full deck Flashcards

Question

when are assessed costs needed?

Answer 1

only when the parties are unable to agree the amount of costs one should pay to the other.

Answer 2

1. summary assessment 2. detailed assessment

Answer 3

the court determines the amount payable by way of costs **immediately at the end of a hearing**. The parties must prepare statements of costs, preferably on the **N260**, and file and serve them on each party **not less than 24h** before the hearing. The court will review these (broad brush). The court will hear the parties’ short submissions in relation to them. The court will then make a decision as to how much should be paid. **Unless there is good reason not to do so, the court should use the summary assessment procedure**: * In **fast track** cases at the end of the trial. In this situation, the costs of the whole case will be assessed; and * At the end of a hearing of an **interim application or matter which has not lasted more than a day**. In this case, usually only the costs of the interim application will be assessed.

Answer 4

(a) The court, on deciding that one party should pay the other party’s costs, orders that they be subject to detailed assessment (if not agreed). At that point, the court makes no attempt to set a figure on them. (b) To commence the detailed assessment proceedings, the receiving party serves a **notice of commencement** and a **copy of its bill of costs** (a more detailed statement of costs than used in summary assessment) on the paying party. (c) Points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party **within 21 days of service of the notice of commencement**. (d) If the parties cannot reach agreement, the receiving party should then file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.

Answer 5

a more detailed statement of costs than used in summary assessment

Answer 6

1. Costs in any event (and summary assessment of costs) 2. Costs in the case 3. Costs reserved 4. Claimant or defendant’s costs in the case 5. Costs thrown away 6. Costs of and caused by 7. Costs here and below 8. No order for costs / no order was made

Answer 7

The party in whose favour this order is made is awarded its costs of the interim hearing from the other party regardless of who eventually wins at trial.

Answer 8

The party who eventually gets its costs at trial (usually the winner) will recover its costs of the interim hearing from the other party ie usually the party that wins at trial will recover the costs of this application.

Answer 9

The decision about who pays the costs of the interim hearing is put off to a later occasion. If no decision is later made then the costs will be in the case (see above).

Answer 10

CHECK THIS!! In the case of the claimant’s costs in the case, if the claimant is successful and receives an order that it should be entitled to its costs at the end of trial, it can include the costs of the interim application. If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of the interim application. In the case of the defendant’s costs in the case, the same principles apply but in reverse.

Answer 11

If a judgment or order is set aside, the party in whose favour this costs order is made is entitled to the costs incurred as a result of the judgment or order being set aside. This potentially includes the hearing (including preparation and attendance) at which the original order is made, as well as the hearing at which the order is set aside. The rationale is that the judgment or order should never have been made so **the party at fault should be punished by having to pay the costs of it being made and set aside**.

Answer 12

A party must pay the costs resulting from something that party has done; for example costs incurred by the defendant resulting from a claimant amending its particulars of claim.

Answer 13

The party in whose favour the costs order is made is **entitled not only to that party’s costs in respect of the proceedings in which the court makes the order, but also to that party’s costs of the proceedings in any lower court**. ** BUT** In the case of an appeal from a Divisional Court the party is not entitled to any costs incurred in any court below the Divisional Court.

Answer 14

Each party will bear its own costs

Answer 15

- costs in any event - costs in the case - costs reserved

Answer 16

including but not limited to: (a) **Limitation period is about to expire**, in which case it may be necessary to issue proceedings (the crucial act that must be completed before the limitation date) before there is time to comply with the pre-action requirements. *In those circumstances, the parties must comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed.* (b) **urgent proceedings or for the element of surprise** (e.g., search orders)

Answer 17

it is unlikely that sanctions will be imposed for minor infringements

Answer 18

between 14 days and 3 months

Answer 19

the claimant must bring the claim within 3 years of the latest of: (a) the date when the cause of action accrued; or (b) the date of knowledge of the person injured.

Answer 20

Date of knowledge means knowing: (a) That the injury was significant; (b) That it was attributable (at least in part) to the alleged wrongdoing; (c) The identity of the defendant; **and** (d) *If it is alleged that the wrongdoing was by someone other than the defendant*, the identity of that person and the additional facts supporting bringing the claim against the defendant.

