W5 MCQ Flashcards
Which of the following statements best describes the costs rules of general application?
A. The court has limited discretion as to costs and will always adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the receiving party makes it fair and just to do so.
B. The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
C. The court has discretion as to costs but will adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the paying party makes it fair and just to do so.
D. The court has no discretion as to costs and is bound by the rule that the unsuccessful party will always pay for costs of the successful party.
E. When deciding what costs order to make the court will have regard to three factors: the conduct of the party, the value of the claim and any settlement offers made.
B. The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
This is correct. The court has discretion as to whether costs are payable, the amount of costs and when they are to be paid and the general rule on costs (CPR 44.2(2)) is correctly described in this answer. When making a costs order, the court will consider the conduct of both parties and not just the receiving party.
The defendant to a large negligence claim has recently been served with the claim form and particulars of claim. There is no specific pre-action protocol governing the matter but to date the defendant has tried to avoid litigation by providing a detailed letter of response to the initial letter of claim, complying with all requests for information and disclosing key documents relevant to the dispute. It has also suggested some form of alternative dispute resolution (‘ADR’) on three separate occasions. All of these invitations to engage in ADR have been rejected outright by the claimant with no explanation given. How will the court view the claimant’s conduct when exercising its discretion as to costs?
A. The court will expect the claimant to actively engage in ADR but will not consider a refusal to do so to fall under any consideration of party conduct when exercising its discretion on costs.
B. If the defendant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
C. If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
D. If the claimant goes on to win at trial the court is likely to penalise the claimant for its refusal to engage in ADR by rejecting outright any claim for costs incurred during the pre-action stage.
E. The court will not expect the claimant to actively engage in ADR and so it is unlikely there will be any costs consequences of its refusal should it go on to win at trial.
C. If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
When exercising its discretion on costs the court will have regard to a number of factors contained within the rules in relation to what order to make (CPR 44.2(4)) and in relation to the amount of costs to be awarded (CPR 44.4(3)). One factor common to both of these decisions is that the court will have regard to the parties’ conduct. An example of party conduct that might have an impact on costs is that of an unreasonable refusal by one party to engage in ADR (and this refusal does appear to be an unreasonable refusal).
At the trial of a multi track contractual claim, the court makes its judgment in favour of the defendant. What is the most likely costs order that the court will make in relation to costs?
A. The claimant to pay 100% of the defendant’s costs.
B. The defendant to pay the claimant’s cost on the standard basis.
C. The claimant to pay the defendant’s costs on the indemnity basis.
D. The claimant to pay the defendant’s costs on the standard basis.
E. The claimant to pay 80% of the defendant’s costs.
D. The claimant to pay the defendant’s costs on the standard basis.
This is correct: the claim has been successful, and it is normal for the unsuccessful party to pay the costs of the successful party. This would be the ‘usual rule’ given that the application has been unsuccessful (CPR 44.2 and 44 PD 4.2). There is nothing on the limited facts to suggest any of the other costs orders, nor indemnity costs.
Where costs are fixed by the CPR for a particular item, this means that…
A. …a party is entitled to payment of those costs by the opponent, unless the court orders otherwise.
B. …if the court awards costs for that item, the sum awarded will be as set out in the CPR.
C. …if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
D. …if the court awards costs for that item, the sum awarded will be capped at the sum set out in the CPR, unless the court orders otherwise.
C. …if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
The fixed costs regime applies unless the court orders otherwise. The fixed costs regime is about deciding how much costs should be paid if they are going to be paid, not whether costs should be paid.
If an application is due to be heard at 10am on Wednesday 5 November, when is the latest that a statement of costs (N260) can be filed and served in relation to that application?
A. 10am on Tuesday 4 November
B. 4pm on Tuesday 4 November
C. 4pm on Monday 3 November
D. 10am on Monday 3 November
A. 10 AM on Tuesday 4 November.
The statement of costs must be filed and served party not less than 24 hours before the time fixed for the hearing.
In which circumstances will costs be summarily assessed?
