Trial and costs Flashcards
A defendant has successfully defended a breach of contract claim. The court has ordered that the claimant pay the defendant’s costs on the indemnity basis.
Which of the below best describes the approach the court will take if asked to assess these costs?
A-The court will consider whether items were reasonably incurred and reasonable in amount, and proportionality. Any doubt will be resolved in favour of the paying party.
B-The court will consider whether items were reasonably incurred and reasonable in amount, and proportionality. Any doubt will be resolved in favour of the receiving party.
C-The court will consider whether the costs were reasonably incurred and reasonable in amount. Any doubt will be resolved in favour of the receiving party.
D-The court will consider whether the costs were reasonably incurred and reasonable in amount. Any doubt will be resolved in favour of the paying party.
E-The court will consider whether the costs were reasonably incurred and reasonable in amount, and proportionality. Any doubt will be resolved at the judge’s discretion.
KEY POINT: INDEMNITY BASIS
Option C is correct. When assessing costs on the indemnity basis, the court will consider whether the costs were reasonably incurred and reasonable in amount but there is no test of proportionality. Any doubts are resolved in favour of the receiving party on the indemnity basis.
Option A is wrong. There is no test of proportionality when costs are assessed on the indemnity basis and any doubts are resolved in favour of the receiving party rather than the paying party.
Option B is wrong. There is no test of proportionality when costs are assessed on the indemnity basis.
Option D is wrong. On the indemnity basis, any doubts are resolved in favour of the receiving party rather than the paying party.
Option E is wrong. There is no test of proportionality when costs are assessed on the indemnity basis and any doubts are resolved in favour of the receiving party.
A negligence claim between a claimant and a defendant is allocated to the fast track and proceeds to trial. The claimant alleges that the defendant drove negligently and collided with the wall of the claimant’s house. During cross-examination, the defendant is questioned about whether they had consumed alcohol before the collision. The defendant’s barrister wishes to re-examine the defendant and ask the following question:
“You hadn’t drunk any alcohol before setting off that night, had you?”
Will the defendant’s advocate be permitted to ask this question?
A-No, because the defendant cannot be re-examined on matters which have already been addressed in cross-examination.
B-No, because re-examination of witnesses is not permitted in fast-track trials.
C-Yes, because the defendant can be re-examined on matters which have been raised during cross-examination.
D-No, because only open questions may be put to the defendant during re-examination.
E-Yes, because the question is directly relevant to an issue in dispute between the parties.
Option D is correct. The question the advocate wishes to ask is a closed question. Only open questions may be asked during re-examination, so the advocate will not be permitted to ask this question.
Option A is wrong. Whilst it is correct that the advocate will not be permitted to ask this question, the wrong reason has been given. Re-examination can only relate to matters that have been raised by the cross-examination.
Option B is wrong. Whilst it is correct that the advocate will not be permitted to ask this question, the wrong reason has been given. Re-examination of witnesses is permitted in fast-track trials.
Option C is wrong. Whilst it is correct that the defendant can be re-examined on matters which have been raised during cross-examination, the advocate will only be permitted to ask open questions during re-examination.
Option E is wrong. Regardless of the relevance of the question, only open questions are permitted during re-examination.
Proceedings are brought against a defendant company in a professional negligence claim. The claimant is an individual who engaged the defendant to provide financial advice. The claimant lives in England however the defendant has received evidence that the claimant has been transferring their assets to family members in Qatar. The defendant is concerned that the claimant may not have sufficient funds to pay the defendant’s costs if ordered to do so.
Can the defendant show that a condition for security for costs applies?
A-Yes, because the claimant has taken steps to make enforcement of a costs order difficult.
B-Yes, because there is reason to believe the claimant will be unable to pay the defendant’s costs if ordered to do so.
C-No, because only claimants can apply for security for costs.
D-No, because the defendant is a company.
E-No, because the claimant is resident in England.
Option A is correct because the defendant has evidence which suggests the claimant has taken steps to make enforcement difficult, by moving their assets to family members.
Option B is wrong because the defendant can only rely on this condition where the claimant is an impecunious company, not an individual.
Option C is wrong because only defendants can apply for security for costs.
Option D is wrong because being a company will not prevent a defendant from seeking security for costs.
