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SQE 1 > SQE1 part 1 > Flashcards

SQE1 part 1 Flashcards

1
Q

5 factors necessary for a valid contract

A
  • intention to create legal relations
  • certainty of terms
  • agreement (offer and acceptance)
  • consideration by each party
  • capacity
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2
Q

offer definition

A
  • an expression of willingness to contract
  • on specified terms made with the intention (Actual or apparent)
  • that it is to become binding as soon as it is accepted by the person to whom it is addressed
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3
Q

bilateral offers

A
  • both parties have legally binding obligations
  • eg Connor offers to buy books from Kate for £10
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4
Q

unilateral offers

A
  • only one party assumes legal obligations
  • carlill v carbolic smokeable co
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5
Q

express offers

A

offeror explicitly makes the offer

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6
Q

implied offers

A
  • offeror makes their offer non-verbally
  • takes clothes to the till
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7
Q

invitation to treat

A

may make an offer
- willingness to commence negotiations

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8
Q

Gibson v Manchester City council

A
  • council said it may be prepared to sell the house to you for £2180
  • claimant queried price but later tried to go ahead
  • council had stopped selling by this time
  • court found it was an ITT because of use of may and letter said it was not a firm offer
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9
Q

communicating an offer

A
  • offer needs to be communicated to be effective
  • offeree cannot be bound by an offer they’re not aware of
  • but offeror can elect to be bound by an offer they aren’t aware of by explicitly confirming it
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10
Q

how long does an offer last?

A
  • specified period of time
  • failure of a precondition
  • reasonable length of time
  • destruction by a counter-offer
    -death of the offeror or offeree
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11
Q

destruction by counter offer- Hyde v wrench

A
  • def offered to sell a farm to c for 1000
  • c offered to buy for 950 instead
  • c later wanted to proceed for 1000 but seller refused
  • def won, the offer had been a counter offer and had destroyed the original offer
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12
Q

general rule for acceptance

A
  • must be communicated
  • acceptance takes place on communication to the offeror- entores v miles
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13
Q

silence as acceptance?

A

silence cannot amount to acceptance unless it is absolutely clear that acceptance was intended

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14
Q

postal rule

A
  • once acceptance letter is sent in the post, the acceptance is deemed to have happened.
  • regardless of whether the letter is lost or doesnt reach the offeror
  • can be negated by explicit inclusion as a contractual term- eg need it in writing
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15
Q

is acceptance by someone else valid?

A
  • no, if the offer is addressed to only one person, they are the only person that can accept the offer
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16
Q

battle of the forms

A
  • can be tricky to pinpoint when an offer was made and accepted during long negotiations
  • the last shot wins
  • each issue of terms is treated as a counter offer, which replaces the preceding offer
  • however there is an exception to this if it is clear that neither T&C’s were agreed
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17
Q

4 rules on consideration

A
  • must not be past
  • must be sufficient but doesn’t need to be adequate
  • must be of economic value
  • can be a promise not to sue
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18
Q

performance of existing duties as consideration?

A
  • where a person promised to do what he is already bound to do under a contract or in law- this is not consideration because there is no element of exchange
  • however, going above and beyond the performance of duties imposed is consideration
  • a promise to pay less under an existing contract isn’t consideration unless it is paid before it is due or in a different place- provided this was made at creditors request
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19
Q

promissory estoppel

A
  • a way of making promises legally binding without consideration
  • stops the promisor going back on their promise not to enforce their rights under the contract
  • where there is variation of contract and consideration cannot be identified, the next step is to explore whether promissory estoppel applies
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20
Q

4 requirements for promissory estoppel to apply

A
  • there must be a clear and unambiguous promise from the promisor that they will not enforce their rights under the contract
  • there must be a variation of contracts and not formation of contract
  • the person to whom the promise is given must have relied on the promise
  • it must be unfair for the promisor to go back on his promise
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21
Q

limitations to PE

A
  • it can only be used as a defence
  • must be a promise to waive legal rights
  • must have relied on the promise but not necessarily to his detriment
  • must be unfair for the promisor to go back on the promise
  • is an equitable doctrine so a party must have clean hands
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22
Q

