Dispute

Question 1

What are the FOUR core steps of litigation?

What are the two common further elements?

Answer 1

1. Statements of case
2. Disclosure.
3. Witness statements.
4. Trial.

Common other elements:

• Expert reports.
• Interim applications.

Question 2

How does the litigation process begin?

Answer 2

When the party making the claim (the claimant) files a claim against one or more parties (the defendant(s)), seeking a court-ordered remedy.

Question 3

What are the THREE main advantages of litigation compared to arbitration?

Answer 3

1. Courts have extensive powers to issue and enforce orders.
2. Parties can apply to add connected individuals or businesses as additional parties to proceedings.
3. Courts have resources and experience for dealing with very large and complex cases.

Question 4

There are SIX main disadvantages of litigation over arbitration. Which are missing?

• The judge may not have subject-matter expertise.
• Court proceedings are public.
• High legal costs.

Answer 4

• The parties cannot choose the judge.
• Once proceedings commence, the parties have little or no control over the course of events.
• Trial and judgment is rarely quick.

Question 5

There are SIX main disadvantages of litigation over arbitration. Which are missing?

• The parties cannot choose the judge.
• Trial and judgment is rarely quick.
• Once proceedings commence, the parties have little or no control over the course of events.

Answer 5

• Court proceedings are public.
• The judge may not have subject-matter expertise.
• High legal costs.

Question 6

Define:

Arbitration.

What is the overarching legislation governing arbitration?

Answer 6

A formal process leading to a legally binding outcome, but which is private and the parties appoint the arbitrator(s) themselves.

Arbitration Act 1996

Question 7

True or False:

Both litigation and arbitration result in legally binding outcomes called judgments.

Answer 7

False, while the outcomes are legally binding, in arbitration they are called ‘arbitration awards’ not judgments.

Question 8

Generally, both parties to a dispute must agree to refer the dispute to arbitration. What is the exception to this?

Answer 8

There is a binding arbitration clause in any contract between them.

Question 9

What are the FIVE main advantages of arbitration?

Answer 9

1. Private process.
2. Parties may be able to choose arbitrator (depending on wording of arbitration clause).
3. Arbitrators are often experts in the relevant field or profession.
4. Flexibility of procedure (depending on mechanism/scheme chosen).
5. The issues examined more thoroughly than in mediation.

Question 10

What are the FIVE main disadvantages of arbitration?

Answer 10

1. Arbitrator’s powers are not as wide as the court’s.
2. Will not necessarily preserve a commercial relationship - still inherently contentious.
3. Can be as lengthy as litigation.
4. Can be more expensive than litigation (arbitrators and venues must be paid for privately, unlike judges and courts).
5. Third parties cannot be added as parties to the proceedings at a later stage.

Question 11

What type of order can a judge make that an arbitrator cannot?

Answer 11

Grant freezing orders.

Question 12

What are the TWO requirements for a valid arbitration clause?

s5 & s6 Arbitration Act 1996

Answer 12

1. In writing or evidenced in writing (s 5).
2. Refer present and future “disputes” (not claims or cases) to arbitration (s 6).

Question 13

True or False:

There is a presumption that the arbitration clause is severed from the rest of the contract – so if there is a dispute over the validity of a contract itself, this does not necessarily affect the validity of the arbitration clause.

Answer 13

True.

Question 14

What effect did the Arbitration Act 2025 have on the law that will be applied in an arbitration case?

Answer 14

The Arbitration Act 2025 (which amends the Arbitration Act 1996) made the law of the seat of arbitration the default, unless the parties have clearly chosen another law to govern the arbitration clause itself.

For example, if a contract is governed by English law but the arbitration seat is in Paris, then French law would govern the arbitration agreement unless the parties explicitly stated otherwise.

Question 15

Why is it important to know where the seat of arbitration is?

(3 reasons)

Answer 15

Local courts may be asked to rule on:
1. Scope of arbitration agreement itself.
2. Interim orders to support arbitration process.
3. Whether there is legal basis to challenge arbitration award.

Question 16

True or False:

The seat of arbitration is often chosen as a neutral jurisdiction.

Answer 16

True, especially important in international disputes where local laws and courts may not be perceived as robust and impartial.

Question 17

What THREE steps should a defendant take if a claimant commences proceedings against them despite having agreed that their disputes would be submitted to arbitration instead?

Answer 17

1. Step 1 – There must be a relevant, valid and binding arbitration clause that meets the requirements of Arbitration Act ss 5 and 6.
2. Step 2 – Within 14 days of deemed service of the particulars of claim the defendant must file an acknowledgment of service to state that they will contest the jurisdiction..
3. Step 3 – The defendant must file an application notice on all parties whose address for service has been provided seeking a stay of legal proceedings.

Question 18

How many days does a defendant have to file an acknowledgement of service after receiving particulars of claim?

Answer 18

Within 14 days of deemed service.

Question 19

What are the first FIVE procedural steps of arbitration?

Answer 19

1. Commencement - notice and details of dispute given to other side.
2. Arbitrator appointed.
3. Preliminary hearing and directions.
4. Appointment of experts (if required).
5. Further directions (if required).

Question 20

If an arbitration tribunal is to consist of a sole arbitrator, how are they appointed and when?

(assuming the parties haven’t agreed an alternative process)

Answer 20

The parties jointly appoint the sole arbitrator not later than 28 days after service or a request to do so.

Question 21

If an arbitration tribunal is to consist of two arbitrators, how are they appointed and when?

Answer 21

Each party appoints one arbitrator not later than 14 days after service of a request in writing by either party to do so.

Question 22

If an arbitration tribunal is to consist of three arbitrators, how are they appointed and when?

Answer 22

Each party appoints one arbitrator not later than 14 days after service of a request in writing by either party to do so

THEN, the two appointed arbitrators forthwith appoint a third arbitrator as the chairman of the tribunal.

Question 23

What are the THREE purposes of a preliminary arbitration hearing and directions?

Answer 23

1. Explain the rules/procedures.
2. Set out the timetable.
3. Deal with the approach to disclosure and evidence.

s 34 Arbitration Act 1996

Question 24

An arbitration tribunal can appoint experts and/or legal advisors to report to it, as well as assessors to assist on technical matters.

What say (if any) do the parties have on which experts are appointed?

Answer 24

The parties will be given the opportunity to comment on the opinions and advice of the experts, but on whether or not to appoint them.

s 37(1)(b) Arbitration Act 1996

Question 25

After the preliminary arbitration hearing and directions, what THREE further directions might the tribunal make?

Answer 25

* Ordering the claimant to provide **security for costs** (s 38(3)). * Giving directions in relation to any **property** which is the subject of the proceedings e.g. detention, sampling, inspection etc. * Giving further directions as to any **evidential or procedural matter**.

Question 26

What happens if a party fails to comply with an order of the arbitration tribunal?

Answer 26

* **Dismiss** their case. * Continue proceedings **without their involvement**. * Make **preemptory orders** that would result in sanctions for further failure to comply.

Question 27

How can an arbitration tribunal enforce preemptory orders?

Answer 27

By application to the court. | s 42 Arbitration Act 1996

Question 28

What are the TWO main limitations on parties taking part in arbitration applying to local courts for a court order?

Answer 28

They can only apply for court orders to the extent: 1. The tribunal's powers are not wide enough or 2. The tribunal is unable to act effectively.

Question 29

# True or False: Where arbitration proceedings are underway, it is not for the local court to determine any question of law.

Answer 29

False, the local court can determine a question of law upon application of a party.

Question 30

What TWO forms can arbitration hearings take?

Answer 30

**Adversarial** - each party conveys their arguments. **Inquisitorial** - tribunal takes more active role in questionning parties and investigating matters.

Question 31

# True or False: Parties to arbitration proceedings can agree in advance the remedies a tribunal may exercise.

Answer 31

True.

Question 32

What are the FOUR main arbitration awards a tribunal might make?

Answer 32

1. Award money. 2. Order a party to do (or refrain from doing) something. 3. Specific performance (other than a contract in relation in land). 4. Rectify or set aside a deed or other document.

Question 33

# True or False: The arbitration tribunal is entitled to withhold delivery of an award pending the payment of its fees and expenses.

Answer 33

True. | s 56(1) Arbitration Act 1996

Question 34

Once the parties settle or an arbitration award is made, how is the agreement formalised?

Answer 34

In a **consent / Tomlin order**, reflecting the arbitation award (or settlement embodied in an arbitration award).

Question 35

What are the THREE possible grounds for challenging / appealing an arbitration award?

Answer 35

* Challenge the **substantive jurisdiction**. * **Serious irregularity** which has caused, or will cause, the applicant **substantial injustice**. * **Point of law** (unless the parties have agreed to exclude appeals on a point of law beforehand).

Question 36

# True or False: If the parties remove the requirement for the arbitration tribunal to explain the reasons for the award, then the parties will not be able to appeal on a point of law.

Answer 36

True.

Question 37

How long does a party have to appeal an **arbitration award**?

Answer 37

**Within 28 days** of the award (when signed by arbitrator). | s 70 Arbitration Act 1996

Question 38

# True or False: Arbitration awards are enforced in most jurisdictions.

Answer 38

True. | New York Convention

Question 39

# Define: Mediation.

Answer 39

A voluntary, private process where a neutral person is appointed to act, almost as a negotiator between the parties.

Question 40

# True or False: The parties to a mediation must agree who will act as mediator.

Answer 40

True.

Question 41

Other than the Practice Direction on Pre-Action Conduct and Protocols (PDPAC) requiring parties to consider ADR, what are the SEVEN key advantages of **mediation**?

Answer 41

1. Commercial relationship may be salvaged. 2. Confidentiality. 3. Flexibility. 4. Speed. 5. Without prejudice discussions (any concession cannot be used against party in later proceedings). 6. Agreed solution can take any form. 7. Low cost.

Question 42

What costs protection might a client gain from using ADR before bringing legal proceedings?

Answer 42

If ADR fails and the client subsequently wins in court on the same or better terms than in ADR, the other side can be made to cover the legal fees and expenses. | CPR r 44.2

Question 43

What are the THREE main disadvantages of **mediation**?

Answer 43

1. **Uncertainty** - won't necessarily reach agreement. 2. Other party may not have genuine desire to settle and might use mediation as **delaying tactic** to **appear co-operative** to court. 3. Might not be suitable for **complex legal and technical issues**.

Question 44

If agreement is reached during mediation, how is this formalised?

Answer 44

The lawyers draft a formal settlement document for the parties to sign before leaving.

Question 45

What are the FOUR main stages of the mediation process?

Answer 45

* **Stage 1:** Mediator explains their role and the standard mediation procedure. * **Stage 2:** Joint or plenary session where both parties will meet each other with the mediator. Usually, each side will then take it in turns to formally air their grievances and state their positions. * **Stage 3:** The parties go to separate rooms (so three rooms are necessary in total) and the mediator will go back and forth between them to establish the areas where compromise might be possible (known as “**shuttle diplomacy**”). * **Stage 4:** If the parties are converging towards a middle ground, the mediator will invite both parties to meet directly again and agree a solution.

Question 46

Who bears the costs of mediation? Are they recoverable in later litigation?

Answer 46

Each party bears their own costs and will equally share the mediator's fees. These costs are not usually recoverable in later litigation unless a specific order is granted.

Question 47

Other than mediation, what are THREE other forms of ADR? Are they legally binding?

Answer 47

**Binding** 1. Expert determination. **Non-binding** 1. Early neutral evaluation. 2. Mini trial.

Question 48

# Fix the error: You must consider and take account of your client’s needs and circumstances in considering whether a form of ADR might be appropriate for your client. | **para 3.4** of the *Code of Conduct of Solicitors*

Answer 48

You must consider and take account of your client’s **attributes**, needs and circumstances in considering whether a form of ADR might be appropriate for your client.

Question 49

# Fix the error: You must give your client enough information about all ADR methods, such that they can make informed decisions about their options and understand the likely costs of each. | **para 8.6 & 8.7** of the *Code of Conduct of Solicitors*

Answer 49

You must give your client enough information about **all available methods of dispute resolution (whether ADR, arbitration or litigation)**, such that they can make informed decisions about their options and understand the likely costs of each.

Question 50

# True or False: A court can compel witnesses and other non-parties to provide information and evidence, an arbitration tribunal cannot.

Answer 50

True.

Question 51

# True or False: A court has more extensive rights to appeal in the event of a wrong decision compared to an arbitration court.

Answer 51

True.

Question 52

An English company is entering into a commercial agreement with a counterparty based in a country that does not consistently enforce judgments of the English courts. The judicial system in that country is not considered to be independent and it scores poorly on international transparency and corruption indexes. The country is a party to the New York Convention. What jurisdiction for arbitration would be most appropriate from the perspective of the English company?

Answer 52

An arbitration clause whose seat is in England and Wales.

Question 53

A company is in dispute with a supplier which they claim is in breach of contract. The company believes it is entitled to damages from the supplier. The contract, signed in 2018, is subject to the laws of England and Wales and contains a standard arbitration clause. What must company do?

Answer 53

The company must pursue its claim by arbitration and cannot issue a court claim.

Question 54

Two business partners decided to have their dispute determined by arbitration. They agreed that there would be no option to challenge the award on any basis and the arbitrator should not provide reasons for the award. After the arbitration award is delivered, one of the business partners refuses to accept it. Is there any ground for the business partner to appeal?

Answer 54

Yes, the award is binding but it can be challenged by an application to the court if there was some **serious irregularity** in the arbitration as this is a mandatory ground for challenging an arbitration award so cannot be excluded, even by mutual agreement.

Question 55

A firm has received a letter of claim alleging professional negligence. They privately admit that the prospective claimant received negligent advice. However, they believe the value of the claim has been inflated. No proceedings have yet been commenced. What advice should the firm receive regarding their options for dispute resolution?

Answer 55

A **mediation** should be proposed to try to reach a settlement or narrow the issues in dispute before a claim is issued.

Question 56

An insurance company is in a dispute with a former franchisee financial adviser for breach of contract. The financial adviser has joined a competing franchise in breach of contract. The insurance company suspects that the financial adviser is one of a group of franchisees acting together but does not yet have evidence. They want to take robust action against any parties in breach of contract. In pre-action correspondence, the financial adviser has suggested that the parties agree to submit their dispute to arbitration. Should the insurance company agree to arbitration?

Answer 56

No, because it is likely that the insurance company will want to **join other parties** into the proceedings. If a number of parties have been acting together, related claims against them are likely and should be determined in the same proceedings.

Question 57

When **building a claim**, why is it so important to establish who the parties are at the outset? | (there are five main reasons)

Answer 57

Wrong parties = no claim. It also affects: * Cause(s) of action * Jurisdiction and governing law * Limitation * Remedies * Enforceability

Question 58

If a claim is brought against the **wrong parties**, what are the TWO most common consequences?

Answer 58

1. The claim is **struck out**. 2. Permission is granted to **substitute** the correct parties (but claimant will likely have to pay for opponent's wasted costs).

Question 59

How can a third party which has acquired another party enforce an existing contract between the party it acquired and another party?

Answer 59

**Valid assignment** - if the third party has acquired the original party and there was a valid assignment clause in the original contract, the third party will have the cause of action, having acquired the original party's rights. **Novation** - where the *obligations* under a contract are transferred to third parties, by formal (or informal) agreement or implication by conduct.

Question 60

In what scenario might a claim be brought by or against parties who were not signatories to the original contract?

Answer 60

**Claimant** - because they validly assigned their rights to a third party and/or they transferred their obligations (and rights) by way of novation. **Defendant** - because they transferred their obligations (and rights) to a third party by way of novation.

Question 61

Where an agent disclosed the principal in the contract they entered into on the principal's behalf, who does the other party have the legal relationship with? How does this differ if the principal is *not* disclosed to the other party by the agent?

Answer 61

**Principal disclosed** - legal relationship between principal and other party. **Principal not disclosed** - the other party can choose whether to sue agent or principal.

Question 62

Where there are **multiple potential claimants and defendants** (with potentially different causes of action), the claim will include them all. How will the court deal with them?

Answer 62

Either on the basis of **joint liability** for the same cause of action, or a **succession of alternative claims**.

Question 63

When building a claim, an **analysis of the facts** is essential to understand the basis of the claim and issues that might affect its prospects (e.g. defences). How should one ideally go about analysing the fact?

Answer 63

1. Detailed chronology. 2. References to sources of each piece of information.

Question 64

Factual analysis of a **cause of action** in **breach of contract** should look at what FOUR things?

Answer 64

1. **Contract** - contractual relationship between parties, whether in writing or oral. 2. **Terms** - both express and implied. 3. **Breach** - which terms have been breaches, and are they conditions, warranties or innominate? 4. **Defences** - what are the available defences?

Question 65

Factual analysis of a **cause of action** in **negligence** should look at what SIX things?

Answer 65

1. **Duty of care** - existence and scope of duty. 2. **Breach** 3. **Loss** 4. **Causation** - including unforeseeable novus actus interveniens. 5. **Remoteness** - reasonably foreseeable damage of that kind. 6. **Defences** - consider contributory negligence, exclusions of liability, contractual limitations etc.

Question 66

# True or False: Jurisdiction and governing law are separate issues. | (If not, why not? If so, why?)

Answer 66

True, jurisdiction is about where the case will be heard, while governing law is about what law will be applied when it is heard.

Question 67

What is the difference between an exclusive or non-exclusive jurisdiction clause?

Answer 67

**Exclusive** - do not allow parties to bring disputes in any other jurisdiction. **Non-exclusive** - all parties to bring proceedings in their chosen courts.

Question 68

If there is no agreement between the parties on jurisdiction and/or governing law, what THREE things should a solicitor consider when assessing what jurisdiction and/or governing law will apply?

Answer 68

1. Where the parties are based. 2. Where the performance (or anticipated performance) will take place. 3. If sale/transfer for goods, then where those goods are located.

Question 69

For non-contractual claims, what TWO things should a solicitor consider when assessing what jurisdiction and/or governing law will apply?

Answer 69

1. Where the relevant events occurred. 2. Where the damage was suffered.

Question 70

What is the **limitation period** of a contractual claim? What is the exception? | Limitation Act 1980

Answer 70

6 years. Exception: contract under deed is 12 years. | Limitation Act 1980

Question 71

What are the limitation periods for the following in tort? * General tort (incl. misrepresentation). * Personal injury by negligence. * Latent damage by negligence. * Professional negligence. * Defamation / malicious falsehood. | Consider also any long stops

Answer 71

Limitation periods in tort: * General tort (incl. misrepresentation) = **6 years** * Personal injury by negligence = **3 years** * Latent damage by negligence = **6 years** (or 3 years from date of knowledge, up to 15 year long stop) * Professional negligence = **3 years** (or 3 years from date of knowledge, up to 15 years long stop) * Defamation / malicious falsehood = **1 year** | Limitation Act 1980

Question 72

Breaches of trust claims (e.g. claims against non-trustees for knowingly receiving trust funds) have a limitation period of **6 years**. What are the two exceptions and what are their limitation periods? | Limitation Act 1980

Answer 72

The following breaches of trust have an **unlimited** limitation period: * Claims against a trustee in respect of **fraud or fraudulent breach** of trust. * Claims against a trustee to **recover trust property or proceeds** of trust property from trustee. | Limitation Act 1980

Question 73

What is the limitation period for claims relating to defective products under the *Consumer Protection Act 1987*?

Answer 73

**3 years** or, if later, 3 years from the date of knowledge of certain material facts. (with a long stop of 10 years from the date the defendant put the product into circulation)

Question 74

What is the limitation period of claims against public authorities? And under what Act?

Answer 74

**One year**, unless extended by the court. For judicial reviews, only **3 months**. Human Rights Act 1998.

Question 75

# True or False: Contracting parties cannot impose shorter or longer limitation periods than those required under the *Limitation Act 1980*.

Answer 75

False, they can impose any period they wish, subject to the following, as applicable: * *Unfair Contract Terms Act 1977* (B2B) * *Consumer Rights Act 2015* (B2C)

Question 76

When does time start running for the purpose of calculating the end of the limitation period for bringing a claim? | Consider contract and tort

Answer 76

**Contract:** From the date of breach (irrespective of when damage occurred later). **Tort:** From the date the loss/damage was suffered (because loss is an essential component of the cause of action).

Question 77

For non-personal injury negligence claims, there is a long-stop of 15 years, after which a claim cannot be brought. When does time start running for the purpose of calculating the long-stop?

Answer 77

From the date of the negligent act or omission (even if this pre-dates when the cause of action (i.e. loss) arose).

Question 78

# True or False: The day on which a cause of action accrues is generally excluded from the calculation of the limitation date (unless it accrues at midnight).

Answer 78

True.

Question 79

In cases such as negligence (latent damage) or personal injury, where the limitation period can be extended to 3 years from the date the claimant had (actual or constructive) knowledge of the claim, what "knowledge" is required?

Answer 79

1. Knowledge as to material facts about the relevant damage. 2. Damage attributable in whole or in part to tortious act or omissions. 3. Identity of defendant.

Question 80

# True or False: In general, limitation periods can be extended by the court.

Answer 80

True.

Question 81

Unlike most other causes of action, when does time start running for the purpose of limitation periods for claims based on fraud, deliberate concealment, or mistake?

Answer 81

When the claimant **discovered** (or could have discovered with **reasonable diligence**) the fraud, concealment or mistake.

Question 82

What is the standard way to stop the limitation clock on a claim? | (are there any exceptions?)

Answer 82

To issue a **claim form** with the court. Exception: Reach a **'standstill agreement'** with the other party to pause (i.e. effectively extend) the limitation period.

Question 83

What is a **'protective claim form'** and when might a claimant use one?

Answer 83

When a claimant issues a claim form just before the limitation period expires to prevent the claim from being time barred. After which, the claim form must be served on the other party (usually within 4 months) or it will expire.

Question 84

If the defendant acknowledges the claimant's claim (in writing and signed) or makes a payment in respect of the claimant's claim (and doesn't dispute the rest), this has the effect of restarting the limitation period. From what date will it restart? | (are there any caveats?)

Answer 84

From the date of acknowledgment or part payment, provided the limitation period has not already expired.

Question 85

# True or False: The *Limitation Act 1980* does not apply time limits for claims for various equitable remedies, such as injunctions or specific performance.

Answer 85

True, although the court usually adopts the same time limits as in the *Limitation Act 1980* by analogy.

Question 86

# Define: The **equitable doctrine of "laches"**.

Answer 86

The claimant must pursue remedies without unreasonable delay.

Question 87

If there is no liquidated damages clause in a contract, what THREE possible measures of damages will be considered?

Answer 87

1. Expectation loss 2. Interest/reliance 3. Interest/restitution

Question 88

Even if a court makes an order for payment of your client's legal costs, what percentage will the client usually still be liable to pay?

Answer 88

10-30%

Question 89

There are THREE main types of private payment arrangements. What are they?

Answer 89

1. Client pays your fees as the case progresses. 2. Conditional fee arrangements (CFAs) i.e. no win, no fee - if successful, a fee is charged for services plus a success fee. 3. Damages-based agreements (DBAs) - if the client succeeds, a % of the damages is deducted and paid to you (up to 50%).

Question 90

Where a solicitor is charging a client on the basis of a **conditional fee arrangement (CFA)**, what TWO key requirements must be met?

Answer 90

1. Obtain informed **consent** from client to the level of success fee. 2. Ensure client understands that **success fees** are **not recoverable from the other side**, and so will have be paid by client.

Question 91

What is the difference between BTE and ATE insurance?

Answer 91

* **Before the event (BTE) insurance** - often taken out a general policy against the risk of future claims before the issue has arisen. * **After the event (ATE) insurance** - taken out after a specific issue or dispute has arisen, solely to cover the cost of litigating that claim, particularly if the client may lose.

Question 92

As soon as litigation is contemplated, what do solicitors need to instruct their clients to do?

Answer 92

Preserve any and all relevant documentation. Not to increase the documents they might have to search and disclose (either by creating new documents or receiving them from third parties).

Question 93

# True or False: If a hearing or one of parties or witnesses is in Wales / Welsh, they are entitled to Welsh language translations.

Answer 93

True.

Question 94

When onboarding a new client, what are the THREE key things to do?

Answer 94

1. Anti-money laundering **checks**. 2. Sending client care **letter**. 3. Agreeing cost **estimates**.

Question 95

Once they've onboarded their client, what are the EIGHT preliminary considerations a solicitor should make in relation to the client's case? | Hint: REfLECTIVe

Answer 95

1. **R** emedies 2. **E** vidence **f** 3. **L** ocation (jurisdiction) 4. **E** lements (factual & legal) 5. **C** ause of action 6. **T** ime available 7. **I** identify parties 8. **V** iability of suing defendant **e**

Question 96

# True or False: If the governing law of a dispute is not English law, then a solicitor who is only qualified to act in England and Wales cannot advise.

Answer 96

True.

Question 97

Eleven years ago, a company director signed a contract with a supplier of computer equipment without reading it. The agreement charged ten times the market rate for the equipment to be supplied. The director deleted all copies of the contract from the company’s systems and made false accounting entries to conceal the sums paid for the equipment. The director retired from the board of directors 3 years ago. Last year, during an office renovation, a copy of the contract was discovered and brought to the attention of the board for the first time. What is the limitation period applicable to a claim by the company against the former director?

Answer 97

A claim can be brought against the former director because any limitation period did not start to run until their **deliberate concealment** was discovered.

Question 98

A company retained a firm of solicitors to provide legal advice on a contract being entered into by a subsidiary company. The parent company contracted with the firm and received and paid the invoices for the legal advice. The firm of solicitors gave incorrect legal advice, meaning that the subsidiary is unable to enforce the terms of its contract with a third party and has suffered loss. What causes of actions do the parent and subsidiary company have (if any)?

Answer 98

The parent company has a breach of contract claim (which does not require loss) and the subsidiary company has a negligence claim (which does).

Question 99

An ambulance driver, employed by the ambulance service, suffered serious injuries when they were involved in a collision when driving an ambulance. The collision was the fault of another driver driving dangerously. However, the driver’s injuries would not have been serious but for a defective seatbelt. The maintenance of the ambulance was outsourced to an independent company with a contract with the ambulance service. Is the ambulance driver likely to have a cause of action against the maintenance company?

Answer 99

Yes, because the maintenance company would have a duty of care to a driver of the ambulance they maintain. (a duty of care is not limited to direct customers)

Question 100

Can a solicitor qualified in England and Wales only advise on a matter subject to foreign law?

Answer 100

No, doing so would mean breaching the SRA Code of Conduct as they are not competent to do so.

Question 101

In the event English and Welsh courts have **jurisdiction** to hear a case but which is subject to foreign **governing law**, how will the court handle the case? | Consider substantive and procedural matters

Answer 101

Foreign law will be applied to the substance of dispute (requiring experts in the foreign law). English law will still apply to procedural matters.

Question 102

There are different rules around which governing law will apply to a contractual claim depending on *when* the contract was entered into. What are the FOUR key dates and source of rules?

Answer 102

* **Pre-1 Apr 1991:** Depending on nature of the contract, the rules will derive from either statute or common law. * **1 Apr 1991 - 16 Dec 2009:** Rome Convention. * **17 Dec 2009 - 11pm on 31 Dec 2020:** Rome I e.g. CJEU case law. * **On/after 11pm on 31 Dec 2020:** UK version of Rome I (retained EU law).

Question 103

For the purpose of establishing the source of rules for determining the governing law for contractual claims, what is the reference point date?

Answer 103

Date of contract (as opposed to breach).

Question 104

# True or False: The Rome Convention (and its successor, Rome I and the retained Rome I post-Brexit) are not just applied to courts in the UK/EU.

Answer 104

True.

Question 105

# True or False: As a general rule, a contract will be governed by the **law chosen by the parties** (whether express or implied e.g. interconnected contracts with main one expressly choosing law). | Art 3, (Retained) Rome I

Answer 105

True. | Art 3, (Retained) Rome I

Question 106

If parties to a contract decide the governing law is that of country A, but everything concerning the contract (where the parties are based, where contract performed etc.) takes place in country B, which law will apply? | Art. 3(3), (Retained) Rome I

Answer 106

Country A's laws will apply, subject to any mandatory provisions (i.e. laws which can't be excluded by agreement) in country B. | Art. 3(3), (Retained) Rome I

Question 107

There is a difference between jurisdiction (*where* a matter is heard) and governing law (which laws are *applied*). However, sometimes the local laws in the jurisdiction will trump the chosen governing law in contractual claims. What are these type of laws called? And what do they cover? | Art. 9, (Retained) Rome I

Answer 107

**Overriding mandatory provisions:** Laws which the jurisdiction / country where contract actually performed regard as crucial for safeguarding **public interests**, such as political, social or economic organisation. | Art. 9, (Retained) Rome I

Question 108

There may be a difference between governing law (which laws are *applied*) and where the contract is *performed*. However, sometimes the local laws in the country where the contract is performed trump the chosen governing law. What are these type of laws called? And what do they cover? | Art. 9, (Retained) Rome I

Answer 108

**Overriding mandatory provisions:** Laws which the jurisdiction / country where contract actually performed regarded as crucial for safeguarding **public interests**, such as political, social or economic organisation. | Art. 9, (Retained) Rome I

Question 109

# Fix the error(s): A court will refuse to apply elements of the chosen governing law if it would be incompatible with public policy in the jurisdiction determining the case. | Art. 21, (Retained) Rome I

Answer 109

A court **can** refuse to apply elements of the chosen governing law if it would be **manifestly** incompatible with public policy in the jurisdiction determining the case. | Art. 21, (Retained) Rome I

Question 110

In the context of choosing the governing law, stricter rules are applied to **contracts for the carriage of passengers**. What are they? | Art. 5(2), (Retained) Rome I

Answer 110

The parties may only choose governing law of countries with *some* connection to the contract. | Art. 5(2), (Retained) Rome I

Question 111

Where the parties to a contract have *not* chosen governing law, there are some **default rules** applied depending on the contract type. Which of the following contract types will be governed by the laws of the country where the party ***delivering* the goods / services** has its **habitual residence**? * Sale of goods * Sale of goods by auction * Provision of services * Rights in immoveable property * < 6 month tenancies * Franchises * Distribution * Financial markets | Art. 4(1), (Retained) Rome I

Answer 111

1. Sale of goods (i.e. seller's residence) 2. Provision of services (i.e. service provider's residence) 3. < 6 month tenancies (i.e. landlord's residence as long as tenant in same country) 4. Distribution (i.e. distributor's residence) | Art. 4(1), (Retained) Rome I

Question 112

Where the parties to a contract have *not* chosen governing law, there are some **default rules** applied depending on the contract type. For contracts relating to rights in immoveable property (land etc.), what governing law is applied? | Art. 4(1), (Retained) Rome I

Answer 112

Where the property is situated. | Art. 4(1), (Retained) Rome I

Question 113

Where the parties to a contract have *not* chosen governing law, there are some **default rules** applied depending on the contract type. For contracts relating to financial markets, what governing law is applied? | Art. 4(1), (Retained) Rome I

Answer 113

The country whose financial market it is. | Art. 4(1), (Retained) Rome I

Question 114

Where the parties to a contract have *not* chosen governing law, there are some **default rules** applied depending on the contract type. In what circumstances can these default rules be overridden? | Art. 4(3), (Retained) Rome I

Answer 114

If it is clear that the contract is **"manifestly more closely connected"** with a country other than the one indicated by the rules. | Art. 4(3), (Retained) Rome I

Question 115

# Define: Habitual residence | (for purpose of governing law)

Answer 115

* **For companies, LLPs etc.** - the place of central administration. * **For branches of business / agency** - where they are located. * **For individuals (acting in course of business)** - principle place of business. | (at time contract entered into)

Question 116

# True or False: **"Habitual residence"** for the purpose of ascertaining the governing law (where not agreement to contrary exists between parties) is determined **at time contract entered into**.

Answer 116

True.