Option E is wrong because whilst the claimant residing outside of a 2005 Hague Convention state is a condition, applications can still be made in respect of claimants who reside in this jurisdiction or in a Hague Convention state.
A company is the defendant in a complex misrepresentation claim. The claim is approaching trial and has been listed for a 12-day trial in the High Court before a High Court judge.
Which of the below statement best describes matters in relation to the trial?
A-The defendant is responsible for preparing the trial bundle of key documents and filing this at court before the trial.
B-The defendant will not prepare a skeleton argument as this is the responsibility of the claimant.
C-The judge should be addressed as Your Honour during the trial proceedings.
D-The defendant’s advocate may choose to re-examine the defendant’s witnesses and will ask them closed questions to keep control of the witnesses.
E-The judge may order a pre-trial review which must be attended by representatives of both parties who are familiar with the case and have the authority to deal with any issues that may arise.
Option E is correct. In heavy cases, such as this one, the trial judge may order a pre-trial review. The representatives who attend on behalf of each party must be familiar with the case and have authority to deal with any issues that arise.
Option A is wrong. The claimant (or their solicitor if they are legally represented) is responsible for preparing the trial bundle unless the court orders the defendant to do so.
Option B is wrong. In multi-track cases, each party should prepare a skeleton argument (otherwise known as a case summary) to assist the court and the parties at trial.
Option C is wrong. The facts state that the trial is before a High Court judge, so the correct mode of address would be My Lord/Lady.
Option D is wrong. It is correct that the defendant’s advocate may choose to re-examine the defendant’s witnesses, but only open questions may be put to the witness during any re-examination.
In a claim which is proceeding on either the fast track or the multi-track, which of the following statements is accurate in relation to pre-trial checklists?
A-The purpose of the pre-trial checklist is to check whether the parties have complied with the relevant pre-action protocol.
B-If neither party files a pre-trial checklist, the court will immediately list the matter for a directions hearing so that it can check whether its pre-trial directions have been complied with.
C-It is the claimant’s responsibility to file the pre-trial checklist with the court, but it should send a copy to the defendant before it does so.
D-The date for filing the pre-trial checklist will be not later than eight weeks prior to the start of the fixed trial date or trial period.
E-If only one party files a pre-trial checklist, the court will strike out the other party’s statement of case.
Option D is correct. Each party should file the pre-trial checklist not later than eight weeks before the trial date or the start of the trial period, whether the case is proceeding on the fast or multi track.
Option A is wrong because the purpose of the pre-trial checklist is to check whether the directions made by the court have been complied with and whether the trial is ready to proceed.
Option B is wrong because if neither party files a pre-trial checklist, the court will direct that any claim, defence or counterclaim will be struck out unless a pre-trial checklist is filed within seven days.
Option C is wrong because both parties are required to complete and file a pre-trial checklist with the court.
Option E is wrong because if one party fails to file a pre-trial checklist, the court will usually fix a hearing and give directions.
A claimant is bringing a claim against a defendant for breach of contract estimated at £120,000. The claimant intends to issue proceedings in the High Court. Prior to issue, the claimant’s solicitor writes to the claimant to advise on the costs implications.
Which of the following statements contained in the letter of advice is correct?
A-Costs in the multi-track will generally be dealt with by way of summary assessment.
B-Costs on the standard basis must be reasonably incurred and in amount, but do not need to be proportionate.
C-The claimant will be protected from liability for the defendant’s costs by qualified one-way costs shifting in the event the claimant loses the litigation.
D-The effect of a costs management order is that the court will depart from budgeted costs on the standard basis only if there is good reason to do so.
E-Costs on the indemnity basis must be reasonably incurred and reasonable in amount, and proportionate.
A claimant was successful at trial and the court ordered the defendant to pay the claimant’s costs on the standard basis. When assessing costs, the court finds that the items claimed by the claimant were reasonably incurred and reasonable in amount. However, the court finds that the claimant’s total costs figure for the disclosure phase of the litigation does not bear a reasonable relationship to the sums in issue and the complexity of the litigation.
Will the claimant’s total costs be allowed?
A-Yes, because the unsuccessful party pays the successful party’s costs and the claimant is the successful party.
B-No, because the claimant’s total figure for the disclosure phase of the litigation is disproportionate.