I2CLR? domestic vs commercial

A
  • objective test
  • domestic- general assumption is no i2clr- this is rebuttable though
  • commercial- general assumption is there is an i2clr- also rebuttable
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23
Q

commercial agreements- evidence to rebut presumption that there is i2clr

A
  • clear words that there is no intention to have legal effect
  • uncertainty in the agreed terms
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24
Q

domestic agreements- evidence to rebut presumption there is no i2clr

A
  • express agreement
  • the agreement is serious
  • one party relied on agreement to detriment
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25
Q

certainty

A

an agreement is not binding if
- it is too vague -eg “west end salary” what does that mean??
- it is incomplete

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26
Q

too vague agreements- methods used by court to find certainty

A
  • resolution mechanism within the contract
  • reasonableness
  • previous course of dealings
  • officious bystander
  • custom
  • terms implied by statute
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27
Q

capacity- 3 main cats of people whose ability to enter into contracts is limited by law

A
  • minors
    – 2 exceptions
    – contracts that are automatically binding
    – contracts where the minor has a choice of whether or not to be bound by it
  • mental incapacity- poor language skills or illiteracy are not sufficient to demonstrate incapacity- should get it read to you etc
  • under the influence- if made while drunk, the contract is valid, unless the person was too drunk to understand the nature of the transaction and the other party knew this - contract is likely to be voidable
  • if one party lacks capacity but the other doesn’t realise this, the incapacity is ignored
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28
Q

void contract vs voidable definitions

A

void
- contract is treated as if it never existed
- parties cannot decide whether contract should continue to exist or not

voidable
- contract can continue to exist but can be destroyed
- destroyed when a party chooses for it to do so
- if this is voided after obligations are incurred or money is paid this can be difficult- party would probably be liable for debts incurred before contract voided

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29
Q

term or representation? definitions

A

term
- a promise or undertaking that comprises part of the contract itself
- untrue term= breach of contract

representation
- a statement that may have encouraged a party to make the contract but is not itself part of the contract
- untrue representation= can be sued for as such ie outside of the contract itself

is it a term or rep?- depends on the parties intentions and if it is intended to be a term, the court will stick with that

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30
Q

are these a term or representation?
- importance of statement
- special knowledge/skill
- timing of the statement
- agreement in writing
- strength of inducement

A

I- if party makes it clear that the statement is essential to them entering into the contract, it will likely be a term
s- term if person saying it has special knowledge
t- if long time elapsed between the statement and the signing, it is not a term- unless it is really important
a- term
s- if advised to look into truth of statement- not a term

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31
Q

parol evidence rule

A
  • generally extrinsic evidence is not admissible in court if not written in contract
  • includes oral statements and other written materials
  • logic is that the party would go to the effort of including all the important things if they’ve made the effort to write the contract
  • only applies to disputes about the terms of a contract, not applicable when proving whether a contract is valid or not
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32
Q

rebuttals to the parole evidence rule

A
  • implied terms
  • evidence about the parties
  • custom
  • operation of the contract
  • partially written agreements
  • rectification
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33
Q

oral vs written statements?

A
  • if the written contract is different to the oral statement, the written contract wins
  • if there is an oral promise and a written contract, but the written contract doesnt mention the subject matter of the promise, then you can claim damages for the oral promise
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34
Q

4 ways terms can be implied

A
  • terms implied by fact
  • terms implied by law
  • terms implied by custom
  • terms implied by trade usage
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35
Q

conditions vs warranties vs innominate terms

A

conditions
- clearly important term
- breach would result in very sig consequences for the innocent party
- breach results in the option for the innocent party to repudiate the contract

warranties
- usually means a term that is broken without very important consequences
- if breached, a party can sue for damages but not rescind/terminate the contract

innominate terms
- terms that can be broken with either important or trivial consequences, depending on the nature of the breach
- if consequences are serious= condition
- if minor= warranty

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36
Q

unfair contract terms- exclusion and limitation clauses

A

these clauses aim to limit a party’s liability for a breach of contract
- exclusion- attempts to exclude ALL liability for breach
- limitation- attempts to limit liability to a certain amount

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37
Q

what does contra proferentem mean?

