case they have 3 months to admit or deny the claim
Under the Personal Injury Protocol, what should the parties’ initial letters refer to?
Documents that will be disclosed
Under the Personal Injury Protocol, if the defendant doesn’t reply within the specified period to the letter of claim, what happens?
The claimant can issue proceedings
What does the Personal Injury Protocol say the claimant should do if they want to instruct an expert?
The claimant should strive to choose that expert jointly with the defendant.
The claimant is to send a list of suggested experts to the defendant, who then has 14 days to disagree.
If the defendant disagrees, each party can instruct their own.
What are the likely consequences if a party fails to follow the relevant protocol or the Practice Direction?
- Stay of proceedings - to allow the Practice Direction or a step in the particular protocol to be complied with
- Order the non-compliant party to pay the costs (or part of the costs) of the other party
- If the non-compliant party is the claimant, restricting interest on the claim
When is it justifiable to issue proceedings without following the relevant protocols?
- The limitation period is almost over
- A court order is required to preserve evidence or assets, or
- There is concern that the defendant may issue proceedings in another country to avoid UK courts.
When may a party make a pre-action application for disclosure of documents?
If the documents requested would be disclosed under standard disclosure AND
Disclosure could now assist in disposing of the claim without the need to issue proceedings.
When can pre-action disclosure be sought from a non-party?
If it will support the claim or adversely affect the opponent’s case and is necessary to dispose of the matter fairly or to save costs
When is it possible to make a pre-action application inspect property?
If:
1. The property is, or may become, the subject matter of the proceedings, or
- It is relevant to the issues that will arise in relation to the proceedings.
How are proceedings commenced?
By issuing a claim form setting out brief details of the claim
When must claims be started in the County Court?
Claims must be started in the County Court unless the total value of the claim exceeds £50,000 for personal injury claims or £100,000 for other claims.
How are all claims for debts owed commenced?
By completing a money claim form which will be issued by the Civil National Business Centre (CNBC)
Where are most unspecified claims for damages started?
Also in the Civil National Business Center (CNBC)
Following receipt of a defence or admission, what will the CNBC normally do?
They will normally transfer the claim to the hearing centre local to:
i. the defendant’s home address (if the defendant is an individual), or
ii. the claimant’s preferred hearing centre (if the defendant is a company).
When may claims be commenced in the High Court?
Claims that exceed £50,000 for personal injury claims and £100,000 for other claims may be commenced in the High Court.
Although, they may be filed in the County Court instead
When will filing in the High Court be appropriate?
If:
1. the financial value of the claim is high,
2. the issues, remedies, or procedures will be complex, and/or
3. the outcome of the claim would be important to the public in general
What is the High Court in London known as?
The Royal Courts of Justice
How does the High Court operate outside of London?
It has District Registries in most large towns and cities
What are the divisions of the High Court?
3 divisions:
1. Chancery,
2. Family,
3. King’s Bench
What should the claimant indicate when completing the claim form re the High Court?
They should indicate whether they wish to issue the claim out of a District Registry and in which Division they wish to issue the claim.
Otherwise, it will issue out of the Royal Courts of Justice
What types of claims does the King’s Bench Division typically hear?
- Defamation cases,
- Breach of contract cases,
- Negligence and personal injury cases,
- Land possession cases, and
- Cases involving non-payment of debt
What specialist courts are there within the King’s Bench Division?
- The Technology and Construction Court (TCC), and
- The Commercial Court
What types of claims does the Technology and Construction Court typically hear?
Claims against engineers, architects, surveyors, and the like
What types of claims does the Commercial Court handle?
Handles complex business disputes, but especially international trade claims
What types of claims does the Chancery Division of the High Court typically hear?
Cases involving:
1. Equity and trusts,
2. Commercial fraud,
3. Taxes,
4. Intellectual property,
5. Contentious probate matters,
6. Business disputes,
7. Professional negligence other than those handled by the TCC,
What specialist courts are within the Chancery Division?
- Bankruptcy Court, and
- The Companies Court
What must claims include?
the claimant’s and defendant’s full names and addresses
What information should the claim form include?
Brief details so that the court can see what the claim is about in general terms
What must a claim form include?
- Names and addresses of claimants and defendants,
- Brief details so that the court can see what the claim is about in general terms
- State the value of the claim.
- Specify the court the claimant would prefer to hear the claim,
- Accompanied by appropriate fee
- (Option to include Particulars of Claim)
- Signed statement of truth
How should the claimant include the value of the claim in the claim form?