Question 117

In lieu of agreement between the parties on governing law, which governing law(s) will apply by default in **carriage contracts for goods**? | Art. 5, (Retained) Rome I

Answer 117

* If carrier's habitual residence is same as place where goods delivered to, then **habitual residence of carrier**. * Otherwise, **agreed place of delivery**. | Art. 5, (Retained) Rome I

Question 118

The governing law the parties may expressly choose for **carriage contracts for passengers** is limited to countries where there is ***some* connection** to the contract. This means FIVE possible places in practice. What are they? | Art. 5, (Retained) Rome I

Answer 118

1. Passenger's habitual residence 2. Carrier's habitual residence 3. Carrier's place of central administration 4. Place of departure 5. Place of destination | Art. 5, (Retained) Rome I

Question 119

In lieu of agreement between the parties on governing law, which governing law(s) will apply by default in **carriage contracts for passengers**? | Art. 5, (Retained) Rome I

Answer 119

* If departure and destination in same country as passenger's habitual residence, then where **passenger has habitual residence**. * Otherwise, where **carrier has habitual residence**. | Art. 5, (Retained) Rome I

Question 120

For consumer contracts, which governing law will generally apply? | Art. 6, (Retained) Rome I

Answer 120

Where consumer has habitual residence. | Art. 6, (Retained) Rome I

Question 121

# True or False: In B2C and employment contracts, the parties cannot choose governing law as the governing law of where the consumer / employee has habitual residence will always apply.

Answer 121

False, the parties can choose governing law, but the consumer / employee protections in the place where the consumer / employee has habitual residence will 'follow' them.

Question 122

The governing law applicable to a contract covers what FIVE areas of potential dispute? | Art. 12, (Retained) Rome I

Answer 122

1. Interpretation 2. Performance 3. Consequences of breach (incl. assessment of damages) 4. Extinguishing obligations and limitations 5. Consequences of invalidity of contract | Art. 12, (Retained) Rome I

Question 123

# True or False: Questions as to the validity of a term of a contract or the contract itself are generally determined under the law that would apply if the term or the contract were valid. | Art. 10, (Retained) Rome I

Answer 123

True. | Art. 10, (Retained) Rome I

Question 124

If the requirements for a contract under the laws of the country that govern it are satisfied, the contract is valid. In what other circumstance will the contract be deemed valid? | Art. 11, (Retained) Rome I

Answer 124

If the requirements for a contract are satisfied under the laws of the country, * In which all the parties (or their agents) were at the time it was entered into. * If not in same country, then law where either of them present or have habitual residence. | Art. 11, (Retained) Rome I

Question 125

Which specific rules determine the law applicable to most civil and commercial **non-contractual** claims depend on ***when* the events giving rise to damage occurred**. What are the key timeframes? What is the source of the rules which apply to each?

Answer 125

* **Pre-May 1996:** Previous common law rules. * **May 1996 - 10 Jan 2009:** Private International Law (Misc. Provisions) Act 1995. * **11 Jan 2009 - 11pm 31 Dec 2020:** Rome II (e.g. CJEU case law). * **On/after 11pm on 31 Dec 2020:** Retained EU law (retained Rome II).

Question 126

For (most civil and commercial) non-contractual claims where the damage arose between May 1996 and 10 Jan 2009, the *Private International Law (Misc. Provisions) Act 1995* applies for the purposes of ascertaining the governing law. What does it say?

Answer 126

The governing law is the law of the country in which the events constituting the tort occurred. (unless substantially more appropriate for governing law to be that of other country)

Question 127

For (most civil and commercial) non-contractual claims where the damage arose between **May 1996 and 10 Jan 2009**, the *Private International Law (Misc. Provisions) Act 1995* applies for the purposes of ascertaining the governing law. It states that the governing law is **where the events constituting the tort occurred**. But what is the governing law if the events happened in different countries?

Answer 127

* **For personal injury / death:** Where the individual sustained the injury. * **For property damage:** Where the property was when it was damaged. * **Any other case:** Where the most significant element(s) of events occurred. (unless substantially more appropriate for governing law to be that of other country)

Question 128

# True or False: The *Private International Law (Misc. Provisions) Act 1995* only applies to torts between May 1996 and 10 Jan 2009 (i.e. where damage arose then).

Answer 128

False, it also applies to torts not covered by Rome II.

Question 129

# True or False: The governing law imposed by (Retained) Rome II will apply irrespective of any connection to UK or EU member states. | (give an example)

Answer 129

True. Example: An English court, applying (Retained) Rome II, could impose laws of Japan on basis that habitual residence of claimant is there.

Question 130

There are SIX exceptions to the general rule that the **governing law of non-contractual claims** is where the direct damage occurred. Which are missing? * **Product liability:** If all parties have habitual residence in same country, then that country's laws apply, otherwise it generally follows where product was marketed. * **Choice:** Where parties have agreed already. * **Manifest incompatibility:** Where governing law imposed would be manifestly incompatible with public policy in jurisdiction. | (Retained) Rome II

Answer 130

* **Common habitual residence:** Claimant and defendant have habitual residence in same country at time damage occurred. * **Manifestly closer connection:** E.g. pre-existing relationship between parties. * **Pre-contractual dealings:** Regardless of whether contract concluded, the place where non-contractual obligations arose from prior dealings (e.g. draft agreement). | (Retained) Rome II

Question 131

**Product liability** claims are one of the exceptions to the general rule that the governing law of non-contractual claims is where the direct damage occurred. How is governing law determined for such claims? | Art. 5, (Retained) Rome II

Answer 131

* If **common habitual residence**, then that country. * If not, then the place where the product (a) marketed **and (b) habitual residence of claimant** when damage occurred. * If not, then the place where the product (a) marketed **and (b) acquired**. * If not, then the place where the product (a) marketed **and (b) damage occurred**. * Otherwise, where defendant habitually resident. | Art. 5, (Retained) Rome II

Question 132

There is a difference between jurisdiction (*where* a matter is heard) and governing law (which laws are *applied*). However, sometimes the local laws in the jurisdiction / where damage arose will trump the chosen governing law in non-contractual claims. What are these type of laws called? And what do they cover? | Art. 16, (Retained) Rome II

Answer 132

**Overriding mandatory provisions:** Laws which jurisdiction / country where the damage arose regard as crucial for safeguarding **public interests**, such as political, social or economic organisation. | Art. 16, (Retained) Rome II

Question 133

If parties to a non-contractual claim decide the governing law is that of country A, but everything concerning the tort (where the parties are based, where damage occurred etc.) takes place in country B, which law will apply?

Answer 133

Country A's laws will apply, subject to any mandatory provisions (i.e. laws which can't be excluded by agreement) in country B.

Question 134

The governing law applicable to a non-contractual claim covers what FIVE areas of potential dispute? | Art. 15, (Retained) Rome II

Answer 134

1. Liability (and exemptions / limitation thereof) 2. Damages (and limitations thereof) 3. Transference of claim 4. Entitlement to compensation 5. Limitation period | Art. 15, (Retained) Rome II

Question 135

There are FIVE main areas of non-contractual claims that are expressly **excluded from the scope of Rome II**. What are they?

Answer 135

* Family, wills, matrimonial issues. * State liability. * Evidence and procedure. * Company law issues. * Privacy and defamation.

Question 136

If a claim is brought against a party in the right jurisdiction (England) but under the **wrong governing law** (e.g. Ireland), what must they do? What happens if they fail to do this?

Answer 136

They must plead foreign law issues in the **statements of case**. Failing to do so will lead to the "presumption of equivalence" i.e. that Irish law = English law.

Question 137

When *exactly* was the end of the UK-EU transition period for the purpose of ascertaining the correct jurisdiction for a claim?

Answer 137

Proceedings **commenced** *after* 11pm on 31 December 2020.

Question 138

# True or False: Upon the end of the UK-EU transition period (after 11pm on 31 December 2020), the UK retained the EU's rules relating to both governing law and jurisdiction.

Answer 138

False, it only retained those around **governing law**.

Question 139

According to **common law** principles, when can an English and Welsh court **take jurisdiction** of a dispute?

Answer 139

If the proceedings can be validly served on the defendent (known as **"service of process"**). | CPR stems from this principle

Question 140

# Fix the error(s): A court will deem that a defendant has **submitted to the jurisdiction by conduct** if they: * Appoint a solicitor/agent in England and Wales. **and/or** * By taking a step in proceedings e.g. contesting merits of case by serving a defence.

Answer 140

A court will deem that a defendant has submitted to the jurisdiction by conduct if they: * Appoint a solicitor/agent in England and Wales **to accept service of proceedings**. and/or * By taking, **or appearing to take,** a step in proceedings e.g. contesting merits of case by serving a defence.

Question 141

With respect to ascertaining **governing law**, what is the general rule for: * Contractual claims * Non-contractual claims

Answer 141

**Contractual** - choice of law respected, but otherwise determined based on subject matter (and mandatory laws may still apply). **Non-contractual** - law of the country where the direct damage occurred unless parties agree to other law.

Question 142

A group of holidaymakers from Manchester went on holiday to Greece. They hired mopeds to travel around the local area. One of the group drove recklessly and crashed into another, causing the latter to crash and break both their legs. The injured party intends to sue their reckless friend for damages, including lost earnings due to being unable to work for 2 months. What is the applicable law?

Answer 142

England, because that is where both parties have their habitual residence.

Question 143

The **Practice Direction on Pre-Action Conduct (PDPAC)** encourages parties to exchange information with each other *before* issuing court proceedings. What is the purpose of such information exchange?

Answer 143

To understand each other's position to inform how to proceed (e.g. issue claim, settle, consider ADR). To support efficient management of proceedings and reduce costs of resolving the dispute.

Question 144

Solicitors must only bring proper claims before the court. This supports the court's overriding objective to deal with cases justly and at proportionate cost. When considering whether their claim is 'proper', what *SRA Code of Conduct* rules are of particular relevance?

Answer 144

1. **Not to waste court's time** (r 2.6) 2. Only put forward a case which is **properly arguable** (r2. 4) 3. Draw the court's attention to any **law and procedural irregularities** which are likely to have a material effect on the outcome of proceedings (r 2.7)

Question 145

The overriding objective requires the court to deal with cases **justly** and at **proportionate cost** and the parties must help the court do so. How does the **Practice Direction on Pre-Action Conduct (PDPAC)** support this objective? | r 1.1 CPR

Answer 145

Where earlier resolution has not been possible, the PDPAC at least ​ * facilitates information sharing * enables parties to better understand the other side's position * help narrow issues | r 1.1 CPR

Question 146

Where a claimant has to act urgently, they are not expected to comply with the PDPAC before issuing the claim. Give TWO examples of when this situation may arise.

Answer 146

1. Limitation deadline 2. Interim injunction

Question 147

# True or False: Except in urgent situations (e.g. interim injunction applications), the parties must have attempted ADR before issuing a claim.

Answer 147

False, they must have *considered* ADR only.

Question 148

What is the potential consequence of failing to follow a relevant **pre-action protocol** or the **Pre-Action Practice Direction**?

Answer 148

They risk a possible costs sanction later on, or their case being struck out.

Question 149

What are other name(s) for a **"letter before claim"**?

Answer 149

"Letter before action (LBA)" "Pre-action protocol letter"

Question 150

What is the potential consequence if a defendant does not engage with the claimant upon receipt of a **letter before claim**?

Answer 150

They are expected to engage with it in accordance with pre-action protocols. Silence or negative / obstructive replies the letter or a proposal of ADR could be considered by the court as **unreasonable**, resulting in a **costs sanction**.

Question 151

At a minimum, what FOUR elements should a **letter before claim** include according to PDPAC? What is the impact if it doesn't?

Answer 151

1. Basis of claim 2. Relevant facts 3. Remedy sought 4. Disclosure of key documents The prospective defendant can challenge a non-compliant letter of claim.

Question 152

A prospective defendant must respond to a **letter of claim** within a **"reasonable time"**. In practice, what constitutes "reasonable"? | para 6 PDPAC

Answer 152

Generally: Complex case - up to **3 months**. Straightforward case - as little as **14 days**. | para 6 PDPAC

Question 153

A prospective defendant should reply to a **letter before claim** within a "reasonable time". At a minimum, what FOUR elements should the response have to be compliant with the PDPAC? | para 6 PDPAC

Answer 153

1. Whether claim is accepted or not. If not, why not 2. Disputed issues / facts 3. Details of any counterclaim 4. Disclosure of key documents | para 6 PDPAC

Question 154

The proportionality principle applies to pre-action conduct, not just litigation. What does this mean in practice?

Answer 154

The parties only need take **reasonable** and **proportionate** steps to identify, narrow and resolve issues. They cannot recover disproportionately high costs.

Question 155

What is the difference between: * the **Practice Direction on Pre-Action Conduct** (PDPAC)? * the **pre-action protocols**?

Answer 155

PDPAC sets out the *general* process that all potential court proceedings should follow. Pre-action protocols are more prescriptive and apply to a specific category of claim e.g. there is one for 'debt claims against individuals', another for 'professional negligence', another for 'media and communications claims' and so on.

Question 156

What is a **Claim Notification Form (CNF)**? When is it used?

Answer 156

A CNF is used to notify the defendant and their insurer of the claim and facilitate information exchange. Used in certain types of (usually low-value) personal injury claims, including: * Road traffic accidents * Employers' liability * Public liability

Question 157

# True or False: Most breach of contract claims do not fall within a pre-action protocol, meaning the general process set out in PDPAC should be followed. | What's a notable exception?

Answer 157

True, except for professional negligence-type breach of contract claims (these should follow the professional negligence pre-action protocol).

Question 158

Where 2+ pre-action protocols could apply to a particular case, which one should a claimant follow?

Answer 158

Most pre-action protocols state which one should take priority. But if they don't, the claimant should follow the one they consider most appropriate. As a general rule, **sector-specific protocols > general cause of action-type protocols**.

Question 159

# True or False: The pre-action protocol for debt claims does not apply in B2B scenarios.

Answer 159

True, except for where the debtor (person liable) is a sole trader.

Question 160

# True or False: While the PDPAC are not mandatory, the court expects parties to comply with the relevant pre-action protocol or, where none applies, the Pre-Action Practice Direction.

Answer 160

True.

Question 161

# True or False: For the purpose of pre-action conduct, the court is concerned with substantive compliance rather than minor / technical infringements.

Answer 161

True, they are concerned with parties following the *spirit* of pre-action conduct.

Question 162

What FOUR possible actions may a court take for non-compliance with PDPAC?

Answer 162

1. Relieve parties of obligations to comply 2. Stay proceedings so parties can comply 3. Impose sanctions 4. Strike out case ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Question 163

The principal sanctions the court may apply as a result of a party’s non-compliance with PDPAC will be in respect of costs. What does this mean in practice?

Answer 163

1. Order to pay some / all of other party's costs (whether absolutely or on indemnity basis) 2. Deprive / reduce compensation due to claimant 3. Apply higher rate of interest (not exceeding 10% above base rate) on sum to be paid by defendant

Question 164

There are SEVEN main steps involved in the pre-action stage of a professional negligence claim. What comes after the below? 1. send a preliminary notice 2. acknowledgment from the defendant within 21 days 3. send a letter of claim within 6 months of the preliminary notice

Answer 164

1. send a preliminary notice 2. acknowledgment from the defendant within 21 days 3. send a letter of claim within 6 months of the preliminary notice 4. acknowledgment from the defendant within 21 days 5. letter of response/letter of settlement from the defendant within 3 months 6. if any admission or letter of settlement, a negotiation period (up to 6 months from acknowledgment of the letter of claim), and 7. give notice of intention to commence proceedings at least 14 days before issuing claim.

Question 165

A client has instructed their solicitor to write a letter of claim alleging breach of contract against a supplier of goods. They allege the goods did not conform to contractual specifications. The client has also instructed that a sum of £150,000 should be claimed as damages. This is not borne out by the available evidence, which indicates that damages are at most £50,000. The client insists that £150,000 should be claimed in the letter of claim, but agrees they would accept an offer of £40,000 or more and will limit the claim to £50,000 if it has to be issued with the court. Are the client’s instructions consistent with the Overriding Objective and the Practice Direction on Pre-Action Conduct?

Answer 165

No, because a false statement in a pre-action letter can lead to proceedings for contempt of court. Also, inflated claims do not meet the objectives of the Practice Direction and would likely lead to other sanctions.

Question 166

The **county court** and **High Court** have concurrent and unlimited jurisdiction over most civil matters, meaning most cases can be **commenced** in either court subject to certain restrictions and presumptions. What are these?

Answer 166

**County court** more likely: * Claim is ≤ £100,000 * Personal injury claim ≤ £50,000 **High Court** more likely: * High value claims * Complex facts or law and/or * Outcome of public importance **High Court** *only*: * Defamation * Judicial review * HRA 1998 claims

Question 167

When calculating the quantum (value) of a client's case, should the following being included or excluded from the calculation? 1. Interest and costs 2. Value of any counterclaim 3. Contributory negligence 4. Any possible deduction of benefits

Answer 167

These should all be **excluded**.

Question 168

What sort of cases will the **King's Bench Division** of the High Court handle? | (in terms of causes of action)

Answer 168

* Civil cases in contract and tort * Judicial reviews * Criminal appeals

Question 169

What sort of cases will the **Chancery Division** of the High Court handle? | (in terms of causes of action)

Answer 169

* Wills, estates, probate * Property and land * Company and partnership law * Intellectual property * Trusts * County court appeal

Question 170

What sort of cases will the **Family Division** of the High Court handle?

Answer 170

* Divorce * Adoption * Some wills and probate * Family-related appeals from magistrates or CC | (in terms of causes of action)

Question 171

The King's Bench and Chancery Divisions of the High Court are sub-divided into various **specialist courts and lists**. Categorise the below according to which can be handled by the KBD or ChD or both. * Commercial Court * Circuit Commercial Court * Admirality Court * Technology and Construction Court (TCC) * Administrative Court * Financial List * Business List * Insolvency and Companies List * Media and Communications List * Competition List * Intellectual Property List (incl. Patents Court and IP & Enterprise Court) * Property, Trusts and Probate List * Revenue List

Answer 171

**KBD:** * Commercial Court * Circuit Commercial Court * Admirality Court * Technology and Construction Court (TCC) * Administrative Court * Media and Communications List **ChD:** * Business List * Insolvency and Companies List * Competition List * Intellectual Property List (incl. Patents Court and IP & Enterprise Court) * Property, Trusts and Probate List * Revenue List **Both:** * Financial List

Question 172

# True or False: The **specialist courts and lists** within the King's Bench Division and Chancery Division of the High Court have their own set of rules and guidance instead of the CPR.

Answer 172

False, they have their own set of rules and guidance but these are to be applied *in addition to* the CPR.

Question 173

The King's Bench and Chancery Divisions of the High Court are sub-divided into various **specialist courts and lists**. Some (but not all) of these are collectively known as the **'Business and Property Courts'**. Which of the below do NOT come under this general umbrella? * Commercial Court * Circuit Commercial Court * Admirality Court * Technology and Construction Court (TCC) * Administrative Court * Financial List * Business List * Insolvency and Companies List * Media and Communications List * Competition List * Intellectual Property List (incl. Patents Court and IP & Enterprise Court) * Property, Trusts and Probate List * Revenue List

Answer 173

* Technology and Construction Court (TCC) * Administrative Court * Media and Communications List

Question 174

# True or False: The Family Division is subject to an entirely separate regime to the CPR, with the Family Procedure Rules.

Answer 174

True.

Question 175

What happens if a claim is issued in the wrong division or specialist court of the High Court? Is it still valid?

Answer 175

It is still valid - it will usually just be transferred to the correct division either by: 1. Mutual agreement of both parties 2. Application by one party 3. Court order of its own volition

Question 176

Most civil claims in the English and Welsh courts are brought under CPR Pt 7 (known as 'Pt 7 Claims'). However CPR Pt 8 is an alternative for certain claims (known as 'Pt 8 Claims'). What's the difference?

Answer 176

**Pt 7 Claims:** * A substantial dispute of fact e.g. whether a contractual term has been breached. * Disclosure, oral evidence, statements of case etc. **Pt 8 Claims:** * A simpler procedure where there is not a substantial dispute of fact. * No detailed statements of case (PoCs, defence etc.), just supporting evidence along with claim form (e.g. witness statements). * Usually no disclosure of documents. * Usually no oral evidence from witnesses. There are different claim forms and acknowledgement of service forms.

Question 177

# True or False: Judicial reviews **must** follow the Pt 8 procedure.

Answer 177

True.

Question 178

If a defendant objects to use of the Pt 8 procedure for commencing a claim, how should they raise their objection? And how might the issue be resolved?

Answer 178

They should object in the **acknowledgment of service** form. If the objection is valid, the Pt 8 claim can then be converted to the usual Pt 7 claim along with the associated directions.

Question 179

Practically speaking, how can a solicitor issue a claim form in the High Court?

Answer 179

Most claims can be issued (and fee paid) online via the courts' **CE File system**. Alternatively, a claim form can be issued on paper by either attending the court **in person** or sending the claim form and fee **by post**.

Question 180

Practically speaking, how can a solicitor issue a claim form in a county court? | Consider monetary and non-monetary claims

Answer 180

**MONETARY CLAIMS** * **Hard Copies:** Enough paper-copy claim forms for each defendant, the court, and claimant sent to the Civil National Business Centre (CNBC). * **Money claim online (MCO):** Alternatively if the claim is for <£100,000 and neither party is a child or protected party, the claimant is a single person bringing a claim against no more than two defendants, it can be issued electronically in the Civil National Business Centre. * **Damages Claims Portal (DCP):** If a damages claim, via the Damages Claims Portal (DCP), excluding debts, injunctions, consumer credit claims (both parties must be represented by solicitors). **NON-MONETARY CLAIMS** * **Hard Copies:** Send or take a paper claim form to the court to be issued (and enough copies for all defendants and claimant's copy too).

Question 181

Personal service is not used in digital portals (MCO, DCP, OCMC). How is service completed instead?

Answer 181

These platforms handle service automatically via post or notification through the system. 1. **Money Claims Online (MCO):** The court will automatically serve the claim form on the defendant via post after electronic filing. The claim form will be deemed to be served on the *fifth day* after the claim was issued irrespective of whether that day is a business day. 2. **Damages Claims Portal (DCP):** The court will automatically serve the claim form on the defendant via digital notification. Service is deemed to have taken place at the time and date at which the notification is sent by the DCP to the party being served that the document has been uploaded to the DCP. 3. **Online Civil Money Claims Pilot (OCMC):** The court arranges service by post after electronic filing.

Question 182

A claim form is not valid until it receives the **court seal**. What does this entail?

Answer 182

The claim form will be stamped with the court seal and allocated a claim number, which will be added to the claim form by the court staff. For electronic claim forms, the seal will be applied electronically. Once sealed and issued, the court will then notify the claimant that the claim forms are ready for service.

Question 183

For the purpose of limitation (i.e. being in time), when will a claim submitted to a court be deemed 'issued'?

Answer 183

The date the claim form was **received** by the court even if not formally issued via court seal until a later date.

Question 184

Where the **defendants are out of jurisdiction**, how will the **claim form** differ slightly depending on whether permission is / isn't required to serve out of jurisdiction?

Answer 184

Where **no permission required**, the standard 'statement of grounds' form will be included in the claim form. Where **permission required** (and not yet obtained), the claim form will be stamped with "not for service out of jurisdiction".

Question 185

How will the **issue fee** for a claim form be calculated?

Answer 185

Usually by reference to the sum of money claimed (or an estimate of the sum). If a claim seeks *both* monetary and non-monetary remedies (e.g. damages and injunction), the fees applicable to *both* are payable. If a claim seeks *either* of several remedies, normally the one with the higher fee is payable.

Question 186

Save for some limited exceptions, any amendments to a claim that involve **adding, removing or substituting a party** require the permission of the court. How is such permission sought?

Answer 186

By making an **application supported by evidence**, setting out the proposed new party's interest or connection to the claim. The supporting evidence is usually a witness statement from a solicitor.

Question 187

What is the court's general position on whether the claimant should pursue individuals vs group claims? E.g. a defamation claim against multiple newspapers? | s49 of the *Senior Courts Act 1981*

Answer 187

As far as possible, all matters between the parties in a dispute should be dealt with completely and finally, and multiplicity of legal proceedings should be avoided. | s49 of the *Senior Courts Act 1981*

Question 188

What are the TWO circumstances in which parties can be added, removed or substituted *without* court permission? How exactly?

Answer 188

1. **Before service** of the claim form (except for adding a new *claimant*) - the amendment should be made on the claim form in *red* text and a header recording the CPR rule under which the amendment is made. This should then be filed with the court with an explanatory covering letter and a request that it be sealed. 2. **Discontinuance** - the claimant unilaterally removes a defendant by filing a notice of discontinuance and serving a copy on every other party.

Question 189

Who can apply to remove, add or substitute a party to a claim?

Answer 189

1. An existing party 2. A person who wishes to become a party

Question 190

How will the court decide whether to permit a party to be **added** to a claim after the claim form has been issued?

Answer 190

* It is **desirable** so the court can resolve all the matters in dispute. * There is a **connected issue** involving the new party and an existing party and it is desirable to add them to resolve that issue. * To ensure all parties with **entitlement to a remedy** are parties (if they do not agree to be claimants, they must be added as defendants).

Question 191

# True or False: No party may be added as a claimant unless they have given their consent in writing and that consent has been filed with the court.

Answer 191

True.

Question 192

How will the court decide whether to permit a party to be **removed** from a claim after the claim form has been issued?

Answer 192

If it is not **desirable** for them to be a party e.g. the part of the case relevant to them is struck out.

Question 193

How will the court decide whether to permit a party to be **substituted** in a claim after the claim form has been issued?

Answer 193

The existing party's interest / liability has passed to the new party **AND** it is desirable to substitute the new party so that the court can resolve the dispute.

Question 194

To avoid circumvention of the limitation period, the court may **add or substitute a party** after the **end of the limitation period** only if TWO criteria are met. What are they?

Answer 194

1. The limitation period was current when the proceedings were *started*. 2. The addition or substitution is *necessary* (by virtue of mistake in original claim form, cannot be carried out without adding them, or death or bankruptcy or passing of liability of defendant). (and other factors the court feels are relevant e.g. unreasonable delay)

Question 195

What is the **doctrine of relation back**?

Answer 195

Where permission is granted, new causes of action are deemed to have been commenced *when the claim was first brought*.

Question 196

In terms of rectifying a mistake as to parties in a claim form where the limitation period is in issue, what is the distinction between: 1. A mistake as to how a party is identified (but no mistake as to actual party e.g. putting Inc. instead of Ltd). 2. A mistake between two separate parties.

Answer 196

1. A mistake as to how a party is identified - an amendment may be made after the limitation period has expired provided the mistake was genuine and that there was no reasonable doubt as to the identity of the party. 2. A mistake between two separate parties - will be time-barred after limitation period expires.

Question 197

A dispute has arisen between a large mining company and a company that manufactures mobile telephones. The mining company alleges breach of contract due to non-payment by the manufacturer for a supply of copper. There is no dispute about the volume or quality of the copper. The manufacturer’s defence is based on an alternative interpretation of the calculation of the purchase price under the contract. The value of the claim is £3.5 million. Which part of the High Court is the most appropriate forum for the claim?

Answer 197

The **Circuit Commercial Court** because: 1. It deals with business contract claims not suited to the Commercial Court due to insufficient size, value or complexity. 2. It deals with claims that would otherwise be suited to the Commercial Court up to approximately £5 million.

Question 198

One month ago, a telephone service provider issued and served a claim against a customer for unpaid bills which have been due for 2 years. Last week, the telephone service provider decided to sell its rights to all existing customer debts to a debt collection company. Its contractual rights to overdue payments from customers have been assigned to the debt collection company. How can the claim be continued?

Answer 198

The debt collection company can be substituted as claimant in place of the telephone service provider.

Question 199

Sealed claim forms are usually served on the defendant by the court itself. What method does the court usually use? And when might the claimant be responsible for serving on the defendant?

Answer 199

The court usually uses first class post. The claimant will serve on the defendant directly if either: 1. They request to. 2. The claim form is issued in the High Court.

Question 200

A claimant (or sometimes the court) can opt to serve the defendant with the claim form via **personal service**. What does this involve? Consider where the defendant is: * Individual * Company / corporation / LLP * General partnership

Answer 200

* **Individual** - leaving the claim form physically with them, whether or not at their home address. * **Company / corporation / LLP** - leaving the claim form with a person holding a senior position (e.g. director, officer, company secretary, chairman, mayor, town clerk, designated member). * **General partnership** - leaving the claim form with a partner or a person who has control or management of the business at its principal place of business.

Question 201

In what circumstances should a claim form be *personally* served on the defendant?

Answer 201

Bankruptcy petitions.

Question 202

Who is a **'process server'**? Why might a claimant engage one?

Answer 202

Process servers serve claim forms on defendants, especially where personal service is either preferred or required. A claimant might engage a process server because: * Cost-effective * Professional report in form of witness statement

Question 203

A claim form can be served by **first-class post**, document exchange, or other service which provides for delivery on the next business day. If a claimant chooses this method, at what point will service be effected?

Answer 203

Either: 1. Placing document in post box 2. Leaving document with / delivering to the relevant service provider 3. Having the document collected by the relevant service provider

Question 204

A claim form may be served by leaving it at a **permitted place for service**. What THREE types of place are expressly named in the CPR?

Answer 204

1. Solicitor. 2. Address given by defendant for service. 3. Default addresses for service.

Question 205

# Fix the error(s): In order to use **fax** or **email** as a valid method of service, the defendant must have previously indicated in writing that they or their solicitor are willing to accept service by fax or email.

Answer 205

In order to use fax or email as a valid method of service, the defendant must have previously indicated in writing that they or their solicitor are willing to accept service by fax or email **[1] and the fax number or email address to be used**.

Question 206

What constitutes 'sufficient notice' for the purpose of establishing that the defendant is willing to accept service by **fax or email**?

Answer 206

For fax - the fax number is set out on the writing paper of the solicitor acting for the defendant. For email - an email address is set out on the writing paper of the solicitor acting for the defendant **and** it is stated that the email address may be used for service.

Question 207

What TWO conditions should be met in order to validly serve a **claim form** on the defendant by a **contractually agreed method**?

Answer 207

1. The claim is brought *solely* in respect of that contract. 2. The contract contains a term that the claim form may be served by that method.

Question 208

As a rule, where a defendant has instructed a solicitor, you should only deal with them. This extends to serving the claim form on the defendant's solicitor too subject to what requirement?

Answer 208

Either: 1. The defendant has provided **in writing** the business address of a solicitor within the jurisdiction as an address at which to be served the claim form. 2. A solicitor acting for the defendant has notified the claimant, in writing, that they are **instructed to accept service** of the claim form.

Question 209

If the claimant and defendant have engaged in pre-action correspondence via their solicitors, can the claimant assume that the claim form can be served on the defendant's solicitor?

Answer 209

No, the claimant cannot effectively serve on the defendant's solicitor unless they have **confirmation in writing** that they can do so.

Question 210

If a defendant has given the claimant the following two addresses at which they may be served a claim form, which should they choose? 1. An address they reside at or do business from within the UK 2. Their solicitor's address

Answer 210

Their solicitor's address as this take precedence.

Question 211

Where a claimant has not been informed that the defendant's solicitor is authorised to accept service, has not been provided with an address at which to be served, and the claimant doesn't want to serve by personal service, the claim form *must* be served at the **default place of service**. What is the default place of service of the following types of defendant? * Individual * Individual sued in name of business / partnership * LLP * Corporation in England & Wales * Company in England & Wales * Any other company or corporation

Answer 211

* **Individual** - usual or last known residence. * **Individual sued in name of business / partnership** - usual or last known residence or principal or last known place of business. * **LLP** - principal office or any place of business in jurisdiction with a real connection to the claim. * **Corporation in England & Wales** - principal office or any place in jurisdiction where it carries on activities *and* with a real connection with the claim. * **Company in England & Wales** - principal office or any place of business in jurisdiction with a real connection with the claim. * **Any other company or corporation** - any place in jurisdiction where it carries on its activities or any place of business in jurisdiction.

Question 212

In the context of serving a **claim form**, what should the claimant do if they have reason to believe the individual no longer resides or carries on business at the default address?

Answer 212

* Take **reasonable steps** to ascertain the defendant's **current** residence or place of business (e.g. use a tracer agent). And send the claim form there if they find it. * If they don't find it, consider if there is an alternative place or method they can use and then make an **application for alternative service** to send there. * If even that not possible, serve at the **default address** anyway.