A
  • translates as “against the draftsman”- any ambiguous terms are interpreted by courts in a way that is the least favourable to the interests of the party who drafted it
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38
Q

overview of the UNFAIR CONTRACT TERMS ACT 1977

A
  • basic purpose is to control the use of exclusion/limitation clauses in non-consumer contracts
  • does not apply to contracts for the sale of land, intellectual property, or the formation or dissolution of a company, or employment contracts
  • you cant exclude liability for negligence causing death or PI
  • fair and reasonable
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39
Q

CONSUMER RIGHTS ACT 2015

A

says goods must be as described, fit for purpose and of satisfactory quality

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40
Q

what are vitiating factors? and examples

A
  • different circs that make a contract invalid
  • if any factors are identified then the contract could be rendered void or voidable
  • misrep
  • mistake
  • duress
  • undue influence
  • illegality
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41
Q

misrepresentation

A
  • an untrue statement by one party that convinces another to enter a contract
    to be actionable the statement must be-
  • a statement of fact
  • untrue statement
  • the statement induced the other party
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42
Q

3 types of misrepresentation

A

fraudulent
- false statement intended to deceive
- can be reckless

negligent
- statement made carelessly
- misrepresenter to pay damages where the belief in the statement was honestly held but not held on reasonable grounds

innocent
- providing that misrepresentor can establish they had reasonable grounds to believe that their statement was true they are not negligent
- damages not available but the representee may be able to rescind the contract

  • the effect of any misrep is to make the contract voidable- can either affirm it or rescind it
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43
Q

What is recission of a contract?

A
  • recission is the mutual restoration of all benefits received in order to place both parties to pre contract position
  • it is an equitable benefit and is at the discretion at the court
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44
Q

bars to recission (misrep)

A
  • affirmation- innocent party discovered the misrep but decided to keep contract going
  • undue delay
  • an innocent purchaser has acquired an interest in the subject matter of the contract before the purported recission of the contract
  • where it is impossible to substantially restore the goods or property
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45
Q

mistake- void or voidable?

A
  • void
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46
Q

types of mistake

A
  • common mistake – both parties have made the same mistake as to a term of the contract
  • unilateral mistake- one party is mistaken as to a term of the contract and the other party should know this
  • cross purpose mistake– no agreement as the parties are at cross purpose- impossible to resolve the ambiguity of what was agreed
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47
Q

2 types of illegality in contract

A
  • illegality at common law- eg against the law- restraint of trade or contrary to public policy or morality
  • illegality under statute- eg against statute
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48
Q

remedies for duress and undue influence

A
  • the only remedy is recission
  • contract as a result of duress and undue influence will be voidable

same bars to recission as misrep

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49
Q

what is duress? (contract)

A
  • duress is illegitimate pressure by actions or threats of action to make a person agree to something
  • factors considered by the court to determine illegitimate pressure

factors considered to determine illegitimate pressure
- actual or threatened breach of contract
- threat was made in good or bad faith
- victim protested at the time

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50
Q

types of undue influence

A
  • actual- must prove that you did not enter the contract of your own free will
  • presumed- relationship of trust and confidence & where the transaction calls for explanation
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51
Q

