Unit 3

Question 1

Where a solicitor prepares a party’s statements of case, inwhose name should it be signed?

Answer 1

It should be signed in the name of the firm.

Question 2

What are the ethical considerations for a solicitor to consider with statements of case?

Answer 2

– Solicitor must not mislead the court, so should only include assertions in the statements of case that are properly arguable (i.e., not include allegations for which there is no evidence).

Question 3

Where there is a material error, the effect of which is to mislead the court (and the solicitor finds out about this after it has been filed, what should the solicitor do?

Answer 3

– Solicitor should ask the client to amend the claim form.

– If they refuse, the solicitor should cease to act, remaining silent on why for confidentiality reasons.

Question 4

What does the particulars of claim include?

Answer 4

a) Concise statement of the facts on which the claimant relies, i.e., outlining all the facts giving rise to dispute.

b) If claimant is seeking interest, a statement stating this with the details.

Question 5

For claims based on breach of contract how is interest stated on the particulars of claim?

Answer 5

Can be either

1) Contractual – Interest as per a specific contract term or;

2) Statute – S 35A Senior Courts Act f in the High Court of S 69 County Courts Act 1984 if in the County Court

a) Interest for unspecified claims – Interest at the rate and for a period that the court sees fit under the relevant act.

b) Interest for specified claims – Form should state the totla interest (i.e., sum on which interest is claimed, at which percentage rate and between which dates) and under the relevant statute.

Question 6

How is interest apportioned for claims based on negligence?

Answer 6

Court has general discretion to award interest on damages in any negligence claim in accordance with s 35A SCA for High Court claims and S 69 CCA 1984 for county court.

Question 7

What must the defence state for each allegation?

Answer 7

Whether they are:
1) Denied
2) Not admitted; or
3) Admitted

Question 8

Where D denies an allegation, what must they do?

Answer 8

State their reasons for doing so & their own version of events if different from that given by the claiamnt.

Question 9

What is the effect of not responding to an allegation?

Answer 9

It is deemed to be accepted.

Question 10

What are the contents of a defence?

Answer 10

• The name of the court
• The claim number (reference number which is allocated by the court on issue of proceedings)
• The parties
• The title (defence)
• The date and signature of solicitors in the name of the firm
• The statement of truth and
• Details of who is to be served and where.

Question 11

Who has the burden of proof to show the claimant 1) did not mitigate their loss or 2) are contributory negligent?

Answer 11

Defendant.

Question 12

If D states that C is outside of the limitation period, who has the burden to prove this?

Answer 12

Claimant had burden to prove theyre within the limitation period.

Question 13

What do Part 20 claims cover?

Answer 13

1) Counter claims
2) Indemnity
3) Contribution

Question 14

When should a counter claim be filed?

Answer 14

Where D has suffered loss that is attributable to the claimant.

Court does not allow a counterclaim until a defence is already filed.

Question 15

Does D need permission from the court to file a counterclaim?

Answer 15

If the counterclaim is filed with the defence, no.

Question 16

When defence and counterclaim are filed together, what comes first?

Answer 16

Defence. Then counterclaim.

Question 17

What time frame does a claimant need to dispute the counterclaim within?

Answer 17

• If claimant decides to dispute the counterclaim, they need to file a defence to counterclaim within 14 days (unless an extension of up to 28 days has been agreed with the defendant).

Question 18

If the claimant does not dispute the counterclaim, what happens?

Answer 18

D may enter into a default judgeemnt on the counterclaim.

Question 19

What is CPR 17?

Answer 19

Lists the ways in which the statements of case can be amended.

Question 20

How are statements of case amended before the expiry of the limitation period?

Answer 20

Amendments can be made at any time, after filing, but before service, if they have:

1. Written consent of all parties; or
2. Permission of the court.

Question 21

What are the formalities for applying to ammend statements of case before the expiry of the limitation period?

Answer 21

1. File a copy of statements of case with proposed ammendments with an application notice.
2. Court considers overriding objective of dealing with the case justly and at proportionate cost
3. Court needs to strike a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party and other litigants in general.

Question 22

How to amend the statements of case after the expiry of the limitation period?