Question 213

A company can be served with a **claim form** at or posting to its registered office. Where can this be found? Is it the same as the principal office?

Answer 213

It can be found on **Companies House**. While the registered office and principal office are usually the same, this is not always the case.

Question 214

If an overseas individual is a director of a company registered in the jurisdiction *and* has given the address in the jurisdiction as their service address on Companies House, is it possible to serve them *within* the jurisdiction using that address?

Answer 214

Yes, even if they don't individually set foot in the jurisdiction.

Question 215

In what circumstances will the court permit the **defendant's agent** to be served with the **claim form**?

Answer 215

If the claim relates to a contract entered into within the jurisdiction (through the agent) and at the time of the application for permission to the court, the agent is either * Still the defendant's agent or * Still in business relations with them.

Question 216

How long does a claimant have to serve **particulars of claim** on a defendant following service of the claim form?

Answer 216

**Within 14 days** of *deemed* service.

Question 217

# Fix the error(s): Claim forms served within the jurisdiction are always deemed to be served on the first business day after completion of the relevant step.

Answer 217

Claim forms served within the jurisdiction are always deemed to be served on the **second business day** after completion of the relevant step.

Question 218

What is the 'relevant step' after which a **claim form** will be **deemed served** (on the second business day) for the following methods of service: * Posting * Physical delivery * Fax * Electronic method e.g. email * Personal service

Answer 218

* Posting - posting. * Physical delivery - delivery / leaving at relevant place. * Fax - completing transmission. * Electronic method e.g. email - sending. * Personal service - leaving it with individual / senior person at corporation or person with control of management of principal place of business.

Question 219

What is the 'relevant step' after which a **claim form** will be **deemed served** (on the second business day) where the **personal service** method is used?

Answer 219

Personal service on, * **Individual** - leaving it with them. * **Company or corporation** - leaving it with senior person. * **Partnership** - leaving it with partner or person with control or management of principal place of business.

Question 220

# Fix the error(s): Claim forms served within the jurisdiction are always deemed to be served on the **second clear business day** after completion of the relevant step.

Answer 220

Claim forms served within the jurisdiction are always deemed to be served on the **second business day** after completion of the relevant step.

Question 221

What is the "clear days" rule when calculating time periods in the CPR? Are there any exceptions?

Answer 221

Clear days are days that do not include: * The first day * The last day where the period is concluded with an event (e.g. a hearing) **Exception:** The clear days rule does *not* apply to deemed service of documents e.g. claim forms, particulars of claim etc..

Question 222

When calculating time periods under the CPR, should you include weekends and public/bank holidays?

Answer 222

Yes, unless the time period is **5 days or less**.

Question 223

A claim will expire if the claim form and particulars of claim are not dispatched for service (i.e. the relevant step taken) on all defendants in the jurisdiction by when exactly?

Answer 223

Midnight on the calendar day 4 months after the claim form was issued.

Question 224

Where permission is required from the court to serve a claim form outside of the jurisdiction, what is the process? What must the application set out?

Answer 224

1. An **application notice** filed with attached evidence and **draft particulars of claim** setting out the grounds, why the claim has a **reasonable prospect of success**, and defendant's address or where they might be found. 2. Application considered by Master or District Judge **without a hearing** or notice to defendant. 3. Court applies its **discretion**.

Question 225

Assuming permission has been granted to serve a claim form out of jurisdiction or was not required in the first place, what are the **permitted methods of service** in **Scotland and Northern Ireland**?

Answer 225

The same as in England and Wales.

Question 226

# True or False: There is no *deemed* service for a claim form served outside the jurisdiction.

Answer 226

True, the date of service should be specified on the certificate provided by the authority that effected service.

Question 227

Where a claim form is to be served out of jurisdiction, how long does a claimant have to serve it?

Answer 227

It must be *served* within **6 months** of the date of issue (and the particulars of claim can't be served any later than this either, but in any event should be served within 14 days of the claim form service).

Question 228

Where a court grants permission for an **alternative method** and/or **place** of service for the claim form, what THREE things must the resulting court order specify?

Answer 228

1. **Method / place** of service. 2. Date on which the claim form will be **deemed served**. 3. Period the defendant has to file an **acknowledgment**, admission or defence.

Question 229

When might a court dispense with the need to serve a claim form (or other documents) on the defendant?

Answer 229

If it is clear the defendant received or is aware of the claim and they are seeking to rely on technicalities to evade service.

Question 230

How can a claimant go about extending the period in which to serve a claim form on the defendant?

Answer 230

They should apply before the existing deadline expires, or if it already has, then they should show that they took all reasonable steps (e.g. court failed to serve claim form in time) and acted promptly in applying to extend. The claimant should provide evidence of their efforts and difficulties.

Question 231

Once a claim form has been served on an out-of-jurisdiction defendant, service of the remaining documents becomes more straightforward. How so?

Answer 231

When they acknowledge service or file a defence, they must give an address within the UK to be served with all other documents in the proceedings.

Question 232

# True or False: If the court has given permission for a claim form to be served out of the jurisdiction and the claim form states that particulars of claim are to follow, the permission of the court is not required to serve the particulars of claim.

Answer 232

True.

Question 233

In respect to documents *other than* claim forms (e.g. particulars of claim, application notices etc.) which of the following methods of service will be *deemed* served on that day if delivered / received **before 4.30pm on a business day** (or the next business day if not)? * First-class post * Document exchange * Delivering the document or leaving at permitted address * Fax * Other electronic method * Personal service

Answer 233

* Delivering the document or leaving at permitted address * Fax * Other electronic method * Personal service

Question 234

In respect to documents *other than* claim forms (e.g. particulars of claim, application notices etc.) which of the following methods of service will be *deemed* served **on the second day after it was sent** (or the next business day if the second day is not a business day)? * First-class post * Document exchange * Delivering the document or leaving at permitted address * Fax * Other electronic method * Personal service

Answer 234

* First-class post * Document exchange

Question 235

The **response pack** is a set of documents that must be served with the particulars of claim. What does it contain?

Answer 235

* Guidance on how to respond. * Standard forms to acknowledge service, admit, and defence claim.

Question 236

If the claimant serves the claim form instead of the court, they must file a **certificate of service** with the court. How long do they have to do this? What should the certificate of service include?

Answer 236

**Within 21 days** of service of the particulars of claim (unless all defendants have already acknowledged service by then). The certificate should include the date the claim form was served and when the relevant step was taken.

Question 237

# True or False: A **certificate of service** is a prerequisite for obtaining judgment in default.

Answer 237

True.

Question 238

An investor made an investment in a sustainable energy company incorporated and operating in Brazil. The agreement to make an investment was concluded in Heathrow airport. It did not contain any jurisdiction clause. The investor now alleges that they entered into the contract based on fraudulent misrepresentations and wishes to sue the Brazilian company. What will the investor have to do to obtain permission to serve the company in Brazil?

Answer 238

1. Apply to the court for permission to serve the claim out of the jurisdiction (without notice to the defendant). 2. Include supporting evidence: a. that one or more jurisdictional gateways are satisfied b. that the claim has a reasonable prospect of success c. of the defendant’s address, and d. that England and Wales is the proper place to bring the claim. 3. Comply with the obligation to give full and frank disclosure.

Question 239

A bicycle manufacturer based in Exeter is being sued by a retailer in relation to a consignment of bicycles that the retailer claims were seriously defective, leading to lost business from customers that had pre-ordered the bicycles. The bicycle manufacturer denies liability and claims the bicycles were damaged in transit. The claim form was issued by the retailer in the County Court on 1 February. They have informed the manufacturer that they have done so, but not yet served the claim form. (Note: dates are for illustrative purposes and do not correspond with any particular year.) What documents will the retailer have to serve and by when?

Answer 239

1. Claim Form 2. Particulars of Claim, and 3. Response Pack. All of the documents above have to be served by taking the relevant step to transmit them to the defendant (for example, placing in a post box) by 12 midnight on 1 June.

Question 240

A brewery has issued a claim for breach of contract against a company that owns and operates a chain of pubs in Wales. The pub company is seriously behind with payments for ongoing deliveries of beer. The parties’ solicitors engaged in pre-action correspondence but did not resolve the dispute. The solicitors acting for the pub chain confirmed that they are authorised to accept service and that they would accept service by email. The claim form was issued in the King's Bench Division of the High Court and then served on the solicitors acting for the pub chain by email at 4.50pm on Monday, 1 September. How do the solicitors acting for the brewery calculate the deadline for them to serve the particulars of claim and response pack?

Answer 240

1. The deemed date of service of the **claim form** was Wednesday 3 September – the **second business day** after the relevant step, *regardless of the method of service*. 2. The deadline for service of the **particulars of claim** is **14 days after service** of the claim form – Wednesday 17 September. 3. If the particulars of claim are to be served by email, they must be sent by no later than 4.30pm on Wednesday 17 September. If they are to be sent by post, they must be posted by no later than Monday 15 September.

Question 241

A claimant is pursuing a personal injury claim against their local council. They validly served a claim form on solicitors acting for the council by fax. The fax was transmitted at 4.45pm on Thursday. What is the deemed date of service of the claim form?

Answer 241

Monday Claim forms served within the jurisdiction are deemed to be served on the **second business day** after completion of the relevant step (and don't apply the 'clear days' rule).

Question 242

A company has been served with a claim form. The particulars of claim were served separately, a week later, by first class post. The covering letter enclosing the particulars of claim was dated Friday and received on Saturday. The company needs to calculate when the defence is due by reference to the deemed date of service of the particulars of claim. What is the deemed date of service of the particulars of claim?

Answer 242

Monday, because that is the next business day after the second day after posting. The deemed date of service for a document sent by post (other than the claim form) is the second day after posting. If that day is not a business day, the deemed date of service is next business day.

Question 243

Upon being served with a claim form, what procedural matters should the defendant check *before* providing a response or taking any further steps?

Answer 243

* Is the **claim form** valid (i.e. 4 months from dispatch where served in jurisdiction; 6 months from service for out of jurisdiction) * Is the **service** valid? * Is E & W the correct **jurisdiction**? * Is the claim **time-barred**? * Is there a **set-off / counterclaim** available?

Question 244

# True or False: If service of a claim form is defective, the defendant is entitled to ignore it.

Answer 244

True, technically, but this is rarely a good idea because: * The defendant might be mistaken. * If the claimant believes service was valid, they could obtain default judgment. * Default judgments are on the public record and affect credit ratings.

Question 245

What's the effect of the defendant filing an acknowledgment of service with the court that fails to contest the jurisdiction (where they believe E & W is the wrong jurisdiction)?

Answer 245

The defendant will be taken to submitting to the jurisdiction.

Question 246

If a defendant believes the course of action laid down in the claim form served on them is **time-barred**, what steps should they take in alerting the court and claimant to this fact?

Answer 246

The defendant should apply to **strike it out** and/or **plead limitation** in the defence. (A claim being time-barred will not automatically render it void)

Question 247

# True or False: A defence of **set-off** and/or a **counterclaim** must be pleaded in/with the defence.

Answer 247

True.

Question 248

What are the *pros* and *cons* of the defendant calling upon a claimant to serve them with a claim form they know has been issued? | CPR r 7.7

Answer 248

*Pros:* * **"Flush out**" the claimant's intentions if it is suspected they do no intend to serve but are using as leverage. * If the claimant doesn't serve them with the claim form within 14 days of service of the notice, they defendant can apply to **dismiss** the claim. *Cons:* * The claimant might choose not to serve the claim / not serve it validly if the defendant just **waits**.

Question 249

Following service of a claim form and particulars of claim, the defendant has 14 days to *either:* 1. Admit the claim 2. File a defence 3. File an acknowledgment of service Why would a defendant be advised to opt for filing an acknowledgment of service?

Answer 249

By filing an acknowledgment of service, the defendant gains an **extra 14 days** to file a defence (28 days in total).

Question 250

Although the window within which a defendant served out of jurisdiction should admit the claim / file a defence / acknowledge service varies according to the country, what remains the same about how long they will have to file a defence if they acknowledge service?

Answer 250

They will still get a 14 days extension from when the acknowledgment of service was filed.

Question 251

Other than by filing an acknowledgment of service, in what THREE ways can a defendant obtain an **extension** to the deadline for **filing a defence**? In what order would they usually happen?

Answer 251

1. The parties can **mutually agree** to an extension for **up to 28 days** (and notify the court of that agreement). 2. For more time than that, the defendant should apply for a **court order** extending the deadline with supporting evidence for why the extension is reasonable. 3. If the claimant is willing to extend the deadline for a *second* time, a **consent order** should generally be drafted with a covering letter explaining the position.

Question 252

# True or False: Failure to provide the defendant with the acknowledgment of service form alongside the particulars of claim will invalidate the claim.

Answer 252

False, it is unlikely to invalidate the claim.

Question 253

Who should the defendant file the acknowledgment of service with?

Answer 253

They **must** file it with the court. They **commonly** also serve a copy on all other parties (to avoid the claimant thinking it has not been filed and applying to default judgment).

Question 254

By filing an **acknowledgment of service**, the defendant buys themselves **14 extra days** to file their defence. Does that mean they should wait til the last minute to file the acknowledgment?

Answer 254

No, because the 14 extra days are added to the end of the original 14 days (i.e. it always gives the defendant 28 days in total).

Question 255

Where a defendant disputes jurisdiction in the acknowledgment of service but subsequently files a defence (or states they *intend* to file one), will they be taken to have **submitted to the jurisdiction**?

Answer 255

Yes, because to not submit to the jurisdiction, the defendant must not contest the case on its merits.

Question 256

What is the THREE-PART procedure for disputing jurisdiction?

Answer 256

1. File **acknowledgment of service**, ticking box which says 'jurisdiction contested'. 2. File an **application** with the court within 14 days of filing the acknowledgment along with supporting evidence and a draft order. 3. **Serve** the application notice and supporting evidence on the claimant.

Question 257

Where a defendant disputes jurisdiction in the acknowledgment of service but subsequently fails to file an application with the court to formally dispute it in the requisite time (14 days), will they be taken to have **submitted to the jurisdiction**?

Answer 257

Yes.

Question 258

If the court declares that it does not have jurisdiction or declines to exercise jurisdiction following a defendant's application **disputing jurisdiction**, the claim will not be effective against the defendant. But what further orders might the court make?

Answer 258

* Set aside the claim form or service thereof * Discharge any orders before the claim was issued / served * Stay the proceedings

Question 259

If a defendant's application to **contest jurisdiction** is dismissed, what will happen next?

Answer 259

* A fresh acknowledgment of service must be filed within 14 days of the court's decision (the earlier one ceases to have effect). * The court will give directions about filing and service of the defence.

Question 260

A defendant can **admit** the whole or part of a claim by written notice at two stages: 1. Pre-action 2. Following commencement of proceedings If the defendant wants to withdraw an admission, how does the procedure differ for doing so depending on the stage the case is at?

Answer 260

**Pre-action** - can be withdrawn if the other party agrees. **After commencement of proceedings** - application to the court.

Question 261

The **response pack** (usually served with the particulars of claim) includes a standard form for the defendant to admit the claim (in whole or in part). It allows the claimant to indicate FOUR things with respect to their **admission**. What are they?

Answer 261

1. Whether admitting liability only (not quantum) 2. Offer to pay sum to satisfy claim 3. How sum can be paid 4. Provide information about finances on which a proposal for payment by instalments can be considered

Question 262

# Fix the error(s): If a defendant admits a whole claim for a specified sum of money, judgment will be for the amount claimed. Interest will also be included on the basis of a calculation in the particulars of claim.

Answer 262

If a defendant admits a whole claim for a specified sum of money, judgment will be for the amount claimed **and costs**. Interest will also be included, **either** on the basis of a calculation in the particulars of claim **or a sum to be decided by the court**.

Question 263

Where the defendant **admits liability** for an **unspecified sum** and the remedy the claimant is seeking is the payment of money, how will the amount be decided?

Answer 263

By the court.

Question 264

How will a court **quantify** the sum to be paid by a defendant where they have **admitted liability**?

Answer 264

1. Defendant's statement of means 2. Claimant's objections 3. Any other relevant factors

Question 265

If a defendant makes an admission after proceedings have commenced and subsequently wants to **withdraw** their **admission**, they will need to obtain the permission of the court. There are SIX factors the court will consider in deciding whether to give such permission. Which are missing? * Grounds for withdrawing admission * Stage of proceedings * Prospects of success of claim (or relevant part of it)

Answer 265

* Grounds for withdrawing admission * **Conduct of parties** * **Prejudice to any person** * Stage of proceedings * Prospects of success of claim (or relevant part of it) * **Interests of administration of justice**

Question 266

A **counterclaim** may act as a **defence** to the main claim subject to what condition?

Answer 266

Provided there is a **right of set-off**.

Question 267

In what regard is a **counterclaim** a **separate claim**, even if it serves as a defence?

Answer 267

The defendant must pay the same court **issue fee** as if they were issuing their own claim.

Question 268

What is a **Part 20 claim**? | (give an example)

Answer 268

When a defendant has a claim against a **third party** with respect to the matter they are being sued for. A defendant would raise this in their **'defence and counterclaim'** for the court's consideration. Example: The defendant is sued for breach of contract in respect of goods provided to the claimant which they subcontracted a third party to provide.

Question 269

When deciding whether a **Part 20 claim** should be part of the same or separate proceedings, what are the main THREE considerations?

Answer 269

1. The **connection** between the original and additional claim. 2. Whether the additional claimant (the defendant to the original claim) is seeking **substantially the same remedy** with another party (e.g. the original claimant). 3. Whether the additional claimant wants the court to decide a **question connected to the subject matter** of the original proceedings.

Question 270

# True or False: A defendant must obtain **court permission** to make a **Part 20 claim**.

Answer 270

False, no permission is required if they issue their Part 20 claim prior to or at the same time as the defence is filed.

Question 271

When a **Part 20 claim** is served, what should it include?

Answer 271

A response pack (in usual way). A copy of every statement of case already served in the proceedings and any other documents the court might direct.

Question 272

When can a claimant apply for **default judgment**? | CPR 12.3

Answer 272

**Criteria:** 1. Particulars of claim have been served. 2. The defendant hasn't filed the acknowledgment of service or defence in the prescribed period. 3. The claim has not been admitted or satisfied. 4. The claimant has made no application for strike out or summary judgment.

Question 273

How will the **amount** of a **default judgment** be quantified depending on whether the claim was for a specified vs unspecified sum?

Answer 273

1. Specified - the amount of the claim + costs. 2. Unspecified - amount decided by court + costs.

Question 274

What is the difference between **requesting** and **applying** for default judgment?

Answer 274

**Requesting** - the claimant submits a standard form, available where the claim is for (a) a specified or unspecified amount, or (b) delivery of goods where the claim form gives the defendant the alternative of paying the value. In essence, **'money claims'**. **Applying** - any other claims, such as those seeking injunctive relief or specific performance. These are more detailed applications and should be made without delay with supporting evidence.

Question 275

Where **default judgment** has been made against a defendant in respect to an **unspecified amount**, can the defendant still oppose the *sum* the court awarded?

Answer 275

Yes, but they will be precluded from making arguments challenging their liability.

Question 276

What are the three conditions for making an application (as distinct from request) for **default judgment without notice** to the defendant?

Answer 276

ALL of the following: 1. Claim form served **out of jurisdiction** and is a specific type of claim (e.g. contract with binding jurisdiction clause). 2. Defendant **failed to file acknowledgment of service** (so no address in jurisdiction). 3. Notice does not need to be given under any other CPR rule.

Question 277

What are the TWO main limitations to the claimant successfully obtaining **default judgment**?

Answer 277

The defendant has an **outstanding application**: 1. to **strike out** the statement of case OR 2. for **summary judgment** (no reasonable prospects of success) ## Footnote Summary judgment - Really Poor Cases Can't Run (**R.P.C.R.**) Strike out - No Acceptable Case (**N.A.C.**)

Question 278

# True or False: One of the orders a court can make when considering a **strike out application** (instead of immediate strike out) is to require that the claimant plead **further particulars** of one or more issues within a set period of time, failing which the claim would be **struck out**. ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Answer 278

True.

Question 279

A defendant can apply to have **default judgment** set aside on both *mandatory* and *discretionary* grounds. What are these? | CPR 12.3

Answer 279

**Mandatory grounds** 1. The defence or acknowledgment filed before default judgment. 2. The defendant applied to strike out or for summary judgment before default judgment. 3. The defendant had paid or admitted the claim before default judgment. **Discretionary grounds** 1. The defendant has a real prospect of defeating the claim. 2. There is good reason to set aside or vary default judgment. | CPR 12.3

Question 280

# True or False: A defendant's application to set aside **default judgment** (whether on mandatory or discretionary grounds) must be **supported by evidence**. | CPR 12.3

Answer 280

False, supporting evidence is only needed if the defendant is applying for default judgment on **discretionary** grounds. | CPR 12.3

Question 281

A high net worth Spanish businessperson, resident in London, hired a PR firm on a 1 year renewable contract. However, after 2 months, they stopped paying the monthly fee and stopped all communications with the firm. The PR firm issued and served a claim form and particulars of claim by post at the businessperson’s London residence. The claim is for fees due for work undertaken and damages for lost profits regarding work that would have been undertaken had the contract run its agreed term. The claim was ignored. Therefore, the PR firm filed a certificate of service and a request for judgment with the court after the 14 day period for acknowledging service or serving a defence had passed. What order is the court likely to make in respect to any **specified** vs **unspecified sums**?

Answer 281

Judgment on liability and for the specific fees claimed, with directions for determination of damages and costs. The specified sum can be ordered, but the claim for an unspecified sum will have to be determined by the court.

Question 282

# True or False: If a document is referred to in a statement of case, the other party can request to inspect it, subject to reasonableness.

Answer 282

False, they can **require** inspection. There is no test for reasonableness.

Question 283

Statements of case are the source for ascertaining the issues in dispute, and as such they define the scope of what THREE procedural / evidential areas?

Answer 283

1. Scope of disclosure 2. Scope of witness evidence 3. Scope of expert evidence (if any)

Question 284

Why can a party not unilaterally amend its statements of case? From who can they obtain permission?

Answer 284

The statements of case define the parameters of dispute. Changing these part-way through the trial could have a **prejudicial effect** on the other party. If the SoC has already been served, they will need permission from either: 1. The court 2. All other parties

Question 285

Statements of case must have the right **title of proceedings**. What FOUR things does this include?

Answer 285

1. The court 2. Full names of parties 3. Parties' status (e.g. second claimant) 4. Case number

Question 286

What is an alternative to the party names in the title of proceedings in this statement of case between two partnerships? What is more common?

Answer 286

Where a claim is brought against 2+ partners, the firm name must be state too. But in practice, even if there is just one, the firm name is normally preferred.

Question 287

What is different about the party names in the **title of proceedings** in the statements of case depending on whether the parties are: 1. A private individual 2. An individual who is a sole trader operating under a trading name

Answer 287

Question 288

All statements of case need to be verified with a **statement of truth** as follows: *I / the claimant believes that the facts stated in this [name document being verified] are true. I / the claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.* What are the formalities for validly executing this? And what is the consequence for failing to do so?

Answer 288

Formalities: 1. **Signed** by party / their legal representative (if a company - signed by senior person stating their office / position) ***and*** 2. The signatory has **personal knowledge** (or manages those with such knowledge) of the matters. Failing to do so: 1. The document **cannot be relied on** as evidence. 2. The statement of case may be **struck out**. 3. An **adverse costs order**.

Question 289

All statements of case need to be verified with a **statement of truth** as follows: *I / the claimant believes that the facts stated in this [name document being verified] are true. I / the claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.* This can be signed by the party's **legal representative** and, if they do, what THREE things will be assumed?

Answer 289

1. They were **authorised** by client to do so. 2. Before signing, they explained to client that in signing the statement of truth, they would be confirming the client's belief that the facts were true. 3. Before signing, they informed the client of the possible consequences if it appears the client did not have an honest belief in their truth. (they are advised to get clear instructions in writing, or ideally sign themselves)

Question 290

What is the consequence of making (or causing to be made) a false statement in a document verified by a **statement of truth** without an honest belief in its truth?

Answer 290

Contempt of court.

Question 291

# True or False: A **claim form** contains the **full name and address** of each claimant and defendant. The addresses should by those where the relevant party **resides** or **carries on business**, irrespective of whether it is served somewhere else.

Answer 291

True.

Question 292

# True or False: There is no limit to the number of parties to a claim.

Answer 292

True.

Question 293

Why is it important for the "brief details of claim" in the claim form to be drafted broadly?

Answer 293

Because it defines the scope of the claim (the particulars of which follow in the particulars of claim).

Question 294

# Fix the error(s): If a claim is for a sum of money, the claim form must provide a statement of value including interest and costs.

Answer 294

If a claim is for a sum of money, the claim form must provide a statement of value **not** including interest and costs **(calculated separately if claim for specific sum)**.

Question 295

If a claim is for a sum of money, the claim form must provide a statement of value *not* including interest and costs. How precise does this statement need to be?

Answer 295

Either: 1. The exact amount claimed (excl. interest and costs) 2. Whether it is less than £10k, £10k-25k, £25k-100k, >£100k, or the claimant cannot say 3. If issued in High Court, statement that recovery expected is >£100k (or >£50k if personal injury)

Question 296

If a claim is for a sum of *foreign* money, the claim form must provide accompanying information to the statement of value. What should this include?

Answer 296

A statement that: 1. The claim is for the specified foreign currency 2. Why it is for that currency 3. The sterling equivalent as at *the date of claim* 4. The source of the exchange rate

Question 297

If the particulars of claim are not enclosed with the claim form, how should this be indicated in the claim form?

Answer 297

By ticking the box that says the particulars will follow.

Question 298

At a minimum, what will the particulars of claim include?

Answer 298

1. Details of the relevant parties 2. Each element of the causes of action asserted 3. The facts relied on to establish each required element 4. Remedies sought (and if a sum of money, how this has been calculated or 'to be assessed')

Question 299

Should particulars of claim outline the key evidence?

Answer 299

No, only the facts relied on. Evidence to *support* those facts is a matter of disclosure etc.

Question 300

# True or False: Particulars of claim should not preempt any defences.

Answer 300

True.

Question 301

In a claim for breach of a contract, how should the **particulars of claim** generally be structured? Put the following into the right order. * The alleged breach(es) caused **loss and damage** * The relevant express or implied **terms** * **Interest** pursuant to contract or statute * Requisite **elements** of binding contract (parties, intention to be bound, consideration) * The **damages** claimed * The **alleged breaches** (of those terms) What else should be included if the claim is based on an oral agreement?

Answer 301

1. Requisite **elements** of binding contract (parties, intention to be bound, consideration) 2. The relevant express or implied **terms** 3. The **alleged breaches** (of those terms) 4. The alleged breach(es) caused **loss and damage** 5. The **damages** claimed 6. **Interest** pursuant to contract or statute If oral agreement: * Contractual words used * By whom * To whom * When * Where

Question 302

In a tort claim, how should the **particulars of claim** generally be structured? Put the following into the right order. * Exact **nature of duty** * **Damages** claimed * **Duty of care** owed between defendant and claimant * The **breach** of duty * **Causation** of loss * **Interest** under relevant statute

Answer 302

1. **Duty of care** owed between defendant and claimant 2. Exact **nature of duty** 3. The **breach** of duty 4. **Causation** of loss 5. **Damages** claimed 6. **Interest** under relevant statute

Question 303

If a claimant wishes to rely on any of the following, how does this impact how they draft the **particulars of claim**? And why? * Any allegation of fraud * The fact of any illegality * Details of any misrepresentation * Details of all breaches of trust * Notice or knowledge of a fact * Details of unsoundness of mind or undue influence * Details of wilful default * Any facts relating to a claim for mitigation expenditure

Answer 303

These matters must be **specifically set out** in the particulars because they involve an **allegation of wrongdoing** which the defendant needs to be given an opportunity to respond to in the defence.

Question 304

The **particulars of claim** must set out if **interest** is claimed. What specifically needs to be set out?

Answer 304

1. The basis for calculating the interest (contract, statute, other basis) 2. If the claim is for a *specified* amount, then the period for which it is calculated, the total amount up to the date of calculation, and the daily rate it accrues thereafter

Question 305

In relation to a claim for an **unspecified sum** where the **interest** has not been agreed under the terms of the contract or the *Late Payment of Commercial Debts (Interest) Act 1998*, how should a claim for interest in the **particulars of claim** be worded? How does this differ depending on whether the claim is brought in the county court or High Court?

Answer 305

**County court** - "interest at such rate and for such period as the court sees fit under 69 of the *County Courts Act 1984*". **High Court** - "interest at such rate and for such period as the court sees fit under s35A of the *Senior Courts Act 1981*".

Question 306

# True or False: Particulars of claim should be drafted simply, and so avoid citing relevant statutes or case law.

Answer 306

True.

Question 307

When adding the **statement of truth** to the **particulars of claim**, why should the former appear on the *same page* as the latter?

Answer 307

To avoid the court refusing to accept it on the basis that it could have been added on later.

Question 308

# True or False: There are specialist court guides prescribing how statements of case should be drafted.

Answer 308

True.

Question 309

The defence to a civil claim needs to respond to *every* allegation made in the **particulars of claim**. What are the THREE options available in respect to each allegation?

Answer 309

1. **Deny** - with reasons for denial and/or counternarrative on the version of events. 2. **Admit** - accept the version of events in whole or in part, along with reasons if only accepted in party. 3. **Neither admit nor deny** - the claimant is put to proof i.e. "the defendant requires the claimant to prove the truth of the allegation made."

Question 310

If a defendant disputes the nature or quantum of loss claimed in the **particulars of claim** but accepts that *some* loss was incurred, how should they respond in their **defence**?

Answer 310

They should admit to the incurrence of *some* loss and provide an alternative calculation of the loss.

Question 311

# True or False: A **counterclaim** is usually contained within the same document as the **defence**.

Answer 311

True.

Question 312

# True or False: A **counterclaim** must be supported with a claim form and particulars of claim like any other claim.

Answer 312

False, it must be pleaded in the same format and level of detail as the particulars of claim, but no claim is required and it is usually in the same document as the defence.

Question 313

Where the defendant seeks to bring an **additional claim** (against someone who is not the claimant) as distinct from a counterclaim, how should this be drafted? What procedural steps must they take? | Part 20 CPR

Answer 313

They must use a specific **Part 20 claim form** and draft **particulars of claim** as with any other claim. It should be served and include a response pack with the relevant forms for Part 20 claims.

Question 314

How should **additional parties** (e.g. those added via Part 20 claims) be added to the **title of proceedings**?

Answer 314

In the order in which they were added.

Question 315

How should the **'particulars of loss and damage'** be set out in the **particulars of claim / counterclaim**?

Answer 315

Question 316

What is this part of the **particulars of claim** called?

Answer 316

The prayer

Question 317

A **reply** to a **defence** is *not* mandatory, so why might the claimant choose to do one? And when must they file one if they choose to?

Answer 317

A reply allows the claimant to address any new issues that have been raised in the defence. If the claimant chooses to reply, it must be filed in accordance with the date for filing in the **directions questionnaire** or according to the relevant court guide.

Question 318

If a defendant raises a **counterclaim** with their defence, what (if anything) must the claimant do?

Answer 318

File and serve a **defence to counterclaim** (often at the bottom of any reply).

Question 319

What is the usual due date for the claimant filing their **defence to counterclaim**?

Answer 319

*Usually*: The date by which they must file their **directions questionnaire**. Or if the date to reply is later than that, then the date the reply is due. But in lieu of a court order, **within 14 days** of service of the defence and counterclaim (or the applicable timeline in a specialist court).

Question 320

What is an **'RFI'**? Why might a party do this? What information must it contain?

Answer 320

RFI = request for further information A party makes a written request to the court setting out matters they need more information on, typically if the statement of case is **unclear**. It is also a tactic for highlighting a **defect** a party's case to help obtain an order for **strike out**. The RFI must state that: 1. The court, title, and number of the claim. 2. It is a request made under **CPR Pt 18**. 3. The requesting and requested party. 4. The relevant document e.g. "PoC dated X, in paragraph Y." 5. The **date** by which a response should be served. ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Question 321

What is the status and format of a response to an **RFI**?