4 ways to discharge a contract

A
  • by performance
  • by agreement
  • by frustration
  • by breach
52
Q

the following need to apply for frustration to happen

A
  • government intervention
  • crucial person not available
  • illegality
  • destruction of the contractual subject matter
  • non-occurrence of a fundamental event

all involve a question of degree

53
Q

entire obligation rule definition and advantages

A
  • one party has to fulfil all of their obligations before the other party is required to perform theirs

advantages
- commercial contracts typically provide for instalment payments- limits relevance of this rule
- benefits consumers- withholding payment from those who do not complete obligations- ensures proper performance

54
Q

damages for contractual breaches

A
  • money
  • common law remedy so available as of right
  • aim to assist the claimant and not punish defendant
  • assessed by the claimants actual loss caused by the breach
  • no loss = nominal damages only
55
Q

types of losses (for contract damages)

A
  • expectation (loss of profits)
  • reliance (losses already incurred- wasted expenses)
  • restitutionary (recovering payment already made)
56
Q

limitations to awards for damages (contract)

A
  • remoteness – reasonable foreseeability is the standard of whether losses are recoverable or too remote
  • When determining reasonable foreseeability, courts consider:
  • The parties’ understanding: What the parties understood when the contract was made
    T- he knowledge of the parties: What the parties knew at the time of the contract, or at least the party who breached the contract
  • The directness of the damages: Whether the damages were a direct and obvious result of the breach
  • duty of mitigation
  • claimant must act reasonably to limit or reduce loss caused by defendant’s breach
57
Q

specific performance

A
  • equitable remedy
  • at courts discretion
  • compels def to perform contract
  • quite rare and only where constant superintendence isn’t required by court (they dont have to oversee it )
58
Q

Core requirements of negligence in tort

A
  • duty of care
  • breach of duty
  • causation
59
Q

established DoC situations

A
  • road users
  • dr patient
  • employer employee
  • manufacturer consumer
  • teacher pupil
  • can only be relied upon by claimants when they have suffered PHYSICAL DAMAGE
60
Q

establishing DoC in novel cases

A

2 ways

  • incrementally and by analogy- court compares to any other precedents
  • caparo test
    – 1. reasonable foresight of harm
    – 2. sufficient proximity of relationship between C and D
    – 3. fair just and reasonable to impose duty - need to think about floodgate argument and public benefit
61
Q

duty of care- omissions

A
  • general rule is no DoC for omissions
  • exceptions
    – duty not to make things worse
    – if there is a special relationship/control
  • when D creates a dangerous situation
62
Q

breach of DoC- tort- 2 stage test

A
  • how the D ought to have behaved (ie the standard of care they should have exercised)
  • the court then decides if Ds conduct fell below that standard
63
Q

standard of care definition tort

A
  • reasonable man
  • objective test
    -e.g. if D is a golfer, it is the reasonable golfer
  • an ordinary person does not take precautions against every risk
64
Q

exceptions to the normal standard of care tort

A
  • skilled defendant- must meet the standard of their profession
  • nettleship v Weston- DoC held by learner driver was the same as every other driver
  • children- adjusted to age- e.g. reasonable 15 year old- apart from if they are engaged in a dangerous adult activity at the time of the wrongdoing
65
Q

how to calculate the degree of care to be expected of a reasonable person

A
  • size of the risk- how likely?
  • how serious the harm would be if the risk materialised
  • utility of Ds conduct (value to society of Ds activities- if their behaviour is in public interest, D is less likely to be held liable)
  • cost of taking precautions- big expense for small reduction of risk= less likely to be held liable
66
Q

degree of care
- common practice
- current state of knowledge
- res ipsa loquitur

A
  • if they complied with accepted practice of their trade they’re less likely to be guilty
  • Ds actions are judged by the standard of current knowledge- dont look at 1947 accident with 1954 spectacles
  • thing speaks for itself- some circs where the damage occurred is such that a court may be prepared to draw an inference of neg without hearing evidence of what d did or didn’t do
67
Q

criminal convictions and tort?