Specified sum - the amount should be stated,
If the court will have to assess the damages, the claim form should state that the claimant expects to recover:
i. not more than £10,000,
ii. more than £10,000, or in a personal injury case, in excess of £1,000,
iii. more than £25,000, or,
iv. more than £100,000, or in a personal injury case, more than £50,000 if the claim is to be filed in High Court
What should the claimant disregard when estimating value of the claim for the claim form?
Claimant should disregard interest, costs, contributory negligence, and any counterclaim
What appropriate court fee must accompany the claim form?
If the claim exceeds £10,000 but is less than £200,000, the fee is 5% of the value of the claim.
For claims exceeding £200,000, the fee is set at £10,000.
What are the particulars of claim?
Formal written statement setting out in detail the nature of the claimant’s case.
When are the particulars of claim usually produced?
The claimant’s solicitors will usually produce the particulars of claim as a separate document which is served either with the claim form or within 14 days following service of the claim on the defendant.
Who can sign a signed statement of truth on the claim form?
Usually, it should be signed by the claimant, but the solicitor may sign
How is the claim itself started?
By the court issuing the claim form at the claimant’s request
Who serves the claim on the defendant?
The claimant must decide whether the court or the claimant will serve the claim on the defendant
What must the claimant include if the court is to serve the claim on the defendant?
The claimant must include 1 copy of the complaint for each defendant named plus one copy for the court.
What will the court do once they have served the claim on the defendant?
The court will send a Notice of Issue to the claimant confirming the date the court issued the claim.
How is a case referred to if it doesn’t involve a substantial dispute of fact?
The claim is referred to as a Part 8 claim.
What process is used for issuing a Part 8 Claim?
The claim form must state:
1. the questions the claimant wants the court to decide,
2. the details of the claim being made, and
3. the capacity of the representative if the claim is being made in a representative capacity.
The claimant must serve witness evidence with the claim form + the form should include the particulars of claim.
- Any evidence in support must contain a statement of truth.
What happens if the defendant doesn’t respond to a Part 8 Claim?
They cannot take part in the hearing unless the court gives permission
When must a claim form be served on a defendant?
A claim form must be served on the defendant before midnight on the calendar day 4 months after its date of issue.
When must a claim form be served if service is to be made outside the jurisdiction?
If service is to be made outside the jurisdiction, the period is extended to 6 months
When is court permission required to serve the claim form?
Court permission is required to serve outside the jurisdiction unless the defendant resides in Scotland or Northern Ireland
When may a claimant apply to extend the period of validity to serve the claim form?
A claimant may make an application to extend the period of validity during the original period of validity.
When will the court grant an application to extend the period of validity for service of claim form?
Only in exceptional circumstances
How will a court usually serve a claim form?
By first class post.
A claimant can also serve by first class post
What must service of the claim include?
- The claim form,
- A notice of funding, and
- The defendant’s response pack
Who must proceedings be served on if the defendant has nominated solicitors to accept service?
If the defendant has nominated solicitors to accept service, the proceedings must usually be served on the nominee
What is the exception to needing to serve proceedings on the nominee?
If the defendant is a company, delivery or posting to the company’s registered office address will suffice.
How may a claimant serve the defendant if the defendant has not nominated solicitors?
A claimant may serve the defendant personally
How may a claimant serve an individual defendant personally?
By leaving the proceedings with the individual being served
How may a claimant serve a company defendant personally?
By leaving the proceedings with a person holding a senior position within the company (such as a company director)
How may a claimant serve a partnership defendant personally?
In the case of a partnership being sued in the firm name, by:
i. leaving it with a partner, or
ii. a person who at the time of service has control or management of the partnership business at its principal place of business
What is not needed for personal service of a claim form to be effective?
The individual served need not take hold of the papers (e.g., even if they throw them on the ground after being told what they are, service is valid)
When may service of proceedings be by fax?
Only if:
1. A party or the party’s legal representative has indicated in writing that they are willing to accept service by fax,
- The party has given the fax number to which documents should be transmitted (a fax number on the firm’s writing paper would be considered express notice unless indicated to the contrary), and
- The fax number is within the jurisdiction
When can a claim form be served by document exchange (DX)?
Only if:
1. The party’s address for service includes a DX,
- The DX number is on the party’s writing paper, and
- There has been no explicit indication that service will not be accepted by this method.
When can a claim be served by email?
Only if:
i. there is express consent to such service, and
ii. the party has given the email address to which parties should transmit documents.
What presumption applies to when a claim form is deemed served?
