1
Q
What is the limitation period for contract claims?
A
Six years
The limitation period starts from the date of breach of contract.
2
Q
What is the limitation period for tort claims excluding personal injury and latent damage cases?
A
Six years
The limitation period starts from the date the damage occurs.
3
Q
What is the limitation period for personal injury tort claims?
A
Three years
The limitation period starts from the date of knowledge of the person injured.
4
Q
What is the limitation period for latent damage cases in tort?
A
Six years from the date when damage occurred or three years from the date of knowledge, whichever is later
The claim must be brought within 15 years after the negligent act or omission.
5
Q
When does the limitation period for latent damage cases start?
A
Date the cause of action occurs or date of knowledge of the person injured, whichever is later
This applies to situations where damage is not immediately obvious.
6
Q
Define latent damage.
A
Damage that is not immediately obvious
Example: Damage caused by a defect in a chimney that appears years after installation.
7
Q
What is the start date for the limitation period in contract claims?
A
Date of breach of contract
8
Q
What is the start date for the limitation period in tort claims excluding personal injury?
A
Date the damage occurs
9
Q
What limitation period must be met for a claim related to personal injury
A
Claim must be brought within three years from the date of knowledge
10
Q
What is the maximum time limit for bringing a claim in latent damage cases due to negligence?
A
15 years after the negligent act or omission
11
Q
What do Welsh courts need to consider regarding proceedings?
A
The use of the Welsh language in the proceedings.
12
Q
What determines which country’s laws apply in a contract?
A
An express declaration in the contract that the law of England and Wales applies
If this declaration is absent, parties must follow specific rules based on jurisdiction.
13
Q
What are the rules for determining jurisdiction when the dispute is within the EU?
A
Different rules exist for contractual or tortious disputes
For torts it’s where the damage occurred
For contracts, it’s where the seller/supplier has habitual residence.
For property disputes, it’s where the property in dispute is located.
14
Q
What is the jurisdiction for tort claims within the EU?
A
The country in which the damage has occurred or is likely to occur
This refers to the location of the damage in tort claims.
15
Q
What happens if there is no express declaration of governing law for claims outside the EU?
A
The court will settle the issue by way of a preliminary issue before proceedings commence
There are no specific ‘default rules’ for such situations.
16
Q
Where can proceedings be commenced if the defendant is located in the EU?
A
In the location specified by a specific clause in the contract
If no clause exists, proceedings will be issued in the local court of the defendant’s domicile.
17
Q
In the absence of a specific clause and in EU, where will proceedings be issued?
A
In the local court to where the defendant is domiciled
This applies if the defendant is an individual or a registered office of a company.
18
Q
Where should a local court be located for an individual defendant?
A
Where the defendant is domiciled
Domicile refers to the permanent legal residence of an individual.
19
Q
Where should a local court be located for a company defendant?
A
Where the registered office is located
The registered office is the official address of a company.
20
Q
What alternative exists for contract and tort cases regarding court location?
A
The case can be heard in the state where the contract was due to be performed or where damages from the tort were incurred
This provides flexibility for claimants in choosing a court location.
21
Q
What is required for a claim to be heard in England and Wales if the defendant is habitually resident outside the EU?
A
The claim form must be served on the defendant while they are present in England and Wales
This implies that the defendant’s presence in the jurisdiction allows the court to exercise jurisdiction.
22
Q
True or False: A defendant’s presence in England and Wales can affect the court’s jurisdiction over them.
A
True
Allowing proceedings to be served in England and Wales indicates acceptance of jurisdiction.
23
Q
What makes a witness summons invalid?
A
Failure to offer to compensate the witness for their expenses or loss of work money (party who requests the WS is liable for payment)
24
Q
Who serves a witness summons?
A
The court
25
When does a pre trial checklist (listing questionnaire) need to be filed?
8 weeks prior to trial date
26
When does a trial bundle need to be served?
No earlier than 7 days before trial but no later than 3 days before trial
27
Opening speeches in civil cases?
Very rare as the trial judge would have read the bundle. Court needs to permit an opening speech.
28
Who can do a closing speech in civil cases?
Each party (c & d)
29
Who gives their closing speech first in civil cases?
Defendant then claimant
30
Claims against public authorities under s6 HRA are subject to what limitation period
1 year which can be extended by the court
31
What is the test for whether permission to appeal will be granted?
The appeal has a real prospect of success or some other compelling reason
32
Where a party hasn't paid at the end of the case what's the first step they should take?
Order to Obtain Information
33
What is an Order to Obtain Info?
Where the court orders the party who owes money to court to give evidence on oath before a court officer about their financial affairs
34
What are the four methods of enforcement to claim money awarded in a civil case
1. Taking Control of Goods Order
2. 3rd Party Debts Order
3. Charging Order
4. Attachment of Earnings
Try explain what each means
35
Taking control of goods order
Writ of Control
Applies to the HIGH COURT
for debt over £5000
36
Taking control of goods order
WARRANT OF CONTROL
County Court for debts under £600
37
Taking control of goods order
High court or county court
Writ of control/warrant of control
Can chose for sums between £600-£5000
38
Third party debt order what is it?
Court orders the bank to pay the debt (but can only be if the money is in a bank account in a sole name)
39
What is a Charging Order?
Where the court orders a charge against a persons property so best will be paid when property sold
40
What are the 3 stages to secure a charging order?
Interim Charging Order
Final Charging Order
Order for Sale
41
What is an attachment of earnings order?
Only available in the County Court, where party is employed and sacrifices payment from their earnings to pay the party owed
42
What does an award for costs on an indemnity basis mean?
A term used in cost recovery, where any dispute between the parties as to the value will be resolved in favour of the receiving party (no need to be proportionate and likely to be a higher costs liability than if on a standard basis.
43
An arbitration clause should be what to be enforceable?
In writing
Specifically refer to present and future 'disputes'
Using the word claim or cases as this may lead to interpretation issues
44
What is the presumption of an arbitration clause?
That it will be severed from the contract and still valid even if there is a dispute over the contract
45
3 ways to appeal an arbitration decision
1. Substantive jurisdiction (mandatory)
2. Serious irregularities which caused/will be injustice (mandatory)
3. Point of Law (discretionary) can be excluded no appeal
46
What is a parties general duty regarding disclosure
To do all things necessary for the r proper and expeditious conduct of proceedings
47
What are arbitrators usually called
The tribunal
48
Three types of cases that can only be heard in the high court
Judicial review
Defamation
HRA 1998
49
What does the KBD of the HC usuallt deal with
Contract
Tort
JR
appeals from MC
50
What does the chancery division of the HC generally deal with
Wills and administration of estates
Property/land
Trusts
Business
Intellectual property
Insolvency
Appeals from CC
51
What's a part 7 claim
Standard claim form issued in most disputes
52
What's a part 8 claim
Where the cases does not involve a dispute of facts and the court is only required to to decide an issue of law
E.g a meaning on a contract term
53
For claims of monetary sums either specified or unspecified where should they be directed
(CNBC)
Civil National Business Centre rather than the CC not exceeding £100k a single C and not more than two Ds
54
When is permission from the court needed to amend the claim form
When it has been served
To remove/add/substitute a party
55
What is the test to remove add or substitute before the limitation period
It is desirable and the court needs to do so in that they can resolve the issue
56
What is the test to remove add or substitute a party after the limitation period
The relevant limitation period was current when started & it is necessary
57
Adding a Claimant to proceeding what are the requirements
C needs to consent and that consent needs to be filed with the court
58
What is the permitted methods of service which is known as the relevant steps in civil cases
Personal service
First class post/DX
With a Solicitor
Address given by D
Default Address for Service
Fax D must agree
If fax number on letterhead enough
Email D must agree
Letterhead must expressly agree it
Agreed method in contract
59
When can service on a solicitor take place
If the D agrees in writing and Sol agreed to accept service
60
Save for very limited circumstances the CF must be served on the Ds solicitor if:-
D has in writing the sols address
Sol has notified C in writing they are instructed to accept service
WHEN A SOL IS INSTRUCTED YOU CAN ONLY DEAL WITH THEM NOT THE CLIENT
61
Where permission from the court is needed for service outside of the jurisdiction what is the procedure
The Application for Permission (CPR 6.37)
* application to the court (usually a "without notice" supported by a witness statement.
* Grounds for Service The application must clearly state which "gateway" (e.g., the claim is founded on a contract made within the jurisdiction, a tort committed within the jurisdiction, or the defendant is a necessary or proper party to a claim against a defendant served within the jurisdiction).
* Reasonable Prospect of Success:
* Proper Place to Bring the Claim The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.