A
  • if someone is convicted in criminal court for something, it can act as evidence in civil
  • if someone is found not guilty in criminal court this doesn’t mean anything as criminal standard of proof is higher
68
Q

pure psychiatric harm- duty of care

A
  • psych harm suffered without physical impact
  • 2 tests- primary victim or secondary victim
69
Q

primary victim- psych harm

A
  • actually in danger OR believed they were in danger
  • primary victims owed DoC for psych harm provided the risk of physical injury was foreseeable
  • not necessary for the risk of psych harm to be foreseeable
  • doesnt count if you’re hyper sensitive
70
Q

secondary victims- pure psych harm conditions for DoC

A
  • foreseeability of psych harm (would a person of normal fortitude suffer psych illness from this- HAS TO BE A RECOGNISED ILLNESS)
  • remoteness of damage (DoC, Breach, causation)
  • proximity of relationship (close relationship of love and affection)
  • proximity in time and space- present at accident or immediate aftermath
  • proximity of perception- must see or hear the accident or immediate aftermath with own senses
71
Q

destruction of property and psych illness- tort

A
  • claimant could recover damages for psych illness following witnessing the destruction of their property
  • still need to prove causation and reasonable foreseeability
72
Q

psych harm- tort
- future disease
- involuntary involvement
- shock caused when D endangers themselves
- assumption of responsibility

A
  • damages for anxiety related to the potential risk of a future disease are not recoverable
  • in order for this claim to be successful there has to be a reasonably held belief that the C had been involuntarily involved in anothers death or injury
  • no DoC not to shock them by injuring yourself- would open up a lot of litigation
  • some relationships have a duty to not expose people to reasonably foreseeable psych harm- employer/doctor/police and informant
73
Q

Pure economic loss general rule

A
  • D doesnt owe a DoC not to cause pure economic loss
74
Q

Economic loss- defective property

A
  • no DoC owed if PEL caused by acquiring a defective item of property
75
Q

PEL- spartan steel- THE ONLY EXCEPTION THAT PEL IS NON RECOVERABLE- apart from negligent misstatements

A
  • can’t recover for future losses
  • can recover for property he did own and the products ruined by the power cut
    -BECAUSE THE THING THAT CAUSED THE BREAKAGE WAS OWNED BY A THIRD PARTY
76
Q

PEL- negligent misstatements- test of DoC

A
  1. The Defendant knew the purpose for which the advice required
    * 2. The Defendant knew that the advice would be communicated to the
    Claimant (either specifically or as a member of an ascertainable class of
    persons)
    * 3. The Defendant knew the Claimant was likely to act on the advice without
    independent inquiry
    * 4. The advice was acted on by the Claimant to their detriment
  • counts if agent makes the misstatement if it is within their scope of authority
  • less reliable if in a social situation
77
Q

PEL- exclusion of liability

A
  • cant exclude for PI or death
  • disclaimer needs to be reasonable and fair but could disclaim liability for negligent acts
  • were the parties of equal bargaining power?
  • could they have got advice?
78
Q

defences in tort

A
  • volenti
  • ex turpi
  • cont neg
  • necessity

when D raises a defence, the burden of proof shifts to them

79
Q

volenti

A
  • consent
  • complete defence
    need to establish
  • c had full knowledge of the nature and extent of the risk (subjective. test) and
  • c willingly consented to accept the risk of being injured due to ds negligence
80
Q

when does volenti apply

A
  • doesn’t apply to motor vehicles
  • in practice, few cases are likely to satisfy volenti- much more likely to get cont neg
  • employee/employer- volenti unlikely to be satisfied
  • rescuer- not necessarily voluntary- moral duty
  • sporting- no consent to injury
81
Q

ex turpi- illegality

A
  • if c is involved in an illegal enterprise at the time of injury, this may provide d with a defence
  • trivial offending doesnt suffice- eg not wearing seatbelt
82
Q

cont neg

A
  • partial defence
    comprises 2 elements
  • carelessness by c
  • that carelessness contributed to c’s damage
  • test is whether c has failed to take reasonable care for their own safety