There is an indisputable presumption that the claim form is deemed to be served on the 2nd business day after it has been:
- mailed,
- personally delivered,
- faxed,
- emailed, or
- sent by DX
How should proceedings be served if the defendant’s whereabouts are unknown?
The claimant should send proceedings to the defendant’s last known address if the claimant has made reasonable enquiries to ascertain the defendant’s address
Where should a claimant serve the claim if the defendant is in prison?
The claimant should serve the defendant in prison.
What should the defendant do if they propose to argue that service of the proceedings wasn’t valid?
They need to indicate such on the acknowledgement of service + make an application to set service aside within 14 days.
What will the court issue if the court serves the claim form?
A certificate of service + send it to the claimant
What needs to be filed if the claimant’s solicitor is serving the claim form?
They need to file a certificate of service within 21 days of service
What may the court permit if service of proceedings might not be achieved within the validity period of a claim form?
The court may permit service:
i. by an alternative method, or
ii. at an alternative place
On application of a party if they can show a good reason for the order
When must the particulars of claim be served if not included on or served with the claim form?
The claimant must serve the proceedings within 14 days, and within 4 months of issuance of the proceedings.
How long does a defendant have to respond to a claim?
A defendant has 14 clear days from the date the particulars of claim are deemed to be have been served in which to respond to the claim
What can be done if the defendant doesn’t respond to the claim in time?
If the defendant doesn’t respond within 14 clear days of the deemed date of service, the claimant can obtain judgment.
What options are available to the defendant when responding to a claim?
- Admit the parts of or all of the claim,
- File and serve a defence to the claim, or
- Acknowledge service + indicate an intention to defend the claim
What is the effect of the defendant admitting parts of or all of the claim?
Even if a defendant admits the claim, they can still deny the amount of the loss.
If a defendant admits only part of the claim, they can file a defence as to the other parts
How long does the defendant have to file a defence if they file an acknowledgment of service?
If the defendant files an acknowledgement of service, the defendant has an additional 14 days in which to admit or file a defence
How can the defendant gain a longer time for filing a defence?
The parties may agree to extend the time for filing a defence for an additional 28 days (for a maximum of 56 days from the deemed date of service of particulars).
How can an admission to a claim be withdrawn?
An admission may be withdrawn with permission of the court
When can the claimant make an application for summary judgment/interim payment?
Once the defendant files an acknowledgement of service, it is open for the claimant to make an application for summary judgment or apply for an interim payment
When can a claimant obtain summary judgment?
If they can show that the defendant has no realistic (or viable) defence to the action
How can a defendant dispute the court’s jurisdiction?
A defendant may dispute the court’s jurisdiction after receiving the claim form + particulars of claim.
To do so, the defendant ticks the box in the acknowledgment of service indicating they wish to dispute the court’s jurisdiction.
The defendant must then make an application challenging the court’s jurisdiction, supported by written evidence, within 14 days after filing the acknowledgment of service
What may happen if a defendant fails to file a defence within the time limits?
The court may enter a default judgment against the defendant, preventing the defendant from mounting a defence.
When can a defendant make an application to set aside a default judgment?
If they can show:
i. they acted promptly,
ii. they have a real prospect of successfully defending, and
iii. there is some other good reason why the judgment should be set aside.
When must a court set aside a default judgment?
If:
1. The judgment was entered before expiry of the time to respond,
- The claim has already been paid or settled,
- The judgment was entered whilst the defendant’s application to strike out or obtain summary judgment in respect of the claim was pending, or
- The judgment was entered whilst the defendant’s request for time to pay was pending.
What information should be included in the claimant’s particulars of claim?
They should provide enough information to:
i. identify the issues and parties,
ii. so that the judge may give directions to ensure that the trial can proceed promptly, fairly, and proportionately, in keeping with the overriding objective.
What should be included in a particulars of claim in contract claims?
- Parties to the agreement,
- Nature of the agreement,
- Terms that may have been breached,
- Facts showing breach and loss,
- A prayer for relief
- Statement of truth
What is a prayer for relief?
The remedy sought
What should be included in the particulars of claim for a road accident/personal injury claim?
- A brief description of the collision/accident (including date, time, and place),
- Allegations of negligence,
- Details of any relevant conviction,
- Details of injuries suffered,
- A schedule of past and future losses,
- A prayer for relief,
- Statement of truth
What should be included in a particulars of claim for employer liability tort claims?
