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Dispute Resolution > Unit 4 > Flashcards

Unit 4 Flashcards

1
Q

What is the overriding principle of case management?

A

To promote justice in a way which makes best use of the court’s resources and to ensure cases are pushed through efficiently and effectively

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2
Q

Must the court give effect to the overriding objective when making procedural decisions?

A

Yes.

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3
Q

Are the parties expected to help the court further the overriding objective?

A

Yes.

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4
Q

Must the courts actively manage the cases?

A

Yes.

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5
Q

What are the 3 tracks?

A

1) Small claims track

2) Fast track

3) Multi track

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6
Q

What is the purpose of the directions questionnaire?

A

Used to confirm the track and to determine directions for case management.

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7
Q

What form is the directions questionnaire sent on?

A

N181

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8
Q

If the parties are unable to agree to the directions questionnaire, what should they do?

A

Submit their own ones.

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9
Q

What is the result of failing to file a directions questionnaire?

A

County Court – Court will serve a notice on the defaulting party requiring compliance within 7 days. Failure to do this results in the party’s statement of case being automatically struck out.

– Other courts = Can make an order as they see fit.

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10
Q

What are the key factors in deciding which track to place the case on?

A

1) Financial value

2) Part 36 factors – remedy sought, complexity of facts & law, value of counterclaim & amount of oral evidence and circumstances of parties.

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11
Q

Small claims track

A

– Financial value of £10,000 or less.

– Non-complex cases, consumer disputes, ownership of goods disputes, landlord & tenant disputes.

– Low value personal injury disputes

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12
Q

Do disclosure requirements, experts and evidence apply to small claims track?

A

No

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13
Q

Are parties required to bring original documents to a small claims track hearing?

A

Yes.

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14
Q

Fast Track

A

– Claim must be between £10,000. 01 and £25,000.

– Only cases where the trial is expected to last no longer than 1 day (5 hours)

– Cases which require only 1 joint expert.

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15
Q

Procedure for fast track

A

Court fixes a date and place of trial.

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16
Q

Are the parties allowed to alter the trial date or the date for returning the pre-trial checklists (fast track)?

A

No.

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17
Q

Multi Track

A

– Cases which have a value of more than £25,000.

– Complex cases in fact and law.

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18
Q

For complex matters under the multi track, what will the court fix to determine the appropriate directions?

A

Case Maagement Conference (CMC)

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19
Q

What occurs in the CMC?

A

(a) Review steps the parties have already taken to prepare the case;

(b) Check their compliance with any directions; and

(c) Consider and give directions about future steps to ensure the claim proceeds in accordance with the overriding objective.

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20
Q

How long will the court give notice for any proposed CMC?

A

– 3 days notice

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21
Q

Is a CMC mandatory?

A

No. Only used if it would be useful.

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22
Q

Where a party has a legal representative, who must attend the CMC?

A
  • Where a party has a legal representative, an individual who is familiar with the case must attend the CMC.
  • This individual needs to be personally involved in the matter and has authority and information to deal with matters reasonably expected to arise (like fixing the timetable, identification of issues and matters of evidence).
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23
Q

What is a wasted costs order?

A
  • Where the individual proves inadequate, and the CMC needs to be adjourned, the court can order that the other party’s costs incurred in prepping for & attending the hearing are paid either by the solicitor personally or their firm
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24
Q

State 4 things which the parties under a multi track case require permission from the court to change:

A

(a) Any case management conference (CMC)
(b) A pre-trial review
(c) The return of a pre-trial checklist; or
(d) The trial or the trial period.

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25
Q

What form are costs budgets prepared in?

A

Form Precedent H.

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26
Q

Can costs which are incurred before the budget be approved by the court?

A

No. For costs incurred before the costs budget is submitted, the court can only comment on them and take them into account when considering reasonableness and proportionality of the party’s costs.

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27
Q

What formalities should be complied with for a costs budget?

A

1) Dated
2)) Verified by statement of truth
3) Signed by senior legal representative

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28
Q

What does a costs budget include?

A

1) Incurred costs

2) Future costs

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29
Q

What are the formalities for filing a costs budget?

A

1) filed with the directions questionnaire for claims of less than £50,000 and;

2) No later than 21 days before the first CMC for all other claims.

3) File a budget discussion report (Precedent R) at least 7 days before the first CMC (itemising the aspect of the budget which are agreed and those disputed).

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30
Q

When can a costs budget be ammended?

A

Where there has been a significant development – E.g., something which is unforeseen which increases the costs / work/

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31
Q

How to request an amendment of the costs budget?

A

1) Submit a budget variation summary sheet to the other side for agreement

2) Court decides whether to approve or disapprove the revision

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32
Q

Once a costs budget amendment has been approved, what needs to happen?