C-No, because the defendant would suffer real hardship if the claimant’s total costs were allowed.
D-Yes, because any doubt will be resolved in favour of the claimant as the receiving party.
E-Yes, because it is sufficient that the items claimed were reasonably incurred and reasonable in amount.
Standard basis = includes proportionality (nog necessarily reasonable)
Option B is correct. When assessing costs on the standard basis, the court must consider whether each item has been reasonably incurred and is reasonable in amount, and must then consider whether the total figure for each phase is proportionate. The court found that the total costs of the disclosure phase did not bear a reasonable relationship to the sums in issue and the complexity of the litigation. This means the court has applied the proportionality test and found these costs to be disproportionate, so will disallow or reduce them.
Option A is wrong. It states the general costs rule but does not consider the tests the court will apply when assessing costs on the standard basis.
Option C is wrong. It is correct that the claimant’s total costs will not be allowed, but this is on the basis of the proportionality test (see above), rather than hardship to the defendant.
Option D is wrong. When assessing costs on the standard basis, doubts are resolved in favour of the paying party.
Option E is wrong. If the claimant had been awarded costs on the indemnity basis it would be sufficient that the items claimed were reasonably incurred and reasonable in amount, but on the standard basis the proportionality test must also be met.
A claimant in a personal injury claim is unsuccessful in its claim against the defendant. Although the claim was unsuccessful, there is no evidence that it was dishonest.
If the claimant is ordered to pay the defendant’s costs, is the defendant likely to be able to enforce the order?
A-Yes, because the usual rule is that the unsuccessful party pays the successful party’s costs.
B-Yes, because qualified one-way costs shifting does not apply to personal injury claims.
C-Yes, because although qualified one-way costs shifting will apply, the court is likely to give permission for the defendant to enforce the order.
D-No, because the claimant has behaved reasonably throughout the claim.
E-No, because qualified one-way costs shifting will apply and the defendant is unlikely to obtain permission to enforce the order.
Option E is correct. The impact of qualified one-way costs shifting is that, where an unsuccessful claimant in a personal injury claim has been ordered to pay the defendant’s costs, the defendant must obtain permission to enforce the order. Permission will only be given where the judge finds, on the balance of probabilities, that the claim was fundamentally dishonest. Permission is unlikely to be granted here as the facts state that there is no evidence that the claim was dishonest. The defendant is therefore not likely to be able to enforce the order.
Option A is wrong because, although it correctly states the usual rule, different costs rules apply under qualified one-way costs shifting.
Option B is wrong because qualified one-way costs shifting does apply to personal injury claims and will have the impact explained above.
Option C is wrong because the court is unlikely to give permission, for the reasons stated above.
Option D is wrong because the reasonableness of the claimant’s behaviour is not the most relevant consideration – the key issues in this question relate to qualified one-way costs shifting and fundamental dishonesty as explained above.
Qualified one way cost shifting = Qualified one-way costss shifting is a regulation under which clients who have suffered a personal injury cannot be ordered to pay the costs of the defendant, even if they lose their personal injury claim
A solicitor acts for a claimant in a contract claim against a defendant. The claim has been allocated to the multi-track. The solicitor is going to make an interim application on the claimant’s behalf. The time estimate for the hearing of the application is less than one day. The solicitor is advising the claimant on the possible costs orders at the end of the hearing, in particular whether there will be summary assessment of the costs and what documents this will be based on.
What advice should the solicitor give to the claimant regarding whether the court will order a summary assessment of costs?
A-The solicitor should advise that a summary assessment of costs is irrelevant here, because this is a claim for breach of contract. The court must deal with the costs of the interim application as part of the detailed assessment of costs at the conclusion of the trial.
B-The solicitor should advise that at the end of the hearing, the court should make a summary assessment of costs of the hearing, unless there is a good reason not to do so. The assessment will be based on the Bills of Costs filed by the parties.
C-The solicitor should advise that summary assessment of costs is irrelevant here as it only applies to cases on the fast track. The court must deal with the costs of the interim application as part of the detailed assessment of costs at the conclusion of the trial.
D-The solicitor should advise that at the end of the hearing the court must make a summary assessment of the costs of the hearing, because the hearing will have lasted less than one day.