- Facts establishing an employer-employee relationship,
- A description of the circumstances of the injury,
- Allegations of breach,
- Details of injuries suffered,
- Schedule of past and future losses,
- Prayer for relief,
- Statement of truth
What needs to be included in the particulars of claim if interest is being claimed?
The claimant must state:
i. the basis for the claim,
ii. the percentage applicable,
iii. the date the claim for interest ends, and
iv. the total amount claimed
What specific points must be included in the particulars if the claimant wishes to rely on them?
- Allegations of fraud,
- The fact of any illegality,
- Details of any misrepresentation,
- Details of a breach of trust,
- Notices of knowledge of a fact,
- Details of unsoundness of mind or undue influence,
- Details of wilful default, and
- Any facts concerning the defendant’s failure to mitigate loss or damage.
What must a defendant who wishes to defend a claim do?
They must prepare a defence + serve it on every other party to the claim
How must a defendant respond to the particulars of claim?
The defendant must respond to each of the paragraphs of the POC in 1 of three ways:
- Admit the truth of the paragraph,
- Deny the truth of the paragraph, stating reasons or setting out an alternative version of events,
- Make a non-admission, stating they neither admit nor deny the paragraph because fact(s) alleged are outside the defendant’s knowledge
What is the difference between a non-admission and a denial?
A non-admission is the defendant saying they do not know whether an allegation is true.
A denial is saying the defendant knows the allegation is untrue + can explain why + set out their own alternative version of events.
Defence: what should the defendant do if they dispute the claimant’s statement of value?
They should say why, and, if possible, provide the defendant’s value.
What must the defence state in a personal injury claim?
Whether the defendant agrees with the medical report served with the POC.
Alternatively, they can neither admit nor dispute the report, stating they have no knowledge of the matter.
Defence: What does it mean if a defendant admits damages subject to liability?
The defendant can admit the amount of damages but deny liability.
The claimant will recover the agreed damages if they prove liability.
What is needed if the defendant raises limitation in their defence?
They should state the date on which the defendant alleges that the limitation period expired, with reasons why.
Defence - what is a reply?
A reply is a Statement of Case that a party may send in response to a defence.
It is option and is usually prepared only if something has been raised in the defence that requires a response.
What are Part 20 Claims?
A defendant’s claims against:
i. third parties who might be liable to the claimant or the defendant, and
ii. counterclaims against the claimant.
What is a counterclaim?
A defendant’s claim against the claimant for losses arising from the same set of circumstances involved in the claimant’s claim.
What is needed for a counterclaim to be brought?
A counterclaim:
i. must be brought within the same set of proceedings,
ii. is brought by an existing defendant against the claimant,
iii. is a monetary claim in its own right.
Part 20 - what is a third party claim?
When a defendant claims that a person who is not a party to the action has caused the claimant’s losses.
The new party is called a ‘third party’.
POC must be included in or served with the third-party claim
Part 20 - what is an indemnity or contribution?
When the defendant claims that if they are found liable to the claimant, another party to the claim should be liable to repay the whole amount (indemnity) or some (contribution) to the defendant.
When does a defendant need court permission to file a Part 20 for counterclaims, indemnity/contribution, and third-party claims?
The defendant does not need court permission if the defendant files the claim with their defence.
If the defendant wishes to make a Part 20 claim at another time, the defendant must then obtain the court’s permission
Part 20- what is a counterclaim against another third party?
A defendant’s monetary claim against a third party who is not part of the proceedings, arising out of the same facts as the main action.
Such a claim can be made only by order of the court.
How are part 20 claims served?
If court permission is not required, a Part 20 claim must be served on each party to the claim when the defence is filed.
If an additional claim is issued by the court later, it must be served on the person against whom it is made within 14 days of issue.
When must defences to part 20 claims be served?
Within 14 days of the deemed date of service of the Part 20 claim
Who can make a request for further information from another party?
Any party may make a request for further information from any other party to clarify a matter in dispute or for additional information related to a matter
How should a party go about requesting further information from another party?
A request should be made to the other party, but the person seeking the information can make an application to the court if the other party doesn’t respond within a reasonable time
What are the grounds for objecting to a request for further information?
- The request is unnecessary, irrelevant, or improper,
- The responding party is unable to provide information or clarification,
- The party requesting the information gave an insufficient time to reply,
- The expense of complying with the request would be disproportionate to the claim or contrary to the overriding objective of the CPR,
- The responding party is protected from answering by existing privilege.
How can a statement of case be amended?
After a Statement of Case has been served, a party can amend it only with written consent of all other parties or the permission of the court
When will a court allow an amendment to a statement of case to add a new party?