A

 Revised budget must be promptly submitted to all parties using precedent Form T1.

 A new precedent must be completed, setting out particulars of the proposed revision.

 Where the other parties do not agree with the revision, it must be submitted to the court.

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33
Q

What is the effect of a failure to file a costs budget on time?

A

Automatic sanction:

 If a party files their costs budget late or not at all, the party will be treated as having filed a costs budget consisting only of the court fees.

 Therefore, this party will be unable to recover any of its future legal costs, apart from court fees, from the other party.

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34
Q

What does the court do in a CMO? Costs management order

A

1) Record agreed costs
2) Record court’s approval of revisions to costs.

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35
Q

What is the effect of a CMO?

A

Court controls the parties’ budgets in terms of recoverable costs.

Parties become tied to this even if the litigation becomes more expensive.

36
Q

Can a CMO revise inucrred costs prior to the submission of the costs budget?

A

No.

37
Q

What is the effect of no CMO?

A

 Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference.

 Court then decides whether the additional amounts can be recovered.

38
Q

What is a Part 23 application?

A

A party in default uses this to apply for relief of a court sanction.

39
Q

What test do the courts use to decide whether or not to grant relief?

A

Test R3.9(1):

In deciding whether to grant relief, the court will consider:

  • all circumstances of the case,
  • the overriding objective,
  • enabling it to deal justly with the application, including the need:

(a) For litigation to be conducted efficiently and at a proportionate cost; and

(b) To enforce compliance with rules, practice directions and orders.

40
Q

Are courts entitled to refuse to grant relief?

A

Yes.

41
Q

What is another term for standard disclosure’?

A

CPR 31. 6

42
Q

For the purposes of CPR 31, is it relevant if the document is admissible or whether a party wishes to rely on the document itself at trial?

A

No.

43
Q

What counts as a document for Part 31?

A

Anything in which information of any description is recorded (i.e., can include a photo)

44
Q

What disclosure is required for small claims?

A
  • Each party will (at least 14 days before the date of the final hearing), file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at the hearing.
45
Q

What disclosure is required for fast track claims?

A

Order for standard disclosure.

46
Q

What disclosure is required for multitrack?

A
  • Standard disclosure typically ordered; however, court may tailor the order to the requirements of the particular case as requires.
  • Parties have a ‘menu’ to choose from regarding disclosure. Judge have total discretion and can make orders covering the entire spectrum.
47
Q

What does Part 31.6 require a party to dicslose (Part 31.6 = standard disclosure)

A

(a) The documents on which they rely; and

(b) The document which:

  • Adversely affect their own case;
  • Adversely affect another party’s case; or
  • Support another party’s case.
  • Parties should concentrate their efforts in searching for documents which relate to the disputed factors in the case.
48
Q

What is the duty to disclose limited to?

A

Duty to disclose is limited to documents in the party’s control (CPR 31.8).

Documents that:

(a) Either are or were in their physical possession;

(b) They have a right to possess (including those held by third parties); or

(c) They have a right to inspect.

49
Q

Are all parties to the proceedings subject to a duty to search for documents?

A

Yes

50
Q

What scope of search are the parties required to do?

A

A party is required to make a reasonable and proportionate search for all documents that:

  1. Adversely affect their own case;
  2. Adversely affect another party’s case; or
  3. Support another party’s case.
51
Q

Can the court approve of limitations to the search?

A

Yes where they are satisfied that they would not affect a proper investigation into the merits of the case.

52
Q

Can a party apply for further disclosure after the disclosure limits have applied?

A

Yes, however, it is in accordance with the overriding objective to propose objections to limitations earlier in the proceedings.

53
Q

Can disclosure require electronic documents stored on backup systems even where theyve been deleted?

A

Yes.

54
Q

What form needs to be completed for disclosure?

A

Form N265 – Lists all disclosure documents.

55
Q

What should be at the top right hand corner of Form N265?

A
  • The court,
    the claim number and
  • the parties.
56
Q

What is included in the disclosure statement?

A

– Party must sign to confirm the extent of the search made to locate any documents.

– Must certify that they understand their duty of disclosure and that this duty has been carried out to the best of their knowledge.

57
Q

Can a legal representative sign the disclosure statement on behalf of their client?

A

No.

58
Q

Is the duty to disclose a continuing duty? If so, until when?

A

Yes. Duty lasts until proceedings are concluded – supplemental lists must be served when new documents come to light.

59
Q

When a new document comes to light after disclosure has formally happened, and the opponent does not agree for the party to rely on it, what is required?

A

Court’s permission to rely on new document.