Answer 321

A statement of case, having the same status as a particulars of claim or defence. It must state: 1. The court, title, and number of the claim 2. That is it a response to the RFI 3. Repeat the text of each paragraph of the RFI and the response to that request 4. Refer to and attach a copy of any document forming part of the response 5. A statement of truth

Question 322

How broad can **RFIs** be?

Answer 322

They must be concise and strictly confined to matters which are reasonably necessary and proportionate, not an opportunity to obtain extraneous information.

Question 323

If a recipient of an **RFI** objects to complying with all or part of an RFI or to the time period given for a response, what must they do?

Answer 323

1. Inform the requesting party promptly, and in any event before the response date. 2. Give reasons. 3. Provide a date they expect to comply.

Question 324

Who must a **response** to and **RFI** be served on?

Answer 324

All parties and the court.

Question 325

Where no response to an RFI has been provided, an application can be made using the standard CPR Pt 23 procedure. What is the **CPR Pt 23** procedure? Does it involve a hearing? And does the defaulting party need to be notified?

Answer 325

If no response to the RFI has been received **within 14 days** and the **deadline** for the response has **passed**, the requesting party can make an application under CPR Pt 18 to the court. This does *not* need to be served on the defaulting party and can be authorised *without* a hearing.

Question 326

If successful, can an applicant using the **CPR Pt 23** procedure be awarded costs for the application?

Answer 326

Yes, and they'll be assessed summarily.

Question 327

What are common reasons for **amending a statement of case**?

Answer 327

1. To address defects in a claim exposed by the other party's defence or counterclaim etc. 2. Disclosures reveal new facts that allow other causes of action to be pleaded (or dropped). 3. Discontinuance of some aspects of the claim. 4. Changes to parties.

Question 328

# True or False: In most proceedings, statements of case must now be filed and served via an electronic platform, depending on the court and the nature of the claim.

Answer 328

True.

Question 329

What permission (if any) does a party need to **amend** their **statement of case**? Consider different stages of the proceedings.

Answer 329

***Before* service** - no consent or permission (but may be later disallowed if changed after the end of the limitation period or another party applies to the court to disallow it within 14 days). ***After* service** - written consent of all parties or court order following application to court.

Question 330

How is an **application to amend** a statement of case handled differently depending on whether there is a limitation period issue?

Answer 330

**No limitation issue** Considerations: * Overriding objective, impact of delay, merits of the case (with / without proposed amendments). * Stage of proceedings, disruption, prejudice. * Reasons. **Limitation issue** Considerations: * Add / substitute a claim arising out the same facts. * Correct (genuine) mistake as to name of party where identity wasn't in issue. * Alter capacity in which a party claims.

Question 331

An application to amend a statement of case should be brought using the general procedure set out in **CPR Pt 23**. What is the procedure?

Answer 331

1. Application along with copy of statement of case with proposed amendments. 2. Amended statement of case filed as served (named 'amended', 're-amended', re-re-amended' etc.). Red > green > violet > yellow. 3. (Usually) pay costs of any consequential amendments other parties must make to their statements of case.

Question 332

A partner in a four-person general partnership has been served with a claim form and particulars of claim by a former partner in their firm. The former partner claims that they made a loan to the defendant partner, and that the loan fell due when the former partner exited the firm. The defendant partner claims that the loan was taken on behalf of the firm and that any sum due is a joint liability of all four current partners. The defendant partner also claims that the former partner owes them a substantial sum. What does the defendant partner need to do to bring all the relevant parties and claims into the proceedings?

Answer 332

The defendant partner needs to: 1. Bring a **counterclaim** against the claimant, in the same format as particulars of claim, to be served on the claimant at the same time as the defence (usually in the same document), noting that a claim form is not required for the counterclaim. 2. Issue a **Part 20 claim form** with the other current partners as defendants, to be served with particulars of claim and a Part 20 response pack.

Question 333

A claimant business has brought a claim for breach of contract and breach of duty against their former sales agent. The claimant alleges that the agent underreported revenue in relation to sales to one large customer, keeping the additional money for themselves. Following disclosure, it has become apparent that the defendant underreported revenue in relation to several other customers during the same period. However, the limitation period for a claim has now passed. The claimant wants to amend their particulars of claim to include a new claim in relation to the other instances of underreporting revenue, but the defendant has refused consent, stating that the new claim is time-barred. How likely is the court to grant permission to amend?

Answer 333

The court is likely to grant permission to amend on the basis that the new claim arises out of the **same facts** or **substantially the same facts** as the existing claim.

Question 334

A specialist carpentry company has issued proceedings against one of its wood suppliers. The carpentry company alleges that wood supplied was not within the contractual specifications, was sub-standard, and products manufactured with it have warped, causing them to have to refund customers on a series of projects. The carpentry company claims damages, including for its lost profits. It does not have a specific figure at this stage but believes that its losses are likely to be between £60,000 and £80,000, once more customers seek refunds and the lost profits are calculated. The claim will be issued in the County Court. On the claim form, the company has to give a statement of value. What should the company put as the statement of value?

Answer 334

“The claimant expects to recover more than £25,000, but not more than £100,000.”

Question 335

A lender has issued a claim against a small business to which sums were loaned under a fixed term loan agreement. The lender alleges that the borrower is in default of its payment obligations, which has given the lender a right to terminate the agreement and claim the debt in full. The borrower denies the claim, on the basis that the defaults in payment do not yet give rise to a right to terminate. The borrower blames their cashflow constraints on a customer not making payment for a large project, in breach of their payment terms. They have engaged in pre-action correspondence, but no resolution has been reached. Is there a sufficient connection for the borrower to add their defaulting customer as a co-defendant via a Pt 20 claim?

Answer 335

No, there is insufficient connection between the claims. They should issue a new claim against the customer and pursue it in separate proceedings instead.

Question 336

A surveyor is a defendant to a claim for negligence by a property investor. The claimant alleges that the surveyor gave them an unrealistically high valuation of £12 million for a commercial property. On the basis of the valuation, the investor acquired the property at auction for £10 million. However, when seeking to mortgage the property, two independent surveyors have provided valuations of £8 million and £8.5 million. The surveyor has just served their defence, in which they deny negligence and assert that they relied on “data from other sales of comparable properties in the area” and “a report by a leading estate agent in the area published 6 months before the valuation”. What further information / disclosures can they request at this stage?

Answer 336

They can serve a request for further information about the data relied on and obtain a copy of the report, but not any other documents. The reference to data was not a reference to an identifiable document and therefore does not give rise to a right to inspect.

Question 337

Where a party believes they have a basis to seek an **interim order**, as a general rule, they should first seek **voluntary compliance** from the other party by writing to them and requesting that they comply without the need for an application to court. Why?

Answer 337

This is in line with the **overriding objective** and assists when arguing about **costs** following an interim application.

Question 338

What is an example of an **interim order** that the claimant should apply for *without* first seeking **voluntary compliance** from the other party?

Answer 338

Applications that could 'tip off' the other party, such as a **freezing order**.

Question 339

Which part of the CPR covers the procedure for **interim applications**?

Answer 339

CPR Part 23.

Question 340

**Interim applications** under CPR Pt 23 are usually made on 3 clear days' **notice**. However, there are SIX exceptions. What are they?

Answer 340

* Overriding objective is best furthered by doing so * Court permission * Exceptional urgency * Consent of all parties * Insufficient time to serve written application before fixed hearing date * Court order, rule, or practice direction permits

Question 341

When the opposing party is not represented at a hearing, what additional obligations does the applicant have?

Answer 341

1. Duty of **full and frank disclosure** of all relevant matters regardless of whether they harm the applicant's position. 2. **Serve** the other party with a sealed copy of the court, application notice, evidence in support, and the other party's right to apply to set it aside.

Question 342

When the opposing party is not represented at a hearing, the applicant has a duty of **full and frank disclosure**. What is the consequence of not giving such disclosure?

Answer 342

The order can be set aside or other sanctions.

Question 343

What are the TWO common timings of **interim applications**?

Answer 343

1. At a case management conference (CMC). 2. As a standalone hearing where cannot wait for CMC.

Question 344

What FOUR documents need to be filed at court for an **interim application**?

Answer 344

1. Application notice (usually in a Form N244), indicating whether hearing necessary or can be determined on paper. And if a hearing proposed, the estimated time. And what level of judge. 2. Court fee. 3. Evidence (e.g. witness statement, usually from solicitor). 4. Draft order.

Question 345

As a general rule, how long before an **interim application hearing** should the applicant serve the documents on the other party? Are there any notable exceptions?

Answer 345

At least **3 clear days** before the hearing. *Exception:* Applications for summary judgment and interim payments need to be served at least **14 clear days** before.

Question 346

Where a respondent is served with documents in relation to an **interim application**, how long do they have to file evidence opposing the application (if they choose to)? Can the applicant respond? If so, when?

Answer 346

As soon as possible, but at least by when the court or CPR specifies. The applicant can file and serve further evidence as soon as possible or when the court directs.

Question 347

Save for very basic or urgent **interim applications**, an **application bundle** should be prepared and filed in advance of an application hearing. What should this bundle include? And how should it be formatted?

Answer 347

1. Application notice 2. Applicant's evidence 3. Respondent's evidence 4. Draft order 5. Relevant inter-party correspondence 6. Authorities bundles (if needed) 7. (High Court only) Statements of case and order previously made It should have an index and be paginated.

Question 348

Save for very basic or urgent **interim applications**, a **skeleton argument** should be prepared. When should this be filed / served / exchanged? On whom?

Answer 348

* *Filed* with the court **at least 24hrs** before the hearing, or earlier if it is larger / more complex. * *Exchanged* between the parties in advance.

Question 349

What is the difference between **"serving"** documents on another party and **"exchanging"** them?

Answer 349

**Serving** - providing the opponent with documents in the time prescribed by the CPR, court guide, or court order. **Exchanging** - emailing the other side to confirm when they are ready to exchange, agreeing a time, and then exchanging via email.

Question 350

# True or False: **Interim applications** will usually be dealt with on paper, unless a hearing is more appropriate.

Answer 350

False, they are usually dealt with at a **hearing** unless the parties agree or court decides otherwise.

Question 351

If the time estimate for an **interim application hearing** is **less than 1hr**, how should the hearing be conducted?

Answer 351

By **telephone** *unless* it is a without notice hearing.

Question 352

Immediately after an application has been heard, the judge will consider making an **interim costs order**, with summary assessment, to cover the costs incurred by the successful party. What are the FOUR types of cost order? And which is the most common? | Note: the court can also make "no order as to costs"

Answer 352

1. **Costs in any event** - the successful party recovers the costs no matter who wins at trial (most common). 2. **Costs in the case** - costs will be dealt at same time and in same way as at end of trial. 3. **Costs reserved** - costs decided later, if appropriate. 4. **Wasted costs** - one party's solicitor to pay costs themselves.

Question 353

When deciding what (if any) **interim costs order** to make, what *must* the court, in exercising its discretion, have regard to?

Answer 353

All the circumstances including, * Merits of the application * Attempts at settlement * Conduct of the parties

Question 354

Where **summary assessment** is needed before the court makes an **interim costs order**, what information must the successful party file and serve? And when?

Answer 354

They must file and serve a signed **statement of costs** (usually in standard court form) **at least 24hrs before** the date of the hearing. The statement of costs summarises categories of costs like, * Hours spent on specified documents. * Attendance at hearing. * Court fees

Question 355

When are costs of a hearing likely to be **summarily assessed** before making an **interim costs order**? When are the exact costs determined by **detailed assessment** instead?

Answer 355

**Summarily** - if hearing lasted 1 day or less, unless there are substantial grounds to dispute the amount claimed. **Detailed** - in all other cases, and the order will usually say "X shall pay Y's costs of the application, to be assessed if not agreed."

Question 356

What does **summary assessment** entail in the context of making an **interim costs order**?

Answer 356

1. Consideration of statement of costs 2. Brief submissions on reasonableness 3. Appropriate sum determined 4. Payment made within 14 days (or other period court considers reasonable)

Question 357

Why should **detailed assessments** of costs in relation to costs orders be avoided?

Answer 357

They are cumbersome and costly. It is better to agree a reasonable figure. If a detailed assessment is insisted upon but the judge views the costs as broadly reasonable, the insisting party might be liable for paying costs associated with the detailed assessment.

Question 358

There are EIGHT common **interim applications**. What are they?

Answer 358

* Amend statement of case * Strike out (**N.A.C.**) * Summary judgment (**R.P.C.R.**) * Interim injunction * Renew validity of a (unserved) claim form * Extend time limit(s) * Security for costs * Interim payment

Question 359

# Define: Summary judgment ## Footnote CPR Part 24

Answer 359

An order for **early judgment** without a trial in order to dispose of the entire case, a point of law, or some of the issues in a case, where the defence or claim is **unlikely to succeed**. | NOT a 'mini-trial' ## Footnote CPR Part 24

Question 360

Who can apply for **summary judgment**? | Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Answer 360

Claimant Defendant | Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Question 361

# True or False: A **summary judgment** hearing may involve live evidence from witnesses. | CPR Part 24

Answer 361

False. | CPR Part 24

Question 362

What are the TWO criteria for applying for **summary judgment**? | Hint: Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Answer 362

1. **No real prospect of succeeding** in the claim / successfully defending it (more than merely arguable). 2. **No other compelling reason** why the case should proceed to trial. | Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Question 363

The TWO criteria for applying for summary judgment below are: 1. **No real prospect of succeeding** in the claim / successfully defending it (more than merely arguable). 2. **No other compelling reason** why the case should proceed to trial. Give two examples of 'other compelling reasons'. | Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Answer 363

1. Expert evidence is needed to properly assess / explain the issues. 2. More evidence is likely to come to light. | Really Poor Cases Can't Run (**R.P.C.R.**) ## Footnote CPR Part 24

Question 364

Assuming the criteria for **summary judgment** are met, what is the procedure for making the application? | Really Poor Cases Can't Run (**R.P.C.R.**)

Answer 364

1. Serve the application with supporting evidence on the respondent at least **14 days** before the hearing. 2. Respondent must file any evidence in response at least **7 days** before the hearing. 3. Further evidence from the applicant in reply served on the respondent at least **3 days** before the hearing. (if defendant hasn't filed AoS or defence in the claim yet, permission is required from court to apply for summary judgment and time to serve defence automatically extended until afterwards). | Really Poor Cases Can't Run (**R.P.C.R.**)

Question 365

A defendant facing a **summary judgment** application is not required to have filed a **defence** before the summary hearing. But why would they be wise to do so anyway? | Really Poor Cases Can't Run (**R.P.C.R.**)

Answer 365

The court will still want to know the substance of their defence, and this will help demontrate that there *is* a real prospect of the defendant succeeding. | Really Poor Cases Can't Run (**R.P.C.R.**)

Question 366

What are the possible **court orders** following an application for **summary judgment**? | Really Poor Cases Can't Run (**R.P.C.R.**)

Answer 366

1. Judgment on all or part of claim (i.e. claimant wins) 2. Strike out/dismissal of all or part of claim (i.e. defendant wins) 3. Dismissal of application (continues to trial) 4. Conditional order (e.g. only proceed to trial if defendant pays security for costs / files certain document etc.) ## Footnote Summary judgment - Really Poor Cases Can't Run (**R.P.C.R.**) Strike out - No Acceptable Case (**N.A.C.**)

Question 367

When is a court likely to make a **conditional order** following an application for **summary judgment**? | Really Poor Cases Can't Run (**R.P.C.R.**)

Answer 367

Where the application has not succeeded in establishing the high threshold of no reasonable prospect of success, but the court still considers it improbable that the respondent will succeed. | Really Poor Cases Can't Run (**R.P.C.R.**)

Question 368

In what circumstances can the court **strike out** a statement of case? | CPR r3.4 ## Footnote Strike out - No Acceptable Case (**N.A.C**)

Answer 368

1. **N-o reasonable grounds** for bringing or defending the claim (high standard). 2. **A-buse of process** or likely to obstruct the just disposal of proceedings. 3. **C-ompliance** - non-compliance with rules, practice directions, or court orders. | CPR r3.4 ## Footnote Strike out - No Acceptable Case (**N.A.C**)

Question 369

In what circumstance will a claim *automatically* be **struck out**?

Answer 369

Failure to pay trial fees according to fee notice sent by court.

Question 370

What is the difference between **summary judgment** and **strike out**? ## Footnote Summary judgment - Really Poor Cases Can't Run (**R.P.C.R.**) Strike out - No Acceptable Case (**N.A.C.**)

Answer 370

Summary judgment is to **conclude** (or partly conclude) proceedings, whereas strike out effectively says there was no case to begin with. Often a party will apply for strike out and, in the alternative, summary judgment. ## Footnote Summary judgment - Really Poor Cases Can't Run (**R.P.C.R.**) Strike out - No Acceptable Case (**N.A.C.**)

Question 371

# Define: Interim payments

Answer 371

A payment of any damages, debt or other sum (except costs) which the court holds the defendant liable for.

Question 372

What are FOUR examples of when the court might make an **interim payment order**?

Answer 372

1. Defendant **admitted liability** to pay damages / some other sum. 2. Claimant obtained **judgment** for damages (other than costs) to be assessed. 3. Claimant *would have* obtained judgment for a **substantial sum** of money (other than costs). 4. Claimant seeks an order for possession of land and the court is satisfied that, if it went to trial, the defendant would be held liable to pay for **occupation and use** while claim is pending.

Question 373

# True or False: A claimant cannot make an application for an interim payment before the end of the period for the relevant defendant to file an acknowledgement of service.

Answer 373

True.

Question 374

What supporting evidence must a claimant provide when making an application for **interim payment**? | (in addition to the other CPR Pt 23 requirements)

Answer 374

1. Sum sought. 2. Items / matters for which sum sought. 3. Sum likely to be given in final judgment. 4. Reasons for why sum is reasonable having regard to (3). 5. Any other relevant damage.

Question 375

What supporting evidence must a claimant provide when making an application for an **interim injunction**? | (in addition to the other CPR Pt 23 requirements)

Answer 375

In a witness statement: 1. Cause of action. 2. Exact injunction. 3. Why injunction necessary. 4. Why without notice (if no notice).

Question 376

Assuming the criteria for **interim payment** are met, what is the procedure for making the application?

Answer 376

1. Serve the application with supporting evidence on the respondent at least **14 days** before the hearing. 2. Respondent must file any evidence in response at least **7 days** before the hearing. 3. Further evidence from the applicant in reply served on the respondent at least **3 days** before the hearing.

Question 377

Where an **interim payment order** has been granted, to whom is the money usually paid into?

Answer 377

Usually paid into the court. But sometimes directly to the applicant or via bank guarantee.

Question 378

Should an **interim payment order** take into account any contributory negligence, set-off or counterclaim?

Answer 378

Yes.

Question 379

Would the trial judge know that any **interim payment orders** have been granted?

Answer 379

No, not until all issues of liability and damages have been decided.

Question 380

What are the TWO basic criteria for granting an **interim injunction**?

Answer 380

1. A cause of action (even if proceedings not issued yet). 2. Just and equitable.

Question 381

When might a party apply for an **interim mandatory injunction** instead of **specific performance** at trial? ## Footnote Interim mandatory injunction - Help! It's Likely Problematic (**H.L.P.**)

Answer 381

Where there is not enough time for a full trial e.g. to require the respondent to hand over information that would allow them to infringe the applicant's IPR. ## Footnote Interim mandatory injunction - Help! It's Likely Problematic (**H.L.P.**)

Question 382

Below are the TWO basic criteria for granting an interim injunction. 1. A cause of action (even if proceedings not issued yet). 2. Just and equitable. What does the applicant need to show specifically for an **interim mandatory injunction** to be "just and equitable"? ## Footnote Interim mandatory injunction - Help! It's Likely Problematic (**H.L.P.**)

Answer 382

ALL of: 1. They will suffer **serious harm** if the injunction not granted. 2. They are **likely to succeed** at trial. 3. The respondent will not incur **disproportionate expense** in complying compared to the expense the applicant would suffer. ## Footnote Interim mandatory injunction - Help! It's Likely Problematic (**H.L.P.**)

Question 383

Below are the TWO basic criteria for granting an interim injunction. 1. A cause of action (even if proceedings not issued yet). 2. Just and equitable. According to the principles in *American Cyanamid Co v Ethicon Ltd*, what will the court specifically consider for an **interim prohibitory injunction**? ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Answer 383

1. Serious question to be tried (i.e. ***some* chance** of success). 2. Substantive **cause of action**. 3. **Balance of convenience** - could each party be compensated by damages if order made / not made? (and having regard to the "status quo ante" i.e. before alleged wrongdoing). 4. If answer to (3) is unclear or favours not granting the injunction, then **merits** of the case. 5. Availability of **exceptions**. 6. Availability of **defences**. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Question 384

There are THREE exceptions to the *American Cyanamid* principles when deciding whether to grant an **interim prohibitory injunction**. Describe each of them: 1. Restraint of trade 2. Final disposal 3. No defence ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Answer 384

1. **Restraint of trade:** If applicant trying to enforce non-competition or non-employment clause then these must be for a strictly limited period to qualify for injunctive relief. If they're not, no injunction will be awarded. 2. **Final disposal:** Where granting / not granting the injunction would effectively dispose of the action, the *full merits* should be considered. 3. **No defence:** If respondent obviously has no defence, an injunction will be granted. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Question 385

The respondent has FIVE potential **defences** to an application for an **interim prohibitory injunction** against them. Which are missing? 1. Delay. 2. Acquiescence by applicant causing respondent to act to their detriment. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Answer 385

1. Delay. 2. Acquiescence by applicant causing respondent to act to their detriment. 3. Applicant does not have **"clean hands"**. 4. **Equity will not act in vain** (i.e. injunction is superfluous). 5. **Not enforceable** e.g. too much supervision required. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Question 386

# True or False: An application for a **freezing order** must be in the form of an **affidavit** rather than a witness statement.

Answer 386

True.

Question 387

An order for an **interim injunction** will usually contain an undertaking by the applicant to pay any damages which the respondent sustains which the court considers the applicant should pay – as in, if it turns out the order should not have been made. What is this called?

Answer 387

A cross-undertaking in damages.

Question 388

When should supporting evidence and a draft order be filed at the court in the case of a without notice **interim injunction** application?

Answer 388

At least **2 hours** before the hearing.

Question 389

Following a without notice **interim injunction** application, what happens?

Answer 389

1. The applicant notifies the respondent of the outcome. 2. The court serves the respondent with the order and a date for a return hearing. 3. A full hearing takes place where both parties present their arguments.

Question 390

# Define: Freezing order

Answer 390

A freezing order (previously known as a Mareva order or Mareva injunction) is an interim prohibitory injunction ordering the defendant not to dispose of or remove their assets from the jurisdiction. Third parties (for example, banks) may also be ordered not to allow the respondent access to their funds. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Question 391

What, if anything, can a respondent access their assets for where they are the subject of a **freezing order**? What happens if they attempt to use them for unauthorised purposes? ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Answer 391

Reasonable living expenses, but not normal course of business. Attempting to deal with or dispose of these assets in any other way would put them in contempt of court. ## Footnote Interim prohibitory injunction - Serious Cases Bring Merit, Exceptions, Defences (**S.C.B.M.E.D.**)

Question 392

What THREE criteria must be met for an applicant to obtain a **freezing order** on the respondent's assets?

Answer 392

1. Good arguable case (even if < 50% chance). 2. Respondent legally owns assets in the jurisdiction. 3. Real risk the respondent will dispose of or remove assets e.g. dishonesty, credit history, lives in offshore tax haven or other hard-to-enforce jurisdictions.

Question 393

The applicant must bring FIVE documents to a private hearing before a judge where they are applying for a **freezing order**. Which are missing? * Draft application notice (issued immediately after hearing). * Draft order.

Answer 393

* Affidavit. * Claim form (issued but not necessarily served, unless very urgent). * Bank guarantee demonstrating applicant's ability to compensate via cross-undertaking.

Question 394

What happens after a successful **freezing order** application?

Answer 394

1. The application notice (and claim form if necessary) will be issued. 2. Freezing order served on respondent. 3. Copies served on third parties e.g. banks. 4. Applicant provides respondent with a full note of the hearing. 5. Return date set for with notice hearing.

Question 395

How long will an initial **freezing order** be effective for?

Answer 395

Up to **7 days** until the return date hearing in which both parties make their case.

Question 396

# True or False: Both the claimant and defendant can apply for **security for costs**.

Answer 396

False, only the defendant can apply for security for costs.

Question 397

What are the TWO grounds upon which a defendant can apply for **security for costs**?

Answer 397

1. The claimant **resides out of jurisdiction** (and enforcement of an English judgment would not normally be possible / difficult). 2. The claimant is **insolvent** (person) or **impecunious** (company) (high bar, not just 'likely'). (and just and equitable)

Question 398

The amount of **security for costs** to award is at the discretion of the court – whatever it thinks is just, taking into account what the claimant is likely to be able to raise. In practice, how much is this likely to be?

Answer 398

75-80% of the amount the defendant might expect to recover at trial. If the 'out of jurisdiction' ground is relied on, then court may award the sum of the additional costs that might be incurred by the defendant to enforce a costs order in the other jurisdiction.

Question 399

If a **security for costs** order is granted, who will the claimant pay this to? And when?

Answer 399

It will generally be paid into court, either immediately or at a set date. But other options are: * Payment to applicant's solicitor. * Provision of bank guarantee (common in commercial cases). * Undertaking to pay.

Question 400

# True or False: If the claimant wins at trial, any **security for costs** they were ordered to pay will be returned to them with interest.

Answer 400

True.

Question 401

If the claimant has been ordered to provide **security for costs** and fails to do so, what options does the defendant have?

Answer 401

The defendant can apply for a stay of the claim until payment is made.

Question 402

A defendant is the respondent to an application by the claimant for an extension of time to complete disclosure. The claimant has issued the application notice and filed evidence explaining why further time is required. They have also served the application papers on the defendant. The defendant wishes to oppose the application. A 1-hour hearing has been listed for a date in 28 days. The court has not given any specific directions in relation to how or when the defendant should respond to the application. How should the defendant proceed?

Answer 402

File and serve a witness statement containing their reasons for opposing the application as soon as possible because any evidence in opposition must be served as soon as possible and in advance of the application hearing.

Question 403

A distribution company with four members of staff has an exclusive 10-year distribution agreement with a large manufacturer of health foods. The distribution agreement is in relation to the manufacturer’s range of healthy snacks. The distributor does not distribute any other products of the manufacturer. Other distribution arrangements with other manufacturers account for 10% of its business. The manufacturer has purported to terminate the distribution agreement in year 4, which would trigger an obligation on the distributor to cease selling any of the manufacturer’s products and to return any unsold items at cost price. The distributor disputes the termination and intends to issue a claim seeking specific performance of the distribution agreement and a declaration that it is not terminated. However, their business will not survive until trial and customers will have sourced alternative products during that time period. What interim application should the distributor consider making?

Answer 403

It might be possible to obtain an interim mandatory injunction to preserve the distribution agreement until trial, on the basis that, otherwise, the distributor would suffer irreparable harm. ## Footnote Interim mandatory injunction - Help! It's Likely Problematic (**H.L.P.**)

Question 404

A tenant residing in a property in Southampton has issued a claim against their landlord for damages in relation to injuries suffered when a ceiling collapsed on them. The landlord considers the claim to be vexatious and is aware that the tenant has issued personal injury claims against other landlords in the past. The tenant has no material assets and is acting as a litigant in person. The landlord wishes to apply to the court for security for costs. The tenant has been asked to provide security voluntarily but has refused, without giving reasons. Is the landlord likely to obtain an order for security for costs?

Answer 404

No, because there is not any relevant ground for security for costs that is satisfied. A claimant that is an impecunious individual (as opposed to an entity) is not a ground for security for costs.

Question 405

A high-profile politician has issued a claim and an interim application against a national newspaper to prevent publication of copies of their private diary. The politician is seeking an interim injunction pending final determination of the claim. What issues will the court consider in order to reach a decision on the application?

Answer 405

* Whether there is a serious question to be tried. * Whether there is a substantive cause of action which is justiciable in England and Wales. * The balance of convenience. * Any defences to the application, such as delay.

Question 406

A person believes that they have been the victim of a fraud, in which they were persuaded by a financial adviser to invest a substantial sum of money in a company that does not appear to exist. The financial adviser received the funds directly and promised that they would take care of the investment. The person understands that the financial adviser has removed their website from the internet and put their office premises up for sale. They have not responded to calls or emails. The person intends to apply for a freezing injunction against the financial adviser before serving the claim. What documents should the person bring to court to obtain the freezing injunction?

Answer 406

1. A draft application notice (which will be issued immediately following the hearing). 2. A draft order (a standard form freezing order, modified if necessary). 3. An affidavit containing the evidence in support of the application. 4. The claim form. 5. A bank guarantee demonstrating the person’s ability to pay any compensation under the cross-undertaking in damages.

Question 407

A defendant to a claim brought by a company incorporated and operating in Russia intends to apply for security for costs. As the claimant is based in Russia, a ground for security for costs is satisfied – that is, the claimant is resident out of the jurisdiction. What SEVEN issues will the court consider when assessing whether it is just in all the circumstances to make an order that the claimant provide security for the defendant’s costs?

Answer 407

1. The claimant’s **ability to comply** with an order for security for costs. 2. Whether the claimant’s claim is **bona fide**. 3. Any **admissions** made by the defendant. 4. Whether the purpose of the defendant’s application is to **oppress or stifle** a genuine claim. 5. Whether the defendant has **delayed** in making their application. 6. Whether any want of means of the claimant was brought about by the **defendant’s conduct**. 7. The overriding **objective** of the claim.

Question 408

The court is *required* to give effect to the **overriding objective** when it exercises any power given to it under the CPR or interprets any rule, save for what kind of matters? | CPR r 1.2

Answer 408

Matters concerning national security. | CPR r 1.2

Question 409

The court is required to further the overriding objective by actively managing cases. What does this entail? | CPR r 1.4

Answer 409

Do the below **justly** and at **proportionate cost**: * Encouraging the parties to settle or narrow the case (or parts of it) or otherwise avoid litigation via ADR. * Timetabling. * Disposing of issues summarily where possible. * Making use of technology. * Directions to ensure the trial proceeds quickly and efficiently. | CPR r 1.4

Question 410

# True or False: A court cannot strike out a case of its own initiative. ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Answer 410

False, a court's wide-ranging powers include striking out a claim without an application from any party and without a hearing (but rare in practice). ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Question 411

# Fix the error(s): The court has very wide general **case management powers** to: * Extend any time limits. * Call any hearing and determine how it takes place. * Make any directions or orders. * Stay any proceedings. * Order split or preliminary trials on particular issues. * Determine costs. * Apply sanctions such as strike out. * Make civil restraint orders against any party. | Hint: There are four.

Answer 411

* Extend **or shorten** any time limits. * Call **or adjourn** any hearing and determine how it takes place. * Make any directions or orders. * Stay any proceedings. * Order **consolidated,** split or preliminary trials on particular issues. * Determine costs. * Apply sanctions such as strike out **or debarring evidence**. * Make civil restraint orders against any party.

Question 412

What is the criteria for a claim to proceed on the **small claims track**? Does it make a difference if the claim was issued before vs after **1 October 2023**?

Answer 412

The criteria remain *the same* whether the claim was issued before or after 1 October 2023. They are: * <£10,000 claims * <£1000 tenant repair claims * <£1,500 personal injury (or road traffic accident <£5,000)

Question 413

What is the criteria for a claim to proceed on the **small claims track**? Does it make a difference if the claim was issued before vs after **1 October 2023**?

Answer 413

The criteria remain *the same* whether the claim was issued before or after 1 October 2023. They are: * <£10,000 claims * <£1000 tenant repair claims * <£1,500 personal injury (or road traffic accident <£5,000)

Question 414

What is the criteria for a claim to proceed on the **fast track**? Does it make a difference if the claim was issued before vs after **1 October 2023**?

Answer 414

The criteria remain *the same* whether the claim was issued before or after 1 October 2023. They are: * £10,000 - £25,000 claims * 1-day trials * 1 expert per party In addition, for claims issue on or after 1 October 2023, fixed recoverable costs now apply based on a complexity band and stage of the proceedings.