damages are reduced to the extent that the court deems fair

seatbelt
- if would avoid injury = -25%
- if would lessen injury = -15%

  • applies to kids too
83
Q

cont neg
- parents of kids
- rescuers
- employees

A
  • kids damages aren’t reduced for cont neg of parents
  • only cont neg if they show complete disregard for their own safety
  • diff degree of care needed by employees of a mine etc
84
Q

public necessity- tort- defence

A
  • eg pulling down a house that is on fire to prevent the spread
  • cant be used if the circs giving rise to necessity are the d’s own making
85
Q

employers common law duty

A
  • reasonable care for their employees safety whilst at work
  • duty of care so c has to show breach
86
Q

4 duties for employers- tort

A
  • competent staff
  • adequate material
  • proper system of work and supervision
  • safe place of work
87
Q

vicarious liability

A
  • principle under which a person is liable for the torts committed by another
  • under this principle, it is not a requirement that the employer has committed a tort themselves, but their liability is a form of secondary liability in that it derives from a tort committed by their employee
  • they are liable in addition to (not instead of) their employee- joint liability
88
Q

requirements for vicarious liability

A
  • worker must be an employee (or in a relationship akin to employment)
  • employee must have committed a tort
  • employee’s tort must have been committed in the course of employment
89
Q

acts expressly prohibited by employer- vicarious liability

A
  • acts done in contravention of a prohibition from an employer will not necessarily fall outside of ‘course of employment’
  • if it is done to further the employers business it is likely to be seen as vicarious
  • not likely to be vicariously liable of an intentional
90
Q

“frolic of ones own”- employers liability

A
  • if acting outside the course of employment
  • 2 issues
  • geographical divergence
  • departure from the task set
  • the greater the degree of departure from either of these- more likely it is that they’re deemed to be on a frolic of ones own
91
Q

occupiers liability act 1957- how to fall within this

A

need to
- establish that they have suffered loss due to the state of the premises
- identify occupier
- prove they’re a visitor
- establish the occupier failed to take reasonable care for their safety

92
Q

who is an occupier?

A
  • someone with a sufficient degree of control over the premises
93
Q

who is a visitor?

A
  • people who have express or implied permission to be on the occupiers land
  • the onus of proving implied permission rests upon the person claiming it exists
  • child visitors need a higher degree of care - parental responsibility can reduce this
    -skilled visitors are expected to appreciate and guard against risks
94
Q

warning notices and consent - occupiers liability

A
  • adequate warning may mean the occupier has complied with their common DoC
  • warning must be adequate

consent
- principles of volenti apply
- claimant must know of the precise risk that causes the injury and show by their conduct that they willingly accepted this

95
Q

CIVIL PROCEDURE RULES overriding objective

A
  • all cases must be conducted justly, fairly, expeditiously and proportionately
  • there is a fundamental expectation that parties will attempt to settle/enter into an alternative dispute resolution (ADR) process
96
Q

pre-action protocols (PAPs)

A
  • indicate what steps of best practice are expected to be taken before litigation in certain types of cases
  • not all care types have these
97
Q

LITIGANTS IN PERSON (LIPs)

A
  • LIPs are people that represent themselves
  • they should be treated in a way that redresses the disadvantage of dealing with a legal system designed for legal representatives
98
Q

vulnerable parties/witnesses

A

vulnerable- where a factor may adversely affect their participation in proceedings or the giving of evidence
- court should establish vulnerability early and then establish ground rules

99
Q

issuing- which court to issue in?

A
  • county court or high court?