A. At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
B. At the end of trials and interim hearings lasting not more than one day.
C. At the end of fast-track trials lasting not more than one day and at the end of interim hearings.
D. At the end of fast-track trials lasting not more than one day and at the end of interim hearings lasting not more than one day.
A. At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
A judge hearing a defendant’s application to extend the time for service of a defence has granted the defendant the full 28 day extension requested. In her judgment she is highly critical of the claimant for failing to agree to any extension and refers to aspects of the claimant’s conduct which have put the defendant in a difficult position in the proceedings so far. Given the above which of the following interim costs orders is the judge most likely to make.
A. The defendant’s costs thrown away
B. No order as to costs
C. The defendant to pay the claimant’s costs in any event
D. The claimant to pay the defendant’s costs in any event
E. Costs in the case
D. The claimant to pay the defendant’s costs in any event
The judge has found in the defendant’s favour and is very critical of the claimant’s behaviour. The implication is that the judge has sympathy with the defendant and so is likely to award the costs it has incurred in bringing the application. The other options are not appropriate given the facts of the scenario. Costs thrown away relate to where a judgment or order is set aside, costs in the case would defer costs to final hearing and is less appropriate where the judge clearly favours one party’s position over the other and similarly no order as to costs ignores the fact that the judge is highly critical of the claimant’s conduct and sympathetic to the defendant’s position.
A claimant makes a successful application to court to adduce evidence from a further witness of fact. The hearing of the application lasted for an hour and at the end of the hearing the judge ordered that costs be in the case. Which of the following statements best describes the effect of the costs order made by the judge?
A. If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of bringing its application.
B. The party in whose favour this order is made will recover the costs of the interim hearing from the other party regardless of who eventually wins at trial.
C. The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
D. If the claimant is successful and receives an order that it should be entitled to its costs at the end of trial, it cannot include the costs of opposing the defendant’s application.
E. The decision about who pays the costs of the interim hearing of the defendant’s application is put off to a later occasion.
C. The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
The effect of an interim order of ‘costs in the case’ is that the party that gets its costs following the final hearing of the dispute will recover its costs of that interim hearing. Putting off costs until a later occasion (not necessarily final hearing) is known as ‘costs reserved’. Recovery of the costs following the hearing regardless of who wins at trial is known as ‘costs in any event’. A situation where a claimant is awarded costs at the end of trial but cannot include its costs of the interim hearing would be an order for the ‘defendant’s costs in the case’. A situation where a defendant is awarded costs at trial but the claimant does not have to pay the defendant’s costs of the interim hearing would be an order for the ‘claimant’s costs in the case’.
A claimant has just succeeded in its interim application to amend its budget in light of significant developments in the proceedings. The hearing of the application lasted five hours and involved complex discussions on quantum and the value of forensic evidence. At the end of the hearing the judge ordered the claimant’s costs in any event. Which of the following statements best describes the effect of this order on the assessment of costs?
A. Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place immediately at the end of the hearing.
B. The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
C. The judge will take the claimant’s statement of costs and unless it radically departs from the figures in the claimant’s budget the court will award those costs to be paid immediately or at the latest within 7 days of the order being made.
D. The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing and then make a record of those costs so that they can be paid to the claimant following the final hearing of the dispute.
E. Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place at a later date when the officer will look at the costs incurred and decide how much should be paid.
B. The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
Following a ‘costs in any event’ order at a hearing which has lasted less than one day the court will go on to summarily assess the claimant’s costs before deciding on an amount. The defendant must then pay these costs within 14 days of the costs order being made (CPR 44.7). It is the judge that will summarily assess the costs and not an authorised court officer. When summarily assessing costs the court will be primarily concerned with each party’s statement of costs and their respective submissions. The influence of the budget at this interim hearing will be less important than when the judge is deciding costs of the whole proceedings following the final hearing of the dispute.
Which of the following is not an example of the court’s power to manage cases? a) Extend time to comply with the court’s order to file a witness statement by 1st June. b) Require a party to attend court. c) Require a party to change its legal representative due to high legal costs. d) Require a party to file a costs budget. e) Require a party to take a step in the proceedings to further the overriding objective.