Question 415

What is the criteria for a claim to proceed on the **multi-track**? Does it make a difference if the claim was issued before vs after **1 October 2023**?

Answer 415

**Pre-1 Oct 2023** - £25,000+ claims **1 Oct 2023 onwards:** * £100,000+ claims * Complex claims not suitable for other tracks * Mesothelioma / asbestos claims * Clinical negligence claims where liability in dispute * Harm / abuse / neglect of children * Claims potentially tried by jury * Some claims against police

Question 416

What is the criteria for a claim to proceed on the **intermediate track**? Does it make a difference if the claim was issued before vs after **1 October 2023**?

Answer 416

**Pre-1 Oct 2023** - N/a. **1 Oct 2023 onwards:** * £25,000 - £100,000 claims * Less complex than multi-track but more than fast track * Fixed recoverable costs based on the complexity band and stage of the proceedings * 3-day trial & 2 experts per party

Question 417

# True or False: Non-monetary relief claims will be automatically assigned to the right track depending on their approximate value. Are there any exceptions?

Answer 417

True, except non-monetary relief claims *cannot* be automatically assigned to the **intermediate track** unless deemed just by the court.

Question 418

How and when are claims allocated to a specific track?

Answer 418

After the defence is filed, the court will provisionally decide the track and serve a notice of proposed allocation on the parties (where it may then be transferred to the defendant's home court).

Question 419

Once a court has provisionally allocated a claim to a track and served notice of such on the parties, what FOUR things must the parties then do?

Answer 419

1. File and serve a completed **directions questionnaire**. 2. File (and attempt to agree) proposed **directions** (except for small claims track). 3. Fix a date for a CMC. 4. File **costs budget** for *multi-track* case on the form of Precedent H.

Question 420

What is a **Precedent H** form?

Answer 420

The form used when parties file a **costs budget** for a **multi-track** case. It provides details of: * Costs already incurred at each stage. * Estimated fee earners and hours. * Esimated disbursements.

Question 421

The **directions questionnaire** requires the parties to state SIX things. Which are missing? 3. Expert evidence required. 4. Estimate length of trial. 5. Directions they consider appropriate.

Answer 421

1. The proposed court (and division if High Court) the claim should be allocated to. 2. List witnesses. 3. Expert evidence required. 4. Estimate length of trial. 5. Directions they consider appropriate. 6. Confirm they have complied with pre-action protocol (and explain why if not and ask whether they want a 1-month stay and why they won't settle).

Question 422

The **directions questionnaire** requires the parties to state SIX things. Which are missing? 1. The proposed court (and division if High Court) the claim should be allocated to. 2. List witnesses. 3. Confirm they have complied with pre-action protocol (and explain why if not and ask whether they want a 1-month stay and why they won't settle).

Answer 422

1. The proposed court (and division if High Court) the claim should be allocated to. 2. List witnesses. 3. Identify whether expert evidence required. 4. Estimate length of trial. 5. List of directions they consider appropriate. 6. Confirm they have complied with pre-action protocol (and explain why if not and ask whether they want a 1-month stay and why they won't settle).

Question 423

The **directions questionnaire** will usually specify the deadline for filing it. But what is the usual deadline?

Answer 423

**28 days** after deemed service of the notice of proposed allocation (or 14 days in small claims).

Question 424

What is the consequence of failing to file a completed **directions questionnaire**?

Answer 424

An order from court to comply within **7 days**. Further non-compliance can lead to strike-out, default judgment, or other directions.

Question 425

When will the court give a final order on the appropriate track for a claim?

Answer 425

When it receives: * The completed directions questionnaires * Proposed directions * Costs budgets

Question 426

A **case management conference (CMC)** is usually the first hearing in civil proceedings. When will it be scheduled? And what are its THREE main purposes?

Answer 426

After the parties have completed their statements of case ("close of pleadings"). Purposes: 1. Identify issues in dispute 2. Make directions to enable the case to proceed to trial 3. Hear any interim applications ## Footnote Also sometimes costs

Question 427

# True or False: Following a CMC, the court will require the parties to seek to agree a **case summary / memorandum** and list of issues.

Answer 427

True, but only in *some* divisions or specialist courts.

Question 428

# True or False: Where evidence in a case includes electronic documents, the parties must use a **standard form electronic documents questionnaire** to help identify what is to be searched and how in a reasonably and proportionate way.

Answer 428

False, this is not mandatory, just encouraged.

Question 429

How many days before a CMC must the parties file and serve a **disclosure report**? What should the report contain?

Answer 429

It should be filed and serviced **14 days** before the CMC. It should describe the broad categories of disclosure and where they might be found along with an estimate of costs and manner of disclosure.

Question 430

How many days before the CMC must the parties discuss and seek to agree a **proposal in relation to disclosure** that meets the overriding objective? | (assuming the claim is on the intermediate/multi-track)

Answer 430

At least **7 days** before the CMC. ## Footnote (the disclosure reports are exchanged at least 14 days before the CMC)

Question 431

The **Business and Property Courts** have a materially different process for disclosure to other courts. In what ways?

Answer 431

* A more focused and proportionate approach is taken based on the **key issues** not just "standard disclosure for *all* issues". * **Initial disclosure** of the key documents relied on is required when serving the particulars of claim and defence. * **Extended disclosure** follows later in which the parties actively search for and disclose documents based on the **Disclosure Review Document (DRD)**.

Question 432

For fast-track claims, what is the usual **disclosure order** that will be made?

Answer 432

**Standard disclosure**, meaning (a) documents relied on, (b) documents that adversely affect or support any party's case, and (c) documents that must be disclosed under a practice direction.

Question 433

The **Business and Property Courts** have a materially different process for disclosure to other courts, which includes initial disclosure followed by extended disclosure. The extended disclosure is based on the **Disclosure Review Document (DRD)**. What does the DRD contain?

Answer 433

Contents of Disclosure Review Document (DRD): * List of **issues** for disclosure (not necessarily the same as issues in dispute). * How documents should be **searched** (e.g. custodians, repositories, date ranges, key words, technology-assisted review).

Question 434

# True or False: Any costs that have been incurred *before* the costs management hearing cannot be approved by the court when approving a budget.

Answer 434

True, but the court can take them into account when considering if a party's costs budget going forward is reasonable and proportionate.

Question 435

What is the difference between a **costs budgets** and **budget discussion report**? When should each be filed?

Answer 435

The **costs budget** contains the proposed costs budget put forward by each party. It should be filed with the directions questionnaire where the claim is <£50,000. In any case though, at least **21 days** before the first CMC (or when ordered by court). The **budget discussion report** is a report on what the parties have agreed around their respective cost budgets (usually in a Precedent R form), and any remaining areas of dispute. The report must be filed at least **7 days** before the first CMC.

Question 436

What is the effect of the court making a **costs management order** to approve costs budgets? What is the effect if they don't?

Answer 436

Those costs are likely to be recoverable if that party succeeds at trial. If the costs budget is not approved, the parties can still carry out the steps stated but will likely not recover the costs of doing so.

Question 437

What is a **costs capping order**?

Answer 437

A court order limiting the future costs that parties can subsequently recover.

Question 438

In what circumstances can a **costs budget** be amended?

Answer 438

If there is a significant development in the proceedings e.g. more documents disclosed than expected.

Question 439

# True or False: The parties should draft the directions they seek at least 7 days before the CMC.

Answer 439

False, the parties should take the standard directions as a starting point and adapt them instead. And if the claim is on the fast track, the standard directions form should be used.

Question 440

What is the difference between the timelines for complying with directions made in the multi-track vs the intermediate and fast track?

Answer 440

Dates for compliance with each direction on the intermediate and fast track will be much sooner.

Question 441

On the **intermediate and fast track**, what is the latest proposed **date of trial** from the date the first directions order is made?

Answer 441

No more than **30 weeks** later.

Question 442

On the **intermediate and fast track** what are the *typical* timeframes for taking the following steps (from notice of allocation)? 1. Disclosure 2. Exchange of witness statements 3. Exchange of expert reports 4. Court sends pre-trial checklists 5. Filing of completed pre-trial checklists 6. Trial

Answer 442

From the notice of allocation: 1. Disclosure - 4 weeks 2. Exchange of witness statements - 10 weeks 3. Exchange of expert reports - 14 weeks 4. Court sends pre-trial checklists - 20 weeks 5. Filing of completed pre-trial checklists - 22 weeks 6. Trial - 30 weeks

Question 443

One of the most dramatic sanctions for non-compliance with an order or rule is strike out. But what are the other possible orders? ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Answer 443

1. Costs management or cost capping order 2. Order debarring a party from adducing evidence on a particular issue 3. Order limiting or raising interest payable on a sum 4. Order requiring party to make a payment into court

Question 444

Where a rule, practice direction or court order requires a party to do something in a particular time and specifies the consequence (as in, sanction) for failure to comply, the date for compliance can be extended by agreement between the parties for up to a maximum of 28 days, subject to what proviso?

Answer 444

Provided that such extension does not put at risk any hearing date.

Question 445

Where a party is in breach of an order or rule under the CPR (for example, by failing to take a particular step by the specified date), they will need to make an application for relief from sanctions, usually under CPR Pt 23 with supporting evidence. What test will the court apply when assessing an application for **relief from sanctions**? | CPR r3.9 & *Denton* principles

Answer 445

Three-stage test: 1. The breach was **neither serious nor significant**. 2. There was a **good reason** for the breach. 3. Even if the breach was serious and with no good reason, consider **all the circumstances** e.g. the need to conduct litigation efficiently and at proportionate cost, the need to enforce compliance, and how promptly the application was made. | CPR r3.9 & *Denton* principles

Question 446

A person has issued a claim for professional negligence against their former accountant. The person’s solicitor is preparing the directions questionnaire and draft directions. What factors will be relevant to the track to which the claim will be allocated?

Answer 446

* Value of the claim. * Nature of the remedy sought. * Complexity of the law or evidence. * Number of likely parties. * Views expressed by the parties (in the directions questionnaire). * Circumstances of the parties.

Question 447

A solicitor acting for a claimant is preparing draft directions to propose to the defendant’s solicitor in advance of the case management conference. What's missing from the list of typical key issues to be included in case management directions? * Allocation to track * Costs management * Disclosure * Witness Statements

Answer 447

* Expert evidence (if any) * Trial preparation * Trial listing

Question 448

A claimant in civil proceedings has not met the deadline for providing an expert’s report. What are possible sanctions for non-compliance with the deadline?

Answer 448

1. Debar the claimant from adducing expert evidence. 2. Strike out all or part of the claim. 3. Order a payment into court as a condition of permitting the claimant to serve their expert’s report late. ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Question 449

The parties to a civil claim have agreed, in an exchange of emails, that they need more time to complete disclosure. The current deadline is in 4 weeks, but they have agreed on an extension of time of 2 months. The order for directions did not specify any specific sanction for not complying with the disclosure deadline. The extension would not jeopardise any upcoming hearing. What must the parties do to make an extension of time effective?

Answer 449

Nothing as the parties can vary their disclosure deadline by any length of time by agreement.

Question 450

The defendant to a civil claim in the High Court has not filed a costs budget. At the time of the case management conference, they were in dispute with their solicitors about the level of estimated solicitors’ fees for the case (£400,000). They therefore refused to authorise their solicitors to file a costs budget with the court. Following trial, judgment has been granted in favour of the defendant. They have incurred legal fees with their solicitors of £350,000, a further £150,000 with their barrister and court fees of £500. What costs (if any) are likely to be awarded to the defendant?

Answer 450

£500 because if a party fails to file a costs budget, they will be deemed to have filed a budget comprising only the applicable court fees.

Question 451

A doctor has been served with a claim for negligence and wants to self-represent in the High Court. Can they do so?

Answer 451

The doctor can self-represent in court, because litigants in person have rights of audience. It doesn't matter that the High Court is a higher court.

Question 452

In late July, there was a car accident involving a taxi and a private car which resulted in the driver of the taxi suffering a whiplash injury. This injury has prevented the taxi driver from working since the accident. The taxi driver’s car insurance has resolved the damage to the taxi, but their ongoing medical issues mean that they are without an income. The taxi driver’s friend told them that they should bring a claim against the driver of the private car. Having consulted five different solicitors about what they should do first they are now confused about their next step. Which one of the following statements offers the best advice to the taxi driver? 1. Solicitor D told the taxi driver that there is a pre-action protocol for personal injury claims and that they must comply with that before issuing a court claim. 2. Solicitor E told the taxi driver that the pre-action protocol for debt claims applies as they will be claiming loss of earnings and that they must comply with that before issuing a court claim. 3. Solicitor A told the taxi driver that there is no pre-action protocol for personal injury claims and that they can immediately issue a court claim. 4. Solicitor C told the taxi driver that there is a pre-action protocol for personal injury claims but that they do not have to comply with it and can immediately issue a court claim. 5. Solicitor B told the taxi driver that there is no pre-action protocol for personal injury claims and that the Pre-Action Practice Direction applies to their claim and must be followed before a claim can be issued.

Answer 452

Solicitor D told the taxi driver that there is a pre-action protocol for personal injury claims and that they must comply with that before issuing a court claim.

Question 453

Why are admissions made in earlier attempts to settle a dispute generally not admissible in court?

Answer 453

Such admissions are typically *without prejudice*.

Question 454

Why should a **letter of claim** not contain admissions against the interest of a claimant?

Answer 454

They will not be without prejudice, so can be adduced in court. Any concessions a party wishes to make should be in separate without prejudice correspondence.

Question 455

How is **hearsay** evidence treated in civil proceedings?

Answer 455

It is not excluded by default like in criminal proceedings. But it may be viewed as less reliable or carry less weight and the party intending to rely on it must give notice to the other side ("hearsay notice").

Question 456

Where the hearsay is contained in a **witness statement** in civil proceedings, when will the **hearsay notice** be deemed given? Does it make a difference if the witness is not coming to trial?

Answer 456

When the witness statements are **exchanged**. If the witness is not coming to trial, the party seeking to rely on the witness statement will have to **state** this and **explain** why.

Question 457

Where the hearsay is contained in a **document / audio / video** (not a witness statement) in civil proceedings, when will the **hearsay notice** be deemed given?

Answer 457

When the party seeking to rely on the hearsay: 1. **Identifies** the hearsay. 2. States that they propose to **rely** on it. 3. Gives the **reason** why the witness will not be called. (they must also supply a copy)

Question 458

What is the deadline for serving a **hearsay notice** in civil proceedings?

Answer 458

No later than the last day for serving witness statements.

Question 459

When a **hearsay notice** is received, what THREE options does the other party have?

Answer 459

1. Request further **particulars**. 2. Apply for a **court order** to call the witness for **cross-examination**. 3. Call evidence to **attack credibility** of the witness in their absence.

Question 460

When a **hearsay notice** is received, the other party can choose to attack the **credibility** of the witness in their absence. But what are the conditions for doing so?

Answer 460

They must inform the other party of their **intention** to do so **within 14 days**.

Question 461

Section 4 of the *Civil Evidence Act 1995* sets out SIX factors the court should consider when assessing the **weight** of any **hearsay** evidence. Which are missing? 2. The original statement was **contemporaneous** to the relevant matters. 3. There is **multiple hearsay**. 6. The circumstances suggest an **attempt to prevent proper evaluation** of the evidence.

Answer 461

* It would have been reasonable and practicable to **produce the maker** of the original statement. * There is any **motive** to conceal or misrepresent matters. * The original statement was an **edited account** or was made with another party or for particular purpose.

Question 462

Section 4 of the *Civil Evidence Act 1995* sets out SIX factors the court should consider when assessing the **weight** of any **hearsay** evidence. Which are missing? 1. It would have been reasonable and practicable to **produce the maker** of the original statement. 4. There is any **motive** to conceal or misrepresent matters. 5. The original statement was an **edited account** or was made with another party or for particular purpose.

Answer 462

* The circumstances suggest an **attempt to prevent proper evaluation** of the evidence. * The original statement was **contemporaneous** to the relevant matters. * There is **multiple hearsay**.

Question 463

In addition to the six factors identified by the *Civil Evidence Act 1995*, what other factors will the court consider when assessing the **weight** of **hearsay**? | Hint: There are 5.

Answer 463

1. Actual or potential bias of witness. 2. Vagueness of evidence. 3. Performance of witness when giving evidence. 4. Apparent accuracy of witness' perception. 5. Specific issues the hearsay is attempting to address.

Question 464

In the context of **civil proceedings**, when and where do the parties admit any facts? Consider both: 1. Voluntary admissions. 2. Requests to admit.

Answer 464

Usually in their **statements of case**. A party can also serve a **notice** (in a N266 form) on the other requesting that their opponent admit certain facts **up to 21 days before trial**.

Question 465

If, after receiving a notice to admit facts (in civil proceedings), the receiving party does not admit the facts, what is the consequence?

Answer 465

There can be **costs** consequences if the court considers the facts *should have been admitted* following trial (even if that party succeeded) to the extent costs were incurred proving those facts.

Question 466

In civil proceedings, the defendant does not need to prove any alternative version of events subject to what TWO exceptions?

Answer 466

1. A defendant will bear the burden to the extent they assert a **positive case** e.g. contributory negligence or application of an exclusion of liability clause. 2. Any party making an **application** during the course of proceedings will bear the burden of proving the facts in support of their application. (Also they are a claimant for the purposes of any counterclaim or CPR Pt 20 claim).

Question 467

What is the **standard of proof** in civil proceedings? What are the THREE exceptions to this?

Answer 467

Balance of probabilities. Exceptions: 1. **Summary judgment** - the applicant must show the respondent has *no real prospect* of succeeding in their claim/defence and the is *no other compelling reason* for it to proceed (R.P.C.R.). 2. **Strike out** - the application must show *no reasonable grounds* for bringing or defending the claim. 3. **Contempt of court** - criminal standard of proof. ## Footnote Summary judgment - Really Poor Cases Can't Run (**R.P.C.R.**) Strike out - No Acceptable Case (**N.A.C.**)

Question 468

# Define: "No real prospect of success"

Answer 468

More than merely arguable - does *not* have to be substantial, but should not be fanciful.

Question 469

If a party wishes to rely on the contents of a witness statement as evidence at trial, what TWO options do they have?

Answer 469

1. Calling the witness to give **oral evidence** (in which case their witness statement will stand as their evidence-in-chief). 2. Submitting the statement as **hearsay evidence**.

Question 470

In **civil proceedings**, a **witness statement** must include EIGHT things. Which are missing? * In own words (and in first person). * Prescribed heading in top right corner on first page ("Claimant"; "J Smith", "Statement No. X"; "[Exhibit:] JS2"); date of statement; date of translation). * All numbers expressed as figures. * Statement of truth.

Answer 470

* Full name, address, occupation, if they are an employee of or party to proceedings. * How prepared e.g. face-to-face, phone etc. * Supported by exhibits (if necessary). * Numbered paragraphs.

Question 471

In **civil proceedings**, a **witness statement** must include EIGHT things. Which are missing? * Full name, address, occupation, if they are an employee of or party to proceedings. * Numbered paragraphs. * All numbers expressed as figures. * How prepared e.g. face-to-face, phone etc.

Answer 471

* In own words (and in first person). * Prescribed heading in top right corner on first page ("Claimant"; "J Smith", "Statement No. X"; "[Exhibit:] JS2"); date of statement; date of translation). * Supported by exhibits (if necessary). * Statement of truth.

Question 472

The substantive content of a witness statement will typically follow a chronological sequence of the relevant events. How should these be broken up in the witness statement?

Answer 472

Each portion of each subject should be in a separate (numbered) paragraph.

Question 473

# True or False: Witness statements must give a witness’s own factual evidence. They may also provide commentary on other disclosed evidence.

Answer 473

False, witness statements must be limited to factual evidence and *must not* seek to argue the case or provide commentary on other evidence.

Question 474

With effect **from 6 April 2021**, witness statements for *trial* in most claims in the *Business and Property Courts* are subject to a set of new, more prescriptive, rules. What are these?

Answer 474

Witness statements, 1. Are limited only to matters of fact that **need to be proved** at trial, not a full narrative account of all events / issues. 2. Only include matters of fact of which the witness has **personal knowledge**. 3. Include a **list of documents** to which the witness has referred or been referred to for the purpose of providing the evidence. 4. Are in the witness’s native **language** or a language in which they're sufficiently fluent to give oral evidence (including under XX). If not English, a translation must be filed.

Question 475

# True or False: In civil trials, lawyers should exercise particular caution when considering whether to show the witness a document they did not create or see at the relevant time.

Answer 475

True, but this is limited to the *Business and Property Courts*.

Question 476

**Witness statements** in civil proceedings in the *Business and Property Courts* should go into particular detail on important issues of fact. How so?

Answer 476

1. State in the witness' own words how well they recall the matters. 2. State whether (how and when) the witness' recollection has been refreshed by reference to certain documents.

Question 477

# True or False: According to the *Business and Property Courts* rules on witness statements, they should be derived from notes of an **interview**.

Answer 477

True.

Question 478

# Fix the error(s): In relation to civil proceedings in the *Business and Property Courts*, witness statements must include **confirmation of compliance** in the following terms: “I understand that the purpose of this witness statement is to set out matters of fact. I understand that it is not my function to argue the case on particular points, or to take the court through the documents in the case. This witness statement sets out only my personal knowledge and recollection. On points that I understand to be important in the case, I have stated (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when. I have not been asked to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.” | Hint: There are 5.

Answer 478

“I understand that the purpose of this witness statement is to set out matters of fact **[1] of which I have personal knowledge**. I understand that it is not my function to argue the case, **[2] either generally or** on particular points, or to take the court through the documents in the case. This witness statement sets out only my personal knowledge and recollection, **[3] in my own words**. On points that I understand to be important in the case, I have stated **[4] honestly** (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when. I have not been asked **[5] or encouraged by anyone** to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”

Question 479

# Fix the error(s): In addition to the confirmation of compliance from the witness at the bottom of witness statements in the *Business and Property Courts*, the relevant **legal representative** must add a **certificate of compliance** in the following terms: “I hereby certify that: 1. I am the relevant legal representative within the meaning of Practice Direction 57. 2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with [name of witness]. 3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 30, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.” | Hint: There are 3.

Answer 479

“I hereby certify that: 1. I am the relevant legal representative within the meaning of **[1] Practice Direction 57AC**. 2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with **[2] and explained to** [name of witness]. 3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of **[3] Practice Direction 32**, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.”

Question 480

Why is it important to plan carefully and keep an audit trail when preparing **witness statements** for trial in the *Business and Property Courts*?

Answer 480

The *Business and Property Courts* have additional requirements around preparing **witness statements**, such as confirmations and certificates of compliance.

Question 481

# True or False: A witness statement given in civil proceedings may only be used for the purpose of those proceedings. Are there any exceptions?

Answer 481

True, unless either: 1. The witness consents. 2. The court gives permission. 3. The witness has been put in evidence at a hearing held in public (e.g. trial).

Question 482

If a party is unable to obtain a witness statement, they may serve a **witness summary**. Why might this be done?

Answer 482

1. If witnesses don't want to be seen to *voluntarily* provide a witness statement e.g. if the claim is against their employer. 2. If witnesses are hard to track down but can perhaps be summoned.

Question 483

If a party is unable to obtain a witness statement, they may serve a **witness summary**. What should this include?

Answer 483

1. Name and address of witness. 2. Known evidence that would have been in witness statement. 3. Unknown evidence on which the witness is to be questioned.

Question 484

How does an **affidavit** fundamentally differ from a **witness statement**?

Answer 484

An affidavit is a **sworn** statement from a witness; a witness statement is not sworn. A witness statement also has a statement of truth, while an affidavit has a **jurat** (a statement authenticating the document).

Question 485

What are the consequences of making a **false statement** in a witness statement vs an affidavit?

Answer 485

Witness statement - contempt of court. Affidavit - perjury. In both cases, they may be liable for an unlimited fine or custodial sentence of up to 2 years.

Question 486

If a witness statement or witness summary for use at trial is not served in respect of an intended witness by the deadline set for exchange of witness statements but the defaulting party still wants to call them, what should they do?

Answer 486

Obtain court permission under CPR r32.10.

Question 487

Where a case involves a dispute as to **foreign law**, who will the court need to obtain **expert evidence** from?

Answer 487

A suitably qualified lawyer from the relevant jurisdiction.

Question 488

How does **expert evidence** fundamentally differ from evidence of other witnesses?

Answer 488

Experts given **opinion** evidence.

Question 489

Who decides whether a witness is an **expert** for the purpose of giving **opinion evidence**?

Answer 489

The court, if they decide a person is suitably qualified and experienced (and only to the extent of their area of expertise).

Question 490

If required, the courts can also appoint **expert assessors** who may provide a report or attend trial to assist the court on technical matters. How do expert assessors differ from expert witnesses?

Answer 490

They will not give oral evidence or be open to cross-examination.

Question 491

In civil proceedings, will parties need permission to call an expert to give evidence?

Answer 491

Yes.

Question 492

How will a court decide whether to permit a specific expert to give evidence in civil proceedings?

Answer 492

The court will need to be satisfied that that expert's evidence is **necessary** to resolve the proceedings. They will form this view based on information supplied by the directions questionnaire (which states the name of the expert and the issues it is proposed they address).

Question 493

In civil proceedings, parties should try to agree appointment of a **single joint expert**. How should they go about doing this?

Answer 493

1. Each party will **identify potential experts** independently. 2. They will then both propose their selected experts to each other and agree upon a single expert to **appoint jointly**. 3. The instructions to the agreed single joint expert are generally sent by the claimant but the **letter of instruction** must be agreed upon by both parties.

Question 494

As a general rule, parties should try to agree appointment of a **single joint expert**. In what circumstances might multiple separate experts be appointed?

Answer 494

In high-value or complex cases.

Question 495

The court can choose to appoint one or more experts to give evidence (in addition to experts sought by the parties). What are common scenarios in which they will do this?

Answer 495

1. High-value or complex cases. 2. There is not an established area of knowledge. 3. Questions put to the single joint expert did not conclusively deal with the issues. 4. A claim to privilege makes the instruction of a single joint expert inappropriate or impactical.

Question 496

# True or False: The expert’s primary duty is owed to the court, not the party/parties.

Answer 496

True.

Question 497

The letter of instruction to a single joint expert should detail the scope of the areas the expert is required to give evidence. What should be attached to the letter of instruction?

Answer 497

Any material information and all documents necessary for the expert to consider the matter and produce their report.

Question 498

# True or False: Any instructions to an expert (whether in a document or verbal) are not privileged.

Answer 498

True, however a court will not necessarily order disclosure where the parties have separate witnesses.

Question 499

What must an **expert witness** include in their report?

Answer 499

The substance of all material facts and instructions (formal and informal), usually by appending their letter of instruction.

Question 500

Why must care be taken about what is said to the expert witness(es) concerning the client’s case?

Answer 500

Even informal instructions or information provided to the expert will not be privileged.

Question 501

Unusually, expert witnesses can ask the court for specific directions to help them to carry out their functions. How would they go about doing this?

Answer 501

The expert must provide a copy of the proposed request: 1. To their side’s solicitors, at least **7 days before submitting** it to the court. 2. To all other parties, at least **4 days before submitting** it to the court.

Question 502

How long does a party have to submit questions to an expert in civil proceedings?

Answer 502

**Within 28 days** of service of their report, with a copy of the questions sent to the expert's instructing solicitor.

Question 503

Once a party has submitted questions to an expert in civil proceedings, how long does the expert have to answer them? What happens if they don't?

Answer 503

No time limit, but a reasonable time should be specified. If no reply is received, the court may order that the original report cannot be relied on and the expert's fees will not be recoverable.

Question 504

Where there are separate experts, the court will usually order that, after the exchange of expert reports, the **experts should meet**. What is the purpose of this? And who else (if anyone) will attend this meeting?

Answer 504

The purpose is to narrow the issues and consider their counterparty's report. Also to identify any action to try to resolve points of disagreement e.g. further testing. No one else - without solicitors (and they are without prejudice discussion unless the parties agree otherwise).

Question 505

Where there are separate experts, the court will usually order that, after the exchange of expert reports, the **experts should meet** to narrow and agree any issues. If the experts do agree on anything, will their agreement bind the instructing parties?

Answer 505

No, not unless both parties agree (the meeting itself is without prejudice). However, the agreement itself is admissible so could undermine the credibility of a party who does not then agree / admit the relevant matter.

Question 506

Where there are separate experts, the court will usually order that, after the exchange of expert reports, the **experts should meet** to narrow and agree any issues. They should then prepare a **joint statement / memorandum**. What should this set out?

Answer 506

1. The extent of agreement between them. 2. The points of disagreement and short reasons. 3. Any action which may be taken to resolve any outstanding points of disagreement. 4. Any further material issues not raised and the extent to which they are agreed.

Question 507

# True or False: Experts will usually attend trial and be cross-examined by the opposing party’s counsel.

Answer 507

True, unless they reach agreement on all issues (very uncommon).

Question 508

What is **"hot tubbing"** in the context of civil proceedings?

Answer 508

The change to the usual order of witness testimony - experts who are required to give evidence at trial appear concurrently.

Question 509

# True or False: If a single joint expert has been appointed, either side can challenge them in cross-examination.

Answer 509

True.

Question 510

If any party decides they do not wish to rely on their expert’s report after it has been disclosed, can any other party still choose to use it at trial?

Answer 510

Yes.

Question 511

What options does a party have where they believe that their expert's report is unfavourable to their case?

Answer 511

1. Try to discredit their report. 2. Attempt to persuade the court not to put much weight on it. (but they should seriously consider settlement).

Question 512

If any party wants to switch to using a second alternative expert, what should they do? And why should they think carefully about doing so?

Answer 512

They must get the court’s permission, and the court will only give such permission on condition that the first report is disclosed. They should carefully think about doing this though because a switch can lead to credibility and costs issues for that party.

Question 513

# True or False: The fact that an expert has changed their mind after meeting with the other side’s expert is *not* usually a good enough reason for a party to get permission to appoint a new expert.

Answer 513

True.

Question 514

Christopher Cullen is a prominent opera composer and producer. Mr Cullen has issued a claim against Nathan Morris, a hip-hop singer-songwriter, for breach of copyright. Mr Cullen alleges that Mr Morris sampled one of his works on a chart-topping song last year and claims damages of £1.7 million. Expert evidence will be required to assist the court in analysing and comparing the respective artists’ work. The parties are preparing for the case management conference. Why are separate expert witnesses likely to be permitted in this case?

Answer 514

Separate experts would be more appropriate in this case because the case is complex, has a high value, and there is likely to be a range of expert opinion.

Question 515

The defendant to a civil claim has served a witness statement accompanied by a letter stating that they do not intend to call the witness to give evidence at trial because the witness is seriously ill. The evidence is very damaging to the claimant’s case and they do not believe the defendant’s explanation for not calling the witness. What are the claimant’s options in relation to the evidence?

Answer 515

1. Request **further particulars** in relation to the witness’s evidence. 2. Apply for a court order **within 14 days** to call the witness for **cross-examination**. 3. Call evidence to attack the **credibility** of the witness in their absence. Notice of the intention to do this should be given **within 14 days**. 4. Make submissions to the court at trial as to why the evidence should be given **limited or no weight**.

Question 516

A claimant bringing a claim against a building contractor for breach of contract and negligence wishes to put in evidence photographs of allegedly defective work. They say the photographs were taken immediately after the defendant finished the work in question, by a now-deceased member of the claimant’s family. The defects have since been remedied by another contractor. The claimant’s solicitor is preparing a hearsay notice in relation to the photographs. What must be included in the hearsay notice?

Answer 516

The hearsay notice must: 1. Identify the hearsay evidence (that is, each of the photographs). 2. State that the claimant intends to rely on the photographs as evidence at trial. 3. Give the reason why a witness will not be called. The hearsay notice must be served no later than the latest date for serving witness statements.

Question 517

A witness in civil proceedings is preparing their witness statement. They have been asked by the defendant to provide evidence on a number of issues that are important to the case. The witness has prepared a draft statement but it has a number of spelling and grammatical errors and is difficult to follow, as it does not follow a logical sequence. The defendant has asked their solicitor to suggest changes to the draft statement, to make it easier to read. Should the solicitor follow their client’s instructions?