Answer 22

Court will only allow it in the 3 following circumstances:

a) To add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;

b) To correct a (genuine) mistake as to the name of a party

c) To alter the capacity in which a party claims.

Question 23

What is CPR Part 18 Rule?

Answer 23

At any time, either the court or the parties may request further information and, if successfull, a party may be ordered to:

a) Clarify any matter that is in dispute; or

b) Give additional information in relation to any matter.

Question 24

What is the procedure for part 18?

Answer 24

1) Serve a written request on the other party giving reasonable time for response

2) Request must be headed with the name of the court, title and number of the claim and identify that it is a Part 18 request

3) Should be set out in separate numbered paragraphs and state date for response

4) should be concise & confined to matters which are reasonably necessary and proportionate to enable the applicant to prepare their own case or understand the case they have to answer.

Question 25

What is the procedure for a response to Part 18?

Answer 25

1) Be in writing, dates & signed by the party or their solicitor.

2) be served on all parties, filed at court, verified by statement of trut,

Question 26

If Part 18 request was not repsonded to what happens?

Answer 26

Party can make an application under Part 18 and the court may grant an order if it is satisfied that the request is confined to matters wihch are resonably necessary and proportionate to enabel the applicant to prepare their case or to understand the case against them.

Question 27

Do all statements of case need to be verified by a statement of truth?

Answer 27

Yes.

Question 28

What is an interim application?

Answer 28

An application that is made after litigation starts but before the trial itself.

Question 29

Do parties need to seek to resolve matters first before making an interim application?

Answer 29

Yes.

Question 30

What needs to be completed to apply for an interim application?

Answer 30

1) Complete an application notice
2) Complete form N244
3) Made to the court

Question 31

What must the interim application contain?

Answer 31

• What order is being sought any why.
• No specific requirement to provide evidence, however, this is usually necessary.
• If there is insufficient space for the witness statement in the box on the second page of form N244, a separate statement can be filed at same time.
• Party may also rely on the contents of a statement of case, like particulars of claim.
• Application must be verified by a statement of truth.

Question 32

Does the interim application require evidence in support / witness statement?

Answer 32

Yes. It should:

1) Include the factual information and the evidence in support of the application; and

2) Anticipate the opponent’s case where appropriate.

Question 33

How does the judge make the decision for an interim application?

Answer 33

On the written evidence mostly.

Question 34

When does an interim application need to be served (with notice)?

Answer 34

Application notice must be served on the opponent at least 3 clear days before the court hearing.

“Clear days” = Date of service and of the hearing, weekend and bank holidays are excluded.

Question 35

When does an interim application need to be served without notice?

Answer 35

As soon as practicable after the order is issued.

Question 36

What are the exceptions to the general rule that interim applications must be made on notice to the other party?

Answer 36

1) Where there is an exceptional urgency; or

2) The overriding objective of the CPR would be best achieved by making an order without notice. (e.g., freezing order)

Question 37

What are the formalities for an interim application to be made without notice?

Answer 37

1) Evidence must be given to explain why notice was not given

2) Applicant has a duty of full and frank dosclosure.

Question 38

What copy of documents need to be served on the defendant once an order for interim application is made without notice?

Answer 38

1) Court order
2) Application notice and
3) Any supporting evidence

Question 39

Once the interim order has been served on the respondant, what is the timeframe for applying to set it asife or vary the order?

Answer 39

Within 7 days of service of the order.

Question 40

What is Part 24 CPR?

Answer 40

Summary Judgement

Question 41

Can both claimant and defendant apply for a summary judgement?

Answer 41

Yes.

Question 42

When will the court give a summary judgement?

Answer 42

1) The claimant has no real prospect of success; or
2) The defendant has no real prospect of successfully defending the claim; AND
3) There is no other compelling reason why the case should be disposed of at trial.

Question 43

Are complex cases in law suitable for summary judgement?

Answer 43

No.

Question 44

What constitute compelling reasons to disallow a summary judgement?

Answer 44

 The need to allow more time for the matter to be investigated, perhaps due to difficulties in contacting an important witness;

 The claim or defence is of a highly complicated and/or technical nature so it can only be properly understood with all the evidence that would be available at a full trial

 The need to hear from witnesses, particularly if one of the central issues (e.g., the terms of a contracts) is disputed oral evidence.

