W5 Flashcards
When does the court generally make a decision on costs in litigation?
The court generally makes a decision on costs at the conclusion of an interim application or at the conclusion of the trial.
What are the two perspectives from which a client is likely to be concerned about costs in litigation?
A client is likely to be concerned about costs from two perspectives: firstly, the costs they will incur in preparing their own case, and secondly, the risk of being ordered to pay an opponent’s costs.
What are the two ways the court can decide the precise amount of costs in litigation?
Once the court has determined that one party should pay something to the other party by way of costs, it can decide the precise amount of costs through either a more simple procedure called summary assessment or the more complex ‘detailed assessment’.
What are interim costs orders and when are they exercised?
Interim costs orders are specific types of orders that are only available when determining costs following an interim hearing. They are exercised by the court to determine the costs of the interim proceedings.
What is the general rule regarding costs recovery in litigation?
The general rule on costs recovery is that the loser pays the winner’s costs. However, the court has complete discretion in determining costs and can depart from the general rule based on various factors.
What factors are taken into account when deciding the amount of costs in a case?
In deciding the amount of costs, the court will take into account all the circumstances of the case, including the conduct of the parties, the complexity of the matter, the place and circumstances of the work, and the receiving party’s last approved or agreed budget.
What is the time frame for complying with an order for costs?
Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of the date of the judgment or order if it states the amount of costs. If the amount of costs is decided later, the party must comply within 14 days of the date of the certificate which states the amount.
What is qualified one way costs shifting (QOCS) and what does it restrict?
Qualified one way costs shifting (QOCS) is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury. It restricts the defendant’s ability to enforce a costs order against the claimant.
What is the purpose of budgets in the court’s costs management process?
Budgets are part of the court’s costs management process and help in assessing the actual amount of costs. They are taken into account along with other circumstances of the case, such as the conduct of the parties, the complexity of the matter, and the place and circumstances of the work.
What does the qualified one way costs shifting (QOCS) regime apply to?
The qualified one way costs shifting (QOCS) regime applies to proceedings involving claims for damages in respect of death and personal injury.
What are fixed costs and when do they apply?
Fixed costs are specific amounts that are recoverable by one party from another in certain circumstances in litigation. They generally apply to uncontested disputes, enforcement proceedings, small claims, and certain specialist areas. The sum awarded as fixed costs will be as set out in the Civil Procedure Rules (CPR), unless the court orders otherwise.
When does assessed costs come into play and how is it determined?
Assessed costs come into play when costs do not fall under the fixed costs regime. The court needs to be involved in deciding and calculating the amount payable by one party to another. Assessment of costs generally occurs when the parties are unable to agree on the amount. The court uses either summary assessment or detailed assessment to determine the sum to be paid.
What is the difference between summary assessment and detailed assessment?
Summary assessment involves the court determining the amount payable by way of costs immediately at the end of a hearing. It is used in fast track proceedings and cases where a hearing has lasted no more than a day. Detailed assessment is a more complex procedure for determining the amount of a party’s costs to be paid. It involves serving a notice of commencement and a bill of costs, followed by points of dispute and a hearing with a costs officer.
How do the parties’ budgets and costs management procedure impact the assessment of costs?
The parties’ budgets and the costs management procedure can have an impact on the assessment of costs, even if a costs management order was not made. They are considered when determining costs orders made by the court.
What types of interim costs orders can be made and when are they appropriate?
The types of interim costs orders that can be made include costs in any event (and summary assessment of costs), costs in the case, costs reserved, costs thrown away, costs of and caused by, costs here and below, and no order for costs. These orders are made at an interim stage and their appropriateness depends on the specific circumstances of the case.
What is the general rule regarding costs in litigation?
The general rule is that the unsuccessful party pays the successful party’s costs. However, the court will rarely allow a party to recover all the costs incurred. The court will usually only allow recovery of costs that are reasonably and proportionately incurred and reasonable and proportionate in amount.