If it can be shown that adding the party will allow the court to resolve all the matters in dispute or to resolve a connected matter
When can a court order a person to cease to be a party in proceedings?
If it is not desirable for them to be a party in the proceedings.
When may the court substitute a new party for an existing party?
If:
1. The existing party’s interest or liability has passed to the new party, and
- It is desirable to substitute the new party so that the court can resolve the matters in dispute
What is the Directions Questionnaire?
A questionnaire the court will send out with the Notice of Allocation in a fast track, intermediate track, or multi-track case, asking for:
i. Estimates of trial length,
ii. Whether the parties complied with the pre-action protocol,
iii. Whether experts will be required, etc.
When must parties return the Directions Questionnaire?
Within 28 days
What sanctions might be imposed for noncompliance with directions from the court?
- 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 complaince,
- Imposing costs or increased interest on the defaulting party,
- Requiring a defaulting party to pay money into court,
- Debar the defaulting party from relying on evidence
When can a party apply for relief from sanctions for failing to comply with court directions?
If they had a good reason for non-compliance, e.g., serious illness
What do small claims directions normally provide?
- That documents are to be exchanged at least 14 days before the hearing
- The hearing date
- That no expert is to be used without court permission
What do fast track directions normally provide?
- Disclosure is to take place within 4 weeks,
- Witness statements are to be exchanged within 10 weeks,
- Expert reports are to be exchanged within 14 weeks,
- Pre-trial checklists (to determine compliance with directions sent out) are to be sent out at 20 weeks and returned at 22 weeks, and
- Trial at 30 weeks
Where will multi-track directions usually be given?
At the Case Management Conference
What will usually be required before a CMC in a multi-track case?
- Disclosure reports at least 14 days before the conference, and
- Costs budgets 7 days before the conference, and
- A case summary setting out the main issues in the case.
What directions will usually be given in a multi-track case?
- Encouragement for the parties to consider ADR
- Disclosure requirements
- The number of witnesses the parties may call + provision for exchange of witness statements, and
- Costs budgeting provisions - either approval or amendment of the parties’ submitted costs budgets.
What are interim applications?
(Usually) pre-trial requests for a court order
When should an interim application be made?
As soon as it is apparent that it is necessary or desirable.
What notice should interim applications be on?
3 clear days’ notice (5 if by telephone).
When is notice not required for an interim application?
If there is good reason.
E.g., notice will give the other party an opportunity to dispose of evidence or assets.
What will happen is an interim order is made and notice was not given?
The party against whom the order is issued has 7 days after the order is served on them in which to make an application to set aside the order.
What happens if a party makes an interim application without notice erroneously?
The court is likely to dismiss it + order the solicitor who made the application to pay the other side’s legal costs associated with the application.
What should be filed at court along with the notice of an interim application?
All evidence relied on in support of the application should be in writing + filed at court along with the notice
What should the applicant for an interim application file no later than 2 days before the hearing?
The applicant should file + serve a case summary and proposed draft order no later than 2 days before the hearing.
What are types of interim order?
- Unless orders,
- Orders to set aside a default judgment,
- Summary judgment,
- Application to strike out a claim,
- Application for interim payment
- Interim injunctions (mandatory/prohibitory)
- Freezing injunction
- Search order
Who can apply for summary judgment?
Either party during the proceedings
What does an application for summary judgment do?
Asks the court to enter judgment for the applicant without proceeding to trial.
When can an application for summary judgment be made?
Cannot be made before the defendant has received the particulars of claim + has served an acknowledgment of service or defence.
What must be shown for the court to grant summary judgment?
The applicant must show that:
i. the other party has no real prospect for success, and
ii. there is no compelling reason why the case should proceed to trial.
What happens if the claimant applies for summary judgment before the defendant files a defence?
The defendant need not file a defence until after the summary judgment hearing.
However, the defendant may want to append a defence to a witness statement opposing the application to help defeat the application.
When will written evidence to support or oppose an application for summary judgment need to be served?
The applicant must serve the written evidence 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
What can an application for summary judgment be combined with?
A motion to strike out a claim.
What is an application to strike out a claim?
An interim application asking the court to strike out a claim in the Statement of Case because:
- The statement discloses no reasonable ground for making or defending the claim,
- The Statement of Case is an abuse of the court’s processes, or
- There has been a failure to comply with a rule, practice direction, or order.
What is an application for an interim payment?
An application for the court to order some payment before the court has given a final determination on the claim.
Always discretionary.
When can the court not award an interim payment?
