Untitled Deck Flashcards
What is dispute resolution?
The principles, procedures, and processes involved in resolving disputes.
What are the different options for dispute resolution?
Arbitration, mediation, and litigation.
What are the key characteristics of arbitration?
Arbitration is flexible, voluntary, and confidential, with a binding decision made by a specialist tribunal.
How does time factor into arbitration?
Arbitration can be quick, but this depends on the complexity of the dispute and the attitudes of the parties.
What is the risk associated with arbitration?
Risk is high because the judgement is binding and there are very limited ways to appeal.
What are the cost implications of arbitration?
Arbitration can be cheap, but this depends on the complexity of the dispute and the attitudes of the parties.
What is the relationship between arbitration and other ADR processes?
Litigation cannot be commenced once the parties have agreed to arbitrate.
What are the key characteristics of mediation?
Mediation is flexible, voluntary, and confidential, with a neutral third party assisting parties to negotiate a settlement.
How quickly can mediation be arranged?
Mediation can be arranged quickly, and rarely takes more than a few days to complete.
What is the risk associated with mediation?
Risk is very low because the parties can withdraw at any time and the outcome is non-binding.
What are the cost implications of mediation?
Mediation is relatively cheap and narrows the issues in dispute even if it does not result in settlement.
What is the relationship between mediation and other ADR processes?
Mediation can take place at any stage from before issuing court/arbitration proceedings through to appeal.
What are the key characteristics of litigation?
Litigation is a formal, potentially mandatory, and public process in which a judge makes a binding decision.
How long does litigation typically take?
Litigation is a lengthy process which can take years.
What is the risk associated with litigation?
Risk is high because the judgement is binding and public, with limited ways to appeal.
What are the cost implications of litigation?
Litigation is very expensive.
What is the relationship between litigation and other ADR processes?
The court can impose sanctions if the parties fail to act reasonably in considering and engaging in ADR.
What is the limitation period for contract claims?
The limitation period commences on the date of the breach of contract and lasts for 6 years.
What is the limitation period for tort claims?
The limitation period commences on the date of the damage and lasts for 6 years.
What is the limitation period for personal injury claims?
The limitation period commences on the date of the damage and lasts for 3 years.
When does the limitation period commence if a cause of action is discovered later?
In cases concerning personal injury, fraud, concealment, or mistake, the limitation period may not commence until the claimant discovers the relevant facts.
When is a claim brought for limitation purposes?
A claim is brought for limitation purposes when the claim form is served on the court.
What happens if a claim is not brought within the relevant limitation period?
A defendant will have a complete defence to a claim that is not brought within the relevant limitation period on the basis that it is time barred.
What is the purpose of the Practice Direction on Pre-Action Conduct?
The pre-action PD ensures that parties exchange information about the potential claim and seek to narrow issues before issuing proceedings.
What should a letter of claim include?
The letter should inform the defendant of the basis of the claim, a summary of the facts, what the claimant wants, and how any money is calculated.
What is the defendant’s response time to a letter of claim?
The defendant should respond within a reasonable time (14 days to 3 months, depending on complexity).
What is pre-action disclosure?
The parties should disclose key documents relevant to the issues in dispute.
What should parties consider before commencing proceedings?
The parties should consider the possibility of making a settlement.
What are the consequences of non-compliance with the pre-action PD?
The courts can take non-compliance into account when making case management directions and orders as to costs.
What should parties do if proceedings must be started to comply with a statutory time limit?
They should apply to the court for a stay of proceedings while complying with the pre-action PD.
When is non-compliance with the pre-action PD justified?
Non-compliance may be justified where proceedings are urgent or telling the other party in advance would defeat the purpose of the application.
What does the Rome I Regulation govern?
Rome I governs applicable law in contractual disputes where the parties have not agreed which country’s laws should apply.
What law applies to contracts for the sale of goods?
The seller’s habitual residence.
What law applies to contracts for the provision of services?
The service provider’s habitual residence.
What law applies to contracts relating to land?
The law of the country where the land is situated.
What law applies to distribution contracts?
The distributor’s habitual residence.
What law applies if a contract does not fall into the specified categories?
The law of the country where the party required to effect characteristic performance has its habitual residence.
When can a different country’s laws be applied?
If the contract is manifestly more closely connected with that other country.
What does the Rome II Regulation govern?
Rome II governs applicable law in tortious disputes where the parties have not validly chosen which country’s laws should apply.