When does the court carry out the quantification process for costs?
The court carries out the quantification process for costs immediately following an interim hearing of one day or less, or following a fast-track trial. This process is known as summary assessment.
What factors might influence the court’s decision on costs in a legal case?
The court has a broad discretion to decide whether to order costs to be paid, how much, and when. The court may consider factors such as poor conduct, raising unreasonable arguments, not complying with rules or orders, or not taking a reasonable approach to settlement.
What are the exceptions to the general rule regarding costs in legal cases?
In cases concerning personal injury or death, the rules of QOWCS apply. These rules provide that if the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
What happens after the court orders one party to pay another party’s costs in a legal case?
After the court orders one party to pay another party’s costs, the court will go on to assess those costs. This means that the court will determine the specific amount of costs that need to be paid.
What is the purpose of the rules of QOWCS in legal cases?
The rules of QOWCS apply in cases concerning personal injury or death. They provide that if the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
What are the two perspectives from which a client may be concerned about costs in a legal case?
A client may be concerned about costs from two perspectives: firstly, the costs they will incur in preparing their own case, and secondly, the risk of being ordered to pay an opponent’s costs.
What is the purpose of assessing costs in a legal case?
After the court orders one party to pay another party’s costs, the court will assess those costs. This means that the court will determine the specific amount of costs that need to be paid.
What is the difference between summary assessment and detailed assessment of costs?
Summary assessment is a more rough and ready process where the judge decides the precise amount of costs immediately after deciding that one party should pay the other party’s costs. Detailed assessment, on the other hand, involves a more complicated and lengthy process where the costs are determined by a costs officer if the parties cannot agree on them.
When does the process of assessing costs take place in a court case?
The process of assessing costs in a court case can take place either through summary assessment, which happens at the end of a hearing of an interim application or a case on the fast track, or through detailed assessment, which occurs when a trial judge or a judge deciding an application orders that the costs be assessed if not agreed.
What are the different types of interim costs orders that the court can make?
The court can make various types of interim costs orders, such as an order for costs in any event, where the defendant pays the claimant’s costs of the application regardless of the trial outcome. Another type is an order of no order as to costs, where no party can recover the costs of the interim application from the other party. There is also an order for costs in the case, where the costs of the interim application are paid by the party that pays the costs following the trial.
What is the purpose of case management in litigation?
Case management in litigation aims to achieve a just result at a proportionate cost, in accordance with the overriding objective. It involves actively managing the case, giving directions, and ensuring the case progresses according to the court’s directions.
What is the difference between strike out and summary judgment in a court case?
Strike out focuses on the statement of case and targets cases that do not amount to a legally recognizable claim or defense, while summary judgment covers cases that are weak on the facts. Strike out is the deletion of written material from a statement of case, while summary judgment is a judgment in favor of one party based on the evidence.
What is the court’s power to strike out a statement of case?
The court has the power to strike out all or part of a statement of case if it shows no reasonable grounds for bringing or defending the claim, is an abuse of the court’s process, or there has been a failure to comply with a rule, practice direction, or court order. Strike out is used sparingly, and other options like requiring amendment or imposing sanctions may be considered.
What does obstructing just disposal include?
Obstructing just disposal includes claims that are vexatious or obviously ill-founded. The court will look at all the circumstances of the case.
What can be considered an abuse of the court’s process?
A statement of case which discloses no reasonable ground may also be an abuse of the court’s process. There is no exact dividing line between ground (a) and ground (b).
What does ground (c) cover in terms of abuse of process?
Ground (c) covers cases where the abuse is not in the statement of case itself, but is in the way the claim or defence has been conducted. Examples include late service and exchange of documents, not attending court when ordered to do so, or being unprepared for court hearings.
What happens if a statement of case is struck out due to non-compliance with an order?
If a statement of case is struck out due to non-compliance with an order, the other party can generally obtain judgment with costs by filing a simple request at court. In rare occasions, an application to court may be required.