* Duty of Full and Frank Disclosure
62
Deemed date of service for the Claim Form
Despite what method of service is taken the CF is always deemed to be served on the 2nd Business day of the relevant step (permitted way of service)
e.g. Posted Monday
DDOS - Wednesday
EXCLUDE Sat/Sun/Bank holidays
63
Clear days are expressed as a number of days in the CPR/Court Orders
Do not include 1st day
Do not include last day if an event
5 days or less excludes weekends and bank holidays
64
Service of the CF & POC in uk and outside uk what's the difference
In the UK POC and CF the relevant step must have been taken within the 4 months not the deemed date of service
Outside the UK CF & POC the date served must be within the 6 month limit - the certificate provided will be used
65
Can service be by an alternative method or place
Yes with permission of the court
66
Can an extension be applied for extra time for service of a claim form
Yes c must apply to the court showing evidence and that all reasonable steps have been taken and promptly made the application
67
Other documents method of service and date of deemed service (5)
1. 1st class/DX - 2nd business day
2. Delivering/leaving - before 4.30 that day after 4.30 next day
3. Fax - before 4.30 that day after next day
4. Email - before 4.30 that day after next day
5. Personal - before 4.30 that day after next day
68
If the c serves the CF what must they file with the court and what time frame
Certificate of service - 21 days from POC being served
Except when all Ds have acknowledged service
69
Why is a certificate of service important
Important for obtaining judgment in default
70
What will be followed if a CF is to be served outside the jurisdiction
Hague Service Convention in the country
71
If service of a CF is proving difficult what can the C do
Apply to court for permission to:-
Extend time
Serve an alternative way
Dispense with service of claim
72
If the C makes a claim Will the court deal with a case that is out of the limitaion period
No it will be for the D to make an application for the case to be struck out with the defence it is time barred
73
What is the max time an extension can be agreed for service of document
56 days but not interfere with a court date
74
What is needed for an extension longer than 56 days or a party refuses the extension
Courts permission
75
If jurisdiction is disputed what must D do
Nothing more than send the AOS ticking the box disputing jurisdiction and making an application to the court within 14 days
76
What can the c do if a D fails to respond to service of CF and AOS
Make an application for default judgement
77
What are the mandatory grounds where the court must set aside a default judgment that has been ordered
D already filed an AOS or defence
D made an app for strike out first
D already paid/admitted claim
78
What are the discretionary grounds where the court could set aside a default judgment that has been ordered
D has a real prospect of success or
Good reason to set aside or vary DJ
79
Special damages v general damages
Special Damages (Pecuniary Losses)
are financial losses that are specific, quantifiable, and easily calculable as a direct result of the wrongful act. They are often referred to as "out-of-pocket" expenses.
need to be specifically pleaded and proven with evidence (e.g., receipts, invoices, payslips, bank statements).
General Damages (Non-Pecuniary Losses)
These are losses that are not precisely quantifiable in monetary terms they are proven through medical evidence, witness statements, and the claimant's own account of how the incident has affected their life.
In summary:
* Special Damages = Measurable financial losses.
* General Damages = Non-measurable, subjective losses (pain, suffering, loss of enjoyment).
80
What happens if a party fails to serve a hearsay notice when required eg because they aren’t calling a witness
Evidence won’t be excluded but the weight the court attaches to it may be reduced particularly if the otherwise had not chance to challenge it
81
Where a D is located in the UK but outside E&W does the C need permission from the court
No as long as the claim falls within a gateway under PD6B regardless of a jurisdiction clause
82
Once the relevant period of a part 36 offer has elapsed Is the courts permission needed to accept it if a trial has started
Yes
83
what does Statements of Case refer to
The Documents which set out the legal and factual case
84
A reference to a document within a Statement of Case means what
Usually mean its disclosed to the other part and the other party can request to inspect that document
85
Why is a change to a parties statement of case so material to the case
Because it changes the issues in dispute causing a change to disclosure/expert evidence/Witnesses needed, issues to be addressed. Hence why it is important to obtain consent to change a a statement of case
86
What will all Statements of Case Contain at the end
A statement of truth
87
What is the relevance of failing to have a statement of truth at the end of a case statement
It cannot be relied upon as evidence and could be struck out or have adverse cost consequences
88
Can a statement of truth be signed on behalf of a Client by a Sol
Yes provided have authorisation ideally in writing Sol explains that the facts they are signing are true and the consequences of not being true
89
A person making or causes a false statement in a court document could face what penalty
contempt of court
90
Is there a limit to the number of parties to a claim
No
91
If claiming interest in a civil claim where should it be stated
in the particulars of claim
92
Unless there is a contract term on interest how should interest be requested
Unspecified - "interest at such rate and for such a period as the court sees fit under s35 Senior Court Act 1981"
Specified - Exactly define percent/days claimed etc
93
A Defendant can admit/deny or asks C to prove by neither admitting or denying parts of POC but what if he fails to deal with a point
C's explanation is deemed accepted
94
Will the Defence in a Civil Claim include the Counter claim
yes
95
Should the C serve a defence to a counterclaim by the D
yes
96
Part 20 claims used when a D brings a new claim not a counter claim needs what
to follow the same process as if a new claim is to be issued
97
a reply to a defence is it needed
no a response is discretionary but a reply would allow the C to respond to new issues raised by D
98
What must a request for further information in a civil case need (RFI)
The request is made under CPR Pt 18 and date for a response treated like any other statement of case
The request muse be reasonable necessary and proportionate
99
Can a party object to comply with an RFI
yes but must clearly give reasons why e.g not necessary or proportionate
100
Does an RFI need a statement of truth
yes
101
Where no response to an RFI or inadequate response what can a party do
make an application to the court on why an order is required after 14 days have elapsed
102
Why are RFIs important in a week case
if an RFI is made it can help support an application for a strike out if one is made
103
Can a party amend a statement of case at any time
If after service need written consent of the parties if parties do not consent court permission is required.
If amendment is made before CF served no need for permission or parties consent needed (but be wary if amended outside of time period)
104
If the limitation period has expired when permission is sought to amend a statement of case the court is limited when he can allow an amendment what are they (3)
Add/substitute new claim but must arise out of same facts
Correct a name of a party where mistake was genuine
Alter the capacity in which a part claims
105
If the limitation period has not expired when permission is sought to amend a SOC what do they consider
the overriding objective/at what point in the proceedings/the trial date
106
In the Claim Form the C should state one of the following for the amount claimed for a County Court case
▪ not more than £10,000
▪ more than £10,000 but not more than £25,000
▪ more than £25,000 but not more than £100,000
▪ more than £100,000, or
▪ that the claimant cannot say how much is likely to be recovered,
107
if the claim is to be issued in the High Court what should a C state about costs
That the claimant expects to recover more than £100,000 (£50,000 for personal injury claims).
108
Where a C wishes to include interest in a POC what should it state (only if the contract does not stipulate interest)
A statement that interest is claimed at such a rate and for such a period as the court sees fit under s 35A of the Senior Courts Act 1981
109
110
Can costs set in a budget to the court be departed from
No unless there is a good reason for doing so
111
Can promissory estoppel be brought as cause of action
No it is only a defence
112
What is litigation privilege
A document created solely for conducting litigation with litigation reasonable in prospect
Need to be disclosed not inspected
113
Can a C waive privilege
Yes but exhibiting a document
114
When can the court add or substitute a party in the limitation period
When it is desirable
115
When can a party be added or substituted outside of limitation
When it is necessary
116
Parts in a Bundle what is contained within it
Part 1 = Docs in control that they do not object to inspect
Part 2 = Docs in control but objection to inspect (privileged)
Part 3 = Docs no longer in parties control with explanation why
117
When are Interim Applications usually relevant
When an Order is sought as it is needed on an issue that cannot wait until the trial
118
What should parties do before applying for an interim application
Seek to resolve the issue by consent.
By writing to the party with the basis of their request trying to agree with a reasonable time frame and if unsuccessful Interim Application will be issues with an application for costs
119
Interim application are usually made on .....
Notice
120
When the opposing party is not represented at a hearing, the applicant has an obligation of full and frank disclosure – as in, they must disclose to the judge all matters which are relevant, even those that might be harmful to their position. Why? and what could happen if it doesnt happen
This is because the party that will be subject to the order being sought is not represented
Where an applicant has not given full and frank disclosure when obtaining an order without notice, that is a serious matter and can lead to the order being set aside and other sanctions on the applicant.
121
What application notice and documents should be filed for an interim application
N244
Court Fee
Evidence
Draft Order
122
For most applications the Interim application notice should be served on the respondent within what time period
must be served on the respondent at least 3 clear days before the hearing
123
Save for basic or urgent applications when should a skeleton argument be filed with the court
at least 24 hours before the hearing
124
What happens after the main body of the interim application has been heard but in the same hearing
Judge will consider the interim costs order with summary assessment to cover the costs incurred by the successful party
125
What are the five interim Costs Orders
* Costs in any event
* Costs in the case
* Costs reserved
* No order (sometimes expressed as “no order as to costs”)
* Wasted costs
126
What is a Costs in any event Order
– Meaning the successful party in the interim hearing recovers costs no matter who wins at trial
127
What is a Costs in the Case Order
– Costs of the interim hearing will be dealt with at the same time (and in the same way) as final costs at the end of the trial.