Answer 21

the facts regardless of whether the claimant does or does not realise that, given those facts, they have a claim in negligence

Answer 22

knowledge which the claimant might reasonably have been expected to acquire from an expert / facts observable / ascertainable by them.

Answer 23

(a) The claim cannot be brought if the person injured (the employee in our example) could no longer bring a claim. *In most cases, you will need to apply the personal injury rules to ascertain this, from the injured person’s perspective.* (b) The claim cannot be brought after 3 years from the later of: (i) Date of death; (ii) The date of knowledge of the dependent.

Answer 24

people who were depending on that employee (perhaps the employee’s children) can claim compensation from the employer.

Answer 25

- **PI** claims or **FAA** claims - if it would be **equitable** (balance prejudice to claimant and defendant) looking at: - the conduct of the parties; - the reasons for the delay; and - the effect of such a late claim on the evidence.

Answer 26

**2 years from the date on which the right to recover the contribution arose**: (a) The date when the judgment was given **imposing liability on the first party**; (b) In cases where the first party agreed to make the payment (rather than having a judgment imposed on them), the date on which the **amount to be paid was first agreed**.

Answer 27

PI and FAA claims

Answer 28

damage or a Product defect that exists as at the Delivery Date but is not discoverable by a reasonable inspection e.g., problems with the foundations of building work of a house

Answer 29

negligence (excluding PI) - the later of: (a) Six years from when the cause of action accrued; or (b) Three years from when he had the requisite: (i) knowledge; and (ii) right to bring a claim. (s14A) and subject to a **long stop of 15 years from the date of the latest negligent act or omission which caused all or part of the damage**

Answer 30

it is same as for PI cases, but rather than needing to know that ‘the injury was significant’, the claimant needs to know **‘the material facts about the damage in respect of which damages are claimed’**

Answer 31

**six years** from when the judgment **became enforceable**

Answer 32

**6 years** from the date the **cause of action accrued**

Answer 33

(a) 2 years in relation to contribution claims; (b) 3 years in relation to personal injury or fatal accident claims; and (c) 6 years in most other cases.

Answer 34

- minor (under 18); or - lacks mental capacity in line with the MCA 2005

Answer 35

limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).

Answer 36

two or more people who: - were partners; and - carried on the partnership business **at the time the cause of action** accrued

Answer 37

other than for an LLP: - full name of the partnership (e.g., Flagstones (a firm)) and/or - full unabbreviated names of partners e.g., (1) John Flagstone (2) Nisha Katon. - must be the name **at the time the cause of action accrued**

Answer 38

commonly both the individual and trading name e.g., John Flagstone (trading as John’s Café)

Answer 39

full registered name of the LLP e.g., Flagstones LLP

Answer 40

the full registered name, including the suffix (such as plc or limited) e.g., Rockstone Limited

Answer 41

by an employee if: * The employee has been authorised to do so by the company and * The court gives permission

Answer 42

- by or against trustees, executors or administrators. - not necessary to add the beneficiaries of the trust or estate as parties to the claim

Answer 43

yes, unless the court orders otherwise

Answer 44

the court may order: * The claim to proceed in the absence of a person representing the estate of the deceased; or * A person to be appointed to represent the estate of the deceased.

Answer 45

* If a **grant of probate or administration** has been made, the claim must be brought **against the PRs**. * If a grant of probate or administration **has not** been made: - the claim must be brought against **‘the estate of’** the deceased; and - the claimant **must apply for a court order appointing a person to represent the estate** of the deceased in the claim.

Answer 46

- children (under 18) - protected parties

Answer 47

Any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005. This means that by reason of impairment or disturbance of the brain or mind, the party is unable to make the decision in question at the time it needs to be made (CPR 21.2(1)).