If doing so would cause an injustice
What are the grounds for granting an interim payment?
- The defendant has admitted liability,
- The claimant has obtained judgment, but the sum to be paid is not yet assessed,
- The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum.
What should be done before making an application for interim payment?
The applicant should invite the other party to make an interim payment before making an application
When can the claimant make an application for interim payment?
Not until the time for filing an acknowledgment of claim has passed
What must the application for an interim payment be supported by?
Evidence - served with the application at least 14 days before the hearing
What should an application for an interim payment include?
- The sum sought,
- The matters for which it is sought,
- An estimate of the expected judgment, and
- In a personal injury claim, a schedule of loss detailing both past + future loss.
What is not needed to be shown when applying for an interim payment?
There is no need to show financial need
What can the court award if the application for interim payment is successful?
The court can award a reasonable proportion of the likely amount of the final judgment
What must the court take into account when considering interim payment?
The court must take contributory negligence into account (if relevant)
What is an application for an interim injunction?
An application asking the court for an order requiring a party to do something (mandatory) or prohibiting the party from doing something (prohibitory)
How are injunctions enforceable?
Through contempt proceedings + usually include a penal notice so that contempt may be imposed without first seeking an unless order
Interim injunctions: what is the effect if a party is found to be in contempt?
- A party may be imprisoned for up to 2 years,
- A party’s assets may be removed (sequestered)
What will happen if an injunction is obtained without notice of the hearing to the other party?
If obtained without notice of the hearing, another hearing will be set within a few days of the first hearing (the ‘return date’) to give the enjoined party an opportunity to explain why it should not have been granted.
When can an application for interim injunctions be made?
It is possible to apply for an injunction before proceedings commence.
How long does it take to obtain an interim injunction?
An injunction may be obtained in as little as 48 hours + may be applied for by telephone.
What are the grounds on which an enjoined party may seek to discharge an interim injunction?
- The applicant failed to provide all relevant information (material non-disclosure),
- The applicant failed to comply with terms of the injunction,
- The facts do not support the injunction,
- The injunction is oppressive,
5.There has been a material change in circumstance since the injunction was granted, or
- The claimant failed to prosecute the claim with due speed after obtaining the injunction
What is a freezing injunction?
Prohibits the enjoined person from disposing of specified assets
Where are applications for freezing injunctions made?
Only to the High Court
What must the applicant prove for a freezing injunction to be granted?
- There is a justifiable cause of action,
- The claimant has a good, arguable case,
- The defendant has assets within the jurisdiction, and
- There is a real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced
What will a freezing injunction usually require from the party seeking it?
An undertaking to pay damages if the injunction was improvidently granted + to notify the enjoined party and third parties, such as banks, of a right to seek a variation from the order
What value can a freezing injunction be for?
It should be for no more than the underlying claim
Who does a freezing order bind?
A freezing injunction is binding on all parties with knowledge of it
How can the enjoined party seek a discharge from a freezing injunction?
The enjoined party can seek a discharge by offering security for the claim or showing the injunction was obtained on the basis of material non-disclosure.
When might a search order be sought?
If it is clear the defendant will not obey the rules relating to disclosure + may seek to destroy incriminating documents or property, the other party can ask the court to make a search order requiring the enjoined party to allow the other party to search for, and potentially seize, evidence that the party might otherwise destroy.
Where can a search order be obtained from?
Only from the High Court
What notice is usually given for search order applications?
Such orders are almost invariably sought without pre-hearing notice to the enjoined party
What are the grounds for obtaining a search order?
- A strong prima facie case on the merits of the case,
- The reasons for claiming the enjoined party might hide or destroy the evidence, and
- Clear evidence the property or documents are in the enjoined party’s possession
What usually happens if a search order is granted?
An independent supervising solicitor will usually be appointed to explain the order to the enjoined party + explain their rights
What will be required of the claimant’s solicitor when obtaining a search order?
Required to give an undertaking to return original documents within 2 days and to secure the property taken.
When are parties required to provide disclosure under standard directions?
Prior to the exchange of witness statements.
What duty is there when providing disclosure?
A duty to inform the opposing side of the existence of all documents (whether in physical or electronic form) relevant to the litigation.
The duty continues throughout the litigation.
Duty extends to emails, databases, photographs, and models, as well as written documents.
In the fast track + personal injury multi-track cases, what does standard disclosure require?
Requires each party to identify and inform the other side of the existence of:
i. documents on which the party intends to rely,
ii. documents that adversely affect the party’s case,
iii. documents that adversely affect the other party’s case,
iv. documents that support the other party’s case
The duty to disclose extends to any document within the party’s control?
