What I’ve learnt from mocks Flashcards
The time frame for a defendant filing a defence is…
14 days after the DS of the POC, unless D files and AOS, he then has 28 days from the DS of the POS to file
That in some circumstances, a claimant need not make an application for default judgment, that filing a request is sufficient for matters where:
• specified amount of money
• delivery of food were paying is an alternative
• claim is for fixed costs
An application must be made for default judgment (filing a request not sufficient) for:
• claim for remedy other than money (injunction)
• costs other than fixed costs
• claim against child or PP
• spouse or civil partner v spouse or civil partner in tort
Documents “served” does not mean it has to be deemed served by that date, just that…
… the required step needs to be taken by this time
There is no relevant pre action protocol for…
Breach of contract (non PI) and as a result, the PD pre action protocol applies
When a solicitor, who is have confirmed they are instructed to accept service, provides an email address on the footer or header of a letter…
Does not mean they accept service by email, but the inclusion of a fax number will be sufficient that they will accept service via fax
If a party is seeking to strike out (statement of case) a defence, then it would be appropriate for an application for…
summary judgement to be made at the same time
Not content but exam based
Try not to get caught up seeing the right next step as an answer in the question
The “normal” procedure may not be best followed - use common sense and the overriding objective!!
• child C turns 18 in one month example or
• not making a request for further information before a Part 18 application if opposing party hostile
Claim form deemed date of service is:
Second business day after delivered
Deemed service of any document other than the claim form:
That day if electronic and before 4:30
If posted second day, the next working day**
Posted Thursday - DDS Monday
Posted Friday - DDS Monday
If a witness statement is not served within the specified time frame, the sanction is automatic and that sanction is…
A witness may not be called to give oral evidence unless the court gives permission. A party may apply for relief from sanction (DENTON) and an opposing party may indicate that such application would be unopposed
What is the test set out in Denton and does the court HAVE to deal with each limb?
- Breach serious or significant
- Reason why breach occurred
- All circumstances, is the claim being dealt with fairly (sanction proportionate, other breaches, promptness of application)
No, if the breach is neither serious nor significant the court do not have to deal with stage 2 or 3
Should a party to a claim, use their legal knowledge to make opportunistic application / refusal where consent can be provided?
The court do not look favourably on party’s that make opportunistic application or refuse to provide consent e.g.
Cost of amendment usually bourne by the amending party, unless another party has been unreasonable in refusing consent
Where a party has good reason to have not provided a witness statement in time and was only provided a day late for example, then to oppose their relief from sanction app is unreasonable
(May give rise to adverse cost order)
Do cost assessments consider pre commencement costs?
I did think no but they do!
As with normal costs they need to have been REASONABLY INCURRED, REASONABLE IN AMOUNT and PROPORTIONATE to the matters in issue
For a PI claim to be able to be heard in the HC be for above £50,000 in relation to PI only?
No; the claim only needs to include PI!
Claim for PI was £12,000 but claim for hiring a car was £45,000 - this claim MAY be started in the HC