What law applies when the parties reside in the same country?
The applicable law is that of the country in which they reside.
What law applies when the parties do not reside in the same country?
The applicable law is that of the country in which the damage occurs.
When can a different country’s laws be applied in tortious claims?
If the cause of action is manifestly more closely connected with that other country.
What is the Hague Convention on Choice of Court?
Commercial parties can choose a particular country’s courts to hear their disputes, regardless of where the dispute takes place.
Under what conditions will the courts of England and Wales have jurisdiction?
If it is possible to serve the proceedings on the defendant in the jurisdiction or the court gives permission to serve outside the jurisdiction.
What is the importance of choosing the right court?
It avoids the costs consequences and delay of a subsequent transfer to a different court.
Where must claims for £100,000 or less be commenced?
In the County Court.
Where can claims for more than £100,000 be commenced?
In either the County Court or the High Court.
When should claims be started in the High Court?
If they are of public importance, high financial value, or factual/legal complexity.
What does the Chancery Division of the High Court typically deal with?
Claims involving equity and trusts, business disputes, and land.
What does the King’s Bench Division of the High Court typically deal with?
Claims involving breach of contract, negligence, tort, personal injury, and applications for judicial review.
How does a claimant start proceedings?
By issuing a claim form (Form N1) at court.
What must accompany a claim form?
Particulars of claim (POCs) and response pack (Form N9).
What is the court issue fee?
The court fee payable on issuing proceedings is prescribed in Schedule 1 of the Civil Proceedings Fees Order.
Can parties be added, removed, or substituted before service of the claim form?
Yes, at any time before service of the claim form without court permission.
What is the deadline for serving a claim form within the jurisdiction?
The claimant must serve it within 4 months if served in England & Wales.
Can the deadline for serving a claim form be extended?
Yes, if the claimant applies before the deadline and evidences a good reason.
What are the methods of service for a claim form?
First class post, leaving at a permitted address, personal service, and electronic methods.
What is the deemed date of service for a claim form served within the jurisdiction?
It is deemed served on the second day after completion of the relevant step.
What is the deadline for serving a claim form outside the jurisdiction?
The claim form must be served within 6 months of issue.
When is permission required to serve a claim form outside the jurisdiction?
When the claimant must establish grounds in PD 6B 3.1 and that the claim has reasonable prospects of success.
When is permission not required to serve a claim form outside the jurisdiction?
If serving in Northern Ireland or Scotland, or if a contract states that the courts of England and Wales have jurisdiction.
What are the grounds for service outside the jurisdiction?
The claim is made against a person domiciled within the jurisdiction, in respect of a contract made within the jurisdiction, or in respect of tortious damage sustained within the jurisdiction.
What is an admission in the context of responding to a claim?
An admission is an unequivocal acknowledgement of the truth of an allegation.
What is the deadline for filing an admission?
Within 14 days of deemed service of the particulars of claim.
What happens if a defendant admits part of a claim?
The claimant may file a request for judgement following receipt of the admission.
What is the judgement on admissions in money claims?
Judgement will be for the value of the admission, plus costs.
What is the deadline for filing a defence and/or counterclaim?
Within 14 days of deemed service of the particulars of claim.
What is the effect of acknowledging service?
It extends the deadline for the defence to within 28 days of deemed service of particulars of claim.
What is a defence of set-off?
Where a defendant contends they are entitled to money from the claimant, which may be included in the defence.
What is an additional claim?
‘Additional claim’ means any claim other than the claim by the claimant against the defendant.
What is a counterclaim?
A counterclaim is a claim brought by a defendant in response to the claimant’s claim, included in the same proceedings.
What is a counterclaim?
A counterclaim is a claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim.
Is a counterclaim independent of the main claim?
Yes, a counterclaim is independent of the main claim. It may relate to the same issue, or be wholly separate.
How should a counterclaim be made?
A counterclaim made at the same time as the defence should form a single document with the defence and must be based on a viable cause of action.
What is the time frame for filing a defence to a counterclaim?
A defence to the counterclaim should be filed within 14 days of deemed service of the counterclaim.
What is the difference between a contribution and an indemnity?
Contributions relate to part of the amount, while indemnities relate to the full amount.
What must be filed to claim a contribution or indemnity?
A contribution notice must be filed with the court and served on the other party alongside the defence, or later with the court’s permission.