What does the court have the power to do in terms of sanctions?
The court has the power to make any order subject to a sanction, which could be specific conditions or specific consequences of a failure to comply with the order.
When does a sanction take effect?
If a party fails to comply with an order imposing a sanction, the sanction takes effect unless the party applies for relief from it.
What does relief from sanctions cover?
Relief from sanctions covers the court’s power to impose sanctions and how a party obtains relief from them.
When can the time specified for an act in court proceedings be extended?
The general rule is that the time specified for an act in court proceedings may be extended by the written agreement of the parties, unless a rule, practice direction, or court order provides otherwise. However, there are exceptions to this rule, such as when a rule, practice direction, or court order requires an act to be done within a specified time and specifies the consequence for failure to comply.
What is the purpose of imposing sanctions in court proceedings?
Sanctions are measures that aim to ensure compliance with court rules and court orders. They can relate to various aspects such as interest, costs, or striking out a statement of case. The primary purpose of imposing sanctions is to enforce compliance and maintain the integrity of the litigation process.
What is an unless order and how does it work?
An unless order is an order that provides for an automatic sanction in the event of non-compliance. It specifies a date and time by which a certain act must be done. Failure to comply with the unless order will result in a specified consequence, such as striking out a statement of case.
What happens if a party fails to comply with a rule, practice direction, or court order imposing a sanction?
If a party fails to comply with a rule, practice direction, or court order imposing a sanction, the sanction takes effect unless the party applies for and obtains relief from that sanction. Relief from sanctions can be granted by the court after considering all the circumstances of the case and the need to enforce compliance with rules, practice directions, and orders.
What are the key considerations for granting relief from sanctions in court proceedings?
When considering an application for relief from sanctions, the court will consider all the circumstances of the case to ensure just treatment. The court will specifically consider the need for efficient litigation at proportionate cost and the enforcement of compliance with rules, practice directions, and orders. An application for relief must be supported by evidence.
What is the Denton case and why is it significant?
The Denton case is a leading authority on granting relief from sanctions. It involved three appeals where parties sought relief from sanctions. The Court of Appeal set out the approach to be applied in future cases. The Denton principles involve assessing the seriousness and significance of the breach, considering the reason for the default, and evaluating all the circumstances of the case to ensure just treatment.
What are the three stages in approaching applications for relief from sanctions?
Applications for relief from sanctions should be approached in three stages. The first stage involves identifying and assessing the seriousness and significance of the failure to comply. If the breach is neither serious nor significant, relief should be granted. The second stage involves considering why the default occurred. The third stage involves evaluating all the circumstances of the case to ensure just treatment.
What are the different tracks to which a claim can be allocated in court proceedings?
In court proceedings, a claim can be allocated to three separate tracks: the small claims track, the fast track, or the multi-track. The allocation is primarily based on the value of the claim, but other factors may also be considered. Each track has its own set of rules and procedures for case management.
What is the small claims track and when is it used for personal injury claims?
The small claims track is the normal track for a personal injury claim if the value of the claim is not more than £10,000. For road traffic claims before May 31, 2021, or involving a child or protected party, or a motorcycle accident, the damages for personal injuries must be valued at not more than £1,000. For other road traffic claims, the damages for personal injuries must be valued at not more than £5,000. For any other personal injury claim, the damages for personal injuries must be valued at not more than £1,500.
What happens after the defence is filed in a personal injury claim?
After the defence is filed, the court sends out a notice of proposed allocation, provisionally allocating the claim to the small claims track, fast track, or multi-track. The parties then file directions questionnaires, and if the claim has been provisionally allocated to the fast track or multi-track, the parties also file proposed directions. The court will allocate the claim to a track, after a hearing if necessary, and serve a notice of allocation.
What happens if a personal injury claim is allocated to the small claims track?