What does this include?
This includes documents no longer in the party’s possession if they have a right to control the document.
Disclosure - when does a party have ‘control’ of a document?
If they:
i. have physical possession of the document,
ii. have a right to possession, a right to inspect, or a right to take copies, or
iii. had the document in their possession but no longer have it
What search does the court expect the parties to make when disclosing documents?
The court expects each party to make a reasonable and proportionate search.
What constitutes reasonable + proportionate depends on the nature of the case, its value, and its importance.
What duty do legal representatives have re disclosure?
Legal representatives are under a duty to advise clients of their disclosure obligations.
A legal representative must cease to act for a client who is not prepared to comply
Disclosure - what is required if a document has been removed or destroyed? Effect?
The representative is required to inform the court + the other party of its existence, together with the reason for its destruction.
In this instance, the court is entitled to draw an adverse inference from the fact that a party has failed to preserve a relevant document.
How may the court alter standard disclosure order (fast track + PI multi-track)?
A court may alter the standard disclosure order as it sees fit, including by dispensing with disclosure altogether
How are parties required to file and serve their disclosure list in fast track and PI multi-track cases?
Parties are required to file and serve a disclosure list divided into 3 sections:
- A list of documents in its control that they do not object to the other party inspecting,
- A list of documents in its control that they object to the other side inspecting, along with reasons for objecting, and
- A list of documents that are no longer in its control, stating when they were last in their control + where they are now.
What must each party de re the extent of the search made?
Each party (not their solicitor) is required to make a disclosure statement detailing the extent of the search made.
What must a disclosure statement do?
The statement must certify that the person signing the statement understands the duty to give disclosure + that they have carried out that duty to the best of their knowledge.
They must declare that they believe that the extent of the search made is reasonable + explain why any particular search may not have been carried out.
How long does the standard directions usually allow for disclosure + inspection?
Standard directions usually allow 28 days from the date of the directions order for the parties to serve their lists of documents.
The order will also routinely require that inspection take place within 7 days
What can a party do if they are not content with the disclosure provided by an opponent?
They can challenge.
E.g., if logic or common sense would dictate that a document is missing
What options are available to challenge an opponent’s disclosure?
- Apply for specific disclosure,
- Serve a Notice to Admit Facts, or
- Apply for an unless order if the opponent continues to disregard their obligations under the CPR
- Request for Information may also be used to obtain information that appears to be missing
What does disclosure of a document provide?
Disclosure of a document provides an automatic right to inspect unless the party claims:
i. privilege,
ii. the document is no longer in the party’s control, or
iii. it would be disproportionate to allow inspection
What can be done if a party wants to view a disclosed document that contains irrelevant + confidential information?
Documents may be redacted to blank out irrelevant + confidential information
What does the court require each party to prepare re disclosure in a non-PI, multi-track claim?
The 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.
The parties are encouraged to try to agree the scope of disclosure, but otherwise disclosure is similar as in fast track.
What is an application for specific disclosure?
Application to the court requesting them to require another party to disclose specific documents if there is a reason to believe the party did not make adequate disclosure.
What should be done before making an application for specific disclosure?
The party should make a written request for the information first
What should a written request for information, prior to an application for specific disclosure, include?
The request should include:
i. a description of the documents sought + why they are relevant,
ii. why it is reasonable + proportionate for the documents to be disclosed,
iii. the grounds for believing they exist, and
iv. the safeguards that can be provided (e.g., to protect trade secrets)
What should an application for specific disclosure include?
Evidence in support
When is an application for pre-action disclosure available?
Prior to issue of proceedings, an application for disclosure is usually available only against a person who is likely to become a party to the proceedings.
What does privilege do?
Privilege entitles a party to withhold evidence from production - to a third party, their opponent, or the court.
What is done if a document is privileged re disclosure?
If a document is privileged, its existence still must be disclosed, but the party holding the privilege has the right to withhold the document from inspection.
What are the 4 types of privilege?
- Legal advice privilege
- Litigation privilege
- Common interest privilege
- Without prejudice privilege
What immunity from disclosure is there?
Public interest immunity - protects against disclosure of documents on the basis that disclosure might harm the nation or the administration of justice.
What is legal advice privilege?
Protects communications between a client and their solicitor in which legal advice is sought in a relevant legal context.
What is litigation privilege?
Protects communications with third parties, such as experts and barristers, relating to pending or contemplated litigation
What is common interest privilege?