128
What is a Costs Reserved Order
– Cost to be decided later, if appropriate, or to follow costs in the case.
129
What is a Wasted Costs Order
– One party’s solicitor to pay the costs themselves (effectively a punishment for poor conduct).
130
What is a No Order for Costs
– Each party bears their own costs (generally ordered where there is no clearly successful party, or the judge is critical of both sides).
131
What is the most common ground for security of costs order to be made
The C is resident out of the jurisdiction or that the C is an impecunious company
132
What Party is the only Party that can make a Security of Costs Order
The Defendant
133
What is a Security of Costs Order
An order for security for costs orders the claimant to provide security for the defendant’s costs (but not damages) in order to cover the possibility of the claimant losing at trial and the risk of the defendant not obtaining payment of costs from the claimant
134
What is a Cross Undertaking in Damage and when is it usually used
A pre requisite For obtaining an injunction
A promise to pay money
135
When a Freezing Order is applied for, what form should the evidence be provided in
An Affidavit not a witness statement
136
What is an interim payment
a payment of any damages, debt or other sum (except for costs) which the court may hold the defendant liable to pay. It can be ordered following an independent application or as part of a conditional order following an application for summary judgment.
137
When does the court have the power to strike out a statement
if there are no reasonable grounds for bringing or defending the claim. Strike out can also be ordered for bad conduct.
138
What is the test for Summary Judgment
the respondent has no real prospect of succeeding in the claim/successfully defending it and there is no other compelling reason why the case should wait until trial.
139
When is summary judgment usually applied for
Summary judgment is a judgment before trial in order to dispose of the entire case, or some of the issues in a case, where the defence or claim is unlikely to succeed, based on a point of law or evidence.
140
When are applications made without notice
In exceptional circumstances
141
what is summary assessment
where the court orders costs payable at the end of the hearing. if requested the party must have filed and served a signed statement of costs at least 24 hours before the hearing
142
As rule a hearing that has not lasted for more than 1 days should have the costs assessed by ...
Summarily assessed unless there is a good reason not to do so
A good reason could be the party paying disputes the sum claimed
143
What is a statement of costs
Summary of costs incurred (breakdown of all costs e.g. sols costs, attendance upon clients, hearing etc)
144
How long after a costs order should the fees be paid
14 days
145
What is summary judgment
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: see CPR Pt 24. However, it should not be a “mini trial”. Either the claimant or the defendant can apply for summary judgment against the other.
146
Grounds for summary judgment
* The respondent has no real prospect of succeeding in the claim/successfully defending it. A real prospect includes the improbable but not the fanciful. The respondent’s case must be more than merely arguable. The judge at the hearing cannot be expected to choose between two possibly credible sets of facts.
* There is no other compelling reason why the case should proceed to trial – for example, key witnesses are unavailable, more evidence is likely to come to light or expert evidence is required to properly assess or explain the issues in the case
147
Notice period for the court for Summary Judgment
14 calender days
148
Procedure for Summary Judgment
C sends Notice and supporting evidence 14 days of court hearing to parties and court
Respondent has 7 days to respond
149
Can the C apply for Summary Judgment before D has filed AOS or Defence
Yes but permission from the court is required
150
If C applies for Summary Judgment before D has filed an AOS or Defence what happens
D's service of the defence is automatically extended until after the hearing
151
When does an application for Strike Out arise
Often, applications for strike out will be brought on the basis that, based on the pleaded statement of case, there are no reasonable grounds for bringing or defending the claim and, in the alternative, seek summary judgment. Then, if the court is not satisfied that the pleaded case is fundamentally flawed (as in, regardless of what evidence might arise), it is still open to find that the claim has no real prospect of success (based on known facts).
152
What is an application for interim payments
An interim payment is a payment of any damages, debt or other sum (except for costs) which the court may hold the defendant liable to pay
153
if an interim payment has been order should it be disclosed to the trial judge
No not until all issues of liability and the amount of money awarded has been decided
154
What are the main two forms of Injunctions
Mandatory - Requires a party to do something
Prohibitory - Forbid a party from doing something
155
Civil litigation in E&W is governed by ...
The Civil Procedure Rules
156
Is an Arbitration Decision legally binding
yes
157
Is Arbitration Private
Yes
158
Instead of a Judgment what is given by the Arbitrator(s)
Arbitration Award
159
The new Arbitration Act 2025 has simplified the governing law why
The law of the seat of arbitration will govern the arbitration agreement unless the parties state otherwise.
Eg. If the contract states the governing law is English but the seat of arbitration is Paris then by default the AA2025 states that the French law will govern the arbitration agreement
160
Can parties choose the arbitrator(s)
Yes unless arbitration clause says otherwise
161
What provisions for procedures in the Arbitration Act are Mandatory
Section 6A: Governing law of the arbitration agreement
Section 23A: Duty of disclosure by arbitrators
Section 33: General duty of the tribunal (e.g., to act fairly and impartially)
Section 40: Duty of parties to do all things necessary for the proper conduct of the arbitration
Section 67: Challenge to the tribunal’s substantive jurisdiction
Section 68: Challenge for serious irregularity
Section 73: Loss of right to object
162
What are some other forms of ADR
Early Neutral Evaluation (not binding) an independent party looks at the case and provides advice
Expert Determination (legally binding) expert chosen to look at the case
Without Prejudice Negotiations (these negotiations cannot be used against a party in court)
163
Even if mediation isn’t what the C thinks will be successful it could be a good tactical reason why (2)
Cost protection if done in good faith
May learn something new to assist case
164
If a settlement is agreed at mediation what do solicitors do after
Draft a formal settlement document for parties to sign before leaving
165
How do parties deal with mediation costs
Bear own costs split mediators fee
(Not usually recoverable at court)
166
What can a D do if they are wrongly named in the claim from
Request that the matter is struck out
167
Analysis of a breach of contract needs 4 steps (min) what are they
Contract - must be a contractual relationship
Terms - express/implied
Breach - C/W/I ill depend on remedy
Defences
168
169
In order to calculate the limitation period when does the time start
The day of cause of action is excluded from the calculation
170
Equitable remedies and their limitation period
Injunctions/specific performance
No time limit however subject to the doctrine of laches (to persue remedy without delay)
171
What should a solicitor tell a client about disclosure upon being instructed and ligation contemplated
Preserve any documentation
172
When English and Welsh governing law does not apply what do you need to do
Tell the C to seek advice from a lawyer on the foreign law to do so would be a breach of the codes of conduct
173
If a governing law clause is in a contract it is usually adhered to what is the exception
Where in reality despite the clause everything concerning the contract took place elsewhere
174
Applicable law in absence of choice for sale of goods
Where Seller resides
175
Applicable law in absence of choice for auctions
Where the auction takes place
176
Applicable law in absence of choice for provision of services
Service provider resides
177
Applicable law in absence of choice for immovable property
Where property is situated
178
Applicable law in absence of choice for most cases
Manifestly more closely connected with the country
179
When the cause of action is PI or death where is the governing law
Where person sustained the injury
180
When the cause of action is damage to property where is the governing law
Where property was damaged
181
General rule on governing law for non contract and the exceptions
Law where damage occurred
Exception where both D&C both reside in the same place that will govern the law
or
Manifestly so closely connected with that country
182
What is The Hague choice of court convention
The Hague Choice of Court Convention provides a harmonized international framework to ensure that when businesses agree to resolve their disputes in a specific court, that agreement is respected and the resulting judgments can be enforced across borders.
183
Once a claim form is issued by the court is permission needed to serve within the jurisdiction
No
184
Examples where a D is in the jurisdiction and can be served without courts permission
D in E&W even if temporarily
Foreign parties in business in E&W
(I.e carries out its activities)
Contract contains a term to serve on a party at a specified place in E&W
185
Where D is outside the jurisdiction there are grounds of service on which D can be served
Permission required
Permission not required
186
When is permission NOT required to serve D outside of the jurisdiction
Under The Hague Convention
Term in contract stating E&W appropriate
C is a consumer
C is an employee against employer
A NOTICE OF THE GROUND RELIED UPON MUST BE FILED WITH THE CLAIM FORM AND SERVED ON D
187
When IS permission required to serve D outside of the jurisdiction
A claim falls within a gateway
Reasonable prospect of success
E&W proper place to bring claim
188
What are some of the gateways that can be used to obtain permission from the court to serve D outside he jurisdiction
Contract made within jurisdiction
Contract made with an agent in J
Contract is governed by E&W law
Breach committed in jurisdiction
Tory sustained in jurisdiction
189
Is permission needed from the court to serve a CF IN Scotland and Northern Ireland
No
190
What is the overriding objective under 1.1 CPR
To deal with cases justly and at a proportionate cost
191
Other issues to be aware of on top of the overriding objective
Not waste courts time
Put forward a case properly arguable
Draw to court’s attention any cases or provisions which will have a material effect on the outcome of proceedings
192
When a limitation deadline is approaching or a case is urgent what are parties not expected to comply with
PRACTICE DIRECTION ON PRE-ACTION CONDUCT & PROTOCOLS
(PDPAC)
193
What is the first step in a civil case to comply with the PDPAC
send a genuine letter before claim to D to inc:-
Basis of claim
Summary of facts
Remedy seeking
Disclosure of key documents
194
What can happen if the letter before claim does not contain correct info
D can challenge the letter stating not compliant with PDPAC
195
How long should a D take to respond to a letter before claim
Within a reasonable time
Generally within 3 months
196
What should the Ds response to a letter before claim inc
If claim is accepted or not
Reason why and what is disputed
Counterclaim
Disclosure of key documents
197
Costs should be kept to a minimum pre action and incur only
Reasonable and proportionate costs any disproportionate costs will not be recoverable
198
If a claim is issued urgently what can happen to comply with the pre action protocol
The case can be stayed
199
What’s the difference between Pre-Action Practice Direction and Pre Action Protocols
PDPAC is general when no PAP
PAP are followed when specific
200
Are the PDPAC mandatory
No however the courts expect parties to comply.