How can a party challenge the court’s jurisdiction?
A party wishing to challenge the court’s jurisdiction must apply (with evidence) to the court within 14 days of filing an acknowledgement of service.
What is a consent order?
Settlement of a matter between parties is normally recorded in a consent order indicating that there is no need to hear arguments from both sides.
What is a Tomlin Order?
A Tomlin Order can be used to keep terms of the settlement confidential.
What is required for statements of case?
Each statement of case must be verified by a statement of truth.
What happens if a document is not verified?
Failure to verify a document can mean that the party will be unable to rely on it as evidence or that the statement of case is struck out.
What can happen for false statements of truth?
Proceedings for contempt of court can be brought against anyone who makes, or causes to be made, a false document verified by a statement of truth.
What is the purpose of a Claim Form (CF)?
The claimant starts proceedings by issuing a CF at court.
What must the CF include in its heading?
The CF must be headed with the title of the proceedings, including the full name of each party.
What should the CF state regarding the remedy sought?
The CF must state what remedy the claimant wants from the defendant, and if money, a statement of value and interest incurred on a specified sum.
What do Particulars of Claim (POCs) set out?
The POCs set out the full details of the claimant’s claim, including the alleged facts on which the claim is based.
What should POCs include regarding the parties?
The relevant details of, and background to, the parties should be stated.
What must POCs concisely state?
The POCs must set out concisely, and in a logical order, duty, breach, causation, loss.
What should be stated under ‘PARTICULARS OF LOSS AND DAMAGE’?
State the loss suffered because of the breaches and calculate total loss.
What is the purpose of the defence?
The defence is the defendant’s formal response to the POCs.
What must the defendant do in response to allegations?
The defendant should respond to each allegation, stating whether they admit it, deny it, or require the claimant to prove it.
What happens if a defendant fails to deal with an allegation?
A defendant who fails to deal with an allegation shall normally be taken to admit that allegation.
What is the purpose of a counterclaim?
A counterclaim allows the defendant to pursue a claim against the defendant in the same claim as the main claim.
What must a defence to counterclaim follow?
A defence to counterclaim should follow the rules for a standard defence.
What is required for a contribution notice?
There is no set format for the contribution notice, but an example format is provided on the Court Service website.
What should a party do before involving the court for further information?
A party should request the information from the other party before involving the court.
What is the general rule regarding the costs of amendments?
A party applying for an amendment will usually be responsible for the costs of and arising from the amendment.
Can statements of case be amended before service?
All statements of case can be amended in any way at any time before they are served.
What is required for amendments after service?
A statement of case can be amended at any time with the written consent of all other parties.
What happens if consent for an amendment is not given?
The party seeking the amendment will need to apply for court permission.
What is the purpose of an interim application?
An interim application is made when a party seeks an order or directions before the substantive hearing of the claim.
What must be done before considering an interim application?
Explore whether it is possible to achieve the same outcome by agreement with the other party.
What is required for an interim application without notice?
An interim application may be made without serving notice only where there is exceptional urgency.
What is the procedure for making an interim application?
The procedure set out in CPR 23 will apply, subject to specific requirements for certain applications.
What are the grounds for interim injunctions?
A claimant or defendant can apply for an interim injunction if there is a pre-existing course of action, damages would be inadequate, and it would lessen the risk of injustice.
When can a claimant apply for an interim payment?
A claimant can apply for an interim payment if the defendant has admitted liability to pay damages.
What must the evidence for an interim payment state?
The evidence must state the sum of money for which final judgement is likely to be given and the sum sought by way of interim payment.
What are the grounds for obtaining default judgement?
A claimant can apply for default judgement if the defendant fails to file a defence and/or acknowledgement of service within the time limit.
What must a request for default judgement in money claims include?
A request for default judgement is made by completing a specified form and is dealt with on paper.
What can a defendant do regarding default judgement?
A defendant can apply to have default judgement set aside.
What is the Denton test related to?
Cases where the court may set aside default judgement are treated as applications for relief from sanctions.
What is required for obtaining summary judgement?
A claimant or defendant can apply for summary judgement if the other party has no real prospect of succeeding on the claim.
What must the application for summary judgement state?
The application must state that it is an application for summary judgement under Part 24.
What can the court do regarding summary judgement?
The court may dismiss the application, dismiss the claim, or give judgement on the claim.
What must be served on the other party before the hearing?