If a personal injury claim is allocated to the small claims track, the court will usually give directions. The parties will need to file and serve a directions questionnaire, which provides the necessary information for the court to determine the track of the case.
What are the requirements stated in the notice of proposed allocation?
The notice of proposed allocation will indicate the proposed track for the claim and require the parties to file and serve a directions questionnaire. For claims on the fast track or multi-track, the parties must also file proposed directions. Additionally, for claims under the costs management regime, the parties must file and serve a costs budget and an agreed budget discussion report.
What is the purpose of the directions questionnaire in determining the track of a case?
The directions questionnaire (DQ) is completed by the parties to provide the court with the necessary information to determine the track of the case. The DQ is different for small claims track cases (Form N180) and fast track/multi-track cases (Form N181).
What happens if a personal injury claim is allocated to the fast track?
If a personal injury claim is allocated to the fast track, the court will usually give directions. The parties will need to file and serve a directions questionnaire, and they may also need to file proposed directions.
What happens if a personal injury claim is allocated to the multi-track?
If a personal injury claim is allocated to the multi-track, the court will give directions or fix a case management conference at which directions will be considered. The parties will need to file and serve a directions questionnaire, and they may also need to file proposed directions.
What is the purpose of the notice of allocation in a personal injury claim?
The notice of allocation is served by the court after the receipt of a defence. It indicates the track proposed for the claim and sets deadlines for filing and serving the directions questionnaire and any proposed directions. It helps the parties understand the next steps in the case.
When should the parties file and serve a Directions Questionnaire?
After service of the Defence, the court will provisionally decide the track most suitable for the claim and issue a notice of proposed allocation. This will require the parties to file and serve Directions Questionnaires and will include the date by which this must be done (CPR 26.3(6)).
What is the purpose of the Directions Questionnaire in legal proceedings?
The Directions Questionnaire (DQ) contains a number of questions to help the court decide which track is most appropriate for the case. The court will only order an allocation hearing if it considers it necessary (CPR 26.5(4)).
What information do parties need to confirm in the Directions Questionnaire regarding pre-action protocols?
The parties must confirm in the DQ whether they have complied with the pre-action protocols. If there is no specific pre-action protocol, then parties are expected to comply with the practice direction on Pre-Action Conduct. Failure to comply with the pre-action protocols must be explained, and there may be sanctions as a result.
What is the purpose of a stay in legal proceedings?
A stay is a period of time during which the proceedings are paused, and the parties are prevented from taking any steps in the proceedings, apart from steps allowed by the CPR or the terms of the stay. The DQ includes a section for parties to request that the court stay the proceedings so they can try to settle.
What is the significance of disclosing documents in legal proceedings?
Disclosure is the stage in the proceedings where the parties exchange documents. Each party serves a list of documents that exist, and the recipient is permitted to inspect or receive copies of the listed documents. The DQ asks parties to provide information about the extent of disclosure required for the case.
Why is it important to speak to witnesses before listing them in the Directions Questionnaire?
There is ‘no property in a witness,’ meaning there is no rule preventing a party from approaching a witness listed in the other party’s DQ and seeking their views or assistance. However, parties should not put pressure on witnesses to give particular evidence. It is advisable to speak to witnesses before listing them in the DQ.
What is the role of expert evidence in civil claims?
In civil claims, judges often have to consider scientific, technical, medical, or other issues of which they may have no direct experience or knowledge. They are assisted by experts in the relevant area. If a client wishes to rely on expert evidence, they need the court’s permission to do so.
What factors are considered when allocating a case to a track in legal proceedings?
The court considers various factors when deciding which track to allocate a case to, including the financial value of the claim, the nature of the remedy sought, the complexity of the facts, law, or evidence, the number of parties, and the importance of the claim to any persons who are not parties. The circumstances of the parties and their views are also taken into account.
What are the limitations on costs that can be recovered in a small claims track case?
In relation to a claim allocated to the small claims track, the general rule is that even if successful at trial, a party can only recover limited fixed costs, court fees, and witness expenses from an opponent.