Answer 48

whoever asserts incapacity

Answer 49

* Can the person recognise the problem they encounter? * Can the person explain with sufficient clarity the problem to those from whom they seek appropriate advice? * Can the person understand and evaluate the advice received from an appropriate source? * Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction? **legal advisors must satisfy themselves that the party has the requisite capacity to bring or defend proceedings. Quite often this may involve an assessment and report by the party’s GP. If there are legitimate concerns that a client does not have legal capacity to deal with the case, advice may have to be sought from a psychologist or psychiatrist. The court may also require the personal evidence of the solicitor or family and friends.**

Answer 50

litigation friend

Answer 51

* Can **fairly and competently conduct proceedings on behalf** of the child or protected party. * Have **no adverse interest** to that of the child or protected party; and * Where the child or protected party is a **claimant**, **undertakes to pay any costs** which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.

Answer 52

often a relative or court-appointed person

Answer 53

by filing and serving of a **certificate of suitability** demonstrating that the litigation friend satisfies the three above criteria either: - at the time the claim is made (C or PP is claimant) or - when the child takes the first step in the proceedings (if the C or PP is defendant).

Answer 54

a specific procedure must be followed (CPR 21.6).

Answer 55

the Court of Protection

Answer 56

permit the child to conduct proceedings without a litigation friend

Answer 57

- Any document due to be served on a child or a protected party must be served on the litigation friend. - Children and protected parties should be referred to in the title to proceedings on documents like so: *Alice Brown (a child, suing by Kate Brown her mother and litigation friend)* - A protected party is also referred to in the claim form as being represented by his/her litigation friend, like so: *Adam Black (a protected party by Clara Dunn his litigation friend)*

Answer 58

its financial worth

Answer 59

- interest - costs - any counterclaim - any contributory negligence; and - any deduction of social security benefits.

Answer 60

that the claimant expects to recover **more than £100,000**

Answer 61

yes. the court may transfer cases between the High Court and the County Court

Answer 62

1. The court may transfer the case and order the **claimant to pay the costs of transfer**. 2. If the matter continues in the High Court, there is a separate sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be **deducted by up to 25%**, but this is at the **court’s discretion** (*section 51 SCA*).

Answer 63

the claimant’s solicitors must **take** or **send** the following to court: 1. Copies of the claim form (**Form N1**) to be issued and sealed: - One copy of the completed claim form to be kept on the **court file**; - One copy for **every defendant**; and - One copy for the **claimant to keep** on its own file. 2. Court issue fee (varies depending on value of claim - check amount online).

Answer 64

1. it stops time running for limitation purposes 2. starts the clock for the time in which the claim form must be served (within 4 months / 6 months of issue)

Answer 65

- entering a date of issue on the claim form, - giving the case a claim number; and - sealing (stamping with the court seal) all copies of the claim form.

Answer 66

the County Court Money Claims Centre

Answer 67

- send the claim form (Form N1) to the County Court Money Claims Centre; and - pay the appropriate issue fee

Answer 68

at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee.

Answer 69

- value of up to £100,000 - against no more than 2 defendants.

Answer 70

it will be transferred to the appropriate local county court hearing centre

Answer 71

In addition to the County Court Money Claims Centre (and Money Claim Online), users who are going to issue many claims (eg utility companies) can become registered users at the Northampton County Court Business Centre, which provides a particular service for such ‘bulk users’.

Answer 72

may be served either: (a) by the court; or (b) by the claimant / claimant’s solicitor.

Answer 73

- service will usually be by first class post. - will send the claimant a **notice of issue** stating the deemed date of service. - If the court is unable to serve CF, claimant will be sent a **notice of non-service**. Is then up to the claimant to try to serve CF on the defendant.

Answer 74

- notify the court when issuing the claim form that they do not wish the court to serve it - court will give or send the claimant / claimant’s solicitor the issued claim form with sealed copies for service on the defendant(s). - the claimant effects service - the claimant’s solicitor must then file a certificate of service at court **within 21 days of service**, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used. **It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.**

Answer 75

It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.