The application notice, supporting evidence, and draft order must be served at least 14 days before the hearing.
What is the deadline for the respondent to file and serve further evidence?
The respondent must file and serve any further evidence on the applicant at least 7 days before the hearing.
What is the deadline for the applicant to file and serve further evidence?
The applicant must file and serve any further evidence on the respondent at least 3 days before the hearing.
What potential orders can the court make regarding applications?
The court may dismiss the application, dismiss the claim, or give judgment on the claim.
What grounds allow a claimant or defendant to apply for strike out?
A statement of case can be struck out if it discloses no reasonable grounds for bringing/defending the claim, is likely to obstruct the just disposal of the proceedings, or there has been a failure to comply with a rule, PD, or court order.
What is the nature of an application for strike out?
An application for strike out is a standard interim application and can be made instead of, or in addition to, an application for summary judgment.
What might happen if a whole statement of case is struck out?
The court might give judgment for a party, but the power of strike out is used sparingly and is viewed as a last resort.
What are the grounds for a claimant to discontinue their claim?
A claimant may choose to end all or part of their claim at any time without needing to satisfy any grounds.
What must a claimant do to obtain discontinuance?
The claimant must file and serve notice of discontinuance. Court permission is not required unless the claimant has already received some remedy.
What is the general rule regarding costs for a discontinuing claimant?
A discontinuing claimant is generally liable for the defendant’s costs on the standard basis.
What is the overriding objective (OR) of the court?
The court’s duty is to further the OR of dealing with cases justly and at proportionate cost.
What is the purpose of track allocation?
Cases are allocated to the court most proportionate to their value and complexity.
What is the small claims track suitable for?
The small claims track is generally suitable for claims worth less than £10,000.
What are the criteria for the fast track?
The fast track is suitable for claims worth less than £25,000, where the trial is not likely to last longer than one day and there will only be expert evidence from one expert per party in no more than two fields.
What is the multi-track used for?
The multi-track is used when the other tracks are unsuitable.
What does a court officer do regarding notice of proposed allocation?
A court officer will provisionally allocate the claim and serve notice of proposed allocation requiring the parties to file DQs and proposed directions.
What can the court decide regarding allocation after receiving DQs?
The court can decide that there is a good reason not to allocate a claim to the ‘normal track’.
What is the aim of case management in the fast track?
The fast track aims to bring claims to trial within 30 weeks of allocation.
What is the purpose of a case management conference (CMC)?
The purpose of a CMC is to identify and narrow the key issues in dispute.
What must each party serve before the first CMC?
Each party must serve a disclosure report describing relevant documents and estimating the costs involved in making standard disclosure.
What must parties attempt before the first CMC?
The parties must attempt to agree case management directions before the first CMC.
What can the court do at a CMC?
The court can exercise its broad case management powers to make directions on how the case should be conducted going forward.
What is the relationship between CMCs and CCMCs?
Where costs management applies, this will be dealt with at the CMC and the hearing will be referred to as a CCMC.
What is the purpose of cost management?
Cost management is a tool to promote effective case management at a proportionate cost.
When does the cost management regime apply?
The cost management regime applies to all multi-track cases, except those worth £10 million or more, subject to fixed costs, or made by someone under 18.
What must each party file and exchange for a CCMC?
Each party must file and exchange budgets setting out estimated costs for each stage in the proceedings.
What happens if a party fails to file Precedent H?
Any party that fails to file Precedent H will be treated as having filed a budget comprising only the applicable court fee.
What can the court do regarding costs management orders (CMOs)?
The court may make a CMO recording or fixing a costs figure for each party for each phase of the proceedings.
What can the court impose for non-compliance with orders?
The court can impose sanctions for a party’s failure to comply with a rule, PD, or court order.
What is the Denton test for relief from sanctions?
Applications for relief from sanctions should identify the seriousness of the failure, consider why the default occurred, and evaluate all circumstances to ensure just treatment.
What is the purpose of exchanging evidence?
Exchanging evidence allows for better preparation for and management of the trial, and gives parties the opportunity to explore settlement.
What is the general rule on admissibility of evidence?
If evidence is relevant, it will be admissible unless it falls within an exclusionary rule of law or is excluded by the court.
What does hearsay mean?
Hearsay means a written or oral statement made otherwise than by a witness giving oral evidence in the proceedings.