Courts are usually concerned with substantive compliance rather than minor breaches
201
What is the court likely to do for failing to follow PDPAC
Impose coat sanctions
BUT
Can in some strike out statements of case
202
What happens if a party knowingly makes a false statement in a pre action letter or other document prepared for proceedings
Contempt of court
203
What is the main object of the PDPAC
To exchange sufficient info to try and resolve the dispute without court proceedings and narrow issues of looking to issue
204
Where is the High Court based
Royal Court of Justice in London
205
What does concurrent and unlimited jurisdiction mean
Most cases can be brought in either the CC or the HC subject to the restrictions
206
What is included in the value when determining what court the case will be held at
Just the clients claim of damages
207
What is excluded from the value when determining the court the case will be held at
Interest
Costs
Counterclaims
Contributory Negligence
Deduction of benefits
208
Claims in the Court
County Court - Under £100 or 50K for PI
High Court - over £100k
CC - Over £100k/50K however can still be in the CC
209
If a claim form is received by the court but the courts are delayed due to issues their end is it valid
yes
210
If permission is need to serve outside and permission not sought what will be on the claim form
Stamped - not for service outside of jurisdiction
211
How is the court fee calculated for issuing claims
will depend on the value of the claim and the remedy sought
212
If CF is to be served on D outside of Jurisdiction and courts permission is needed what needs to be included with the CF
Standard form of statement of grounds must be included
213
If amendments are made to a Claim Form they must be ...
in red text and a header added that records that the CPR that the amendment has been made
214
A change to the parties in a CF can usually be done without the courts permission before service with one exception what is it
Adding a new Claimant will always require permission
215
Should an amended CF be filed with the court
yes with an explanatory letter and request for it to be sealed
216
Can a C unilaterally without permission of the court remove a Defendant from a claim
Yes by filing a notice of discontinuance with the court and serving a copy on all other parties
217
Serving a discontinuance against a Defendant by a C could result in what
C being liable for the costs of Ds
218
How is permission sought to amend a party in the CF
by sending an in interim application with supporting evidence
219
Where a party seeks and amendment to a document what costs are they responsible for
Their costs and other parties costs
220
The court has very wide powers and can basically give any direction it considers appropriate name one
power to strike out without any application by parties even without a hearing (extreme)
221
Small Track Claims
* Most claims less than £10,000
* Tenant repair claims under £1,000
* Personal injury claims under £1,500, unless it includes a road traffic accident then the threshold is either (£1,000 or £5,000)
222
Fast Track
* Claims worth more than £10,000 but less than £25,000
* Trials are expected to last no longer than one day.
* One expert per party
* Fixed recoverable costs (FRC) now apply to all fast track claims
* Assigned to a complexity band to determine FRC level .
223
Multi Track
Criteria for multi-track now primarily for claims exceeding £100,000:
* Includes complex cases not suitable for other tracks.
* Specific claims automatically allocated to multi-track include:
o Mesothelioma or asbestos claims.
o Clinical negligence claims unless both breach of duty and causation are admitted.
o Claims involving harm, abuse, or neglect of/by children or vulnerable adults.
o Claims potentially tried by jury (County Courts Act 1984, Senior Courts Act 1981).
o Certain claims against the police.
* Assigned to a complexity band to determine FRC level (CPR 26.7).
224
Intermediate Track
* New track for claims valued between £25,000 and £100,000:
* Less complex than multi-track but more complex than fast track.
* Fixed recoverable costs (FRC) apply
* Trial to last no more than three days; limited to two experts per party.
* Assigned to a complexity band to determine FRC level
225
Fast Track Complexity Band
Band 1
*Defended debt claims and RTA related non personal injury claims.
Bands 2 & 3
*Personal injury claims, including road traffic accidents. Band 2 is
typically for simpler claims; Band 3 for moderately complex claims.
Band 4
*More complex fast track claims, such as professional negligence.
226
Intermediate Track - Complexity Band
Band 1
*Straightforward claims with a single issue, usually lasting no more
than one day.
Bands 2 & 3
*Personal injury and other claims with more than one issue. Band 2 is
for less complex matters; Band 3 is for more complex issues.
Band 4
*Most complex intermediate claims involving significant issues of fact
or law, and trials estimated to take up to three days.
227
Regarding the Complexity Bands what do the courts encourage
that the parties agree if they cannot the court will assign
228
Tracks
FT - up to £25k
IT - £25k to £100k
MT - Over £100k
229
The notice of proposed allocation will require the parties to do what
File and serve DQ
File proposed directions
Fix a date for CMC
File Cost budges for MT
230
At what point will a court allocate a track
After DQ is filed
231
What is usually the first hearing in civil proceedings
Case Management Conference
232
what is a CCMC
Costs and Case Management Conference
233
Whilst not mandatory parties are encouraged to use the Electronic Documents Questionnaire why?
Because it is a useful tool to help identify what is to be searched and how it is to be searched in a reasonable and proportionate manner
234
What track does the costs budget ONLY apply to
MT Cases unless the court directs otherwise
235
What form should be used for the costs budget
Form of Precedent H
236
Failing to file a cost budget means what
The party will be deemed to have filed a budge comprising of the court fees only (the successful party could be precluded from the majority of their legal costs)
237
Budge Discussion Reports
Parties other than litigants in person must also file a budget discussion report at least 7 days before the first CCMC, setting out what aspects of the budgets are agreed and the grounds for any dispute
238
what does approval of a costs budget usually indicate
That the costs set out are likely to be recoverable if that party succeeds at trial, with costs being awarded up to the maximum amount set out in that budget.
239
FT & IT directions and timeframe from notice of allocation
Disclosure - 4 weeks
Exchange of witness statements -10 weeks
Exchange of expert reports - 14 weeks
Court sends pre-trial checklists - 20 weeks
Filing of completed PT checklists - 22 weeks
Trial - 30 weeks
240
how long can parties agree extensions to direction time limits
28 days as long as it does not interfere with the hearing date
241
What three things cannot be varied by agreement
Case management conference
Return of a pre-trial checklist
Trial
242
What can a party do if the extension is beyond 28 days
File a Consent Order for the courts approval with all parties consents with a covering letter
243
When a party is in breach of an order or rule what do they need to do
Make an application for Relief from Sanctions
244
What test will the court use to apply for relief from sanctions
The court will consider all the relevant circumstances and the overriding objective, enabling it to deal justly with the application, including the need for litigation to be conducted efficiently and at proportionate cost and to encourage and enforce compliance with all rules, practice directions and orders.
245
Three stage test in the case of Denton v TH White for relief from sanctions where it should be granted: -
* the breach was neither serious nor significant (for example, 1 hour late serving a document would not normally be considered serious, although it might be more serious for repeat offenders)
* there was a good reason for the breach – note that a lawyer being overworked does not count, or
* the breach did not prevent the litigation from being conducted efficiently and at proportionate cost.
246
Small Claims Track
Most cases with a value of less than £10,000.
Also, for personal injury cases or where tenants are requiring landlords to make repairs, with a value of less than £1,000.
Some personal injury claims involving road traffic accidents have a higher threshold of £5,000.
247
Fast Track
For cases worth more than those in the small claims track, but worth less than £25,000 and
* generally, only if the trial will not last longer than 1 day (5 hours), and
* only needs one expert (if any) per party.
248
Intermediate Track
For cases valued between £25,000 and £100,000.
* Trials should not exceed 3 days.
* Oral expert evidence is limited to one witness per party, unless a second expert is reasonably required and proportionate (CPR r 28.14(2)(a)).
* Parties must endeavour to agree on directions and submit them to the court; court approval or own directions if necessary (r 28.13).