Answer 517

Yes, because the solicitor is not being asked to influence the substantive content of the statement.

Question 518

The issues in dispute in a high-value civil claim include whether an architect’s design complied with applicable construction standards. One month before trial, the parties agree that the court would be assisted by evidence from an expert and they each obtain an expert’s report. The experts are also available to attend trial. The parties have agreed that the use of experts will not extend the time required for trial. Is the expert evidence admissible?

Answer 518

No, because the court has not granted permission. The parties will need to apply urgently for permission to have expert evidence at trial.

Question 519

An accountant has been appointed to act as an expert witness for the defendant accountancy firm in a civil claim concerning alleged professional negligence. The accountant is preparing their expert report. During one of their discussions with the solicitors acting for the defendant, one of the legal team told the accountant “in confidence” that they thought the defendant’s case could be doomed due to an important miscalculation shown in an email that had emerged from disclosure. The solicitor showed the accountant the email but said they were not sure the other side had noticed the point. The accountant did not ask anything further as the issue is not relevant to their report. Does the accountant have to include the damaging information in their expert report?

Answer 519

No, because the solicitor’s statement was not a fact or instruction that is material to their expert evidence.

Question 520

The parties to a county court claim concerning an allegedly defective engineer’s report on the strength of a building’s foundations are considering the possible directions for expert evidence from expert engineers. The case management conference is upcoming and the case will be allocated to the multi-track. The claimant argues that a single joint expert is appropriate. The defendant will ask the court for a direction that each side has their own expert. What will be the likely approach of the court?

Answer 520

A **single joint expert** because the case is of limited value and there is unlikely to be a range of expert opinion. The claim is in the county court and therefore is unlikely to have a value of more than £100,000. There is unlikely to be a range of expert opinion on how to measure the strength of foundations – it is likely to be a substantially established area of knowledge.

Question 521

What are the TWO stages of disclosure under CPR Pt 31?

Answer 521

1. **Disclosure** - where a party provides the opposing party with a list of relevant documents in their possession or control. 2. **Inspection** - where the disclosing party allows the other party to inspect them to the extent they still have them via photocopies or physical inspection.

Question 522

A party must disclose every document over which it has or has previously had control, and which falls within the scope of the disclosure order. What does "control" mean in this context?

Answer 522

* Physical possession. * Right to take possession. * Right to inspect or copy.

Question 523

A party must disclose every document over which it has or has previously had control, and which falls within the scope of the disclosure order. What are the SIX available types of **disclosure order**?

Answer 523

Disclosure orders: 1. No disclosure. 2. Disclosure only of documents **relied** on. 3. **Issue-based** disclosure. 4. **Train of enquiry / Peruvian Guano** disclosure i.e. any documents which it is reasonable to suppose contain information that (a) advances their case, (b) damage the other's, or (c) make enquiries as to either of these. 5. **Standard** disclosure, meaning (a) documents relied on, (b) documents that adversely affect or support any party's case, and (c) documents that must be disclosed under a practice direction. 6. Any other appropriate court direction.

Question 524

The most common type of disclosure order is a **standard disclosure order**. What does this involve? | CPR r 3.6

Answer 524

**Standard disclosure:** 1. Documents relied on. 2. Documents that adversely affect or support any party's case. 3. Documents that must be disclosed under a practice direction. | CPR r3.6

Question 525

# True or False: **Extended disclosure** in the *Business and Property Courts* involves identifying each issue in dispute and disclosing documents relevant to each.

Answer 525

False, the disclosure will be based around each issue in dispute *for which there is contemporaneous documentary evidence*. Some issues in dispute will not involve relevant documents e.g. statutory interpretation.

Question 526

There are FIVE models for **extended disclosure** in the *Business and Property Courts*. What are they?

Answer 526

1. **Model A:** Known adverse documents. 2. **Model B:** Limited disclosure (key documents relied on and necessary to understanding claim/defence and known adverse documents). 3. **Model C:** Request-led search-based disclosure for particular documents. 4. **Model D:** Narrow search-based disclosure to the extent that is reasonable and proportionate. 5. **Model E:** Wide search-based disclosure to the extent that is reasonable and proportionate to find evidence *likely to support* a party's case or lead to a *train of inquiry* that does so.

Question 527

Below are the FIVE models for **extended disclosure** in the *Business and Property Courts*. Which of them place the disclosing party under **no obligation to search** for documents beyond any earlier search? 1. **Model A:** Known adverse documents. 2. **Model B:** Limited disclosure. 3. **Model C:** Request-led search-based disclosure. 4. **Model D:** Narrow search-based disclosure. 5. **Model E:** Wide search-based disclosure.

Answer 527

Model A & B only.

Question 528

Below are the FIVE models for **extended disclosure** in the *Business and Property Courts*. Which of them is the most similar to **standard disclosure** used in other courts? 1. **Model A:** Known adverse documents. 2. **Model B:** Limited disclosure. 3. **Model C:** Request-led search-based disclosure. 4. **Model D:** Narrow search-based disclosure. 5. **Model E:** Wide search-based disclosure.

Answer 528

Model D.

Question 529

Below are the FIVE models for **extended disclosure** in the *Business and Property Courts*. Which of them is only ordered in exceptional cases? 1. **Model A:** Known adverse documents. 2. **Model B:** Limited disclosure. 3. **Model C:** Request-led search-based disclosure. 4. **Model D:** Narrow search-based disclosure. 5. **Model E:** Wide search-based disclosure.

Answer 529

Model E.

Question 530

In the context of disclosure, what is are **"narrative documents"**?

Answer 530

Documents relevant for background or context, even if they are not directly connected to an issue in dispute.

Question 531

Where a party is ordered to carry out a **reasonable search** for disclosable documents, SIX factors will be taken into account when assessing reasonableness. Which are missing? * Number of documents. * Significance of document. * Proportionality.

Answer 531

* Cost. * Complexity of proceedings. * Overriding objective.

Question 532

Where a party is ordered to carry out a **reasonable search** for disclosable documents, SIX factors will be taken into account when assessing reasonableness. Which are missing? * Cost. * Complexity of proceedings. * Overriding objective.

Answer 532

* Number of documents. * Significance of document. * Proportionality.

Question 533

What are the principal criteria for defining the parameters of **electronic disclosure searches**?

Answer 533

1. **Custodians** – individuals who are likely to have created or hold relevant documents. 2. **Devices** – servers, laptops, tablets and mobiles etc. 3. **Date ranges**. 4. **Document types**. 5. **Key words** – search terms intended to identify documents that are relevant to the issues in dispute.

Question 534

A harassment claim involving an office worker and their boss is progressing through the courts. The company where both parties worked is owned by the boss accused of harassment. The boss is accused of making lewd comments and sending inappropriate emails to the office worker over a prolonged period dating back 5 years. The office worker initially followed the company’s internal complaints procedure and raised a complaint 18 months ago. However, the complaint was dismissed 1 year ago. The office worker was very upset and mentioned that they would "take this to court". It took the office worker a while to issue a claim but the company has just been ordered to disclose all relevant electronic data relevant to the claim. What is the owner’s obligation regarding retention of electronic documentation in case it is needed on disclosure?

Answer 534

They must retain everything held electronically since the office worker said they would "take this to court" when the claim was dismissed 1 year ago i.e. **when litigation first contemplated**.

Question 535

How may a court respond if a party adopts an obviously disproportionate approach to **disclosure searches**?

Answer 535

A substantial proportion of the associated costs may be disallowed.

Question 536

If a party wants to make **amendments** to the scope of **disclosure searches** that have been either agreed or ordered, what should they do?

Answer 536

Inform the other side as soon as possible and in advance, explaining why.

Question 537

If one party believes the other party did not take a proactive approach to **disclosure searches**, what can be done?

Answer 537

They can challenge the disclosure with the court. If successful, the court can order that a substantial proportion of the disclosure process be redone.

Question 538

What is a **disclosure review**?

Answer 538

A disclosure review is the process by which documents are reviewed, usually by solicitors, to determine whether they are **disclosable** and, if so, whether there is a basis to withhold inspection.

Question 539

The principal reason to withhold inspection of a document is privilege. What are the THREE types of privilege?

Answer 539

1. Legal **advice** privilege. 2. **Litigation** privilege. 3. **Without prejudice** privilege.

Question 540

Once the process of searching and reviewing potentially disclosable documents is complete, each party will draw up a list of documents for **simultaneous exchange** with the other party or parties. What is the name of the form? Does it make a difference if the proceedings are allocated to one of the below? 1. Commercial Court. 2. London Commercial Court. 3. Regional Circuit Commercial Court.

Answer 540

Form N265. 1. Commercial Court - **N265 CC** 2. London Commercial Court - **N265 LCC** 3. Regional Circuit Commercial Court - **N265 RCC**

Question 541

What are the THREE sections of the **N265 Form** which lists potentially disclosable documents and is simultaneously exchanged between the parties?

Answer 541

1. **DISCLOSABLE:** “I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies”. 2. **NON-DISCLOSABLE:** “I have control of the documents numbered and listed here, but I object to you inspecting them”. 3. **NOT IN CONTROL:** “I have had the documents numbered and listed below, but they are no longer in my control.”

Question 542

The **N265 Form** has THREE sections. Which of them generally includes a list of the *categories* of documents? 1. **DISCLOSABLE:** “I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies”. 2. **NON-DISCLOSABLE:** “I have control of the documents numbered and listed here, but I object to you inspecting them”. 3. **NOT IN CONTROL:** “I have had the documents numbered and listed below, but they are no longer in my control.”

Answer 542

Non-disclosable. Not in control.

Question 543

The first section of the **N265 Form** lists documents that are disclosable. How are these listed?

Answer 543

Usually individually and in chronological order.

Question 544

What is a **disclosure statement**? What does it normally include?

Answer 544

A statement setting out the extent of the search that has been undertaken to find disclosable documents, including any limitations applied with reasons for them. Items include: 1. Time periods. 2. Location. 3. Categories. 4. Document formats, devices, custodians, keywords, and technology-assisted review tools.

Question 545

What is the impact of a party failing to disclose a document or wrongly withholding inspection?

Answer 545

They may not be able to rely on it unless they obtain court permission.

Question 546

A **disclosure statement** must include a certification by the signatory that they understand the duty of disclosure and, to the best of their knowledge, they have carried out that duty. How does this work if the disclosing party is not an individual?

Answer 546

It should be signed by an individual with primary responsibility for the conduct of the proceedings (e.g. in-house counsel), explaining why that individual is the appropriate person.

Question 547

After a party provides written notice to the other side of an intention to **inspect** documents, how long must the other side allow inspection within?

Answer 547

Within **7 days** of receipt.

Question 548

What are the THREE limits to the right to **inspection**?

Answer 548

1. No longer in their control. 2. Disproportionate. 3. Privileged.

Question 549

# True or False: Confidentiality is not a valid basis upon which to withhold inspection of any document.

Answer 549

True, as long as it is relevant to an issue in dispute, it doesn't matter whether it is personally or commercially sensitive.

Question 550

What is a confidentiality club or **confidentiality ring**?

Answer 550

While confidentiality is not a valid basis upon which to withhold inspection of any document, if there are documents of **particular sensitivity** (e.g. trade secrets), the court can make orders to restrict disclosure to a **specific number of specific individuals**.

Question 551

Why should a party be careful about too heavily **redacting** documents before inspection?

Answer 551

The more redaction, the more scope for an opponent to challenge that redaction on the basis that the context of the unredacted portion needs to be understood.

Question 552

Parties to proceedings have an obligation not to make use of disclosure for any purpose other than the proceedings unless the court orders otherwise. However, this does not protect information that might come out at a hearing held in public. What can a party do to prevent wider dissemination of highly confidential information in open court?

Answer 552

*Very* exceptionally, the court can **sit in private** or **restrict reporting** of hearings to prevent the wider dissemination of highly confidential information to which the court may be referred. These will be the minimum measures necessary as the court will be concerned to preserve the fundamental principle of open justice wherever possible.

Question 553

# True or False: Statements of case are public documents.

Answer 553

True, copies can be requested from the court file by members of the public unless the party successfully applies to the court to seal the court file.

Question 554

If a privileged document is provided for inspection by mistake, can the receiving party make use of it? Are there any exceptions?

Answer 554

No, not without court permission. Although if it is not clearly a mistake, the disclosing party may be deemed to have waived privilege.

Question 555

Until when does a party's **duty of disclosure** apply?

Answer 555

Until conclusion of the case.

Question 556

There is some protection against use of information and documents that become available to a party to proceedings via disclosure. What is it?

Answer 556

The **"implied undertaking"** - a party to whom a document is disclosed may only use that document for the purpose of the proceedings in which it is disclosed.

Question 557

If a receiving party believes that a document in disclosure has been **forged** or otherwise **tampered with**, what should they do?

Answer 557

Serve a notice requiring that the original document be proved by the later of: * The latest date for serving witness statements. * Within 7 days of disclosure of the document.

Question 558

If a party believes an opponent's disclosure was incomplete or inadequate in some way, what can they do?

Answer 558

They can apply to the court for an order for **specific disclosure**.

Question 559

# True or False: An order for **specific disclosure** can only be sought if there is alleged non-compliance in relation to the initial disclosure.

Answer 559

False, specific disclosure can also be sought if new potentially relevant documents come to light or if the applicant disagrees with the respondent's assessment that inspection is not permitted.

Question 560

Where a party has referred to a document in FIVE types of formal document in the proceedings, the other parties will have a right to inspection. What are the FIVE types of document?

Answer 560

1. Statements of case. 2. Witness statements. 3. Witness summaries. 4. Affidavits. 5. Experts' reports (other than their instructions).

Question 561

A court can order **pre-action disclosure** or **pre-action inspection** of property if what FIVE criteria are met? | Section 52(2) County Courts Act 1984 & CPR r31.16

Answer 561

1. The respondent is likely to be a **party** to subsequent proceedings. 2. The applicant is likely to be a **party** to those proceedings. 3. The respondent is likely to have or to have had in their **possession**, custody, or power any documents which are relevant to any issue arising or likely to arise out of the claim to which the potential proceedings may relate. 4. If proceedings had started, the respondent's duty by way of **standard disclosure** (CPR r31.6) would cover the documents sought. 5. Disclosure is **desirable** to dispose fairly of the anticipated proceedings, assist resolution without proceedings, or save costs.

Question 562

Why should the utility of **pre-action disclosure** not be overstated?

Answer 562

Because it's not a fishing expedition - the court won't make the order if: 1. The documents are available elsewhere. 2. The potential claim is meritless. 3. The documents are unnecessary.

Question 563

# True or False: The usual order on costs of a **pre-action disclosure** application will be that the **respondent is paid** their costs of the application and of compliance with any order made.

Answer 563

True, this is contrary to the standard approach of ordering the unsuccessful party to pay the costs of the successful party. However, the court has discretion diverge from this if the respondent has acted unreasonably.

Question 564

# True or False: Once a claim has been issued, the court has no jurisdiction to hear a claim for **pre-action disclosure**.

Answer 564

True, this was confirmed in the case of *Personal Management Solutions Ltd v Gee 7 Group Ltd (2015)*.

Question 565

What are some important preconditions for making a **pre-action disclosure** application?

Answer 565

Pre-action protocols should have been complied with and a specific request for the disclosure should have already been made in writing i.e. an attempt to get hold of the evidence without going through the court.

Question 566

What is the procedure for filing a **pre-action disclosure** application? What documents are required?

Answer 566

**As per other interim applications:** 1. Application notice (N244 form). 2. Evidence (e.g. witness statement). 3. Draft order.

Question 567

In what circumstances might a court order a person or company who is *not* a party to proceedings to disclose documents?

Answer 567

All of the below apply: 1. The relevant documents are in the non-party's control. 2. The documents sought are likely to support the applicant's case or adversely affect that of the other parties. 3. Disclosure is necessary in order to dispose fairly of the claim or save costs.

Question 568

A party seeking a non-party disclosure order should use the general procedure for interim applications under CPR Pt 23. What does this entail?

Answer 568

The classes of documents sought should be defined clearly in the draft order, as a non-party should not be required to undertake the difficult exercise of determining the relevance of documents to a dispute to which they are not a party.

Question 569

What is a **Norwich Pharmacal order**?

Answer 569

A form of **non-party disclosure** order which is broader in scope than that permitted under CPR r 31.17 because the non-party can be required to provide **information** as well as documents e.g. to identify the defendant.

Question 570

Because a **Norwich Pharmacal order** has the effect of involving a party other than the alleged wrongdoer in legal proceedings, its use is subject to limitations. What are the FIVE requirements?

Answer 570

1. Good arguable case against the wrongdoer. 2. Respondent likely to have the document or information. 3. CPR does not provide an alternative. 4. Respondent is (often innocently) involved in wrongdoing. 5. Necessary and proportionate for claimant to take action against wrongdoer.

Question 571

What is the **mere witness rule**?

Answer 571

A claimant is not permitted to bring proceedings against a non-party who could be called as a witness, just for the purpose of obtaining disclosure.

Question 572

The procedure for applying for a **Norwich Pharmacal order** depends on whether the identity or the defendant is known. How so?

Answer 572

* If not known, a **CPR Pt 8** claim should be used i.e. no detailed statements of case (PoCs, defence etc.), just supporting evidence along with claim form (e.g. witness statements). * If the identity is known, the general procedure for interim applications under **CPR Pt 23** should be used.

Question 573

Why should the applicant for a **Norwich Pharmacal order** assume that they have a duty of full and frank disclosure, even if the respondent is on notice of the application?

Answer 573

Because the alleged wrongdoer will not have notice.

Question 574

Why is it often appropriate to add to the draft **Norwich Phamacal order** sought an order that the respondent not disclose the fact of the application or the order to the relevant wrongdoer for a certain period?

Answer 574

To give the applicant an opportunity to consider any documents and information disclosed and potentially to take further steps to protect its interests e.g. a freezing order.

Question 575

An applicant for a **Norwich Pharmacal order** is required to provide a cross-undertaking (also called an **“undertaking in damages”**) – an undertaking to the court that they will pay any damages assessed due to the respondent in the event that the order should not have been made. Why?

Answer 575

To protect a party not accused of wrongdoing from any repercussions from, for example, disclosing confidential material.

Question 576

In what circumstances is court permission required to issue a **witness summons**?

Answer 576

If it is to be issued: * Less than 7 days before trial. OR * For attendance at court to give evidence or produce documents otherwise than at trial.

Question 577

An accountant is the defendant to a High Court claim. They are alleged to have prepared false accounts in order to defraud the claimant. The accountant denies any wrongdoing and says that they used the information provided to them by the claimant’s former business partner. The allegations against the accountant relate to activities 10 years ago. The accountant had copies of their communications with the claimant’s former business partner and their working papers, but all were destroyed after 6 years, in accordance with the accountant’s document retention policy. At the time the documents were destroyed, the accountant did not know of the dispute. The parties are now undertaking standard disclosure. Should the accountant include the destroyed papers in their disclosure statement?

Answer 577

Yes, because they must disclose relevant documents over which they have previously had control.

Question 578

The parties to a claim have been ordered to conduct issue-based disclosure. One of the issues for disclosure is whether the parties had a meeting between 1pm and 2pm on 19 June. The claimant alleges the meeting took place and an oral contract was entered into between the parties at that meeting. The defendant denies having any meeting with the claimant and denies the alleged oral contract. Upon a review of the defendant’s hard copy office calendar, an entry for a meeting with the claimant at 1pm on 19 June was found. However, the defendant says they made a mistake and put in the wrong name. The defendant’s electronic calendar has an unrelated meeting scheduled for the same time and the other party to that meeting has confirmed that the defendant attended. Does the defendant have to disclose the handwritten calendar entry?

Answer 578

Yes, because the handwritten calendar entry is relevant to the issue in dispute.

Question 579

A solicitor is acting for the defendant in a claim brought by the executor of an estate. The executor is seeking the transfer of various assets which they allege the defendant held as trustee for the deceased. The defendant denies the claim. Shortly before the exchange of disclosure statements, the defendant informs their solicitor that, immediately after the claim was served, they destroyed 10 files of papers in relation to the assets that are the subject of the claim. They insist that the files did not contain information that would harm their defence and say they were destroyed in error. The defendant has instructed their solicitor not to include the destroyed documents in the disclosure statement and not to inform the claimant or the court of the matter. What should the solicitor do?

Answer 579

Cease to act for the defendant but not inform the court or the claimant.

Question 580

Two former business partners are in dispute concerning the allocation of profits between them. The claimant claims they are entitled to 75%. The defendant claims they agreed a 50:50 split. Both the claimant and defendant now operate independently in competing businesses. The defendant’s disclosure includes a series of emails from 6 months ago to former clients of the partnership, saying that everything had been shared 50:50 and the claim is motivated by spite. The defendant also wrote that the claimant was incompetent and had made serious mistakes for various previous clients. Both parties were cross-examined at trial about various documents that mentioned their profit share, including each of the defendant’s emails to the former clients. Judgment is awaited. The claimant wants to issue a claim against the defendant for defamation. Can the claimant use the emails for their defamation claim?

Answer 580

Yes, as the emails were referred to at a hearing in public.

Question 581

From when are parties required to start preserving **electronic documents** for the purpose of disclosure?

Answer 581

From when litigation is contemplated.

Question 582

What THREE activities must a party contemplating litigation stop doing in order to retain documents for the purpose of disclosure?

Answer 582

1. Suspend any document retention policies. 2. Suspend any automated shredding of historic material over the relevant time period. 3. Avoid amending or updating any relevant documents (whether innocently or not).

Question 583

# True or False: Even if the device or account is personally owned by an employee, director or partner, the employer will have a right to take possession or gain access to examine electronic documents for the purpose of **disclosure**. Are there any exceptions?

Answer 583

False, the employer will not generally be entitled to access personal devices (i.e. non-work devices). *Exception:* A non-party disclosure order or rely instead on any contractual or fiduciary obligations the individual has to provide those documents, even if not the device itself.

Question 584

Prior to the case management conference, parties must consider and discuss their document repositories and the methods by which reasonable and proportionate searches might be agreed. What is usually the starting point for electronic disclosure?

Answer 584

The **electronic documents questionnaire** can be used to identify and seek to agree the process for electronic disclosure and inspection.

Question 585

In the context of **electronic disclosure**, key words, phrases and other search criteria should be agreed with the other party for a search to be deemed "reasonable". What should they do if they cannot reach an appropriate agreement?

Answer 585

Seek directions from the court.

Question 586

Electronic disclosure must be proportionate and reasonable. How must the parties ensure proportionality where there are many documents in **image format**?

Answer 586

Any documents to be searched that only exist in an image format will have to be processed using **optical character recognition software** for key word searches to be applied.

Question 587

In the context of **electronic disclosure**, why might a party choose to run the search criteria on test data?

Answer 587

To demonstrate why a key word is too generic (thus leading to irrelevant documents) and to back up arguments in court when seeking a direction as to appropriate scope of searches.

Question 588

Sophisticated forms of document searching have been developed for particularly large data sets in the context of **electronic disclosure**. These are generally referred to as “analytics”. What TWO techniques do they include?

Answer 588

1. **Concept searches** – searches for concepts based on a block of relevant text, rather than individual key words or short phrases (which have limitations). 2. **Clustering** – automated grouping of conceptually similar documents.

Question 589

A party can undertake disclosure review based on **automated prioritisation** of documents that are most likely to be relevant. Documents below a certain relevance threshold are not manually reviewed (although some spot checks are usually undertaken). If a party does take this approach though, what should they do to justify it?

Answer 589

The party should carefully document their approach and any spot checks in the disclosure statement to demonstrate proportionality.

Question 590

Following reasonable searches for **electronic disclosure**, the parties should produce a **list of electronic documents**. What format does this usually take? And what does it include?

Answer 590

It will usually be a **spreadsheet** automatically generated from the metadata of the documents themselves. Unless the parties agree otherwise, it should include: 1. Disclosure list number. 2. Date. 3. Document type. 4. Author/sender. 5. Recipient. 6. Disclosure list of any parent / covering document e.g. the email a document attached to.

Question 591

How do the parties physically exchange **electronic documents** for the purpose of disclosure?

Answer 591

In most cases, this is done as an exchange of electronic files between the parties’ respective third-party disclosure platform providers.

Question 592

Why must **redacted** documents *not* be disclosed in native formate or with original optical character recognition data?

Answer 592

It must be converted to a **new image file** with the redaction embedded, otherwise opposing parties can look behind the redaction.

Question 593

# True or False: An **electronic documents questionnaire** must be agreed between the parties prior to electronic disclosure.

Answer 593

False, while helpful to assist the discussions, the form itself is not mandatory.

Question 594

The parties to a civil claim on the intermediate/multi-track are preparing for the case management conference. They both have hard copy documents and a number of electronic devices and are discussing how they might be searched. Which documents are the parties required to complete before the case management conference? How would the answer differ if the claim were on the small-claims track or fast-track?

Answer 594

**Intermediate/multi-track** - disclosure reports are due **14 days** before the first case management conference. They include information on document repositories (including electronic repositories). The parties are also required to discuss proposed searches. **Small/fast-track** - standard disclosure is the default unless the court orders otherwise.

Question 595

The defendant to a civil claim has within their control a personal mobile telephone, a business mobile telephone, a tablet, a laptop, two online email accounts, cloud storage, and a filing cabinet with hard copy papers. The claim concerns an allegation that the defendant passed highly confidential and commercially-sensitive information to a competitor of the claimant. The claimant demands that the defendant’s personal mobile telephone is searched for disclosable documents. The defendant strongly objects, saying that would be an invasion of their privacy. The issue is before the court at the case management conference. What is an appropriate approach to the defendant’s personal mobile telephone?

Answer 595

Limit searches to communications with a list of relevant counterparties.

Question 596

The defendant to a civil claim for damages of £500,000 is undertaking disclosure. They have applied agreed search criteria and have a set of 400 electronic documents for manual review. The defendant’s solicitor has written to their opponent proposing that they use a technology-assisted review process to further reduce the documents that will require manual review. The process would involve machine-learning, whereby specialist software would learn from decisions of solicitors reviewing a subset of the documents and then prioritise those it considers most relevant. Documents that the software judges to fall below a pre-determined relevance threshold would not be manually reviewed. The claimant has objected to the proposal and the defendant has sought directions from the court. Is the court likely to approve the defendant’s proposal?

Answer 596

No, because the number of documents does not justify an automated technology-assisted review process. A set of 400 documents is relatively small. The proposed process would not be justified because a manual review of all 400 documents would be proportionate.

Question 597

What are the TWO types of **legal professional privilege**? Briefly describe each.

Answer 597

1. **Legal advice privilege:** Applies to all confidential communications between a client and their legal advisors for the *sole or dominant purpose* of giving or receiving legal advice. 2. **Litigation privilege:** Confidential communications between a client, legal advisors, *and* third parties where litigation is in prospect (broader in scope than legal advice privilege).

Question 598

# True or False: All relevant documents must be disclosed in civil litigation even if they are privileged.

Answer 598

True, they must be disclosed but privilege can be asserted to prevent inspection.

Question 599

**Legal advice privilege** only applies to communication between what two people?

Answer 599

Lawyers and their client. (In-house counsel’s advice is privileged only if it is given in a legal capacity, rather than as a business or commercial adviser)

Question 600

In what circumstances *might* **legal advice privilege** cease to apply?

Answer 600

If the information is **disseminated** to third parties or, in the case of a large organisation, outside of the relevant group of people in the organisation. Particularly if no conditions of confidentiality are attached to onward communications, such as requiring confirmation that the information will be kept confidential and **marking** it as such.

Question 601

Would records of interviews between lawyers and some employees of a client be privileged, if the employees are providing information as employees and not as a client seeking legal advice?

Answer 601

No, such interviews would not be subject to **legal advice privilege** but might be covered under **litigation privilege** if the interviews concerned a dispute.

Question 602

# True or False: Tax advice given by accountants may be covered by **legal advice privilege**.

Answer 602

False, legal advice privilege is only between lawyers and clients.

Question 603

To be covered by **legal advice privilege**, the communication must have been produced for the dominant purpose of giving or receiving legal advice. However, can it include other communications more generally?

Answer 603

Yes, *if* they relate to legal advice given elsewhere.

Question 604

Copying a solicitor into an email will make (or at least assist in making) privilege apply.

Answer 604

False, it is the substance of the communication that matters. If the dominant purpose was to obtain or give legal advice on a confidential basis, legal advice privilege will apply.

Question 605

To whom does **litigation privilege** apply? How does this differ to **legal advice privilege**?

Answer 605

**Litigation privilege** - legal advisor-client or legal advisor/client-third party. **Legal advice privilege** - lawyer-client only. ## Footnote (assuming the dominant purpose is to obtain legal advice, evidence or information)

Question 606

# True or False: Internal communications within an organisation in relation to litigation are likely to attract litigation privilege, even if those communications do not specifically concern legal advice.

Answer 606

True.

Question 607

When a document has been created for several reasons, the **dominant purpose** for the purpose of **litigation privilege** must have been litigation that is either existing or reasonably in prospect. *Whose* dominant purpose?

Answer 607

The party that *commissioned* the document, not its author.

Question 608

When a document has been created for several reasons, the **dominant purpose** for the purpose of **litigation privilege** must have been litigation that is either existing or reasonably in prospect. When will litigation be "reasonably in prospect"?

Answer 608

Litigation is reasonably in prospect only where the party is **aware** of circumstances relating to the matter rendering litigation a **real likelihood** rather than just a possibility.

Question 609

# True or False: Litigation privilege does not apply to internal communications regarding a possible commercial settlement rather than advice, evidence or information on prospective or existing litigation.

Answer 609

True.

Question 610

Ordinarily, sharing privileged material can amount to a waiver of privilege, because it is a waiver of confidentiality. What is an important exception? Give some examples.

Answer 610

**Common interest privilege** - where there is a common interest between the owner of the privilege and the recipient of the privileged material, the privilege can be maintained. Examples: * Co-defendants * Corporate parents * Insurance companies

Question 611

For communications to be **"without prejudice privileged"**, do they have to be marked as such?

Answer 611

If they are **genuine attempts to settle** the dispute, then no. For anything else, broadly yes.

Question 612

When will the privilege that applies to communications expire?

Answer 612

It won't - unless waived, it applies indefinitely (including in other litigation).

Question 613

Even though **without prejudice privileged** communications may be privileged, is the *fact* they *exist* at all disclosable?

Answer 613

Yes, in some circumstances.

Question 614

What are the FOUR main (albeit limited) exceptions to the **without prejudice** rule?

Answer 614

1. To explain a delay (normally the existence of communication only need be disclosed). 2. The terms of settlement have been agreed. 3. Unambiguous impropriety by a party (e.g. blackmail). 4. Misrepresentation, estoppel, or fraud.

Question 615

Communications that are labelled **“without prejudice, save as to costs”** attract without prejudice privilege until when?

Answer 615

Until the court has given judgment and only in respect to costs issues.

Question 616

A party can waive privilege, either expressly or impliedly, in what TWO main ways?

Answer 616

1. By seeking to rely on such information on an open basis. 2. By disseminating it so that it loses confidentiality.

Question 617

Privilege can be waived in TWO main ways: 1. By seeking to rely on such information on an open basis. 2. By disseminating it so that it loses confidentiality. However, what type of privilege cannot be waived **unilaterally**?

Answer 617

Without prejudice privilege because it is jointly owned by both parties.

Question 618

Are draft witness statements and statements of case privileged documents?

Answer 618

Yes, although once finalised and exchanged, privilege is deemed waived.

Question 619

Some privileged documents can be disclosed on a limited waiver basis for use in one set of proceedings without them losing privilege more generally. However, taking such a step should always be approached with caution. Why?

Answer 619

Once privilege has been waived for one purpose it might be taken to have been waived for others.

Question 620

If a privileged document is provided for inspection by mistake, the privilege will be lost if the receiving party reasonably thought it was entitled to see the document at the time it was disclosed. What is a noteworthy caveat to this?

Answer 620

The receiving party will require the court’s permission to rely on such documents.

Question 621

Any decision to willingly waive privilege must be considered carefully and in the context of all documents connected to the issue in question. Why?

Answer 621

A party that waives privilege in a document can be deemed to have waived privilege in other related documents. This is known as a **collateral waiver** (designed to avoid cherry-picking).