60
Q

Who should sign the disclosure statement (whether the party is an individual/company/partnership)?

A

An individual who was responsible for overseeing the dicsloure process.

61
Q

What details of the signatory of the disclosure statement are required?

A
  1. Name
  2. Address
  3. Office / position they hold or the basis upo wihch they have made the statement on behalf of the party.
62
Q

What happens if a false disclosure statement is made without an honest belief in its truth?

A

Contempt of court.

63
Q

What 3 parts does the disclosure list consist of?

A

Part 1 = includes documents which are within the party’s control and which they do not object to the other party inspecting.

Part 2 = includes documents which are in the party’s control but where there is an objection to inspection, usually because they’re privileged.

Part 3 = includes documents which are not privileged from inspection but are no longer in the party’s control.

64
Q

What is the effect of not disclosing a document?

A

Party who fails to disclose a document may not rely on it at trial, unless the court permits.

If a non-disclosed document is harmful to their claim or defence, their case could be struck out.

65
Q

When a document is subject to privilge is it disclosed?

A

Yes, however:

(a) The other parties cannot inspect them; and
(b) They are described generically.

Would be listed in Part 2.

66
Q

What is legal advice privilege?

A

Covers the confidential communications between a lawyer and their client for the sole or dominant purpose of giving or receiving legal advice.

All documents within the “continuum of communication” are protected.

67
Q

Does legal advice privilege apply to legal advice given by non-lawyers?

A

No.

68
Q

What is litigation privilege?

A

Applies to confidential communications between a lawyer and client or between one of them and a third party, where the dominant purpose is to obtain legal advice, evidence or information for use in litigation, which was at the time existing, pending or reasonably in prospect.

69
Q

What are the two key elements of litigation privilege?

A

a) “Dominant Purpose” – where there are several reasons for creating a document, the dominant purpose must have been the litigation. The dominant purpose is that of the commissioner of the document, not its author.

b) “Litigation reasonably in prospect” – only where the party is aware of the circumstances rendering litigation to a real likelihood rather than a mere possibility. Privilege does not apply to communications regarding possible settlement rather than advice on prospective litigation.

70
Q

Can a lawyer waive privilige?

A

No. Privilege is the right of the client.

71
Q

How can a client waive privleege?

A

By handing the document to the other side.

72
Q

What is the case where priveleged documents are disclosed accidentally?

A
  • Where privileged documents are accidentally sent to the other side by mistake, they should send the documents back and not read them.
  • SRA Code 6.4(d) = general duty to make a client aware of all relevant information does not apply if that information is contained in a privileged document mistakenly disclosed.
73
Q

What is a without prejudice document?

A

Correspondence whose purpose is a bona fide attempt to settle a dispute.

74
Q

If it is called a “without prejudice” document on the face of it, is this conclusive that it is without prejudice?

A

No.

75
Q

Will the judge see a without prejudice document?

A

No.

76
Q

What are the parties rights of inspection?

A
  • Opposing party is entitled to inspect documents contained in Part 1.
  • They cannot inspect documents in Part 2 as they’re covered by legal professional privilege.
  • They cannot inspect documents in Part 3 as they’re no longer in the party’s control.
77
Q

What are the formalities for a request to inspect?

A

 Must be made in writing and granted within 7 days (longer period can be agreed between the parties).

 Parties can ask for copies of the documents if they agree to pay reasonable copying costs.

78
Q

Where a party is dissatisfied with their opponent’s disclosure efforts, they should first..

A

Write to the other side requesting the documents.

79
Q

If this is unsuccessful, what should they do then?

A

File an application notice under Form N244.

80
Q

What are the formalities for Form N244?

A
  1. Filed at courrt
  2. With a witness statement
  3. Served on the opponent
81
Q

When a party makes an application for specific disclosure what is required?

A

A witness statement explaining why they believe the document exists and why their application is important.

82
Q

Where a party has hid documents under privilege (part 2), what application should be made to the court?

A

Part 31.19 disputing privelege.

83
Q

When is pre-action disclosure used (Part 31.16)?

A

Procedure used where a party is unsure as to the strength of their case, so they can make an informed decision as to whether to issue proceedings against the intended defendant.

84
Q

For pre-action disclosure, what must the court be satisfied that:

A
  • Both the applicant and the respondent are likely to be a party to subsequent proceedings;
  • The documents sought would come within standard disclosure; and
  • Disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute being resolved without proceedings or save costs.
85
Q

When will non-party disclosure be awarded? (Part 31.17)?

A

Disclosure will only be ordered if:

  1. The documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
  2. Disclosure is necessary to dispose fairly of the case or to save costs.

Dispute Resolution (8 decks)

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