E-The solicitor should advise that at the end of the hearing, the court should make a summary assessment of costs of the hearing, unless there is a good reason not to do so. The assessment will be based on the Statements of Costs filed by the parties.
Option E is the correct answer: PD 44 9.1 provides that whenever the court makes an order about costs which does not provide for fixed costs to be paid it should consider whether to make a summary assessment of costs. PD 9.5 (2) requires the parties to prepare written statements of costs.
Option A is wrong because the court should make a summary assessment of costs unless there is good reason not to do so. PD 44 9.2. The costs of a breach of contract claim can be summarily assessed.
Option B is wrong because Bills of Costs are prepared by the receiving party at the conclusion of the case.
Option C is wrong because summary assessment applies to hearings of less than one day on the multi- track, as well as to the fast track. PD 44 9.2
Option D is wrong because summary assessment is not mandatory. PD 44 9.2
A claimant has brought a claim against a defendant for £30,000 in respect of unpaid invoiced for services provided by the claimant under a contract. The defendant has counterclaimed for damages in the sum of £20,000 for breach of contract. At trial, the court finds in favour of the claimant for the full amount of her claim and in favour of the defendant in the sum of £15,000 on his counterclaim.
What is the most likely order that the court will make in respect of the payment by the parties of the judgment sums?
A-It is most likely to order that the defendant pays £30,000 to the claimant within 14 days and that the claimant pays £15,000 to the defendant within 28 days.
B-It is most likely to order that the defendant pays £30,000 to the claimant within 14 days and that the claimant pays £15,000 to the defendant within 14 days.
C-It is most likely to order that the defendant pays £15,000 to the claimant within 28 days.
D-It is most likely to order that the defendant pays £15,000 to the claimant within 14 days.
E-It is most likely to order that the claimant pays £15,000 to the defendant within 14 days.
Option D is correct. CPR 40.13 provides that where the court gives judgment on both a claim and a counterclaim, if there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance. CPR 40.11 provides that the time for complying with a judgment or order is 14 days from the date of the judgment or order.
Option A, is wrong because the court is most likely to order that the defendant pays the balance to the claimant, and the time for doing do would be 14 days from the date of the judgment or order not 28 days.
Option B is wrong because the court is most likely to order the defendant to pay the balance only.
Option C is wrong as the payment needs to be made in 14 days.
Option E is wrong as it is the defendant that needs to make payment of the balance not the claimant.
The claimant’s claim against the defendant proceeds to trial and is heard by the district judge in the County Court. At the end of the trial, the judge delivers judgment. The claimant is not pleased with the judgment and instructs his solicitor to appeal.
Which of the following statements best describes the approach which would apply to the claimant’s appeal?
A-The court will only grant permission to appeal if it considers that there is a compelling reason why the matter should heard.
B-The court will only grant permission to appeal if it considers that the appeal would have a real prospect of success.
C-The claimant must make an application for permission to appeal to the trial judge.
D-The claimant has 14 days in which to make an application to appeal the decision
E-The claimant’s application to appeal will be heard by a Circuit judge.
Option E is the correct answer. The matter was decided by a district judge in the County Court, the appeal will be heard by the next level of judge – a Circuit Judge. Option A is wrong as there are two grounds on which permission to appeal may be granted, the other being real prospect of success. Option B is wrong as there are two grounds on which permission to appeal may be granted, the other being that there is some other compelling reason why it should be heard. Option C is wrong because the claimant may also apply for permission to appeal to the appeal court itself. D is wrong because the claimant has 21 days to appeal against a County Court decision.
Quick Q:
A solicitor acts for a client in a claim they are bringing against a defendant in the High Court. The trial is due to start in 10 days’ time. The solicitor has served a witness statement from the client’s managing director, but the managing director has unexpectedly resigned and is now unwilling to give evidence. The managing director is a key witness and the case against the defendant will be weaker if the managing director does not attend trial to give evidence. The client has asked whether the solicitor will be able to apply for a witness summons to ensure the managing director does give evidence at the trial.
Would it be appropriate for the solicitor to apply for a witness summons in this case?
D-Yes, because a witness summons should be served on the witness to secure their attendance at trial, but the client should be advised that they will have to offer the witness their travel expenses and the amount specified in the relevant Practice Direction as compensation for loss of time.