Question 45

Respondent needs to prevent the claimant from proving what to ensure the dismissal for summary judgement?

Answer 45

Either

1) The claimat has no real prospect of succeeding or

2) The defendant has no real prospect of successfully defending the claim. or

3) there is no compelling reason to allow the case to continue

Question 46

When is the only time that the court’s permission is required to make a summary judgement application?

Answer 46

Where the claimant wishes to apply before the defendant has filed an acknowledgemenet of service or a defence.

Question 47

What are the formalities for applying for summary judgeement under court’s permission?

Answer 47

– Form N244 + witness statement

– Respondent must be given at least 14 days’ notice of te hearing date; and

– File and serve any written evidence at least 7 days before the hearing.

– If the applicant wishes to rely on further evidence, this must be filed and served at least 3 days before the hearing.

Question 48

What is a judgement on the claim summary order?

Answer 48

Means that the claimant has succeeded in their application for summary judgement and the matter will proceed to enforcement.

Question 49

What is a striking out or dismissal of the claim?

Answer 49

means the defendant has succeeded in their application to dispose of the claimant’s claim and the case comes to an end.

Question 50

What is a dismissal of application?

Answer 50

Applicant has failed to bring the case to an early conclusion and it will now proceed towards trial.

Question 51

What is a conditional order?

Answer 51

the application has not been granted, but equally, the respondent has not succeeded in having it dismissed – neither side has won.

Question 52

What is the effect of a conditional order?

Answer 52

 Conditional offer will be made where the court concludes it possible, but not probable, that the claim or defence may succeed.

 Party will be allowed to continue with the litigation provided they pay a sum of money into court or take a specified step in relation to their claim.

Question 53

If the claimant succeeds in obtaining a summary judgement for a specified sum ..

Answer 53

the court may award fixed costs under Part 45. It is open to claimant to request a higher figure as their costs usually exceed these, and to ask for summary assessment of the costs.

Question 54

If a claimant succeeds in obtaining summary judgement for unspecified sum…

Answer 54

General rule applied – the winner (claimant) is granted their costs. A disposal hearing is listed to assess damages paybale.

Question 55

If the defendant obtains summary judgemeent and entire claim is struck out…

Answer 55

Court orders claimant to pay D’s costs of the whole claim subject to summary assessment.

Question 56

If application for summary judgement is dismissed, how does this effect costs?

Answer 56

– Proceedings continue
– Unsuccessful applicant pays the costs of the summary judgement hearing

Question 57

If a conditional order is made what is the usual costs order?

Answer 57

Costs in the case

Question 58

Can either party apply for an interim injunction?

Answer 58

Yes.

Question 59

What must the court be satisfied with to grant an interim injunction?

Answer 59

The matter is urgent or desirable in the interests of justice.

Question 60

When can a party seek an injuncition?

Answer 60

• Party can seek an injunction at any time after proceedings have been commenced and even beforehand (in exceptional cases).

Question 61

What will the court consider when deciding whether or not to grant an interim injunction?

Answer 61

(a) There is a serious question to be tried;

(b) Damages are an adequate remedy for either side (if not, then likely to grant injunction).
(c) The balance of convenience lies in favour of granting or refusing the injunction; and
(d) Whether there are any special factors.

Question 62

What is the “cross-undertaking’?

Answer 62

• If an interim injunction is granted, the applicant must undertake to the court to pay any damages that the respondent sustains by reason of the injunction, if it subsequently transpires that the injunction ought not to have been granted.

Question 63

How is an order obtained with notice for an interim injunction?

Answer 63

• Must apply with an application notice with evidence in support (usually witness statement)
• They last until the trial of the claimant’s action unless they are set aside earlier by the court.

Question 64

What is the rule for obtaining an interim injunction without notice?

Answer 64

Part 25 – The court may grant an interim injunction without notice if there are good reasons for doing so.

Question 65

What constitute “good reasons”?

Answer 65

= insufficient time or that giving notice would enable the defendant to harm the claimant in some way, e.g., destroying evidence which could support the claimant’s case.