What must a party do if it intends to rely on hearsay evidence at trial?
A party must give notice stating the reasons why the witness will not be called at trial.
What is the general rule regarding opinion evidence?
The general rule is that opinion evidence is inadmissible, as the function of a witness is to give evidence of facts.
When is expert evidence admissible?
An opinion given by a suitably qualified expert witness on any relevant matter is admissible, but the court must give permission to adduce it at trial.
What is the duty of experts in court?
Experts must help the court on matters within their expertise, overriding any duty to the party instructing them.
What must witness statements include?
Witness statements must include an endorsement, opening paragraphs with witness details, and a statement of truth.
What is required for an affidavit?
An affidavit must be sworn before a person authorized to administer affidavits and serves the same purpose as a witness statement.
What does disclosure mean in civil proceedings?
Disclosure means formally stating that documents or classes of documents exist or have existed, based on a court order.
What is the scope of standard disclosure?
Each party must disclose documents which are or have been in their control and which they rely on, adversely affect their own case, support another party’s case, or are required by a PD.
What is required in a disclosure list?
Each party must draw up a three-part list of documents within its control, inspection permitted, within its control, inspection not permitted, and those no longer within its control.
What happens if a false disclosure statement is made?
Proceedings for contempt of court may be brought for making a disclosure statement without honest belief.
What are the types of documents regarding inspection control?
- Within its control, inspection permitted; 2. Within its control, inspection not permitted; 3. That are no longer within its control.
What must a disclosure list be verified by?
A disclosure statement confirming that the party signing it understands the duty of disclosure and has carried out that duty to the best of their knowledge.
What is the effect of a false disclosure statement?
Proceedings for contempt of court may be brought for making a disclosure statement without honest belief.
When can the court make an order for specific disclosure?
The court can make an order at any time after proceedings have commenced, although applications generally follow standard disclosure.
What must the application for specific disclosure specify?
The order sought, including listing the documents sought.
When is the court likely to make an order for specific disclosure?
Against a party that failed to comply with the obligations imposed by an order for disclosure.
What can the court order a party with inadequate disclosure to do?
- Carry out a search for additional specified documents; 2. Disclose additional documents or classes of documents.
When can the court make an order for non-party disclosure?
The court can make an order at any time after proceedings have commenced, although it will not normally do so before a defense has been served.
What circumstances may lead the court to order non-party disclosure?
- The document is likely to support the case of the applicant or adversely affect the case of another party; 2. Disclosure is necessary to disclose fairly of the case and save costs.
What is the purpose of a Norwich Pharmacal Order (NPO)?
NPOs are commonly used to identify the proper defendant to an action or to obtain information to plead a claim.
What must a claimant do when applying for an NPO?
Issue the claim form against ‘Persons Unknown’ and set out its claim as best as possible against the defendant.
When might the court make a Norwich Pharmacal Order?
Where a wrong has been carried out by an ultimate wrongdoer and an action cannot be brought against that wrongdoer without it.
What does inspection mean in civil proceedings?
Inspection is the process by which the party that has disclosed a document allows the other party to view it.
What is the right to inspect disclosed documents?
The party to whom a document has been disclosed has a right to inspect that document unless one of the recognized exceptions applies.
What is the effect of failure to allow inspection?
A party may not rely on any document which the other party has a right to, but is not permitted to inspect unless the court gives permission.
When can inspection be withheld?
- Document no longer in control; 2. Disclosure would be disproportionate; 3. Document protected by privilege.
What is legal advice privilege?
Legal advice privilege applies to communications between a lawyer and client for the dominant purpose of giving or receiving legal advice.
What is litigation privilege?
Litigation privilege applies to communications between a client or the client’s lawyer and a third party for the dominant purpose of litigation which is pending, reasonably contemplated, or existing.
What is a without prejudice communication?
A document which is a genuine attempt to settle a dispute.
What is the effect of waiver of privilege?
It is possible for a party to deliberately allow inspection of a privileged document if it thinks it helps its case.
What are the risks of waiving privilege?
Waiver in part of a wholly privileged document will lead to waiver of privilege over the remainder of the document and may lead to privilege being lost in other documents with the same subject matter.
What must a party wishing to inspect documents do?
Send written notice to the other side.
What is the deadline for allowing inspection after written notice?
The disclosing party must allow inspection within 7 days of receipt of the notice.
What can the inspecting party request regarding disclosed documents?