Occurs when there are multiple defendants or group actions.
The parties may send privileged documents to each other + claim these documents are still privileged from inspection by other parties
What is without prejudice privilege?
Protects discussions regarding potential settlement that the parties agreed were not to be referred to in court to the detriment of a part
Who does privilege belong to?
Privilege belongs to the client + can be waived only by the client.
What may happen if a solicitor accidentally sends a privileged document to the other side?
The opponent may use the information only with the permission of the court.
What are the 2 types of evidence?
- Direct, and
- Circumstantial
What is direct evidence?
Oral evidence from a witness who perceived the facts
What is circumstantial evidence?
Evidence that doesn’t directly establish a fact but that allows the court to decide whether a particular fact existed
Generally, who should evidence at trial be from?
From witnesses who have provided a signed statement setting out their evidence.
The statement must have been endorsed with a statement of truth + served on the opponent in accordance with the directions order.
What may be done if it was not possible to obtain a witness statement before the exchange date specified in the directions order?
A party may seek court permission to serve a witness summary which identifies the witness + summarises the factual issues the witness will cover
What will be done if a witness statement was not served re giving evidence?
Generally, the proponent of the witness cannot call the witness to give evidence unless a good reason for the failure can be shown.
What happens when a witness attends court to give evidence?
The witness attends court to give evidence + can be questioned by the other side as to the contents of their statement, which is the process known as cross-examination.
What may be done if the proponent of a witness chooses not to call the witness at trial?
The opponent may still refer to the witness’s statement, which the court will treat as hearsay
How may a witness be compelled to give evidence?
A witness may be compelled to give evidence by serving a witness summons on the person
What is required if a party serves a witness summons on someone?
- The party desiring to call the witness must request the court to issue the summons at least 7 days before the hearing,
- A separate summons is required for each witness,
- The witness is entitled to conduct money for travel and lost time + the conduct money must be sent along with the summons request
Witness evidence - what is required of conduct money?
The conduct money must be sufficient to cover the cost of the witness getting to and from the court + the amount the witness will lose by way of income for attending.
The maximum amount is currently £67.
Additional sums are payable for subsidence or overnight stay.
Witness evidence - what happens if conduct money isn’t included in summons?
If the conduct money isn’t included and tendered to the witness, the witness summons is not effective
What happens if a witness receives a summons + fails to attend trial?
They will be held in contempt of court
Witness evidence - what is an affidavit?
Can be used as evidence.
It is a witness statement signed with a little more formality.
It must be sworn, normally before a solicitor, who will endorse it to say that the maker had sworn before them that the contents were true.
Witness evidence - what is hearsay evidence?
A statement made out of court offered in evidence to prove the truth of what is being said in the statement.
May be oral or written.
What weight will be attached to hearsay evidence?
The court puts less weight on hearsay evidence.
The weight will vary depending on the circumstances, including whether there is multiple hearsay.
The trial judge must indicate the weight attached to hearsay.
Witness evidence - how is a witness statement treated at trial?
Although it is hearsay, if the witness comes to court and affirms on the witness stand that it is their statement, it is treated as if it were spoken in court + serves as the proponent’s in-court evidence (known as evidence in chief).
Witness evidence - what happens if a witness is unable to attend trial but a party wishes the court to consider the signed statement of the witness at trial?
The court will treat this as hearsay evidence.
The proponent of the hearsay must have served notice on the opponent of their intention to rely on the hearsay.
If the witness will be attending the trial, service of the witness statement itself constitutes notice.
If the witness will not be attending trial, the party must serve a formal document giving notice.
Witness evidence - what may a party served with a hearsay notice do?
They may seek to attack the witness’s credibility at trial by serving a notice of an intent to do so within 14 days of receiving the hearsay notice.
Witness evidence - when may a person’s conviction of an offence be admissible?
In any civil proceedings, the fact that a person has a conviction for an offence in the UK is admissible to prove, where relevant, that they committed that offence.
- This may be helpful in a civil road traffic accident case.
A party may rely on previous incidents or conduct as evidence of similar conduct in the case in question.
Witness evidence - what can a party do if they believe a document produced by an opponent is not authentic?
The party can serve a notice to prove the document at trial
Witness evidence - who can give opinion evidence?
Only an expert can give opinion of evidence.
All others can testify only to facts they perceived.
- Speed of a moving car is treated as a perceived fact that a lay witness may give.
Who has the burden of proof in a civil case? What is the standard?
The claimant has the burden to prove their claim on the balance of probabilities.