Question 622

A party to a very bitter dispute received an email from their opponent shortly before the opponent issued a civil claim. The opponent’s email read: “Without prejudice. Hi. Just so you know, I’m about to issue the claim. My lawyers say it will be difficult to win but it does not matter. The costs will ruin you and, even if you win, I will make sure there is no money left for you to get out of me.” The defendant has included the email in their list of disclosure documents. The claimant’s solicitors have written a letter saying the defendant cannot rely on the email as evidence because it is privileged. Is the communication privileged?

Answer 622

No, it was never privileged. The communication was not a bona fide attempt to settle the dispute. The “without prejudice” label does not automatically make it without prejudice. It is the substance of the communication that must be considered.

Question 623

A claim was issued in the County Court against a company by an individual regarding unpaid invoices. The claim was issued but the individual decided to serve the claim themselves and so the court returned the sealed claim form to them for service. Before the individual got around to serving the claim, they discovered that, although their contract was with the company against which the claim was brought, a third-party company seems to be responsible for invoicing and payments and the individual is concerned that they have issued the claim against the wrong company. What should the individual do next?

Answer 623

File amended claim form and particulars of claim at court which include the third-party company. As long as the claim hasn’t been served then the claimant does not require the court’s permission to amend their claim (unless they are amending the claimant). They can simply file a revised claim form and particulars of claim by annotating the original claim in red pen and re-filing. | PD 17 CPR

Question 624

A claimant company has issued and served their claim (including particulars of claim) on the defendant company at their registered office, but no response has been received. After 14 days of the claim being served, the claimant wants to apply for **judgment in default** against the defendant. What additional **documentation** (if any) does the claimant require and (if required) by when must they file them at court?

Answer 624

**Certificate of Service** annexing all documentation served together with a **witness statement** regarding service must be filed **within 21 days** of the claim being served.

Question 625

A client of a hairdresser (who works solo out of a pop-up salon) is convinced their recent hair loss is due to the dye treatments which their hairdresser applied. The hairdresser denies this and would not discuss this further with the client, so the client issued a claim against the hairdresser and arranged for the court to effect service on the hairdresser. The claim was posted by the court to the hairdresser’s salon the day before the hairdresser went on holiday for 3 weeks. The hairdresser did not see the court papers until they returned to work after their holiday. Within the post received whilst away, there was a second letter from the court notifying them that judgment had been entered in default against them regarding their client’s claim. Is there anything the hairdresser can do?

Answer 625

The hairdresser could apply to have judgment **set aside** on the basis they did not receive the claim.

Question 626

A claim which was issued and served close to the expiry of the relevant limitation period now requires amendment. The limitation period has expired since the claim was served but some new evidence has recently been disclosed by the defendant which means the claimant wishes to amend their particulars of claim to strengthen their claim. Can the claimant amend their particulars of claim?

Answer 626

No, because the limitation period has expired. If the limitation period has expired the court will usually only permit amendments if they relate to correcting a **mistake** as to the parties to the claim, to alter the **capacity** in which a party claims or to add or substitute a **new claim**.

Question 627

What are **pre-trial checklists** in the context of civil litigation? When do they need to be filed?

Answer 627

Pre-trial checklists help confirm the readiness of parties for trial and include details about witnesses, legal representation, and trial estimates (and trial timetable if multi-track). They are sent to each part at least **14 days** before the due date for filing completed questionnaires. They need to be filed at least **8 weeks** before the start of trial.

Question 628

**Pre-trial checklists** in civil proceedings should include information about the following: * Confirmation of compliance with directions (or date for compliance if not done yet). * Any additional directions sought. * The witnesses and experts that will be giving evidence at trial and their availability (with reasons). * Legal representation. * Any change to estimated trial time. What *additional* information should be provided where the claim is on the **multi-track**?

Answer 628

A proposed timetable for trial (discussed between legal teams in advance), covering time to be allocated to: * Housekeeping issues * Any applications * Opening submissions * Claimant’s witnesses * Defendant’s witnesses * Expert witnesses (if any) * Closing submissions

Question 629

What must parties include in the pre-trial checklist regarding witnesses?

Answer 629

Names of witnesses and experts, along with dates they might not be available (and why). ## Footnote Providing this information helps the court manage scheduling and witness availability.

Question 630

What should a claimant do at the same time as filing the **pre-trial checklist**?

Answer 630

* Pay the **trial fee** (also known as the listing fee). * Enclose a **costs estimate** if there has not been a costs management order.

Question 631

What is the consequence of failing to file a completed **pre-trial checklist** or other pre-trial directions?

Answer 631

Adjournment (with potential wasted costs order directly against solicitors). Strike out. ## Footnote Strike out - No Acceptable Case (**N.A.C.**)

Question 632

# True or False: The parties in civil proceedings can mutually agree to vary the date for filing the **pre-trial checklist**.

Answer 632

False, they cannot vary the filing date without court permission.

Question 633

What is a **trial bundle**? What does it include and who is responsible for making it?

Answer 633

A collection of documents referred to by the parties in the proceedings, usually prepared by the **claimant**. It should include all relevant documents, including at a minimum: * Claim form and statements of case * Case summary and chronology * Witness statements and summaries * Expert reports * Hearsay notices * Any orders giving directions * Other necessary documents

Question 634

A **trial bundle** should include all relevant documents, including at a minimum: * Claim form and statements of case * Case summary and chronology * Witness statements and summaries * Expert reports * Hearsay notices * Any orders giving directions * Other necessary documents How should documents referred to in **witness statements** be made easily referable?

Answer 634

The witness statement should use the reference number of the document (often in the margin).

Question 635

A **trial bundle** should include all relevant documents, including at a minimum: * Claim form and statements of case * Case summary and chronology * Witness statements and summaries * Expert reports * Hearsay notices * Any orders giving directions * Other necessary documents What is a **case summary**?

Answer 635

A short, non-contentious summary of the main events and the dispute which is agreed by all parties. It is often supplemented by an agreed chronology of relevant events with appropriate references to documents / witness statements.

Question 636

The preparation of the **trial bundle** is usually the responsibility of the claimant. But the other parties will still have some input. In what way?

Answer 636

The **trial bundle index** should be agreed with the other parties in advance and any dispute as to its contents should be dealt with at a pre-trial review or lodged with the pre-trial checklist.

Question 637

# True or False: The originals (if any) of any documents contained in the trial bundle and copies of any court orders made in the proceedings should be available at trial unless all parties have agreed to electronic bundles.

Answer 637

False, originals should be available regardless.

Question 638

In addition to the trial bundle, why might a **core documents file** be created?

Answer 638

If the trial bundle is comprised of many files, a core documents file may be created which includes **key documents** to which the judge and witnesses will be **referred regularly**.

Question 639

What is a **brief to counsel**?

Answer 639

Final instructions for trial, confirming counsel's representation of the client and necessary information for trial.

Question 640

At what point does counsel's fee become **non-refundable**?

Answer 640

Once the **brief to counsel** is delivered (or deemed delivered by agreement).

Question 641

What is a **skeleton argument**?

Answer 641

A summary of each side's legal argument, required for High Court trials. In some specialist courts it may have page limits which can only be exceeded with court permission.

Question 642

In the context of civil proceedings, when is a **pre-trial review** likely to be scheduled by the court?

Answer 642

Where the court believes a hearing is necessary to decide what directions are required to prepare the case for trial, it will fix a date for a pre-trial review. This will often arise where: 1. The parties are **not in agreement** on one or more material issues in their pre-trial checklists. ***or*** 2. The **High Court** is hearing the case.

Question 643

What is the significance of the **brief fee** in settlement negotiations?

Answer 643

It can serve as leverage to elicit a settlement offer because it is usually a substantial amount of money.

Question 644

For trials that are listed for more than one day, counsel will charge a **refresher fee**. What is this?

Answer 644

A daily fee incurred for each day of trial following the first day (unless alternative arrangements are made).

Question 645

What is the required notice for providing a **legal authorities list** in the High Court ahead of trial?

Answer 645

A list of all legal authorities must be submitted by **5pm the day before** the hearing. ## Footnote This ensures that the court has all necessary references for the case.

Question 646

What should a **reading list** include when lodged with trial bundles?

Answer 646

An estimate of time the judge needs to understand the case issues. It must also be signed by all relevant advocates.

Question 647

By when must a claimant file the **trial bundle** with the court?

Answer 647

At least **3 days** (but no more than 7 days) before the trial.

Question 648

What should be done with **trial bundles** as **new documents** are added?

Answer 648

All copies must be updated and paginated accordingly e.g. with addition of 'page 20A, 20B' etc.. ## Footnote This ensures consistency and accuracy across all trial documents.

Question 649

Why should a client representative with authority to give instructions be present in court every day of the trial?

Answer 649

Unexpected events may occur (.e.g new evidence raised by a witness) requiring the solicitor to give the client advice or receive instructions.

Question 650

What does **'in purdah'** refer to for witnesses during a trial?

Answer 650

Witnesses are not allowed to discuss their evidence with anyone until released by the court. ## Footnote This rule helps maintain the integrity of witness testimony.

Question 651

What is the consequence of providing misleading information in pre-trial checklists?

Answer 651

It could lead to court sanctions or impact the trial outcome.

Question 652

What is the purpose of documentary evidence presentation at a pre-trial review?

Answer 652

To organise and ensure the judge understands the evidence layout.

Question 653

What should witnesses do before giving evidence?

Answer 653

Read their witness statements several times and inform the legal team if there are any points they wish to correct or clarify.

Question 654

What is the typical duration of a court trial day? Is there any flexibility?

Answer 654

10.30am to 4.30pm. This includes a one-hour lunch break and typically 5–10 minute breaks in the morning and afternoon. It is common for judges to sit 30 mins early or late to help progress the trial.

Question 655

Most trials should have either a live transcript or end-of-day transcript. Who is responsible for providing such transcription services?

Answer 655

They need to be booked through an **approved provider**, the court will not provide them.

Question 656

What is required if a witness refuses to attend court and/or refuses to produce documents for the court? What happens if, after doing this, they still refuse?

Answer 656

A witness summons may be issued, requiring them to either give evidence at trial or give evidence at a privat hearing before trial ("evidence by deposition"). If they refuse a witness summons, they may be in **contempt of court** (punishable by fine or imprisonment). They can also be ordered to **pay costs**. ## Footnote CPR r 34.2(1).

Question 657

What FIVE procedural steps should a party seeking to summon a witness take?

Answer 657

1. **Draft:** Draft a summons including full name and address of the witness. 2. **File:** File *two* copies with the court, one to be sealed for service and the other to be retained by court. 3. **Seal & Issue:** The court will seal, issue, and date the summons (note that some courts/tribunals cannot issue summons so require a higher court to assist). 4. **Serve:** Usually served by the court by first class post (subject to a fee) unless the requesting party wishes to arrange personal service. 5. **Deposit:** Deposit money to cover the witness' travel expenses, lost earning, and time ("conduct money").

Question 658

Below are the FIVE procedural steps for summoning a witness. 1. **Draft:** Draft a summons including full name and address of the witness. 2. **File:** File *two* copies with the court, one to be sealed for service and the other to be retained by court. 3. **Seal & Issue:** The court will seal, issue, and date the summons (note that some courts/tribunals cannot issue summons so require a higher court to assist). 4. **Serve:** Usually served by the court by first class post (subject to a fee) unless the requesting party wishes to arrange personal service. 5. **Deposit:** Deposit money to cover the witness' travel expenses, lost earning, and time ("conduct money"). In what circumstances must permission also be sought from the court?

Answer 658

If either: 1. The witness summons is to be issued **less than 7 days** before the trial. 2. The summons is for any hearing **other than a trial**.

Question 659

In what circumstances may a witness subject to a **witness summons** apply to the court to **set it aside**?

Answer 659

They must apply with at least **2 days' notice** and set out the grounds (e.g. not in possession of the evidence).

Question 660

Why should summoning unwilling witnesses be an exceptional measure, only used where the evidence from the witness is essential?

Answer 660

Their evidence will be unknown and it is likely they will have an unfavourable view of the party seeking to compel their attendance.

Question 661

If a witness is outside of the UK, it will not be possible to compel them to attend court using a witness summons. What can be done insteal to compel their attendance?

Answer 661

A **letter of request** to judicial authorities in the country in which the witness is resident may enable the witness to be examined separately there.

Question 662

When facing the judge, what side of the courtroom will the claimant's vs defendant's legal team sit on?

Answer 662

Claimant's team on the left. Defendant's team on the right.

Question 663

What is the purpose of re-examination?

Answer 663

To seek clarifications on issues from cross-examination. ## Footnote It must be confined to points raised during cross-examination.

Question 664

What is the principle of ***res judicata***?

Answer 664

Parties cannot re-litigate the same issues once judgment is made.

Question 665

What is the court's role in the judgment process in civil proceedings?

Answer 665

To examine facts and evidence, analyse legal issues, and determine the outcome.

Question 666

What must parties do regarding the form of order after judgment?

Answer 666

Discuss and seek to agree on a form of order. This must be filed with the court by 12 noon on the working day before the hearing.

Question 667

What is the default date for compliance with a court order in the absence of a specified timeframe?

Answer 667

14 days from the date of the order ## Footnote This is according to CPR r 40.11.

Question 668

When the judgment has been prepared by the judge in civil proceedings, it will be provided in draft to the legal representatives. What is the significance of a **draft judgment**? When will it be handed down and how? Who can it be shared with

Answer 668

To enable typographical corrections. It is embargoed until handed down and can only be shared internally (i.e. legal counsel and parties). It is usually handed down without attendance of parties, with a separate hearing scheduled for consequential matters e.g. the form of order to be made.

Question 669

What is the usual order of steps in a civil trial?

Answer 669

Opening submissions, witnesses of fact, expert witnesses, closing submissions. ## Footnote The order of calling witnesses is generally determined by the party.

Question 670

Where possible, witnesses should be present in court to hear the evidence of any relevant witnesses that give evidence before them (although they will have been given a set of all witness statements). However, new evidence can be given during cross-examination of which a later witness should be aware. How should such a witness be updated on previous evidence?

Answer 670

Updating a witness should involve passing on information and noting what they have to say about it.

Question 671

What must happen if a witness wishes to correct their statement during evidence?

Answer 671

They must inform the legal team at the beginning of their oral evidence. ## Footnote Corrections should have been discussed in advance.

Question 672

What is the role of an interpreter in court?

Answer 672

To assist witnesses who require translation services. ## Footnote An interpreter must be suitably qualified and briefed on trial procedures.

Question 673

What is cross-examination?

Answer 673

The process of testing a witness's evidence using leading questions ## Footnote It often involves referencing contemporaneous documents.

Question 674

What is required for a witness to give evidence?

Answer 674

They must take an oath on their chosen holy book or make an affirmation.

Question 675

A witness is allowed to go beyond their evidence in chief (witness statement in civil proceedings), to amplify their witness statement and give evidence in relation to matters which have arisen since the witness statement was served subject to what condition?

Answer 675

Court permission.

Question 676

What discretion does the court have regarding costs?

Answer 676

The court has a very broad discretion as to which party is ordered to pay costs and how much. ## Footnote This discretion includes hearing submissions from the parties regarding responsibility for costs on an issue-by-issue basis.

Question 677

What types of settlement offers may the court consider when determining costs?

Answer 677

The court will consider offers made on a 'without prejudice, save as to costs' basis and CPR Pt 36 offers. ## Footnote These offers are relevant in assessing which party may bear costs and the implications of not beating an offer before trial.

Question 678

What factors will the judge consider regarding the conduct of the parties?

Answer 678

The judge will consider overall conduct, including compliance with the Practice Direction on Pre-Action Conduct and Protocols and any relevant pre-action protocols. ## Footnote This assessment influences the decision on costs.

Question 679

What are the two bases on which costs may be assessed?

Answer 679

Costs may be assessed on the standard basis or the indemnity basis. ## Footnote The basis of assessment impacts how costs are calculated and allocated.

Question 680

What happens if parties cannot agree on a costs figure?

Answer 680

Costs usually will be subject to detailed assessment if the parties cannot agree on a figure. ## Footnote The judge may also order an interim payment on account of costs.

Question 681

What must a party do to appeal an order?

Answer 681

A party usually must seek permission to appeal from the trial judge and submit draft grounds of appeal for consideration. ## Footnote If refused, they must seek permission from a higher court.

Question 682

How likely is the court to stay the effect of an order pending an appeal?

Answer 682

It is uncommon for the court to stay the effect of any order made upon judgment pending an appeal.

Question 683

What does a sealed final order from the court serve as?

Answer 683

The sealed order serves as the basis for any subsequent enforcement action that might be necessary. ## Footnote Enforcement processes are explained in a later chapter.

Question 684

What is the purpose of pre-trial checklists?

Answer 684

Pre-trial checklists ensure compliance with directions and are sent to each party at least 14 days before the due date for filing. ## Footnote They help prepare the case for trial.

Question 685

What is a consequence of failing to file a **pre-trial checklist**?

Answer 685

Failure to file a pre-trial checklist could lead to an adjournment of the trial or striking out the claim. ## Footnote It may also result in a potential wasted costs order against the solicitors.

Question 686

What is included in the **trial bundle**?

Answer 686

The trial bundle includes all documents referred to, or that will be referred to, by the parties in the proceedings. ## Footnote The claimant is responsible for its preparation.

Question 687

What is the legal status of a judgment once it is handed down?

Answer 687

Once handed down, a judgment stands as a legal determination of all issues decided therein.

Question 688

What are the FOUR consequential issues that will arise after judgment is handed down in civil proceedings? Briefly describe each.

Answer 688

1. **Court order** to give effect to the judgment (to be filed by 12pm on working day before the hearing). 2. **Costs**, usually involving showing judge previous offers of settlement (e.g. w/o prejudice save at to costs and Pt 36 offers). 3. **Permission to appeal** based on submitted draft grounds. 4. **Sealed order** to form basis of any subsequent enforcement action.

Question 689

In the absence of a specified timeframe in a court order following judgment in a civil proceedings, what is the default time for compliance?

Answer 689

14 days from the date of the order.

Question 690

By when must the court receive written submissions from any party seeking an order consequential on the judgment?

Answer 690

12 noon on the working day before the hand down (or before the consequentials hearing).

Question 691

The parties to a civil claim are in discussions concerning additional directions for the attendance of certain witnesses at trial by video link. They are not yet agreed but are confident they can agree on the arrangements shortly. The parties would prefer to present the court with an agreed position and therefore wish to delay filing their pre-trial checklists for 10 days. What must the parties do to vary the date for filing their pre-trial checklists?

Answer 691

Seek permission from the court to extend the deadline.

Question 692

During the lunch break on day 4 of a 7-day trial of a civil claim, one of the defendant’s witnesses wishes to speak urgently with the defendant and their solicitors about an answer they gave during cross-examination that morning. The witness is due to resume their testimony in the afternoon. The defendant has asked their solicitors whether they can have the discussion, as it is undoubtedly important. The defendant has already given their evidence. What should the defendant’s solicitors advise?

Answer 692

A witness is not permitted to discuss anything in connection with their evidence with anyone (including counsel) until they are released from giving evidence by the court.

Question 693

The judgment has been handed down in a civil claim in the county court, with consequential issues to be determined at a hearing that will be listed shortly. The defendant has succeeded, with the judge determining that the claimant did not present sufficient evidence to meet their burden of proof. However, since the trial, the claimant has been contacted by a new witness, who has provided a witness statement and new documents that significantly strengthen the claimant’s case. How should the claimant deal with this new development?

Answer 693

Appeal. The judgment is the final determination of the issues. The causes of action are extinguished and cannot be re-litigated without a successful appeal.

Question 694

What is the usual rule in relation to cost orders in civil litigation?

Answer 694

The unsuccessful party pays the costs of the successful party as well as their own costs.

Question 695

Under CPR r 44.2(4), the court is required to consider all the circumstances of the case when applying its discretion to **costs orders**. Which THREE circumstances *must* be considered?

Answer 695

1. **Conduct** of the parties. 2. **Success** of a party on part of a claim even if not wholly successful. 3. **Settlement offer** drawn to court's attention.

Question 696

# Fix the error(s): A successful party is unlikely to be awarded their costs (or portion of them) from the date by which they should have accepted a settlement offer.

Answer 696

A successful party is unlikely to be awarded their costs (or portion of them) from the date by which they should have accepted a **[1] reasonable** settlement offer.

Question 697

# True or False: A court will consider all reasonable **settlement offers** when considering what **costs order** to make.

Answer 697

False, it will only consider offers **without prejudice save as to costs** (including Pt 36 offers).

Question 698

What kind of **settlement offer** has its own enhanced costs regime which the court *must* apply?

Answer 698

Part 36 offers.

Question 699

At what TWO stages in civil litigation will **costs orders** typically be made?

Answer 699

1. Determination of an interim application (costs of application). 2. Judgment on the claim (costs of proceedings as a whole).

Question 700

Under CPR r 44.2(6), there are SEVEN potential **costs orders** the court may make (including interim). Which are missing? * A proportion of another party’s costs. * A stated amount in respect of another party’s costs. * Costs from a certain date only.

Answer 700

* Costs incurred before proceedings have begun. * Costs relating to particular steps taken in the proceedings. * Costs relating only to a distinct part of the proceedings. * Interest on costs from or until a certain date, including a date before judgment.

Question 701

Under CPR r 44.2(6), there are SEVEN potential **costs orders** the court may make (including interim). Which are missing? * Costs from a certain date only. * Costs incurred before proceedings have begun. * Interest on costs from or until a certain date, including a date before judgment.

Answer 701

* A proportion of another party’s costs. * A stated amount in respect of another party’s costs. * Costs relating to particular steps taken in the proceedings. * Costs relating only to a distinct part of the proceedings.

Question 702

Where the court decides not to make an order as to costs, who will pay for what?

Answer 702

Each party will bear its own costs.

Question 703

Unless the court orders otherwise, by when must a party comply with a **costs order**?

Answer 703

**Within 14 days** of the sum being confirmed (e.g. summary assessment or a costs certificate following detailed assessment).

Question 704

What is the **"indemnity principle"** in relation to costs in civil litigation? | (what is the exception?)

Answer 704

Parties to litigation are only permitted to recover costs actually incurred. *Exception:* Where a lawyer provides their services under a conditional fee agreement or damages-based agreement and have agreed the client is liable, those costs are recoverable (but not the success fee).

Question 705

Where the court prescribes **fixed costs**, will these be inclusive or exclusive of **court fees**?

Answer 705

Exclusive - court fees will be recoverable *in addition to* fixed costs.

Question 706

# Fix the error(s): No legal costs will be allowed if a claim is for money or goods not exceeding £50, unless the court applies its own discretion.

Answer 706

No legal costs will be allowed if a claim is for money or goods not exceeding **[1] £25**.

Question 707

What are **fixed commencement costs**? Where are they stated?

Answer 707

Costs associated with issuing a claim, which depend on the value of the claim, and whether and how many defendant(s) were personally served. Fixed commencement costs are stated in the claim form where the legal representative's costs can be inserted (unless "to be assessed").

Question 708

When will the box in a claim form asking what the legal representative's costs are be completed with "to be assessed" instead of fixed commencement costs?

Answer 708

If the claim is not for a fixed sum of money or it is not a straightforward case.

Question 709

The legal costs recoverable for proceedings on the **small claims track** are limited. How?

Answer 709

A party can only recover: * **Fixed costs** only. * Court fees. * Reasonably incurred expenses (e.g. travel expenses, lost earnings, expert's fees). | (and costs summarily assessed if a party behaved unreasonably)

Question 710

If a claim is allocated to the **fast-track**, how will advocate costs be calculated? Consider both for: * Legal representative * Litigant in person | Are there any exceptions?

Answer 710

* Legal representative - fixed costs for preparation for and appearance at trial. * Litigant in person - two thirds of the fixed costs that would have been awarded to legal representative (or if no financial loss then the default hourly rate as defined in CPR). *Exception:* Court can apply its discretion where one or both parties have acted unreasonably or improperly.

Question 711

# Fix the error(s): Fixed recoverable costs (FRC) came into force from 1 October 2022. They extend across Fast Track cases issued on or after 1 October 2022 valued up to £100,000 in damages. FRCs place a cap on the amount of legal costs the winning party can recover from their opponent. The amounts recoverable are guided by the complexity bands assigned to the claim.

Answer 711

Fixed recoverable costs (FRC) came into force from **[1] 1 October 2023**. They extend across Fast Track **[2] and Intermediate Track** cases issued on or after **[3] 1 October 2023** valued up to £100,000 (or £25,000 if on the fast-track) in damages. FRCs place a cap on the amount of legal costs the winning party can recover from their opponent. The amounts recoverable are guided by the complexity bands assigned to the claim.

Question 712

Claims allocated to the **fast** or **intermediate track** are assigned to one of four **complexity bands**, which determine the level of fixed recoverable costs (FRC) available for legal costs. What are the four bands on the **fast track**?

Answer 712

1. **BAND 1:** Defended debt claims and road-traffic accidents related to non-personal injury claims. 2. **BAND 2 & 3:** Personal injury claims, including road traffic accidents. Band 2 for simpler claims than Band 3. 3. **BAND 4:** More complex fast-track claims, such as professional negligence.

Question 713

Claims allocated to the **fast** or **intermediate track** are assigned to one of four **complexity bands**, which determine the level of fixed recoverable costs (FRC) available for legal costs. What are the four bands on the **intermediate track**?

Answer 713

1. **BAND 1:** Straightforward claims with a single issue, usually lasting no more than one day. 2. **BAND 2 & 3:** Personal injury and other claims with no more than one issue. Band 2 is for simpler matters compared to Band 3. 3. **BAND 4:** Most complex intermediate claims involving significant issues of fact or law, and trials estimated to take up to three days.

Question 714

# True or False: Where a party has behaved unreasonably, the court may adjust any applicable fixed recoverable costs by increasing or reducing them by up to how much?

Answer 714

Up to 50%.

Question 715

Claims allocated to the **fast** or **intermediate track** are assigned to one of four **complexity bands**, which determine the level of fixed recoverable costs (FRC) available for legal costs. Who decides the complexity band?

Answer 715

The parties are encouraged to agree the band; if they do not, the court will assign one.

Question 716

Fixed recoverable costs (FRC) came into force from 1 October 2023. They extend across Fast Track and Intermediate Track cases issued on or after 1 October 2023 valued up to £100,000 in damages. However, what types of claim are excluded from the new FRC regime?

Answer 716

1. Clinical negligence. 2. Abuse/neglect claims. 3. Certain claims against the police. 4. Mesothelioma and asbestos-related lung disease. 5. Housing claims (currently).

Question 717

Fixed recoverable costs (FRC) came into force from 1 October 2023. They extend across Fast Track and Intermediate Track cases issued on or after 1 October 2023 valued up to £100,000 (or £25,000 if on the fast-track) in damages. In relation to **personal injury** claims, what is an additional requirement for FRCs to apply?

Answer 717

Not only should the claim have been *issued* on or after 1 October 2023, the *cause of action* should have arrived on or after them too.

Question 718

**Costs budgeting** applies only to **multi-track claims** unless the court specifically directs otherwise. So, what measures are in place to stop spiralling costs on the fast-track and intermediate track?

Answer 718

As of claims issued on or after 1 October 2023, fixed recoverable costs establish a cap on legal costs on the fast- and intermediate-track based on **complexity bands** and the stage in proceedings.

Question 719

# True or False: Disbursements, such as court fees, expert fees, or interpreter costs, are usually recoverable *in addition to* any fixed recoverable costs.

Answer 719

True, unless expressly excluded by the rules.

Question 720

Where *no* **fixed costs** apply, how will the court assess costs?

Answer 720

Assessed costs - the court will assess the costs **actually incurred** by the party that has been **awarded** some or all of these costs (to be paid by opponent).

Question 721

For **intermediate track** claims, FRCs are calculated using both the assigned complexity band (Bands 1–4) and the claim stage. What are the four stages?

Answer 721

1. **Stage 1:** Up to the defence. 2. **Stage 2:** Up to specialist legal input. 3. **Stage 3:** Post-defence to the CMC. 4. **Stage 4:** Post CMC to trial.

Question 722

In the case of **assessed costs** (as distinct from fixed costs), there are TWO bases of assessment. Briefly describe each. Which is the usual basis?

Answer 722

1. **Standard basis:** Costs disallowed if unreasonably incurred, unreasonable amount, or disproportionate to matters in issue. The successful party will usually recover about 70% of their total costs. **(usual)** 2. **Indemnity basis:** No limit of proportionality as long as reasonably incurred and a reasonable amount. The successful party can expect to recover about 80% of their total costs **(discretionary)**.

Question 723

Where there is any doubt over costs to be assessed, in whose party's favour should this be resolved?

Answer 723

Where assessed on **standard basis** then the *paying* party. Where assessed on **indemnity basis** then the *receiving* party.

Question 724

# True or False: When the court is assessing costs following judgment, the court will give effect to orders already made.

Answer 724

True.

Question 725

When assessing costs, what are the FIVE most common factors the court will have regard to? | CPR 44.4(3)

Answer 725

1. Conduct and efforts to settle. 2. Value or importance of the matters in issue. 3. Complexity, skill, effort, and expertise. 4. Time spent. 5. The receiving party's last approved or agreed budget.

Question 726

# True or False: If costs are payable under a contract between the parties (for example, an **indemnity clause**), they are presumed to have been reasonably incurred and reasonable in amount and the court will assess them accordingly.

Answer 726

True, although this presumption is rebuttable.

Question 727

# True or False: The costs detailed in approved costs budgets will generally be deemed to be reasonable.

Answer 727

True, although the court is not entirely bound by them.

Question 728

What are the TWO mechanisms for **assessment of costs**? Briefly describe each.

Answer 728

1. **Summary assessment:** Undertaken by judge at end of a hearing based on a standard form statement of costs. It is the norm for fast-track trials and interim hearings under 1 day long. 2. **Detailed assessment:** The court orders a reasonable sum to be paid to the party awarded their costs as an interim payment, after which costs are assessed line-by-line by a specialist costs judge. It is the norm for multi-track trials and interim hearings over 1 day long.

Question 729

Where a court orders **detailed assessment** on costs (e.g. an interim hearing lasting more than 1 day), when does the assessment need to commence by?

Answer 729

Within **3 months** of the final judgment or triggering event.

Question 730

Where costs have not been summarily assessed, **detailed assessment** will be order by the court. What third way however can parties take?

Answer 730

Parties commonly reach **agreement** on the sum to be paid rather than undertake the further time and cost of detailed assessment.

Question 731

What are **Part 36 offers**?

Answer 731

A specific form of settlement offer with prescriptive consequences under the CPR (including as to costs). The consequences are designed to penalise a party who **unreasonably rejects** a reasonable Part 36 offer.

Question 732

The costs consequences of unreasonably rejecting a **Part 36 offer** will not apply in what FOUR circumstances?

Answer 732

If either the offer is, 1. Made **< 21 days** before trial. 2. **Withdrawn** or expires. 3. Amended to be **less advantageous**. 4. **Accepted** by the offeree.

Question 733

What are the costs consequences for the defendant of unreasonably rejecting the **claimant's Part 36 offer** in the following scenarios? 1. The claimant is unsuccessful at trial. 2. The claimant is successful at trial but wins *less* than the offer. 3. The claimant is successful at trial and wins *as much or more* than the offer.

Answer 733

1. The claimant is unsuccessful at trial - **no consequences**. The claimant will likely be ordered to pay the defendant's costs. 2. The claimant is successful at trial but wins *less* than the offer - **no consequences**. The defendant will likely be ordered to pay the claimant's costs. 3. The claimant is successful at trial and wins *as much or more* than the offer - **defendant pays** the claimant's costs and, unless unjust (a high bar), pays these on an **indemnity** basis, plus **10% interest** on both the costs and damages awarded, plus up to £75,000 representing 10% of the amount awarded.

Question 734

Where a claimant is successful at trial and wins *as much or more* than what they offered in a **Part 36 offer** to the defendant, the defendant will be penalised as follows: 1. Defendant must pay claimant's costs on **indemnity basis** + 10% interest. 2. Defendant must pay the **sum awarded** + 10% interest. 3. Defendant must pay an additional amount based on a **prescribed percentage** of the sum awarded. What is the prescribed percentage applicable to different sums awarded?