Copies of disclosed documents, provided they give an undertaking to pay reasonable photocopying charges.
What does redaction mean?
Redaction means blanking out part of a document.
Does confidentiality alone justify redaction?
Confidentiality/commercial sensitivity alone does not justify redaction.
What should be included in the disclosure list regarding redacted documents?
The redacted version of the document should appear in the first part of the disclosure list and the unredacted version should appear in the second part.
What is the purpose of a witness summons?
Witness statements can be used when a witness has provided a witness statement but is unable or unwilling to attend court to provide oral evidence.
When is court permission required for a witness summons?
A party must obtain court permission to issue a summons less than 7 days before the date of the trial, or at any hearing except the trial.
What is the purpose of pre-trial checklists?
The pre-trial checklist is used in fast and multi-track cases to find out whether the parties have done everything they need to do to prepare for trial.
Who is responsible for filing pre-trial checklists?
Both parties must file pre-trial checklists, which they should have exchanged beforehand.
What is the deadline for filing pre-trial checklists?
Pre-trial checklists are sent to parties at least 14 days before they must be filed.
What is the purpose of trial bundles?
To ensure that all relevant material is before the court at trial so that the trial proceeds smoothly and expeditiously.
What should be included in the trial bundle?
All the documents likely to be referred to at trial should be placed into paginated and indexed files.
Who is usually responsible for preparing the trial bundle?
It is usually the claimant’s solicitor’s responsibility to prepare the trial bundle.
What is the deadline for filing the trial bundle?
The claimant’s solicitor must file the trial bundle between 3 and 7 days before the start of the trial.
What should the claimant’s solicitor supply regarding the court bundle?
Identical bundles to each of the parties and witnesses giving evidence.
What is the order of events at trial?
- Claimant’s opening speech; 2. Claimant’s case (examination in chief, cross-examination, and re-examination); 3. Defendant’s case (examination in chief, cross-examination, and re-examination); 4. Defendant’s closing speech; 5. Claimant’s closing speech.
When may judgment be handed down after trial?
Judgment may be handed down immediately following trial or, if the matter is complicated, reserved, i.e., given at a later date.
When does interest start to run on a judgment debt?
On the date a judgment/order is given, interest starts to run at a rate of 8% per annum.
What is the time limit for complying with a judgment or order?
The parties have a time limit of 14 days in which to comply with a judgment or order for the payment of an amount of money.
What is the general rule regarding costs?
The general rule is that the unsuccessful party pays the successful party’s costs.
When can costs orders be made?
Costs orders may be made during a case as well as at the end of a case.
What is the deadline for paying costs?
A party must normally comply with a costs order within 14 days of the date of the judgment if it states the amount of costs.
What must a costs order specify?
The basis of assessment, i.e., standard or indemnity.
What is the recovery limit for a successful party’s costs?
A successful party is very unlikely to recover 100% of its costs.
What costs can be recovered on a standard basis?
Costs can be recovered if they are proportionate, reasonably incurred, and reasonable in amount.
What costs can be recovered on an indemnity basis?
Costs can be recovered if they are reasonably incurred and reasonable in amount.
Which basis leads to greater recovery of costs?
Costs ordered on the indemnity basis are higher (around 75% compared to 60% on the standard basis).
What happens after a costs order is made?
The amount to be paid will be determined by an assessment process if it is not agreed or fixed by court rules.
What is summary assessment of costs?
The court determines the amount of costs immediately at the end of the hearing.
What is detailed assessment of costs?
The receiving party must serve notice of commencement and a bill of costs on the paying party.
What are interim costs orders?
- Costs in any event; 2. Costs in the case; 3. Costs reserved; 4. No order as to costs.
What is a Part 36 offer?
A Part 36 offer is a type of settlement offer with significant costs implications.
Who can make a Part 36 offer and when?
A Part 36 offer can be made by either party at any time, even before proceedings have been issued.
What happens if a Part 36 offer is made within 21 days of trial?
The Part 36 cost consequences will not apply.
What must a Part 36 offer specify?
It must make it clear that it is made pursuant to Part 36 and specify a ‘relevant period’ of not less than 21 days.
What must a defendant’s Part 36 offer include?
An offer to pay a single sum of money in satisfaction of the claim not later than 14 days following the date of acceptance.
How can a Part 36 offer be clarified?
The offeree can seek clarification of the terms of the offer within 7 days of service.