Option D is the correct answer as serving a witness summons is the correct procedure for compelling the witness to attend court. (CPR 34). CPR 34.7 provides that the at the time of service of a witness statement the witness must be offered or paid their travel expenses and the amount specified in the Practice Direction as compensation for their loss of time.
The court sets directions for fast track trial. The claimant is relying on two essential witnesses to assist with liability and quantum as they will strengthen the claimant’s case. The solicitor needs to notify both witnesses of the trial date and to confirm their availability.
In accordance with best practice, what action should be taken by the solicitor?
A-Write to the witnesses to confirm the trial date, the solicitor should send it by post and email to ensure prompt delivery.
B-Notify both witnesses by telephone, and confirm their availability for trial.
C-Upon confirmation from the witnesses that they are available for trial, the solicitor should place a note on the file so that it is recorded.
D-Having notified the witnesses of the trial, and receiving confirmation of attendance, the solicitor should serve both witnesses with a witness summons.
E-The solicitor should send a copy of the trial directions order to both witnesses in the post, and await their response.
Option D is the most appropriate and correct answer. Despite witnesses confirming attendance, it is unwise for the solicitor to assume that they will attend voluntarily. It is best practice for witnesses to be encouraged to attend by serving a witness summons. This is usually served by the court, and if the witnesses fail to attend trial, he is liable to be fined, and in High Court proceedings, to imprisonment for contempt.
The remaining options A, B, C, and E are all correct actions the solicitor may take, but as the facts confirm that both witnesses are essential to the disputed issues of liability and quantum, their attendance should be secured as much as possible with a witness summons. Another danger of not serving witness summons is if a witness fails to attend, the solicitors will be questioned whether they served a witness summons.
A Claimant sports-wear brand issued proceedings against a Defendant professional photographer. The Defendant in breach of contract failed to arrange a photoshoot of the Claimants new range of running shoe ahead of its launch and within 1 month of signing the contract to ensure that it coincided with a major running event. The Claimant brought a claim for breach of contract for lost profit and it was allocated to the multi-track. The claim was successful at trial and judgment was in the sum of £250,000 in damages plus costs which were to be subject to detailed assessment.
When must the receiving party serve a Notice of Commencement of detailed assessment proceedings upon the paying party?
A-Within three months of the date of the judgment.
B-Within three months of the payment of damages.
C-Within 21 days of the date of the judgment.
D-Within 21 days of payment of damages.
E-There is no specified time limit.
Option A is the correct answer. If the receiving party wishes to commence detailed assessment proceedings, they must serve a Notice of Commencement together with their bill of costs and evidence in support within three months of the date of the judgment.
Option B is wrong because the payment of damages will come after the date of judgment and the Civil Procedure Rules provides it is 3 months from the date of judgment.
Options C and D are wrong because the relevant time period is three months.
Option E is wrong because the three month time period is set out within the Civil Procedure Rules.
The Claimant is a garden nursery that supplies plants to the Defendant for display in its offices. The Claimant issued an invoice for £4,000 and the Defendant has failed to pay. The Claimant issues proceedings in the County Court to recover the monies and the matter was allocated to the small claims track and judgment is entered at trial in favour of the Claimant. In handing down judgment, the judge stresses that neither party acted unreasonably.
Which of the following best describes what costs the Claimant will recover?
A-Fixed costs.
B-All costs.
C-Costs for legal advice and assistance relating to the claim.
D-Such costs as the court in its discretion awards.
E-No costs.
Option A is correct. The matter has been allocated to the small claims track. CPR 27.14 lists those costs that the court will award (primarily costs attributable to issuing the claim and some ancillary items such as witness expenses in travelling to court).
Option B is wrong. CPR 27.14 makes clear that only some costs (eg fixed costs attributable to issuing the claim) are recoverable.
Option C is wrong for similar reasons. Only those costs listed in CPR 27.14 may be awarded. (Broader costs for legal advice and assistance would only be relevant if the proceedings included a claim for an injunction or an order for specific performance, neither of which is relevant on the facts.)
Option D is wrong for similar reasons. The court will have no discretion in relation to costs. (This may have been relevant had the court found that one party had behaved unreasonably, CPR 27.14(2)(g), but that is not the case on the facts.)
Option E is wrong as costs are recoverable but this will be limited to those costs set out in CPR 27.14.