A. Require a party to attend court.
B. Require a party to file a costs budget.
C. Require a party to change its legal representative due to high legal costs.
D. Require a party to take a step in the proceedings to further the overriding objective.
E. Extend time to comply with the court’s order to file a witness statement by 1st June.
C. Require a party to change its legal representative due to high legal costs.
The court will not interfere with the legal representative a party chooses. If the court considers that the legal representative is charging excessive legal costs, the court will address this when making orders as to the recovery of costs.
The other possibilities are all examples of the court’s power to manage cases: Extend time to comply with the court’s order to file a witness statement by 1st June. Require a party to attend court. Require a party to file a costs budget. Require a party to take a step in the proceedings to further the overriding objective.
When can a court strike out a defendant’s statement of case? Choose the best answer.
A. The defendant has not filed a counterclaim.
B. The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.
C. The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim.
D. The defendant has failed to comply with a rule, practice direction or court order.
E. The defendant has not filed a defence.
D. The defendant has failed to comply with a rule, practice direction or court order.
Failure to comply with a rule, practice direction or court order is one of the grounds for strike out (CPR 3.4(c)). The others are (a) that the statement of case discloses no reasonable grounds from bringing or defending the claim and (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.
The defendant has not filed a defence is incorrect. This is a ground for default judgment (rather than strike out) (CPR 12.3). It is easy to confuse strike out, summary judgment and default judgment. The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. The defendant has not filed a counterclaim is incorrect; the defendant is not obliged to file a counterclaim in addition to a defence and, indeed, may not have a counterclaim against the claimant.
Where a CPR / PD / court order requires a party to do something and stipulates the consequences of failing to comply, by how long can the parties extend the deadline?
A. The parties cannot extend such a deadline.
B. There is no limit (provided the parties do not put a hearing date at risk).
C. 14 days (provided this does not put a hearing date at risk).
D. 28 days (provided this does not put a hearing date at risk).
D. 28 days (provided this does not put a hearing date at risk).
The claimant files its costs budget at court 60 minutes late. On the day of filing, the claimant’s solicitor had an accident on the way in to work and, although uninjured, had to attend hospital for several hours to get checked out. Once released from hospital, the solicitor filed the costs budget. The solicitor applies for relief from sanctions the following day. What factor is most likely to influence the court when considering whether to grant the relief from sanctions?
A. The breach is serious and significant.
B. The breach prevents the case being conducted efficiently and at proportionate cost.
C. The breach is not serious or significant.
D. The default occurred without good reason.
E. The breach must be punished to enforce compliance with rules, practice directions and court orders.
C. The breach is not serious or significant
The best answer is that the breach is not serious or significant. The case of Denton requires the court to look at three stages as part of its application of the provisions in relation to relief from sanctions (CPR 3.9). The first stage is to identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order. If the breach is neither serious nor significant, then relief should be granted. Here, the breach is not serious or significant and so relief from sanctions will usually be granted and it will not be necessary for the court to spend much time on the second and third stages.
The default occurred without good reason is not the best answer. The second stage of the Denton test is that if the breach is serious and significant, the court will consider why the default occurred. As stage one is satisfied, the court does not need to consider the second stage in any depth. In any event, here, there is good reason for the default.
The breach prevents the case being conducted efficiently and at proportionate cost is not the best answer. This is part of the third stage of the Denton test and deals with CPR 3.1(a). As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(a) does not point towards the refusal of relief as the breach did not prevent the litigation from being conducted efficiently and at proportionate cost, and did not imperil any further hearing date or otherwise disrupt the conduct of the litigation.
The breach must be punished to enforce compliance with rules, practice directions and court orders is not the best answer. As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(b) does not point towards the refusal of relief as the breach is near the bottom of the range of seriousness.
The breach is serious and significant is not the best answer. It is unlikely that the court would find this breach serious and significant.
Putting aside personal injury claims / tenancy claims, the financial limit on the small claims track is:
A. £15,000
B. £10,000
C. £25,000
D. £5,000
E. £50,000
B. £10,000
Once Directions Questionnaires have been filed, the Court will always order that there be an allocation hearing. True or false?
A. True
B. False
B. False