What are the characteristics of hearings on the small claims track?
Hearings on the small claims track are informal, with parties generally representing themselves. Certain CPR rules do not apply to cases allocated to the small claims track, and there are fewer formalities compared to other tracks.
What are the abbreviated directions for cases allocated to the small claims track?
Abbreviated directions for cases allocated to the small claims track include: parties filing and serving copies of documents they intend to rely upon, bringing original documents to the hearing, providing notice of the hearing date and time, and informing the court if the case settles by agreement between the parties.
What are the standard directions for fast track cases?
Standard directions for fast track cases include: disclosure, exchange of witness statements, exchange of experts’ reports, filing pre-trial checklists at court, and the timing of each direction depends on the value and complexity of the claim.
What is the purpose of the directions questionnaire in fast track cases?
The directions questionnaire is used to provide information to the court for giving directions in fast track cases. Occasionally, a hearing may be held to determine the directions.
What are the time limits for disclosure, exchange of witness statements, and exchange of experts’ reports in fast track cases?
In fast track cases, the time limits for disclosure, exchange of witness statements, and exchange of experts’ reports are generally 4 weeks, 10 weeks, and 14 weeks, respectively. The specific time limits may vary based on the value and complexity of the claim
What is the purpose of a case management conference (CMC)?
A case management conference (CMC) is more than just a directions hearing. It is intended to ensure that the real issues between the parties are identified and understood by the parties and the court, and to see if they can be narrowed before trial.
What factors does the court consider during a case management conference (CMC)?
During a case management conference (CMC), the court will likely consider the suitability of the case for settlement, the position the parties have reached in the litigation, the steps the parties have already taken, compliance with previous directions/orders, estimated costs of litigation, steps to be taken in the future, and whether to order a split trial or the trial of one or more preliminary issues.
Who should attend a case management conference (CMC)?
Any legal representative attending a case management conference (CMC) must be familiar with the case and have sufficient authority to deal with any issues likely to arise, such as discussing directions and identifying issues. Failure to attend may result in a wasted costs order or the court ordering the client to attend.
What is the requirement for a disclosure report in multi-track cases?
In multi-track cases, both parties must produce a disclosure report in readiness for the case management conference (CMC). The report describes relevant documents, their location, how electronic documents are stored, estimates the costs of disclosure, and states which disclosure directions are to be sought. However, this requirement does not apply to small claims or claims that include a claim for personal injury.
What is the purpose of a case summary at a case management conference (CMC)?
A case summary is a short document, prepared by the claimant and ideally agreed with the other parties, that assists the court in understanding and dealing with the issues raised. It contains a chronology of the claim, factual issues agreed and in dispute, and the nature of the evidence needed to decide them.
What happens if the parties have agreed all the directions required for the future management of the case?
If the parties have agreed all the directions required for the future management of the case and the court is satisfied with the appropriateness of the directions, the case management conference (CMC) may be vacated or canceled. However, if the parties have been unable to agree on directions, the CMC will be used for the court to give directions.
What is the purpose of the costs management regime in civil procedure?
The purpose of the costs management regime is to ensure that claims are dealt with justly and at proportionate cost. It aims to limit the costs that one party can recover from the other and encourages parties to provide budgets of future costs to the court at an early stage, allowing the court to tailor the steps to be taken based on the parties’ indications of costs.
What are the limitations of costs assessment as a means of encouraging proportionate costs?
The limitations of costs assessment are limited information when making case management decisions and uncertainty about what a court would consider to be ‘disproportionate’ costs. The costs management regime addresses these limitations by requiring parties to provide budgets of future costs at an early stage and by providing guidance on what is considered proportionate.
What happens if a party fails to file a budget on time?
Failure to file a budget on time leads to automatic and serious sanctions.
What is a budget in legal cases?
A budget is an estimate of the reasonable and proportionate costs which a party intends to incur.