HIGH COURT
- MUST BE OVER £100,000 OR MORE (eg clin neg)
- UNLESS PI WHICH IS £50,000 OR MORE

100
Q

high court or county court when you have the option

A

high court
- the financial value of the claim and the amount in dispute
- the complexity of the facts, legal issues, remedies or procedures involved
- the importance of the outcome of the claim to the public in general

county court
- certain consumer credit act 2006 claims
- applications for certain types of injunction
- part 8 claims

101
Q

divisions of the high court

A
  • chancery
  • family
  • kings bench

within the chancery
- business disputes
- professional negligence
specialist area
- patents
- intellectual property

within the kings bench
- breach of contract
- negligence
- PI
- non-payment of debts
specialist area
- admiralty
- commercial
- tech and construction

102
Q

costs negotiation

A
  • if the sum of costs a party is liable for cannot be agreed then a formal procedure for assessment of the same must be undertaken
103
Q

costs negotiation- summary assessment- what and when?

A

occurs on one of two occasions
- at the end of an interim application
- at the end of a one-day fast track trial

104
Q

summary assessment costs procedure

A
  • process is intended to be brief and doesnt involve a lengthy consideration of each item claimed
  • once assessed the costs are usually payable within 14 days
  • parties submit to court details of their costs in form n260- must be signed by a fee earner confirming that the indemnity principle hasn’t been breached
  • must be filed at least 24 hours before the interm application hearing OR
  • 2 days before a fast track trial
  • if you are late the court will take this into account but it won’t be a bar to total recovery
  • no fee is payable
105
Q

detailed assessment of costs - what and when?

A
  • involves a detailed exam of a party’s costs in a separate action after conclusion of the main action
  • at the end of a trial, the court is permitted to order the paying party to pay an interim as against the receiving party’s costs
106
Q

detailed assessment costs- pre-formal procedure

A
  • draft a bill of costs (which sets out a chronological list of the steps undertaken int he case with a summary of the work undertaken)
  • if budgeted a phased bill of costs is needed
  • negotiation is attempted
  • part 36 applies to costs offers
107
Q

two possible ways of proceeding to detailed assessment- case value

A
  • detailed assessment hearing for cases above 75k
  • provisional assessment on paper for cases below 75k
108
Q

detailed assessment- costs- procedure

A
  • applies to all case values
  • in order to commence costs proceedings you serve:
    – notice of commencement (N252)
    – Bill of costs
    – disbursement vouchers
  • these are only served and not filed at court
  • no fee payable at this stage
  • once served the paying party files Points of Dispute within 21 days
  • this period can be extended by agreement
  • the Points of Dispute set out the parts agreed and disputed and should be concise
  • receiving party may file replies to the points of dispute within 21 days of service of the POD - this is optional
109
Q

detailed assessment- detailed costs certificate

A
  • if the paying party fails to serve their points of dispute then the receiving party can file at court Form n254 request for a default costs certificate
  • court will then issue the default costs certificate upon form N255
  • the sum will include interest and must be paid within 14 days
  • can be set aside if there is a good reason to do so
110
Q

if costs are agreed during the detailed assessment process..

A
  • matters are concluded with a consent order
  • court fee of 108 is payable
111
Q

paper based- provisional assessment- details

A
  • The assessment will take place once the documents have been filed
  • You also need to file a sealed envelope marked “Part 36s and/or similar
    offers”. This envelope contains copies of all such offers
  • The Court try and assess costs within 6 weeks of filing
  • Once assessed the Court returns the Bill of Costs with the Court’s decision
    noted thereon
  • The parties then agree the total sum due based upon the Court’s decisions
  • Either party can challenge the provisional assessment by requesting an oral
    hearing within 21 days of the return of the annotated Points of Dispute.
112
Q

detailed assessment time limits

A

-time limit to commence this is 3 months after the judgement/order giving entitlement to costs
- extensions can be agreed by court
- if deadline missed- 2 possible sanctions
- may disallow some/all interest
- may disallow some/all receiving party’s costs

113
Q

pre-issue settlement

A
  • if the case settles pre-issue and costs cant be agreed then the receiving party issues part 8 proceedings
  • once served, this means the usual detailed assessment procedure can be followed
114
Q

definition of legal costs

A
  • profit costs
  • VAT
  • disbursements
  • success fee
  • insurance (ATE)
115
Q

two fundamental principles of costs

A
  • payment of costs by one party to the other is at the discretion of the court
    – should take into account
    – conduct of parties
    – whether a party has succeeded on part of its case (even if whole case wasn’t successful)
    – any offers (not part 36s)
  • loser should pay winners costs
  • however this has changed slightly with the introduction of QOCS
116
Q

QOCS- WHAT IS IT?