249
Multi Track
All other Claims
250
What is the main purpose for the CMC
identify the issues in dispute between the parties
251
252
What factors are considered consistent with the overriding objective
Parties on equal footing
Reasonable costs
Proportionality
Expeditiously and fairly
Appropriate allocating of resources
253
What factors are considered when looking at what track to allocate
Value
Remedy
Complexity of law or evidence
No of parties
Parties views
Circumstances of the case
254
Key issues decided at case management directions
Allocation of track
Costs
Disclosure
Witness statements
Expert evidence
Trial prep
Trial listing
255
What sanctions are possible for non compliance
Not allowed to adduce evidence
Strike out part or all of claim
Payment to the court
256
When will relief be granted from sanctions
Neither serious nor significant
Good reason for breach
Does not affect the ligation process
257
What is a repudiatory breach
A repudiatory breach occurs when one party fails to perform their obligations under the contract in such a way that it deprives the other party of substantially what they are entitled to expect from the agreement
Remember that repudiatory breaches allow for immediate termination without notice or opportunity for remedy by the breaching party—this distinguishes them from minor or anticipatory breaches where remedies might be required before terminating.
258
is a clause limiting the limitation period enforceable
yes the clauses can reduce the limitation period and is often found in commercial contracts but subject to the UCTA
259
Failure to advise a client to issue within the limitation period would mean what for the solicitor
a negligence claim
260
When calculating limitation period what is important to note
the date of caution of action is usually excluded from the calculation
261
what does the doctrine of laches require
that Claimants pursue remedies without unreasonable delay
262
Damages in contract are intended to ......
put the injured party into the position they would have been in had the contract been properly performed
263
Damages in tort are intended to ....
place the claimant in the position they would have been in had the tort not been committed.
264
Gateways to serve a D outside jurisdiction
Common gateways for contractual claims are:
▪ The contract was made within the jurisdiction.
▪ The contract was made by, or through, an agent trading or residing within the jurisdiction.
▪ The contract is governed by English law.
▪ The claim is in respect of a breach of contract committed in the jurisdiction.
o Common gateways for tort claims are:
▪ The damage was sustained, or will be sustained, within the jurisdiction.
▪ The damage which has been, or will be, sustained results from an act committed, or likely to be committed, within the jurisdiction.
265
What does the County Court and High has concurrent and unlimited jurisdiction mean
meaning that most cases can be brought in either court
266
Claim Form service in and out of jurisdication
* For a claim form to be served in the jurisdiction, the relevant step must be taken by 12.00 midnight on the date falling 4 months from the date of issue.
* For a claim form to be served outside the jurisdiction, it must be served within 6 months.
267
IF PDPAC conflict with Protocols which has priority
Protocols
268
what must all statements of case contain
a statement of truth
269
Failure to contain a statement of truth means what
Document cannot be relied upon as evidence
SOC could be struck out
Adverse costs
270
SOT
[I believe] [the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. [I understand] [The (claimant or as may be) 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.
271
What is a Tomlin Order
Where parties have settled and there is a risk that the D will default so stays the proceedings (keep open) so easier to return to court if default
272
Under what circumstances can a C with a contract dispute with a company based in the EU issue in the E&Ws court
If the contract was to be carried out in E&W
273
What is an interim application
Application made by one party before the case has reached trial to deal with an issue
274
Purpose of Summary Judgment
Party can request the court can decide the case due to it being weak - disposed of
275
Guidelines for granting an interim injunction
Is there a serious issue to be tried
Are damage an adequate remedy
Balance of convenience
Any other special factors
276
What is a case management conference
A meeting between the Judge and parties to highlight the issues in the case, narrow issues down, directions, timetabling
277
What is an order for pre action disclosure
an order court can make specifying documents that should be disclosed before proceedings
278
costs in a fast track are generally dealt with how
by summary assessment which means the judge will make an instant decision on the day of trial of the award
279
Standard Basis
Indemnity Basis
Which is proportionate and which does not need to be proportionate
SB - Proportionate
IB - do not need to be proportionate
280
Under s68 Arbitration Act parties have a right to refer a matter to court where they believe an arbitrator has misapplied the law what is not needed
They do not need to seek the courts permission
281
Do parties need to seek the courts permission if they believe an arbitrators decision is wrong
No
282
Is there a time limit on when parties should issues where negotiations/silence has been unsuccessful
No
283
If the D makes an offer for an unspecified amount what steps do the court take
Court will STAY proceedings
Send Notice to C of offer
If C states acceptable will make a judgement in that amount
284
If a C fails to specific the interest rate in their claim form what can the court do
Provided the C included interest is claimed in POC the court can exercise its discretion to award interest.
IF C failed to note interest the court will not award it
285
When there is a clear winner of an application for summary judgment what is the courts principle
That the loser pays the winners costs
286
Regarding interim payments what is expected before an application to court is made
That the parties attempt to agree the interim payment
287
Can an offer letter be withheld even if it is marked without prejudice
Yes so long as the letter makes a genuine attempt to settle matters in dispute
288
Where a third party has disclosure what needs to be requested when they fail to hand it over
Application for non party disclosure
289
What will make an application for a witness summons invalid
Not offering to reimburse the W for their expenses to attend trial
290
When will a judge depart from a costs budget order
If CMO and on a standard basis courts will not departs unless there is a good reason to do so
291
When is evidence admissible in civil cases
Must be relevant to the issues in dispute of the proceedings
292
Two common situations where relevant evidence is inadmissible
when it is without prejudice or privileged
293
when will evidence not be admissible even if it is not marked without prejudice
If it is a genuine attempt to settle
294
If a genuine attempt to settle takes place and a party accepts part of their case or states would accept a lessor sum would that evidence be admissible
No it would be inadmissible as the statement was made during settlement negotiations
295
A letter of claim should include what and not include what
A genuine attempt to resolve the dispute
Should not contain admissions of C
296
Hearsay definition civil cases
a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated
297
What is the general rule for hearsay in civil proceedings
It is generally not excluded but will be viewed as less reliable and will carry less weight
298
Notice of hearsay in civil cases
if hearsay included in the witness statement that is sufficient notice
IF NOT
Notice must be served on the date of serving witness statements
299
If facts are admitted by a D what does that mean in terms of evidence
That the facts fall outside of the issues in dispute and no longer admissible or necessary
300
Can a party issue a notice requesting their opponent admit certain facts
yes up to 21 days before the trial date
301
What could happen if a party does not admit to facts from a notice to admit facts
costs consequences
302
If the D raises a positive case what do they bear
the burden of proof of the positive case
E.g. CN/Exclusion
303
The exception that the Standard of proof is on the BOP applies when
Summary Judgment
Strike Out
304
What is the BOP for Summary Judgment
That the respondent has NO REAL PROSPECT of SUCCESS in their claim or defence
AND
NO Other Compelling reason why a claim should proceed to trial
305
Setting aside Judgment on the discretionary ground
Has a reasonable prospect of success
OR
There is a good reason why the D did not respond
306
Contempt of Court what is the standard of proof
Beyond Reasonable Doubt
307
Contempt of Court is it a civil or criminal case
It is a civil matter with a criminal standard of proof
308
Evidence of a fact is usually provided in what form
A Witness Statement
309
Statement of Truth for Witness Statements in Civil proceedings
“I believe that the facts stated in this witness statement are true. I understand 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.”
310
If a witness statement cannot be obtained what can be served
a witness summary
311
If a witness statement or witness summary is not served by the deadline what happens
The W may not be called unless the court gives permission
312
What is needed for a party to call expert evidence
Courts permission
313
Meetings between experts are what
without prejudice unless the parties agree otherwise
The discussions are not binding but any agreements are admissible
314
If a party decide they do not wish to rely on their expert evidence report after disclosed can the otherside chose to use at trial
yes
315
Evidence is only admissible if
it is relevant to the issues in dispute in the proceedings
316
hearsay means
statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated.
317
hearsay in civil proceedings
Not excluded however, may be viewed as less reliable and so carry less weight.
318
Hearsay notice rules (2) civil proceedings
1. hearsay notice is deemed to have been served when witness statements were exchanged.
2. If the witness is not going to attend trial, the party serving the witness statement must state this and explain why.
319
when must hearsay notices be served
no later than the date for serving witness statements
320
what is an affadavit
a sworn witness statement
321
At the CMC the court can issue a variety of disclosure orders what are they
No Disclosure
Limited Disclosure (i.e. what they are relying on)
Issued Based Disclosure
Wide Order
Standard Disclosure
322
3 forms of privilege
Legal Advice
Litigation Privilege
Without Prejudice
323
What form is used for the list of documents
N265 and need to be exchanged between parties for review
324
3 sections in the N265 document
Docs in control no objected to inspected
Docs in control but object to inspect
Docs no longer in control
325
When is it compulsory to disclose COPY documents
when they contain a modification/mark/annotation
326
A party who wishes to inspect documents should send written notice to the other side and allow inspection within how many days of the notice
7 days
327
Is confidentially a valid basis upon to withhold inspection of a document
No
328
Can the court make an order to restrict disclosure being inspected
yesW
329
Generally confidentially is disclosable but what is the test for a valid reason to redact
Confidential
AND
Irrelevance
330
Are statement of case public documents
yes and copies can be requested by the public
331
If a privileged document is provided for inspection by mistake what must the receiving party do
Cannot use that document without the permission of the court. It should not read the document and notify the other party
332
If it is not clear that the document has been disclosure inadvertently what could the court order
that the party has waived their privilege
333
What is the rule that a party to whom a document has been disclosed to should follow?