When must budgets be filed and exchanged in most multi-track cases?
In most multi-track cases, budgets need to be filed and exchanged not later than 21 days before the first CMC (Case Management Conference).
What is a costs management order?
A costs management order is an order made by the court that records or fixes a costs figure for each party for each phase of the proceedings.
What happens when it comes to the assessment of costs?
When it comes to assessment, the court will not depart from approved/agreed budgets unless satisfied that there is a good reason to do so.
What is the purpose of filing and exchanging a budget discussion report?
The purpose of filing and exchanging a budget discussion report is to indicate the state of agreement between the parties regarding their budgets at least 7 days before the Case Management Conference (CMC).
When does costs management become a concern in legal cases?
Costs management becomes a concern in legal cases on the multi-track. It is at the case management stage where the parties exchange budgets, the court indicates what would be proportionate costs, and the court gives directions based on those costs.
What is the purpose of filing and exchanging budgets in the costs management regime?
Filing and exchanging budgets allows parties to estimate future costs and discuss them with each other. It helps in determining the reasonableness and proportionality of costs and influences case management decisions.
What happens if a party fails to file a budget on time in the costs management regime?
Failure to file a budget on time leads to automatic and serious sanctions. The court will treat the party as having filed a budget comprising only the applicable court fees, which becomes the starting point for any future assessment proceedings.
What is a costs management order (CMO) and when is it made?
A costs management order is a provisional indication of what should be considered reasonable and proportionate costs in any later assessment proceedings. It is made by the court after considering the parties’ budgets and budget discussion reports. The court may record agreed figures or approve a costs budget with appropriate revisions.
When can the court depart from an approved or agreed costs budget?
The court will not depart from an approved or agreed costs budget unless there is good reason to do so. This means that when assessing costs on the standard basis, the court will have regard to the last approved or agreed costs budget and will not allow costs in excess of it to be recovered.
What is the purpose of a budget discussion report in the costs management regime?
A budget discussion report is filed and exchanged by parties to indicate the extent to which they have agreed on the costs figures for each phase of the litigation. It helps the court focus on areas of disagreement between the parties’ budgets.
What are the consequences of discrepancies between budgets and charges to clients in the costs management regime?
Discrepancies between budgets and charges to clients can lead to difficult conversations with clients. Clients may question why they should pay their solicitor one amount while the budget claims a lesser amount. It is important to involve the client in the budgeting process to avoid such issues.
When should parties file their budgets in the costs management regime?
In most cases, budgets need to be filed and exchanged not later than 21 days before the first case management conference (CMC). However, for cases where the monetary value of the claim is less than £50,000, the budgets are filed with the parties’ directions questionnaires.
What is the purpose of a costs management conference in the costs management regime?
A costs management conference is where the court considers the parties’ budgets and budget discussion reports. It takes place at the first case management conference (CMC) or can be convened as a separate hearing solely for the purpose of costs management. The court’s case management decisions are influenced by the budgets and costs involved.
What is the purpose of the cost and case management conference (CMC)?
The cost and case management conference (CMC) serves as a forum for discussing costs and case management issues, such as filing budgets, disclosure reports, and draft directions.
What are some of the documents that need to be filed before the first CMC?
Before the first CMC, parties need to file a budget 21 days in advance, a disclosure report 14 days in advance, and draft directions 7 days in advance.
What is a costs management order and what is its significance?
A costs management order indicates the proportionate costs for each stage of the proceedings. A court later assessing costs will not award more than the figures in the costs management order unless there is a good reason to do so.
What factors determine the allocation of a claim to a specific track?
The allocation of a claim to a specific track depends on the estimated length of the trial, the amount of expert evidence required, and the value of the claim
What is the normal track for claims with a value of not more than £25,000?
The fast track is the normal track for claims with a value of not more than £25,000, as long as the trial is likely to last no longer than one day and the oral expert evidence will be limited to one expert per party in each of no more than two fields.