A
  • applicable in all PI cases (and clinical neg) no matter when the accident occurred
  • THE CLAIMANT WILL NOT HAVE TO PAY THE DEFENDANTS COSTS IF THE CLAIM FAILS BUT THE DEFENDANT WILL HAVE TO PAY THE CLAIMANTS COSTS IF THE CLAIM SUCCEEDS
  • potentially reduces the need to purchase ATE
117
Q

exceptions to QOCS

A

Where the claim is found to be
fundamentally dishonest
* Where the claim is for the financial
benefit of another (e.g. credit hire)
* Where the claim has been struck out
* Where the claim discloses no
reasonable cause of action
* Where the claim is an abuse of the
Court’s process
* Part 36s

118
Q

indemnity principle

A
  • the winning party cannot recover more costs from their opponent than he has paid to his legal rep
119
Q

2 bases of assessment of costs

A
  • standard basis
    – only proportionate costs are allowed
    – any doubt is resolved in the paying partys favour
  • indemnity basis
    – proportionality is not taken into account
    – any doubt is resolved in the receiving party’s favour
  • costs need to be reasonably incurred
  • standard basis is norm unless the court feels there has been some culpable behaviour on the part of the other party
120
Q

factors considered for a wasted costs order

A
  • Legal rep must have acted improperly, unreasonably, or negligently
  • their conduct must have caused a party to incur unnecessary costs
  • it must be just to make the order

courts discretion follows a two-stage formula
– whether on the evidence of the applicant alone, a wasted costs order is likely
AND
– whether such a costs order is justified notwithstanding the cost involved

burden rests with the applicant

121
Q

non-party costs orders- process to the application

A
  • the non party must be added as a party to the proceedings for the purposes of costs only
  • the non-party must be given an opportunity to attend a hearing at which the court will consider the matter further
122
Q

budgeting- costs

A
  • the budget is on form Precedent H
  • the budget discussion report is on form Precedent R
  • litigant in person is not required to prepare a budget
  • unless the court otherwise orders, any party that fails to file a budget will be treated as having filed a budget comprising only the applicable court fees
123
Q

the key features to note about costs and funding

A
  • The need to provide the best possible information on
    costs and funding at the outset and throughout the claim
  • The need to review costs regularly and provide written
    updates (not just in relation to the amount of costs but
    the likelihood of the recoverability of the same)
  • Changes of rates due to firm increases or changes in
    handlers
  • Changes in strategy that may impact upon the costs
124
Q

methods of funding dispute res

A
  • BTE (before the event) insurance- if this runs out you may have to purchase ATE to top it up
  • privately
  • union funding
  • public funding (legal aid)
  • conditional fee agreements (CFAs)
  • ATE (after the event) insurance
125
Q

Conditional Fee Agreements- success fee

A
  • In PI cases
  • the success fee (inc VAT) can be up to 100% but is limited to 25% (inc VAT) of the sum recovered for damages (exc future financial losses and interest) and net of any state benefits received by the client
  • in all other cases
  • success fee can be no more than 100% of the legal rep’s fees AND is not capped
126
Q

what do you have to advise the client on when talking about CFAs

A
  • The CFA must be in writing
  • The Success Fee is not recoverable from
    the opponent
  • The maximum amount of the Success Fee
    i.e. 100% subject to a cap based upon
    damages recovered
  • Explain when they may be liable for their
    own or the opponent’s costs
  • Their right to have any costs you claim from
    the client assessed
  • Disclose any interest in the funding policy

SQE 1 (3 decks)

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