Session 2 Flashcards
What are the three tracks?
1) small claims track- £10,000 or less (special rules for personal injury claims)
2) Fast track- up to £25,000 and;
1) trial max 1 day
2) oral expert evidence, one per party in two fields max
3) intermediate track- up to £100,000 and;
1) trial 3 days max
2) oral expert evidence two per party
4) multitrack- everything else
What happens after allocation to track?
1) Small claims, fast track- next step is directions
2) intermediate and multi- case management conference and then directions.
What is the purpose of the costs and case management proceudre?
Not later than 21 days before first CMC- Budget must be filed
Not less than 14 days before first CMC- disclosure report
No later than at lease 7 days before first CMC- draft directions and budget discussions report.
Then the costs and case management conference .
Product of the CCMC- directions and costs management order.
What happens if a party fails to file a budget on time
This sanction is that the party is automatically treated as having filed a budget, revising only applicable court fee.
Is it possible to revise a budget?
yes it is, it is revised- submitted to other side for approval (if possible) and then submitted to the court to consider the proposed revision. It may be allowed, but it will not allowed revisions to correct inaccuracies.
What is the procedure for making in intermin application?
with notice procedure:
1) issue- application notice (form N244), supporting evidence, draft order, fee
2) service- application notice (form N244), supporting evidence, draft order, notice of hearing date
3) further evidence- respondent files at court and serves on the applicant evidence as soon as possible
4)further evidence- applicant files at court and serves on the respondent evidence in reply as soon as possible
5) before hearing- both parties file and exchange statements of costs not less than 24 hours before hearing
Without notice:
Issue: application notice (form N244), supporting evidence, draft order and fee
This is only used when it is urgent or when the object would be defeated by giving notice.
To mitigate against this- the applicant must:
1) give full and frank disclosure of all matters relevant to the hearing
2) serve the application and evidence after the hearing
3) a second hearing will be organised if the order should continue and the respondent will be able to attend.
What are some particular types of interim application
1) summary judgement- enable the court to dispose of claims or issues without the need for a full trial
Grounds:
1) the other party has no real prospect of succeeding on the claim or issue/defending the claim.
AND
There is no other compelling reason why the case or issue should be disposed of at trial
The timings for this is the same as a with notice hearing, but the differences are that the applicant and respondent evidence does not have to be done as soon as possible, but has to be served at least 14 days before the hearing.
Evidence for respondent at least 7 days
Evidence for applicant- at least 3 days.
2) Security for costs- made by a person in the position of defendant who is concerned the claimant will not be willing/able to pay the defendants costs
Grounds:
CPR 25.13(1)(a)- having regard to all the circumstances of the case, it is just to make an order and one or more of the conditions set out in CPR 25.13(2) are satisfied.
Things like a company intentionally moving assets out of the jurisdiction would mean this order would be suitable
3) interim payment- a Payment on account of damages, debt or other sum-
Defendant has admitted liability
claimant has obtained judgement against that defendant for damages to be assessed
It is satisfied that, if the claim went to trial, the claimant would obtain judgement for a substantial amount. Timings are the same as for summary judgement.
4) interim injunction- Getting a party to do or not do something as a matter of urgency and lasts until trial or further order
Steps:
1) is there a serious question to be tried?
2) would damages be an adequate remedy for a party injured by the courts grant of, or failure to grant, an injunction?
a) damages for the applicant?
b) damages for the respondent?
3) where does the balance of convivence lie?
Safeguards in place:
1) cross undertaking in damages
2) without notice safeguards
3) applications before a claim is issued
What is a part 36 offer?
These can be made at any time through the proceedings.
Key concept-
Offeror- make a valid p36 offer- potentially obtain extra benefits at trial if not accepted
Offeree- receive a valid p46 offer- Potentially face sanctions at trial if not accepted
For it to be valid:
1) in writing
2) period of 21 days which the defendant will be liable for claimants costs
3) Clearly pursuant to part 36
4) If made by the defendant:
Offer to pay a single sum of money
5) within 14 days of acceptance
What happens after a p36 offer made?
if accepted:
During the relevant period- C entitled to costs up to acceptance
After expiry of relevant period- court will determine. Unless unjust: C entitled to costs up to expiry of relevant period. Offeree pays offerors costs after that.
What if withdrawn?
During relevant period- any withdrawal takes effect at the end of relevant period. If accepted, courts permissions is needed to withdraw
If after expiry- offer can be withdrawn, by notice, or in accordance with its terms
What are p36 consequences at trial?
Claimant offer:
trigger: judgement against the defendant is at least as advantageous to the claimant as the proposals contained in a claimants p36 offer.
Consequences:
Extra interest, extra costs, interest on costs, lump sum
Defendants offer:
Trigger, a claimant fails to obtain a judgement more advantageous than a defendants p36 offer
Consequences: Extra costs, interest on costs
How does the court assess costs?
general rule is that the loser pays winners costs.
However, the court will look at whether the costs (for example in an application) were proportionately and reasonably incurred and proportionate and reasonable in amount- excessive time will not be recoverable.
2 options:
1) summary assessment- decided one party should pay the other party’s costs. rough and ready way of sorting costs
2) detailed assessment- ordered that one party pays the other to be assessed and agreed. If not agreed, the judge does not set what should be paid. After that, the party must start a detailed assessment procedure- serving a bill of costs and negotiation and then determined by a costs officer.
With interim applications- judge can make an order for costs at the end of a hearing. Judge can make an order like costs ‘in any event’ so they pay the costs of the other party of the application in any event eg regardless of what happens at trial.
no order as to costs means that a party can recover the costs of the interim application from the other party regardless of what happens at trial.
Order for costs in the case- costs are paid by the party that loses overall- lumped in with the costs of the trial.
professional conduct
1) the civil court system including the civil courts divisions and judges
2) how a client can fund the litigation
3) should not mislead or attempt to mislead clients, courts or others by your own acts or being complicit in the acts of others
4) draw the courts attention to all relevant authorities that are likely to have a material impact on the outcome of the proceedings
5) must perform undertakings so you should never give an undertaking that is beyond your control