Answer 76

* Personally on the defendant * Leaving the document at a permitted address * First class post * Document exchange (DX) * Fax * Other electronic method (eg email) * Any other method authorised by the court

Answer 77

an appropriate person - senior employee (CHECK THIS)

Answer 78

depositing the claim form at a permitted address (whether or not there is someone present to receive it)

Answer 79

posting the document to a permitted address using: - first class post, or - using ‘DX’ which provides for delivery on the next business day

Answer 80

only if the defendant / its solicitor has indicated that it will accept service by fax or email/other e-method

Answer 81

personal service the defendant can be personally served wherever they are found within the jurisdiction

Answer 82

If the defendant gives in writing a solicitor’s address in the jurisdiction for service, or their solicitor does the same, service must be to the solicitor’s address

Answer 83

an address at which the defendant resides or carries on business within the UK; and which the defendant has given for the purpose of being served with the proceedings

Answer 84

- **individual**: usual or last residence - **individual being sued in the name of a business**: usual or last known residence of the individual; or principal or last known place of business - **individual being sued in the business name of a partnership**: - **Limited liability partnership / company registered in E&W**: Principal office of the partnership / company; or any place of business of the partnership/ company within the jurisdiction which has a real connection with the claim.

Answer 85

the 'relevant step' must be completed before **midnight on the calendar day 4 months** after the date of issue of the claim form

Answer 86

- **personal service / leaving the doc at a relevant place**: *leaving* the CF with the defendant - **first class post**: *posting* the CF - **DX**: *leaving* it with DX - **e-method**: *sending* the email/other method

Answer 87

yes, provided it is: - **within** the 4 month period - good reasons for extension - court failed to serve the CF; or - claimant took all reasonable steps to comply; and - either way, the application has been made promptly **Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension**

Answer 88

it will need to issue again, then serve

Answer 89

* form for admission; * form for defending; and * form for acknowledging service.

Answer 90

1. contained within the claim form; 2. served in a separate document, but still with the claim form; or 3. following the claim form

Answer 91

if particulars are: - contained in claim form; or - served separately but with the claim form

Answer 92

must be served within: - 14 days of service of the claim form, **and** - within 4 months of issue

Answer 93

when the particulars are served

Answer 94

**when**: within 7 days of service, unless already filed **by who**: claimant

Answer 95

**2BD** after the **relevant step**

Answer 96

any day except: - Saturdays, - Sundays, - bank holidays, - Good Friday or - Christmas day

Answer 97

**Instant methods** (personal service, fax, email, delivering/leaving at a permitted address. If done **before 4.30pm on a business day**: * deemed served the same day. * Otherwise: deemed served the next business day **Not-instant methods (Post / DX)** * Deemed served **second day after posting / giving** to DX provider, if a business day. * Otherwise: deemed served the next business day

Answer 98

* File or serve an admission (CPR 14) * File a defence (CPR 15) * File or serve an admission and file a defence, if it admits only part of the claim * file an acknowledgment of service (CPR 10). This is the step to be taken if the defendant is unable to file a defence within the period initially allowed, or if it wishes to dispute the court’s jurisdiction (CPR 10.1).

Answer 99

* D is unable to file the defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim in which to serve a defence; or * if it wishes to dispute that the court has jurisdiction to hear the claim.

Answer 100

* if **particulars are to follow** the claim form, **14 days after service of the particulars** of claim; and * in any other case, **14 days after service of the claim form**

Answer 101

no, it is optional (but may be different in specialist courts)

Answer 102

- defendant confirms their name is correct on the claim form - gives their address for service - does D intend to defend all or part of the claim? - does D intend to contest jurisdiction of the court?

Answer 103

within 14 days of the deemed date of service of the particulars of claim

Answer 104

- the court will notify the claimant in writing that this has been done (CPR 10.4), and - the defendant’s solicitors will often notify the claimant / claimant’s solicitors directly as well.

Answer 105

- disputing the court’s jurisdiction - where, before the defence is filed, the claimant applies for summary judgment

Answer 106

where the court makes an order for service of a claim form on an agent of a principal who is overseas

Answer 107

56 days *14 days standard + 14 days after AoS + up to 28 days agreed between C + D*

Answer 108

court must be **notified in writing** (but no application to court is required).

Answer 109

if a claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the defendant will need to apply to the court for an order allowing an extension of time (**does this apply vice versa too?**)

Answer 110

* When the court receives this type of defence, it sends a notice to the claimant which, in effect, asks the claimant whether the defence is correct. * The claimant must respond **within 28 days** and the claim is **stayed if they do not** do so. * Whatever their response, the claimant must serve a copy of it on the defendant. * If the claimant does not wish to continue that is the end of the case. * If the claimant does wish to continue (because they do not agree that the debt has been paid or because, for example, they still wish to recover interest and costs) the claim will proceed as a defended claim.