Question 66

What are the 2 ways an interim injunction without notice are enforced?

Answer 66

(a) The court may fix a date for a further hearing with all parties present, in which case, it lasts until the date specified for that hearing. If D successfully argues that the injunction should not be granted it will be set aside.

(b) Alternatively, rather than fixing a hearing date, an injunction without notice may simply tell the defendant that they can, if they wish, apply on notice for the order to be varied or set aside. Meanwhile, the injunction remains in force until trial or further order.

Question 67

Name 2 examples of injunctions which can be made without notice

Answer 67

1) Freezing injunctions – disallow a party from moving assets outside the UK

2) Search orders – compels respondent to allow their premises to be searched by the applicant

Question 68

What does the court need to be satisfied about to grant a freezing injunction?

Answer 68

1) The applicant has a good arguable claim

2) There is a real risk that the respondent will dispose of their assets

Question 69

What does the court need to be satisfied about with a search order?

Answer 69

1) Applicant has a strong case

2) They will suffer serious harm if the order is not made

3) Respondent has incriminating materials in their possession which cannot be obtained by other means.

Question 70

What needs to accompany an application for a freezing or search order?

Answer 70

Supported by evidence in the form of an affidavit.

Question 71

What is a Part 25 Interim Payment?

Answer 71

Advance payment on account of any damages, debt, or other sum (excluding costs) that a defendant may be held liable to pay.

Question 72

Should the claimant make an interim payment application straight to the court or try to negotiate first?

Answer 72

Try to obtain a voluntary interim payment before applying to the court.

Question 73

When can a claimant seek interim payment?

Answer 73

After the time for acknowledging service has expired. (28 days from deemed service).

Question 74

What is the procedure for applying for interim payment?

Answer 74

– Application served at least 14 days before the hearing date

– Evidence must set out the amount requested & why, the amount of money likely to be awarded at final judgement; and

– Reasons for believing that the grounds required by CPR are satisfied.

Question 75

If a respondent to an interim payment wishes to rely on evidence to counter it, when must this be served?

Answer 75

At least 7 days before the hearing.

Question 76

When can the applicant then respond to this further evidence?

Answer 76

3 days before the hearing.

Question 77

What are the CPR Part 25 grounds that must be satisfied before the court will make an interim payment?

Answer 77

1) Defendant has admitted liability; or

2) The claimant has obtained a judgement against defendant for damages to be assessed or for a sum of money; or

3) The court is satisfied that, if the case went to trial, the claimant would obtain judgement for a substantial amount of money.

Buden for 3) ig high – Claimant must prove on the balance of probabilities that they will succeed.

Question 78

Where there is entitlement to an interim payment, what does the court have discretion as to?

Answer 78

a) Whether an order for an interim payment should be made

b) What the amount of interim payment should be

Question 79

If the applicant succeed how much should the amount of the interim payment be?

Answer 79

the court cannot order a sum of more than a reasonable proportion of the likely amount of the final judgement and must take into account contributory negligence and any counterclaim.

Question 80

Can the court order an interim payment in one sum or instalments as it sees fit?

Answer 80

Yes.

Question 81

What effect does the interim payment have on the trial?

Answer 81

• Trial judge will not be told about any interim payment order/voluntary payment until after they have determined all issues of liability and quantum unless the defendant consents.

Question 82

What should the particulars of claim contain for an oral contract?

Answer 82

– Contractual words used
– Who said the contractual words to whom
– When they were spoken

Question 83

What should the particulars of claim contain where there is a clim based on breach of contract (written)?

Answer 83

– Contract should be attached to or served with the particulars of claim.

Question 84

For breach of contract claim how is interest stated in the particulars of claim?

Answer 84

Can be either:

• Contractual – cannot apply where there is no contract – this arises where a specific contract term imposes interest on outstanding sums due under the contract); or
• Statute – (s 35A Senior Courts Act 1981) if in the high court or s 69 County Courts Act 1984 if in the County Court.

Interest for unspecified claims – Interest at the rate and for a period that the court sees fit under relevant act.

Interest for any specified part – Form should state total interest (i.e., sum on which interest is claimed, at which percentage rate and between which dates) under the relevant satute.