They may only use that document for the purpose of the proceedings in which it is disclosed
334
if a party believes a document has been forged or tampered with what must they do
serve notice requesting the original document be brought to trial.
335
when can you redact a document
when it is confidential and irrelevant
confidentiality alone is not a basis to withhold any evidence
336
when are parties required to preserve electronic documents
from the time litigation is contemplated
337
does preserving documents inc suspending document retention polices
yes
338
parties should try and reach an agreement on disclosure and search terms if they cannot what needs to happen
get a direction from the court
339
The extent of a reasonable search of electronic documents will usually involve consideration of ...
o date ranges
o custodians
o forms of communication
o other electronic documents formats, and
o key words.
340
What are the most common forms of privilege (3)
legal advice privilege
Litigation privilege, and
without prejudice privilege
341
Privileged documents are usually disclosed in the disclosure statement as what
A category rather than an itemised list
342
Legal Advice privilege applies to what
All confidential communications between a lawyer and their client that are for the purpose of giving, or receiving, legal advice. Regardless if a dispute is in contemplation
It is sufficient that the giving or receiving of legal advice was the dominant purpose, as opposed to the exclusive purpose.
343
Litigation privilege will only apply if what
If a dispute is reasonably in prospect
Can be with a third party
344
Legal Advice v Litigation Privilege
LA - All communications between client
LP - Only applies if dispute is reasonably contemplation
LP protects a broader range of material than LA
345
What is without prejudice communication
another category of privileged material.
exists to encourage parties in dispute to communicate and offer
concessions, in the knowledge that those communications will not be used against them in court. i.e. settle
346
What happens if correspondence is marked without prejudice and is not looking to settle a dispute
courts could disapply the rule about W/P
347
what happens if a party has made a without prejudice offer or it was ignored or rejected and o/s failed to beat the offer at trial
Court will take that into account when considering costs. Settlement offers, even when they do not lead to a settlement, are therefore an important element of litigation, in the context of costs awards
348
Is privileged material still disclosable
yes
349
What is express or implied waiver of privilege
Express waiver is a deliberate choice to waive privilege.
Implied waiver is when, due to a party’s conduct, they are deemed to have waived privilege.
This can arise where privileged material is shared, in such a way as to lose confidentiality
350
What is the main reason for privileged information
the right to withhold evidence
351
What is the general rule on disclosure of documents
All relevant documents MUST be disclosed
many privileged documents will be relevant to a case and, therefore, must be disclosed. However, there are exceptions to the right to inspect
352
Key principles for legal advice privilege
Must be communication between client and solicitor
Information must be confidential (i.e. not disclosed to others)
Dominant purpose of giving legal advice
353
CC'ing or copying a solicitor in communication does that attract legal advice privilege
no
354
Who does legal advice privilege not cover
Legal advice privilege does not cover legal advice given by non-lawyers. However, it does extend to advice given by legal executives and foreign lawyers. This issue is particularly relevant to tax advice given by accountants, which is not covered by legal advice privilege
355
Litigation Privilege applies between whom
* a legal adviser and client, or
* a legal adviser/client and a third party.
existing/pending reasonable anticipation of litigation
356
what does dominant purpose means for litigation privilege
When a document has been created for several reasons, the dominant purpose must have been the pending or existing proceedings.
For example, a safety report has been found not to be privileged, as it was created for the dual purposes of obtaining legal advice for litigation and improving safety.
The dominant purpose relates to the party that commissioned the document, not its author.
357
What is common interest privilege
Can preserve privilege in privileged material that is shared with third parties.
Ordinarily, sharing privileged material can amount to a waiver of privilege because it is a waiver of confidentiality:
However, where there is a common interest between the owner of the privilege and the recipient of the privileged material, the privilege can be maintained.
For example, common interest privilege should apply when sharing privileged material with co-defendants, corporate parents and insurance companies.
However, any sharing of privileged material should be treated with extreme caution and given careful thought.
358
Without prejudice communications are made as part of what and do they need to be clearly marked W/P to apply
Without prejudice communications are communications made as a part of a genuine attempt to settle a dispute. They do not actually have to be marked “without prejudice” for that privilege to apply; they are without prejudice by their very nature
359
what is without prejudice save as to costs
They attract without prejudice privilege until the court has given judgment on the dispute. They are expressly not intended to be privileged with respect costs issues
360
Are draft documents privileged documents
Draft witness statements are protected by legal privilege while they’re being prepared.
Once the final version is shared, that version is no longer privileged — but earlier drafts remain protected.
Statements of case and communications before a claim is issued are not privileged, but their drafts are.
Any draft document made mainly for litigation is privileged.
However, drafts created before litigation was reasonably expected are not privileged unless they fall under legal advice privilege or another specific type of privilege.
If such early drafts are relevant to the case, they must be disclosed.
361
Can some privileged documents be disclosed on a limited waiver basis
yes but not good practice
362
If a privileged document is provided for inspection by mistake what is the rule
the privilege will be lost if the receiving party reasonably thought it was entitled to see the document at the time it was disclosed. However, the receiving party will require the court’s permission to rely on such documents
363
Legal advice privilege allows a party to withhold inspection of communications that are
- confidential
- between a lawyer and client, and
- for the sole or dominant purpose of giving or receiving legal advice.
364
Litigation privilege applies to communications (and documents) that are
- confidential, and
- between
(i) lawyer and client
(ii) client and a third party, or
(iii) lawyer and a third party, and
- created for the dominant purpose of obtaining, to use in litigation, such as:
(i) legal advice
(ii) evidence, or
(iii) information.
At the time of the relevant communication (or when the relevant document was created), the litigation must have been existing, pending or reasonably in prospect.
365
A document that says “without prejudice” what advice/rule should be given
If you come across a document that says “without prejudice” it is likely that it will not need to be provided for inspection. However, not everything marked “without prejudice” is truly without prejudice. For without prejudice privilege to apply, it must have been a communication, the purpose of which was a bona fide attempt to settle a dispute
366
What should parties do before filing pre trial checklist/disclosure questionnaire
Exchange the checklists before filing them at court to avoid any misleading information being given
367
What should a Claimant do at the same time of filing the pre-trial checklist (questionnaire)
Pay a trial fee (known as the listing fee) together with an estimate of costs if a costs management order has not been made
368
What are the consequences of failing to file a pre trial checklist/directions
Adjournment of the trial Wasted Costs Order
Strike Out
369
Can parties agree to vary the date of filing the pre-trial checklist
No MUST obtain permission from the court
370
What is a skeleton argument
a summary of each sides legal argument and is required for High Court cases.
High Courts also require a list of legal authorities by 5pm the day before the trial
371
Steps to take to seek a witness summons
draft summons x2
File with court
Court seals and serves
372
What is needed if a party requires a summons issued less then 7 days before trial
permission from the court
373
What should a party also provide the court when applying for a witness summons
a sum of money to cover W's expenses
374
Can a party apply to set aside a witness summons
yes but very ltd e.g no relevant evidence to give
375
Can a witness be summons outside the UK
No - can send a letter of request to judicial authorities where they resident for the witness to be examined there
376
Which side of the court do parties sit on
C's team on the left
D's team on the right
377
What does a Judgment comprise of
Examination of Facts and Evidence
Can inc the courts view on credibility of a W
Analysis of legal issues and if they agree or not
378
Whats important about the J providing draft judgement
Client and legal team must not share outside of themselves until after the Judgment has been formally handed down or could be in contempt of court
379
There is also a separate principle that, without good reason for not having done so, a party may not bring subsequent proceedings in relation to issues that should have been dealt with in the original proceedings. why is this?
This is designed to prevent multiple related proceedings that are inconsistent with the overriding objective.
380
What are some consequential issues that may arise after the trial (4)
o the form of order to be made
o any further directions required
o costs, and
o permission to appeal.
381
What is the usual rule regarding costs
that the unsuccessful party will pay the costs of the successful party as well as their own costs
382
If an offer to settle was simply made “without prejudice” and not “without prejudice, save as to costs”, what is the rule
it will not be admissible at any stage and the court will not be able to take it into account when considering costs
383
Where a court decides not to make an order as to costs what does this mean?
Each party must bear their own costs
384
Unless the court orders otherwise how long does a party have to comply with a costs order
14 days
385
Fixed costs are usually order when? examples
Uncontested claims and low value claims
* judgment in default
* judgment on an admission
* when the defendant pays the sum claimed in full before a defence or admission would fall due (including the fixed commencement costs)
* actions to enforce a judgment or order
* summary judgment (where straightforward or uncontested), and
* strike out of a defence (where straightforward or uncontested).
386
Are legal costs recoverable if a claim is for money or goods not exceeding £25
No
387
How are fixed costs calculated
the value of the claim and the complexity
388
Are legal costs recoverable in the small claims track.