Answer 734

Sums up to £500,000 - 10% on amount. Sums over £500,000 - 10% on first £500,000 followed by 5% on the amount over that (up to £75,000).

Question 735

In considering whether it would be unjust to apply any costs consequences of a **Part 36 offer**, what FIVE factors will the court take into account?

Answer 735

1. The terms of *any* Part 36 offer. 2. Stage of proceedings. 3. Information available to parties at the time. 4. Conduct of the parties impacting their ability to evaluate an offer. 5. Whether the offer was a genuine attempt to settle.

Question 736

What are the costs consequences for the claimant of unreasonably rejecting the **defendant's Part 36 offer** in the following scenarios? 1. The claimant is unsuccessful at trial. 2. The claimant is successful at trial but wins *less* than the offer. 3. The claimant is successful at trial and wins *as much or more* than the offer.

Answer 736

1. The claimant is unsuccessful at trial - **no consequences**. The claimant will pay the defendant's costs, usually on the standard basis. 2. The claimant is successful at trial but wins *more* than the offer - **no consequences**. The defendant will pay the claimant's costs, usually on standard basis. 3. The claimant is successful at trial and wins *less than or equal to* the offer - the defendant pays the claimant's costs on standard basis up to the **end of the relevant period** and the claimant pays the defendant's costs (plus interest) from the end of the relevant period.

Question 737

Where the rejecting party of a **Part 36 offer** does not outperform the terms of the offer at trial, they will face costs consequences prescribed by the CPR. The costs consequences mostly start running from the date of expiry of the **"relevant period"** (i.e. the consideration window for the offer). What is the "relevant period" for a Part 36 offer?

Answer 737

**21 days** after the Part 36 offer was made, or later if specified in the offer.

Question 738

If *both* parties have made **Part 36 offers**, how will any costs consequences (if any) apply in the following scenarios? 1. The claimant is awarded *as much or more* than their own offer. 2. The claimant is awarded *less* than than the defendant's offer. 3. The claimant is awarded *more* than the defendant's offer but *less* than their own.

Answer 738

1. The claimant is awarded *as much or more* than their own offer - the **claimant's offer** trumps the defendant's as the defendant was wrong to reject it (i.e. defendant pays claimant's costs on indemnity basis, plus interest, prescribed percentage on sum awarded etc.) 2. The claimant is awarded *less* than than the defendant's offer - the **defendant's offer** trumps the claimant's as the claimant was wrong to reject it (i.e. defendant only liable for claimant's cost up to end of relevant period for considering offer). 3. The claimant is awarded *more* than the defendant's offer but *less* than their own - **no consequences**.

Question 739

The court has the power to order a party that is not a party to civil proceedings to pay costs in respect of those proceedings. In what circumstances might this happen?

Answer 739

Where non-parties are **funding** proceedings *and* they control, or at least are to **benefit** from, them e.g. insurers and professional funders. The first point of call though is to make the order against the existing parties.

Question 740

When the court exercises its power to make a costs order against a non-party, what must happen procedurally speaking?

Answer 740

That party must be added to the proceedings (for costs purposes only) and be given a reasonable opportunity to attend any costs-related hearing.

Question 741

The trial of a civil claim allocated to the fast-track has just concluded. The court decided to make a costs management order at an early stage of the proceedings. The judge has found in favour of the claimant and ordered the defendant to pay the claimant’s costs. How is the sum of costs to be paid by the defendant likely to be determined?

Answer 741

The claim is allocated to the fast-track, so the costs of an advocate’s preparation for and attendance at the trial are fixed. For the rest of the costs, summary assessment (at the conclusion of the trial) is the norm for fast-track cases.

Question 742

A claimant can **discontinue** all or part of their claim at any stage of proceedings by filing and serving a standard form notice of discontinuance on all parties. What counts as "discontinuing" *part* of a claim? What does not?

Answer 742

This includes dropping a cause of action or line of argument. It does *not* include where the claimant has pursued multiple remedies and abandons one or some of them.

Question 743

The principal disadvantage of **discontinuing** a claim (or part of it) is **costs liability**. How so?

Answer 743

The default position on discontinuance is that the claimant is liable for the **defendant's costs** in respect of the (continued part of) the claim.

Question 744

**Discontinuing** a claim generally does not require the consent of any party, an application or court order. However, there are FOUR exceptions. What are they?

Answer 744

1. The court has granted an **interim injunction**. 2. Any party has given an **undertaking** to the court. 3. The claimant has received an **interim payment** from the defendant. 4. There is **more than one** claimant.

Question 745

Parties vary rarely discontinue claims as it means automatically accepting liability for their opponent's costs. What do they often do instead?

Answer 745

The more common approach to concluding claims is to agree terms of **settlement**.

Question 746

# True or False: Any party may make an offer to **settle** a claim or interim application and parties can agree terms of settlement at any time. | (are there any exceptions?)

Answer 746

True, apart from Part 36 offers are not applicable to interim applications.

Question 747

What are **Calderbank offers**?

Answer 747

Offers to settle made on a without prejudice, save as to costs basis.

Question 748

What are the TWO main advantages of **Calderbank offers**? | (i.e. settlement offers without prejudice save as to costs)

Answer 748

1. **Flexibility** - they can contain settlement terms beyond the live issues in proceedings. 2. **Certainty** - they can include an offer *inclusive* of costs or a specific figure for them, providing certainty.

Question 749

CPR **Pt 36** is a self-contained procedural code that does not always follow standard legal contractual principles. How so?

Answer 749

A Part 36 offer can only be withdrawn using pre-defined mechanisms in CPR Pt 36, not simply by rejection or counteroffer.

Question 750

How are **Part 36 offers** treated from a privilege perspective?

Answer 750

Without prejudice save as to costs.

Question 751

# True or False: Part 36 offers may be made at any time, including before commencement of proceedings.

Answer 751

True.

Question 752

What is the effect (if any) of a **Part 36 offer** which does not demonstrate a genuine attempt at settlement? | E.g. offer of a nominal discount on sum claimed

Answer 752

It might not give the party the benefit of the CPR costs consequences.

Question 753

What are the FOUR main ways in which parties may **attempt to settle**? Which of these will be considered by the judge when making an **order as to costs**?

Answer 753

All will be considered by the judge: 1. Part 36 offer. 2. Calderbank offers. 3. Alternative dispute resolution. 3. Verbal negotiations.

Question 754

What are the FOUR formalities for creating a valid **Part 36 offer**?

Answer 754

1. In writing. 2. Reference CPR Pt 36. 3. Give relevant period of at least 21 days from receipt in which to accept. 4. State whether it relates to all or part of the claim and whether it includes any counterclaim.

Question 755

If a **Part 36 offer** is made less than 21 days before trial, what is the effect (if any) of the offer?

Answer 755

It will not automatically enjoy the costs consequences of CPR Pt 36. It will be at discretion of the court.

Question 756

A **Part 36 offer** by a defendant to pay a sum of money must be an offer to pay a single sum of money within how many days of acceptance?

Answer 756

Within 14 days of acceptance.

Question 757

How long does an offeree receiving a **Part 36 offer** have to request **clarifications** on the offer? What happens if the offeror does not provide such clarifications?

Answer 757

Within **7 days** of receipt of the offer. If the offeror doesn't respond, the offeree can apply for a court order that they do so.

Question 758

What options does the offeror have to **withdraw** or **amend** a **Part 36 offer** *before* the end of the relevant period (in which the offeree can accept)?

Answer 758

**Amendments** * Make *more* advantageous to the offeree (in which case it will be treated as a new Part 36 offer). * Make *less* advantageous to the offeree by serving a notice (taking effect only after the relevant period unless court order obtained). **Withdrawal** * Withdraw the offer by serving a notice of withdrawal (taking effect only after the relevant period unless court order obtained).

Question 759

Without a court order, an offeror cannot withdraw a **Part 36 offer** or make it less advantageous to the offeree while the relevant period still runs (i.e. the offer is still 'live'). That is, any changes would only take effect after the relevant period expires. In what circumstances may a court make an order to allow this?

Answer 759

The court would have to be satisfied that there has been a **change in circumstances** since the offer was made and that it is in the **interests of justice** to withdraw it.

Question 760

After the relevant period has expired, the offeror may amend the Part 36 offer (either upwards or downwards) or give notice to withdraw it. Do they need court permission to do so?

Answer 760

No.

Question 761

What is the effect of accepting a **Part 36 offer** on the proceedings?

Answer 761

It will bring the proceedings to an end. The claim (or settled part of claim) will be stayed upon the terms of the offer.

Question 762

What procedural steps must be taken for the offeree to **accept** a **Part 36 offer**?

Answer 762

1. **Accept by notice:** The offeree must serve a **written notice** on the offeror and also file this with the court. 2. **Pay in 14 days:** If the offer is accepted before the end of the relevant period, the defendant must pay the claimant’s costs up to the date of acceptance on the *standard basis*. If the offer is accepted after expiry of the relevant period, the parties can agree on liability for costs between themselves or apply to the court.

Question 763

What are the TWO limited circumstances in which the **court’s permission** is required to accept a **Part 36 offer**?

Answer 763

Either: 1. If some but not all defendants accept. 2. If trial is in progress.

Question 764

Where a party does not comply with an accepted Part 36 offer in some other way, what can the offeror do?

Answer 764

The offeror may apply to the court to enforce the terms without the need for a new claim.

Question 765

What is the difference between how a **Part 36 offer** and other types of settlement offer are concluded following acceptance by the offeree?

Answer 765

1. **Part 36 offer** - formal written notice to all parties and court, payment within 14 days. Proceedings end automatically. 2. **Others** - binding settlement agreement following usual contractual rules (usually replacing causes of action with contractual rights). Proceedings must be brought to an end by court order.

Question 766

In respect to non-Pt 36 settlements, why are **consent orders** generally preferable to ordinary **settlement agreements**?

Answer 766

**Ordinary settlements** - to enforce the terms of settlement, the non-breaching party has to commence further proceedings for breach of contract and then apply for default or summary judgment. **Consent orders** - if the settlement is recorded in a court order (a consent order), then the innocent party can simply apply to the court to enforce the order. Consent orders make enforcement easier and formally bring court proceedings to an end.

Question 767

A **Tomlin order** is a form of consent order. The court orders a stay of proceedings on terms which have been agreed between the parties (the terms of settlement). But what are unique features of Tomlin orders?

Answer 767

**Tomlin order** * Terms of agreement set out in separate schedule that can be kept confidential. * Terms of agreement can go beyond what the court could have awarded or outside scope of proceedings. **Standard consent order** * Terms of agreement are on face of order and open to public inspection. * Terms of agreement cannot go beyond what court can order and are part of proceedings.

Question 768

The defendant to a civil claim has received a Part 36 offer from their opponent. The Part 36 offer says that the claimant is prepared to accept £50,000 of the £100,000 damages claimed. The defendant believes they have a reasonable chance of success at trial, but they want to settle the claim and have certainty regarding the total sum to be paid to the claimant, which must be no more than £80,000. What would the defendant be best advised to do?

Answer 768

Make a without prejudice save as to costs offer. A without prejudice save as to costs offer can be for a fixed total figure, inclusive of costs. It also can be shown to the court following judgment when the court is considering costs liability.

Question 769

An appeal of civil proceedings will be limited to a review of the court's decision, not a rehearing of the entire case. In what circumstances may an exception be made?

Answer 769

Exceptionally, if it would be in the **interests of justice**.

Question 770

In the context of civil litigation, **new evidence** (as in, oral evidence or other evidence not before the lower court) will only be allowed if the **appeal court** orders it. What THREE things will the appeal court consider when coming to its decision?

Answer 770

1. Could the evidence have been obtained for the **original trial**? 2. Would it have had an **important influence** on the case? 3. Is it apparently **credible**?

Question 771

# True or False: In the context of civil appeals, parties are usually confined to arguing the points that were raised in the original trial.

Answer 771

True, because to raise new points may necessitate new evidence which it is rarely possible to introduce.

Question 772

While possible, why is it unusual for case management decisions in civil proceedings to be appealed?

Answer 772

Case management decisions are generally a matter of the court's discretion, so the appeal court would have to satisfied that the original judge's decision was unreasonable.

Question 773

What are the TWO **grounds of appeal** in **civil proceedings**? Briefly describe each.

Answer 773

1. **Error of fact or law:** An appeal on grounds that a factual matter was obviously unsupported by documentary evidence (rare) or application of the wrong legal test. 2. **Unjust due to serious procedural irregularity:** Although the original judge's decision was not necessarily wrong, there was a conflict of interest, lack of fair trial, inadequate reasoning, or a decision not based on matters pleaded by either party.

Question 774

In the context of **civil litigation**, where the below judge's decision is to be appealed, who would hear the appeal? * District judge (County Court) * Circuit judge (County Court) * Master, registrar, or district judge (High Court) * High Court judge (High Court)

Answer 774

* District judge (County Court) - **circuit judge** (in County Court). * Circuit judge (County Court) - **High Court judge**. * Master, registrar, or district judge (High Court) - **High Court judge**. * High Court judge (High Court) - **Court of Appeal**.

Question 775

Below are the main destinations on **appeal** of **civil proceedings**. * District judge (County Court) - **circuit judge** (in County Court). * Circuit judge (County Court) - **High Court judge**. * Master, registrar, or district judge (High Court) - **High Court judge**. * High Court judge (High Court) - **Court of Appeal**. What are noteworthy exceptions?

Answer 775

* Insolvency proceedings and *Companies Act 2006*. * Some intellectual property matters. * Family proceedings subject to CPR. * Leapfrog from High Court to Supreme Court for matters of public importance (rare).

Question 776

What is the procedure for **appealing** a **civil judgment**?

Answer 776

1. **Permission to Appeal:** Permission to appeal sought by either (a) oral application at the decision court, and/or (b) a paper application made to the appeal court, contained within the appellant's notice. 2. **Appellant's Notice:** A form filed by the appellant at the appeal court *within 21 days* of the date of the decision being appealed. Served on the respondent *within 7 days* of filing. 3. **Fee:** Paid by appellant.

Question 777

# True or False: Once the appellant's notice is served on the respondent in the context of appealing a civil judgment, this will automatically stay the order being appealed

Answer 777

False, a stay may be **requested** by the appellant's notice but this is *not* the norm.

Question 778

A party lodging a **civil appeal** may request in their **appellant's notice** to the appeal court a stay of the order being appealed. Though not the norm, when might their request be granted?

Answer 778

It would likely be granted if enforcement of the order would make the appeal **redundant** or **irreparably damage** the appellant's position.

Question 779

In **civil proceedings**, how will applications to appeal courts for **permission to appeal** be considered?

Answer 779

Normally they are considered on paper without the need for an oral hearing. For applications to the Court of Appeal, the judge may direct an oral hearing if deemed necessary to fairly determine the application.

Question 780

Where a paper application seeking **permission to appeal** is **refused** in the county court or High Court (not the Court of Appeal), how long does the applicant have to request **reconsideration** at an oral hearing? | (are there any exceptions?)

Answer 780

**7 days**, unless the application is deemed **totally without merit**.

Question 781

In the context of **civil proceedings**, permission to **appeal** is granted at the court's discretion. However, what TWO things will the court consider?

Answer 781

1. Whether the appeal has a **real prospect of success**. 2. Whether there is some **other compelling reason** for the appeal to be heard (e.g. point of law to be clarified).

Question 782

What are the FIVE main **supporting documents** to be filed with the **appeal court** when filing an **appeal notice** in civil proceedings?

Answer 782

1. 3 x copies of the appellant’s notice. 2. 1 x copy of the sealed order under appeal. 3. 1 x copy of any order of the lower court granting or refusing permission to appeal, with reasons given. 4. Grounds of appeal. 5. Any application to be made in the appeal e.g. a stay of the order under appeal.

Question 783

Below are the FIVE main **supporting documents** to be filed with the **appeal court** when filing an **appeal notice** in civil proceedings. 1. 3 x copies of the appellant’s notice. 2. 1 x copy of the sealed order under appeal. 3. 1 x copy of any order of the lower court granting or refusing permission to appeal, with reasons given. 4. Grounds of appeal. 5. Any application to be made in the appeal e.g. a stay of the order under appeal. What TWO *additional* documents need to be provided if the appeal is to the **Court of Appeal**?

Answer 783

1. The appellant's **skeleton argument**. 2. The approved **transcript** of the lower court judgment. 3. A **core bundle** (lodged within 14 days of filing the appeal notice).

Question 784

What are the SIX required components of a **civil appeal bundle** other than the appellant's notice?

Answer 784

1. Any respondent’s notice. 2. Skeleton arguments (filed for first time if appeal court is not Court of Appeal). 3. The order under appeal. 4. The order of the lower court granting or refusing permission, with a copy of the judge’s reasons. 5. Any order allocating the case to a track. 6. A transcript of the judgment of the lower court or other record of reasons.

Question 785

Other than the **appellant's notice**, the SIX required components of a **civil appeal bundle** are: 1. Any respondent’s notice. 2. Skeleton arguments (filed for first time if appeal court is not Court of Appeal). 3. The order under appeal. 4. The order of the lower court granting or refusing permission, with a copy of the judge’s reasons. 5. Any order allocating the case to a track. 6. A transcript of the judgment of the lower court or other record of reasons. But what are other common components?

Answer 785

* Statements of case * Application notice * Other orders in the case * A chronology of relevant events * Witness statements in support of any application made in the appellant’s notice (e.g. a stay of the original order) * Other witness statements * Any other documents which any party considers would assist the appeal court

Question 786

By when should the **civil appeal bundle** be filed with the court in respect to appeals in the **county court** and the **High Court**? And by when should it be served on each respondent?

Answer 786

File at the court within **35 days** of filing the **appellant's notice**. Serve on each respondent either at the time of filing or within **14 days** of notification of permission to appeal.

Question 787

By when should the **civil appeal bundle** be filed with the court in respect to appeals in the **Court of Appeal**? And by when should it be served on each respondent?

Answer 787

A core appeal bundle and any supplementary bundle must be lodged with the court and served on each respondent no later than **42 days** before the appeal hearing.

Question 788

The respondent to an appeal usually is not actively involved when the appellant is seeking permission to appeal. It is a matter between the appellant and the court. However, by when must a **respondent** who is also seeking permission to appeal or wishes to ask the appeal court to uphold the decision of the lower court for additional reasons to those of the lower court take the following steps? 1. **File** their respondent's notice 2. **Serve** their respondent's notice on every other party

Answer 788

**FILE** **Within 14 days** of service of *either*: 1. The appellant's notice (if permission to appeal has been granted). 2. Notification that the appeal court has given the appellant permission to appeal. 3. Notification that the application for permission to appeal and the appeal itself will be heard together. **SERVE** **Within 7 days** of filing with the court.

Question 789

In **civil appeals** in the **Court of Appeal**, how long after the respondent has served their **respondent's notice** on every other party (if they choose to make one) must they file and serve their **skeleton argument**?

Answer 789

**Within 14 days** of serving the respondent's notice.

Question 790

What FIVE possible decisions may the appeal court make following a **civil appeal**?

Answer 790

1. Affirm, set aside or vary any order or judgment by the lower court. 2. Refer any claim or issue for determination by the lower court. 3. Order a new trial or hearing. 4. Make orders for the payment of interest. 5. Make a costs order.

Question 791

# True or False: Parties can make CPR Pt 36 offers in respect of an appeal.

Answer 791

True, but they must be specifically in respect of the appeal.

Question 792

Where there is a hearing to determine an application for **permission to appeal** in the context of civil proceedings, a respondent will not normally be awarded costs for attending because their attendance is optional. However, what are THREE exceptions to this?

Answer 792

1. The court has ordered or requested their attendance. 2. The court has ordered that the application be listed at the same time as other applications or the hearing of substantive appeal. 3. The court considers it just in all the circumstances to award costs to the respondent.

Question 793

When a **civil appeal** has been heard, a party may wish to make a **second appeal** to a higher court. Which court(s) will hear second appeals? | Second Problems Call Review (**S.P.C.R.**)

Answer 793

Almost always the **Court of Appeal** unless the first appeal was there, in which case the second appeal will be to the Supreme Court. | Second Problems Call Review (**S.P.C.R.**)

Question 794

Where the Court of Appeal is the appeal court for a **second (civil) appeal**, its permission is required. In what circumstances will permission be granted? | Hint: Second Problems Call Review (**S.P.C.R.**)

Answer 794

Either: 1. The appeal would have a **real prospect of success** AND raise an important **point of principle / practice** OR 2. There is some **other compelling reason** for the higher court to hear it. | Second Problems Call Review (**S.P.C.R.**) ## Footnote The test is applied restrictively and is generally applied only to cases that raise new points of principle for which there is not yet any binding authority.

Question 795

Where a **second (civil) appeal** is to be made to the **Supreme Court**, permission must first be sought from the Court of Appeal within how many days? | Second Problems Call Review (**S.P.C.R.**)

Answer 795

28 days. | Second Problems Call Review (**S.P.C.R.**)

Question 796

Where a **second (civil) appeal** is to be made to the **Supreme Court**, permission must first be sought from the Court of Appeal (within 28 days). If refused, what options (if any) does the applicant have? | Second Problems Call Review (**S.P.C.R.**)

Answer 796

The applicant can then seek permission to appeal from the Supreme Court. | Second Problems Call Review (**S.P.C.R.**)

Question 797

Is the Supreme Court subject to the CPR?

Answer 797

No, the Supreme Court has its own rules and practice directions called the *Supreme Court Rules 2009*.

Question 798

# True or False: Courts will not take steps to enforce a civil judgment of their own volition.

Answer 798

True, the successful party must take steps to enforce the judgment.

Question 799

Pending payment of a **money judgment** granted in **civil proceedings**, at what rate will interest accrue per annum from the date the judgment is given?

Answer 799

8% per annum.

Question 800

When considering **enforcement options**, the first step for the **judgment creditor** is to carry out an up-to-date **investigation** into the judgment debtor’s means – including their accounts, income, assets and other debts. What sort of investigations and searches might be undertaken?

Answer 800

Searches of publicly available information at: * Companies House. * Register of Judgments. * Insolvency Register. * Register of Bankruptcy Petitions. * Attachment of Earnings Index. * Land Charges Registry. Sometimes also the services of a private investigator (as long as they operate within the law).

Question 801

If, following investigations and searches, the **judgment creditor** is still unclear about the **judgment debtor's** means, what steps can they take?

Answer 801

The judgment creditor can apply to the court for an order to require the judgment debtor to **attend court** to provide information (including produce documents), on oath, about their means and other matters relevant to enforcing the money judgment.

Question 802

If a judgment creditor applies to the court for an order to require the judgment debtor to **attend court** to provide information (including produce documents), on oath, about their means and other matters relevant to enforcing the money judgment, who will carry out the questionning?

Answer 802

The court officer, or the judgment creditor if the hearing is before a judge.

Question 803

If, following investigations and searches, the **judgment creditor** is still unclear about the **judgment debtor's** means, they can apply to the court to have the judgment debtor **attend court** and submit to oral examination. What is the procedure for doing so?

Answer 803

1. **Application notice:** Stating the name and address of the judgment debtor (incl. the appropriate officer of the company if a company), the judgment / order in question, the amount owed, the reasons for needing to question the judgment debtors and documents sought. 2. **Service:** The notice is served *personally* on the person ordered to attend court not less than *14 days* before the hearing. 3. **Travel costs:** The party ordered to attend can claim reasonable travel costs to attend within *7 days* of service.

Question 804

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. Briefly describe (1), including the procedure.

Answer 804

**Taking control** * Any goods owned by the judgment debtor (except for basic domestic items and tools of the trade) to be seized and subsequently sold at auction. * If <£600 then apply to county court for warrant of control. * If £600-£5,000 then apply to either High Court of county court. * If >£5,000 then apply to High Court for permission to issue a writ of control.

Question 805

An application to **take control** of the judgment debtor's assets (a type of enforcement action for civil money judgments) is usually made **without notice**. But what is an important safeguard?

Answer 805

A without notice application to take control must be accompanied by evidence demonstrating that, if the order is not made, it is **likely the debtor's goods will be moved / disposed off** in order to avoid enforcement action against them.

Question 806

If the court grants permission for the judgment creditor to **take control** of the judgment debtor's assets (a type of enforcement action for civil money judgments), how long will this be valid for?

Answer 806

One year.

Question 807

A writ (if High Court) / warrant (if county court) of control cannot be executed on what days? | (a type of enforcement action for civil money judgments)

Answer 807

Sundays, Good Friday, and Christmas Day.

Question 808

Following court permission being granted for the judgment creditor to **take control** of the judgment debtor's assets (a type of enforcement action for civil money judgments), how is this effectuated? What is the procedure?

Answer 808

* **Hire enforcement agent:** An appropriate, court-certified enforcement agent (e.g. certified bailiff) is hired. * **Formal notice:** The enforcement agent gives formal notice of the enforcement to the judgment debtor, giving them **7 clear days** to pay. * **Entry:** If still unpaid, the enforcement agents may enter any place where the judgment debtor lives or carries on trade or business to take control of the goods. * **Take control:** The enforcement agent takes "control" by securing the foods, removing them, or entering into a controlled goods agreement with the judgment debtor. The inventory must be provided to the judgment debtor. * **Ownership claims:** Within 7 days of the enforcement agent taking control of goods, any other person making a claim to ownership of the goods must notify the enforcement agent of their claim in writing. Competing claims may be decided by the court. * **Auction:** Goods controlled by the judgment creditor’s enforcement agent may be sold at public auction, unless an application to sell the goods in some other way has been made. The proceeds of sale from the auction will be used towards the judgment debt and the enforcement agent's costs.

Question 809

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. Briefly describe (2), including the procedure.

Answer 809

**Third-party debtor orders** Where it is known that a third party owes money to the judgment debtor which could be used to repay the judgment debt, the court can order the third party to pay some or all of the money they owe directly to the judgment creditor. * **Step 1: Interim order:** The judgment creditor applies to the court (without notice) using Form N349. The judge grants the order which freezes the account / asset so it cannot be disposed of by the debtor. A hearing is then fixed for 28 days later. * **Step 2: Final order:** Copies of the interim order and application notice are served on the third party *at least 21 days* before the final hearing and on the judgment debtor *at least 7 days* after service on the third party and *7 days* before the hearing (any party objecting to the order must file and serve written evidence *at least 3 days* before the hearing).

Question 810

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. Briefly describe (3), including the procedure.

Answer 810

**Charging order on land or securities** A charge over a judgment debtor’s interest in property to prevent a sale of the property without a payment of the judgment debt from the proceeds (if enough equity is available). A charging order only secures the judgment debt against the property. It does not actually produce any money until such time as the asset is sold. An order of sale is a separate application. * **Step 1: Interim order:** The judgment creditor applies to the court (without notice) using Form N349. The judge grants the order which freezes the account / asset so it cannot be disposed of by the debtor. A hearing is then fixed for 28 days later. * **Step 2: Final order:** Copies of the interim order and application notice are served on the third party *at least 21 days* before the final hearing and on the judgment debtor *at least 7 days* after service on the third party and *7 days* before the hearing (any party objecting to the order must file and serve written evidence *at least 3 days* before the hearing).

Question 811

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. Briefly describe (4).

Answer 811

**Attachment of earnings** The individual judgment debtor’s salary may have deductions made by their employer. These will then be paid over to the judgment creditor. This remedy is only available in the county court, so an enforcement action must be transferred to the county court to obtain an attachment of earnings order. It is also only available against employed individuals.

Question 812

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. Briefly describe (5).

Answer 812

**Proceedings for insolvency** If the judgment debtor is a company, where the debt is over £750, a creditor’s petition for winding-up can be issued. If the judgment debtor is an individual, where the debt is £5,000 or more, a bankruptcy petition can be issued.

Question 813

There are several methods to enforce (civil) **money judgments**, many of which can be used in parallel. These are: 1. Taking control. 2. Third-party debtor order. 3. Charging order on land or securities. 4. Attachment of earnings. 5. Proceedings for insolvency. What's a key limitation of (5) from the judgment creditor's perspective?

Answer 813

A judgment creditor will rank very low down in the statutory order of priority. If the judgment debtor has many other debts, then the judgment creditor will likely recover only a fraction of the debt.

Question 814

The appropriate **method of enforcement** of (civil) **money judgments** will ultimately depend on what assets the debtor has. What are the best enforcement methods for the following types of assets? 1. Moveable assets. 2. Debts owed to the judgment debtor by a third party (e.g. credit balance of bank). 3. Land / property / shares. 4. Salary.

Answer 814

1. Moveable assets - **writ/warrant** of control. 2. Debts owed to the judgment debtor by a third party (e.g. credit balance of bank) - **third-party debt order**. 3. Land / property / shares - **charging order** (but no money available until sold). 4. Salary - **attachment of earnings order**.

Question 815

How can a judgment from an English or Welsh court be enforced in Scotland or Northern Ireland?

Answer 815

1. Apply for a **certificate of judgment** from the court where the judgment was given. 2. Apply to **register** the judgment within *6 months* of the certificate at the Scottish/Northern Irish court 3. **Enforce** the judgment in the usual way, as if it were a local judgment.

Question 816

How can a judgment from an English or Welsh court be enforced outside of the UK?

Answer 816

* **Route 1: Hague Choice of Court Convention:** When a dispute is subject to an exclusive jurisdiction agreement, the contracting states shall recognise and enforce a judgment on civil and commercial matters (subject to some exclusions). * **Route 2: Reciprocal Arrangements:** A number of countries, most of which have historic connections to the UK, have reciprocal arrangements for the enforcement of judgments e.g. Australia, Canada, India, Pakistan, Nigeria, Singapore. The procedure varies but will always begin with a certificate of judgment (subject to some exclusions).

Question 817

When a dispute is subject to an exclusive jurisdiction agreement, the contracting states to the *Hague Choice of Court Convention* shall recognise and enforce a judgment on civil and commercial matters (subject to some exclusions). What are the most notable exclusions?

Answer 817

1. Consumer matters. 2. Employment matters. 3. Instances where the agreement itself was null and void under the law of the chosen court. 4. Judgment obtained by fraud. 5. Incompatible with public policy of the requestec country. 6. Defendant not notified in sufficient time to enable a defence.

Question 818

What FOUR documents need to be enclosed in an application in a *Hague Choice of Court Convention* state to enforce a judgment passed down in England and Wales?

Answer 818

1. A certified copy of the judgment. 2. The exclusive choice of court agreement. 3. If the judgment was given by default, a document establishing that the claim form was notified to the defaulting party. 4. Any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in England and Wales.

Question 819

Even where the UK has a reciprocal arrangement with other jurisdictions for the enforcement of judgments, why might an English or Welsh judgment not be recognised by those reciprocal states?

Answer 819

1. It is contrary to public policy. 2. The defendant did not have enough time to organise any defence. 3. The judgment was obtained by fraud. 4. The judgment debtor is appealing against the judgment.

Question 820

Enforcing an English or Welsh judgment in a country other than one with which the UK has specific arrangements is entirely a matter of local law in the place of enforcement. Where direct enforcement is not available, what other options does the judgment creditor have?

Answer 820

Commence new proceedings in the other country on the basis of the debt payable under the judgment, obtain a local judgment and seek to enforce that instead. | (with advice from a local lawyer)

Question 821

The parties to a civil claim in the High Court have just received the judgment in draft. The judge has found in favour of the claimant. The judge will hand down judgment and deal with consequentials at a hearing next week. The defendant wishes to appeal. When and how can the defendant do so?

Answer 821

An oral application for permission to appeal can be made to the lower court when the decision is made, which will be at the consequentials hearing. That will be the first opportunity to seek permission to appeal.

Question 822

A company incorporated and based in Northern Ireland is the judgment debtor in respect of a claim by a Scottish company. The claim was brought in the High Court in London. The Northern Irish company has been ordered to pay the Scottish company £120,000. The Northern Irish company does a lot of business in England and has an office and warehouse in Leeds. What can the Scottish company do to enforce the judgment?

Answer 822

The judgment debtor has assets in the jurisdiction. Therefore, all usual enforcement options against those assets are available, which may well discharge the debt without having to take steps to enforce in another jurisdiction.