How to accept a Part 36 offer?
Notice of acceptance must be served on the offeror and the court if the case is issued.
What happens upon accepting a Part 36 offer?
The claim is stayed and the settlement sum must be paid within 14 days.
Can a Part 36 offer be withdrawn or changed after acceptance?
Once the offer has been accepted, it cannot be withdrawn or changed.
What happens if a Part 36 offer is withdrawn after the relevant period?
An offer can be withdrawn/changed without court permission if the relevant period has expired and the trial has not started.
What must occur for the court to permit withdrawal or variation of a Part 36 offer?
A change of circumstances has occurred since the offer was made and it is in the interests of justice for the offer to be withdrawn/changed.
What happens if a claimant accepts a Part 36 offer during the relevant period?
The claimant is entitled to its costs up to the date that notice of acceptance is served.
What happens if a claimant accepts a Part 36 offer after the relevant period?
The court must order that the claimant is entitled to its costs up to the date of expiry of the relevant period.
What are the cost consequences of unaccepted offers?
- Defendant’s offer not accepted; 2. Claimant’s offer not accepted.
What does ‘unjust to do so’ mean in the context of costs?
The court will consider the terms of the Part 36 offer, the stage in proceedings, the information available to the parties, the conduct of the parties, and whether the offer was a genuine attempt to settle.
What is the purpose of security for costs?
To protect a party against the risk that they will win at trial and be awarded costs, but then not be able to enforce a costs order against the other party.
What grounds can be used to apply for security for costs?
- The claimant is resident outside the jurisdiction; 2. The claimant is a company likely unable to pay costs; 3. The claimant has changed their address to evade consequences; 4. The claimant failed to give an address; 5. The claimant has taken steps regarding their assets that would make enforcement difficult.
What is the court’s discretion regarding security for costs?
An application will not succeed solely on the grounds specified.
What are the grounds for ordering security for costs?
The grounds include: the claimant is resident outside the jurisdiction; the claimant is a company and may be unable to pay costs; the claimant has changed address to evade litigation; the claimant failed to provide an address; or the claimant has taken steps regarding assets that hinder cost enforcement.
What is the court’s discretion regarding security for costs?
An application for security for costs will not succeed solely on established grounds, as the court has wide discretion to decide on the order and its amount based on the case’s circumstances.
What does an order for security for costs typically require?
An order for security for costs usually requires a party to pay money into court or provide a bond or guarantee as security for their opponent’s costs.
When can an appeal be made?
An appeal can be made when the lower court’s decision was wrong or unjust due to serious procedural or other irregularities.
When is permission needed to appeal?
A party almost always needs permission to appeal to a higher court to overturn an order of a lower court.
How can a prospective appellant seek permission to appeal?
A prospective appellant can apply for permission orally at the time of the decision or in writing within 21 days of the decision.
What are the criteria for obtaining permission to appeal?
Permission may be granted if the court believes the appeal has a real prospect of success or there is a compelling reason for the appeal to be heard.
What are the general rules for the destination of civil appeals?
A CC Circuit Judge hears appeals from a CC District Judge; a HC Judge hears appeals from a CC Circuit Judge and a HC Master; a COA Judge hears appeals from a HC Judge.
What is the form of an appeal?
An appeal will generally review the lower court’s decision unless a rehearing is deemed necessary in the interests of justice.
What powers does the appeal court have?
The appeal court has all the powers of the lower court and can replace the lower court’s judgment with its own.
What is the purpose of enforcement post-judgment?
A court will not automatically enforce any judgment/order; the party benefiting from the judgment/order must take enforcement steps.
What is an oral examination in the context of enforcement?
The judgment creditor can apply for an order requiring the judgment debtor to attend court to provide information about their assets, served personally at least 14 days before the hearing.
What is the method of enforcement involving taking control of goods?
The court can issue a writ or warrant of control authorizing an enforcement agent to take control of and sell a judgment debtor’s goods to satisfy the judgment debt.
What is a third party debt order?
The court can order that sums owed to a judgment debtor that are held by a third party are frozen and seized for the judgment creditor’s benefit, such as a bank account.
What is a charging order?
A charging order secures debt by imposing a charge over a judgment debtor’s beneficial interest in land, securities, or certain other assets.
What is an attachment of earnings order?
The CC can order that the debt is serviced through earnings when the debtor lacks sufficient methods to pay.