Any exceptions
Generally not recoverable except disbursements e.g court fees, expenses, lost earnings, expert fees
389
In the fast track the cost of the advocate appearing are .....
Fixed
390
Fixed costs now apply to claims in which tracks
small-claims track, fast track and intermediate trac
391
Where fixed costs do not apply what do the courts do
assess the costs actually incurred by the party
392
Whenever the court makes an order for costs it must specify the basis of assessments (2)
Standard Basis
Or
Indemnity Basis
393
Costs on a Standard Basis should be proportionate any unreasonable incurred costs and the court has doubts how do they resolve the matter
this should be resolved in favour of the paying party
394
Roughly an award for costs on a standard basis how much does the successful party expect to receive in a percent
70%
395
When costs are assessed on an indmenity basis what is the limit
There is no limit of proportionality.
396
Costs on an Indemnity Basis should be and the court has doubts how do they resolve the matter
this should be resolved in favour of the receiving party
397
Roughly an award for costs on an Indemnity basis how much does the successful party expect to receive in a percent
80%
398
In either the standard or indemnity basis of assessment, the court will not award costs that are....
it considers have been unreasonably incurred or are unreasonable in amount:
399
If an order does not specify the basis of assessment what is inferred
it will be on the standard basis
400
What is summary assessment
An assessment undertaken by the Judge at the end of the hearing of the costs where Sols have submitted a statement of costs
401
Detailed Assessments must be dealt with how long after the final judgment/end of the case
3 months
402
What is the principle behind a Part 36 offer
that the person who unreasonably rejects a reasonable offer causing the case to go to trial unnecessarily should be penalised
403
In what instances will a Part 36 offer not have any consequences
* made less than 21 days before trial
* withdrawn (whether automatically under its terms or by notice)
* amended to make it less advantageous to the offeree (in which case the amended version should be considered), or
* accepted by the offeree.
404
An offer must be made without prejudice save as to costs to be what?
Admissible. Offers made simply without prejudice are not admissible at any stage of the proceedings
405
There are specific circumstances where, regardless of the costs incurred, a party will only be able to claim a fixed sum in respect of legal fees (fixed costs), such as
o the costs of commencement of proceedings where there is judgment in default, or
o the advocate’s trial costs for a fast track trial.
406
Summary assessment of costs takes place if a hearing is
no more than 1 day or a fast track trial (which should be no longer than 1 day).
Otherwise, the costs will be subject to detailed assessment, but the court will usually order an interim payment to the payee, on account, pending detailed assessment.
407
If a defendant fails to obtain a better result at trial than was available in a Pt 36 offer made by the claimant, the defendant will be ordered to pay
o the claimant’s costs, and
o from the expiry of the relevant period
costs on the indemnity basis
up to 10% interest above base rate on those costs
up to 10% interest above base rate on the sum awarded, or
an additional amount, not exceeding £75,000, representing a prescribed percentage of the sum awarded.
408
If a successful claimant fails to obtain a better result at trial than was available in a Pt 36 offer made by the defendant
the claimant will be ordered to pay the defendant’s costs from the end of the relevant period plus interest. The defendant (as the losing party) will be ordered to pay the costs up to the end of the relevant period in the usual way.
409
Can a party discontinuance all or part of their claim at any stage?
Yes by filing on parties a notice of discontinuance
410
What is the repurcussions of a C serving a notice of discontinuance
The C is liable for the costs incurred by the D in respect of the claim
411
If a C is seeking more than one remedy and abandons one or more of the them but continues the claim is this treated as discontinuing
No
412
Is permission/consent usually required for discontinuing a claim
No but there are exceptions: -
1. Court granted and interim injunction
2. Undertaking by any party has been given
3. C received an interim payment from D
4. There is more than one Claimant
413
What is a Calderbank offer
A Calderbank offer is a settlement offer made “without prejudice, save as to costs”. (Part 36)
It allows the offering party to later refer to the offer in court when arguing about costs.
This principle encourages reasonable settlement and discourages unnecessary litigation.
414
When makes a Calderbank Offer Valid
If it is a genuine attempt to settle
It will not be admissible in court until costs are being discussed
415
Does rejection of a part 36 offer count as a counteroffer
NO
416
What formalities are required for an offer to comply with Part 36
Be in Writing
Clear it is a Part 36 offer
Relevant period of at least 21 days
State whether it relates to all or part of the claim inc any counterclaim
417
What happens is a part 36 is made less than 21 days before trial what happens
it will not have the costs consequences and will be at the discretion of the court
418
If a part 36 offer is not time limited how long does it remain affected
until the trial unless formally withdrawn
419
Can a offeree make a request for clarification of a part 36 offer
yes it must be within 7 days
420
what happens if the offeror does not provide clarification to a request on a part 36 offer
the offeree can apply for an order that they do so
421
if the court has a hearing about a part 36 offer what will be important
the trial judge should not hear the application
422
Can a part 36 offer be withdrawn within the relevant period
yes by service a notice of withdrawal
423
Can a part 36 offer be paid in installments
no must be paid within 14 days of acceptance
424
Will accepting a part 36 offer bring the proceedings to an end
yes
425
What costs do D pay if
a) offer is accepted before the relevant period
b) after expiry of relevant period
a) D pays C's costs up to the date of acceptance on the standard basis
b) parties can agree on liability for costs between themselves
or by the court if cannot agree and then D pays up until the expiry date and then C pays Ds costs thereafter if accepted after
???
426
If the trial is in progress is permission needed to accept a part 36 offer
yes
427
Ordinary settlements are merely contracts which mean what
to enforce the settlement the IP needs to commence further proceedings so it is best to apply for a Consent Order
428
Why does having a court order assist at the end of civil proceedings mean
IP can apply to the court to enforce the order
429
What are the main three court orders than can be made following a non part 36 offer
Stay of Proceedings
Consent Orders
Tomlin Order
430
When a case is settled what happens to costs
they are generally agreed by the parties
431
What is a Consent Order
A binding order of agreed terms between parties
432
Is a Consent Order Confidential
No it is open to the public to inspect
433
Is a Tomlin Order Confidential
Yes it is an separate schedule
434
A defendant to a civil claim has discussed with their solicitor the process of making an offer of settlement. The solicitor has advised making a Part 36 offer. The defendant is keen for any offer to have an expiry date of 28 days, to apply time pressure to the claimant. How should the defendant proceed?
A Part 36 offer can include a date by which it automatically expires. However, this makes it less effective because, upon expiry (as with a withdrawal), it will lose the CPR Part 36 consequences if the case goes to trial and the defendant beats the offer.
Better approach would be to make a Part 36 offer without an expiry date and, at the same time, make a without prejudice save as to costs offer, with a fixed figure for costs and an expiry date for acceptance of 28 days.
435
The parties to a civil dispute have been exchanging settlement offers and counteroffers. The latest offer from the defendant was headed “Without prejudice save as to costs and subject to contract”. It was a counteroffer to the claimant’s last offer. The defendant’s previous offer was headed “Without prejudice save as to costs”. The claimant wants to bring the case to an end as soon as possible and now would be willing to accept either of the defendant’s offers. What does the claimant need to do to bring the claim to an end?
Since the defendant’s latest offer was “subject to contract”, the claimant cannot just accept the offer to make the settlement binding. The parties will need to agree full terms of a settlement agreement before the settlement is binding.
In accordance with normal contractual principles, the claimant’s last offer was an implicit rejection of the defendant’s penultimate offer. Therefore, that earlier offer from the defendant is no longer open for acceptance.
Note: A counteroffer would not extinguish a Part 36 offer. They do not follow standard contractual principles – they have their own self-contained procedural code in CPR Part 36.
436
A company has just served a claim on a supplier concerning a shipment of allegedly defective goods. The supplier believes they have a defence but they are keen to settle the dispute for commercial reasons. The supplier also wants the company to return six demonstration models that they claim were only ever loaned. They are also concerned that, if the claim is settled, the company will bring a new claim regarding other shipments, which will involve more cost. How should the supplier approach settlement?
A Part 36 offer is inappropriate because the supplier wants to settle issues that are not part of the claim. The supplier should send the company a without prejudice save as to costs letter, setting out their proposed settlement terms, to include the return of the demonstration models and a full and final settlement of all claims and possible claims between the parties. It would be sensible to include a deadline for acceptance.
If the supplier wants to wait until they know the parties are agreed in principle, before finalising the wording for all binding terms of settlement, the offer should be marked “subject to contract”.
If a settlement is reached, the parties should agree a Tomlin order, with the terms of settlement in a confidential schedule.
437
A claimant in civil proceedings wishes to make an offer of settlement. They are keen to have a face-to-face negotiation with their opponent and then offer them an “all in” figure for settlement (inclusive of costs). The claimant’s solicitor has advised that a Part 36 offer should be made, to apply pressure by increasing the risk for the defendant in not settling the case before trial. How can the Part 36 offer be made whilst also following the claimant’s plan?
The Part 36 offer cannot include a specific figure for costs. It will have a settlement figure regarding the substantive claim and the liability for costs will follow the CPR Part 36 rules.
The Part 36 offer will not prevent other offers being made at the same time or subsequently. It will remain open for acceptance until it is formally withdrawn.
When the claimant is ready to make their “all in” offer, that should be made by way of a without prejudice save as to costs (Calderbank) offer.
438
A company has brought a claim against a former director for breach of duty and obtained a freezing order over the director’s assets, pending trial. Following disclosure, the claimant has been told by their solicitor that the prospects of success at trial are now very poor. The claimant wishes to bring the claim to an end.
What steps can the claimant take to bring the claim to an end?
C should first try negotiate a settlement with the D either on a “drop hands” basis or by agreeing to pay a proportion of the defendant’s costs.
If defendant is unwilling to negotiate, the claimant can discontinue their claim. There is a freezing order in place, so permission from the court will be needed. Once permission is granted, the claimant should file and serve a notice of discontinuance in the usual way.
The claimant will be liable to pay the defendant’s costs, subject to those costs being assessed.
439
A defendant in a civil claim has made a Part 36 offer in relation to part of the claim. The claimant is unsure of the precise scope of the offer – that is, exactly what parts of the claim would be settled if the offer was accepted. What should the claimant do to obtain clarity on the terms of the offer?
The claimant should write to the defendant within 7 days of the Part 36 offer to request that the offer be clarified.
If the defendant does not respond within 7 days of the request, the claimant can apply to the court for an order that the defendant provides the clarification sought.
440
Civil Appeals will the entire case be reheard
No unless the court considers it would be in the IOJ to do so
441
Will new evidence be allowed to heard in the appeal of a civil case
very rare and only allowed if the court orders it. Parties usually confined o the points raised in the original trial
442
An appeal will only be allowed on two occasions
* considered wrong due to an error or fact or law, or
* unjust due to a SERIOUS procedural irregularity
443
Is there an automatic right to appeal in a civil case
No Permission to appeal must be sought
444
What two ways can permission to appeal a civil case be sought
* an oral application to the lower court at the hearing when the decision was made
* a paper application to the appeal court, contained within the appellant’s notice
If the lower court refuses permission to appeal, that does not prevent an application to the appeal court
445
How long does an appellate have to appeal against a civil case
21 days and served on the other party within 7 days after
446
Permission to appeal will normally be dealt with how?
by paper without a hearing.
447
Where a paper application to appeal has been refused in the CC or HC only. What can the applicant do?
Request they reconsider a oral hearing within 7 days
448
Permission to appeal is granted at the court’s discretion. The test for permission is that the appeal court considers that either
* the appeal would have a real prospect of success, or
* there is some other compelling reason for the appeal to be heard (for example, there is an important point of law that should be clarified by a higher court).
449
The appeal court may make any of the following decisions on an appeal (
* affirm, set aside or vary any order or judgment by the lower court
* refer any claim or issue for determination by the lower court
* order a new trial or hearing
* make orders for the payment of interest, and
* make a costs order.
450
Can a second appeal be heard in civil cases
yes
451
Permission to appeal to the COA will only be granted if:-
* the appeal would:
o have a real prospect of success, and
o raise an important point of principle or practice, or
* there is some other compelling reason for the higher court to hear it
452
Pending payment of a money judgment, interest accrues at what percent
8% per annum from the date judgment is given.
453
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 how?
including their accounts, income, assets and other debts. Investigations can be undertaken through searches of publicly available information (for example, Companies House, the Register of Judgments, Orders and Fines, the Insolvency Register, Registry of Bankruptcy Petitions, Attachment of Earnings Index and Land Charges Registry or the services of a private investigator could be utilised.
454
An order to request a person to attend court to give evidence of their mean requires what?
The order must be served personally on the person ordered to attend court
not less than 14 days before the hearing:
Within 7 days of service, the party ordered to attend can ask for a reasonable sum from the judgment creditor to cover travelling expenses to and from the court
If anyone served with an order to attend court does not comply, it is a contempt of court and they may be ordered to pay a fine or have an order for committal made against them
455
What is a Taking Control Order
An order enabling the Debtors goods be seized and sold at auction
456
Writ v Warrant
* If the debt is greater than £5,000, an application to the High Court for permission to issue a writ of control is needed.
* If the debt is £600–£5,000, an application to either the High Court or the county court is needed.
* If the debt is less than £600, an application to the county court for a warrant of control is needed.
457
An application for permission to issue the writ or warrant is it usually made with notice or without notice and how long is the order valid for
Without notice.
It must be accompanied by evidence demonstrating that, if the order is not made, it is likely that the debtor’s goods will be moved or disposed of to avoid enforcement against them. If the court grants such permission, it is valid for one year
458
A writ or warrant may not be executed on
a Sunday, Good Friday or Christmas Day
459
How long does a debtor have to pay after notice of enforcement to seized goods has been made
7 Clear days
460
Third Party Debt Order
the court can order the third party to pay some or all of the money they owe directly to the judgment creditor
461
To apply for a third party debt order requires a two stage step what is it
Interim Order
Final Order
462
Where a judgment creditor wishes to enforce an English and Welsh judgment in Scotland or Northern Ireland what do they need to do
they apply for a certificate of judgment from the court where the judgment was given within 6 months of the date of issue of the certificate
463
How long should a D respond to a letter before claim
Within a reasonable time and no more than 3 months even in complex cases.
464
What should a letter before claim seek to achieve?
A genuine attempt to avoid proceedings
465
What four things should a letter before claim include?
Basis of Claim
Summary of the relevant facts
Remedy C is seeking
Disclosure of key documents
466
Which documents will the solicitor have to identify for disclosure in civil cases?
- The documents on which the client relies.
- The documents which:
a. adversely affect the client’s case
b. adversely affect another party’s case, or
c. support another party’s case.
- Documents required to be disclosed under a relevant practice direction.
467
What are the potential disclosure orders the court might make? (6)
- No disclosure
- Reliance documents only
- Issue-based disclosure
- Standard disclosure
- Train of enquiry disclosure
- Any other order the court considers appropriate.
468
Can a Claimant discontinue all or part of their claim at any stage?
Yes but there are cost consequences
469
Where a party seeks to not pursue one of a number of remedies in their claim is this classed as discontinuance?
No which means not cost consequences
470
Does discontinuance require consent of any parties? any exceptions
No
* court granted an interim injunction
* any party has given an undertaking to the court
* the claimant has received an interim payment from the defendant, or
* there is more than one claimant.
471
without prejudice "save as to costs" is also known as what
Calderbank offers
472
what must a w/o prejudice save as to costs offer be to be allow it to be inadmissible
a genuine attempt to settle
473
Calderbank offers are more flexible why?
because they do not need the specific criteria of a Part 36
474
Can a Part 36 offer be for a full/part offer to settle
yes
475
What do Part 36 offers not follow?
the usual contract rules
476
What are the 4 main formalities to be a part 36 offer
Be in Writing
Clearly marked Part 36
At least 21 days
If relate to Whole/Part of claim
477
Part 36 offers when a C and D is liable for the costs of the other side?
If the claimant is making a Pt 36 offer, it will be an offer to accept a lesser sum than claimed, plus costs up to the date of acceptance.
If the defendant is making the offer, they will be agreeing to pay a sum, plus the claimant’s costs (to be assessed) up to the end of the relevant period.
After the relevant period, the offeree will become liable for the offeror’s costs if the offeror beats the offer at trial
478
What happens if a Pt 36 offer is made less than 21 days before the trial
it will not have the automatic CPR Pt 36 costs consequences, at the discretion of the court
479
When a Part 36 offer is not time limited when does it expire
it doesnt it remain open until withdrawn
480
if clarification is sought about a Part 36 offer how many days should the clarification be sought
7 days if no response within a further 7 days can request an order from the court
481
Before a Part 36s relevant period has expired what can the offeror do?
* amend the offer to make it more advantageous to the offeree this will restart the relevant period:
* withdraw their offer by serving a notice of withdrawal
* amend the offer to make it less advantageous to the offeree by serving a notice
Both the second and third means that it will only take affect after the relevant period has expired THEREFORE IT CAN BE ACCEPTED BEFORE WITHDRAWAL
482
Where a Part 36 offer is accepted what does it also include will be paid?
Liability for the Claimants costs which could be an unknown figure
483
If a part 36 offer is withdrawn does the cost consequences still apply
No
484
What is an order for dismissal following a part 36 claim
it means a C cannot bring proceedings on the same issue again
485
If a settlement is recorded in a consent order what does that mean?
The innocent party is able to simply apply to the court to enforce payment is not made rather than commence further proceedings
486
What is an order to stay the proceedings after a part 36 offer
suspends the case until the settlement terms are complied with
487
What is a Consent Order?
a binding order in terms agreed between the parties, signed by their respective legal representatives and filed with the court for approval