Answer 111

claim is for a specified amount

Answer 112

claim for an unspecified amount, non-money or return of goods

Answer 113

- the court; or - the claimant if admitting a specified claim in full

Answer 114

within 14 days of deemed service of the particulars of claim

Answer 115

the judgment amount is known, so the amount due can be calculated immediately: - debt - court fees - interest - fixed costs

Answer 116

judgment can be given in part: - admitted part of debt - interest on admitted part of debt defence must be filed for the disputed part of debt

Answer 117

- admit liability to pay the **whole claim for an unspecified amount** (CPR 14.6); or - admit liability and **offer a sum** in satisfaction of the claim (CPR 14.7).

Answer 118

- liability = resolved - quantum (money) = TBC in subsequent hearing and judgment - interest = TBC in subsequent hearing and judgment

Answer 119

following a request being made by the claimant, the court will enter judgment for an amount to be decided later by the court and costs Except where one of the parties is a child or protected party

Answer 120

- pay by a certain date - pay in instalments available on both Form N9A and N9C, where D can provide personal financial info, and reasons for the request

Answer 121

the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant

Answer 122

claimant is, either completely or to some extent, the successful party

Answer 123

- avoids the possibility of enforcement proceedings, and - most money judgments are placed on a **public**, searchable register (the Register of Judgments, Orders and Fines) for **6 years**, which could impact credit rating

Answer 124

- settlement e.g., Tomlin Order - claimant agrees to withdraw claim

Answer 125

specified claim has been admitted and paid in full (with interest, court fee and costs) within the 14 day period for responding to the claim

Answer 126

* the amount of the claim / debt including interest to the date of issue of the claim; * interest since the date of issue (using the daily rate from the particulars of claim); * court fees (ie issue fee as shown on the claim form); **and** * fixed costs, the amount of which are set out in the rules (CPR 45) – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering judgment.

Answer 127

liability only the matter will be listed for a **subsequent hearing** where evidence will be heard on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.

Answer 128

1. claimant completes a request for judgment and reply to admission form within 14 days of receiving notice of the admission. On this form they will indicate the judgment amount, including interest, court fees and fixed costs, as well as the amount of any payments made by the defendant. 2. On receipt of the request for judgment, the court staff will enter judgment and send this to the parties. 3. Once judgment is entered following the admission and the amount payable has been determined, the claim is effectively concluded. 4. Unless otherwise agreed or stated on it, the judgment is payable by the defendant **within 14 days** (CPR 40.11). Enforcement proceedings can be taken against the defendant to secure payment of any sums outstanding after this time.

Answer 129

1. day on which a period begins is never counted 2. if the end of a period is defined by reference to an event (hearing, trial), the day of the event is not included 3. where the period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count 4. where a deadline relates to doing any act at the court office (such as filing a document at court), and (applying the 3 rules above) the deadline that act ends on a day the court office is closed, the act is **treated as 'on time' if done on the next day** the court office is open.

Answer 130

an application for judgment to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits (CPR 12.1)

Answer 131

* claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974 * Part 8 claims * any other claims where a practice direction provides that the claimant may not obtain default judgment.

Answer 132

1. At the date on which judgment is entered, **time has expired for filing an acknowledgment of service** (and the defendant has not filed either an acknowledgment of service or a defence) or **time has expired for filing a defence** (where the defendant has filed an acknowledgment of service but not a defence). 2. The claim has not been **admitted** or **satisfied** by the defendant. 3. No application for **summary judgment** or **strike out** has been made has been made by D.

Answer 133

the deletion of written material from the whole or part of the claim or defence, as it does not amount to a legally recognisable claim or defence.

Answer 134

strike out looks at the merits of the case; default judgment is the consequence of the defendant failing to respond on time, and is purely procedural.

Answer 135

cases which are weak on the facts / merits will be decided without trial, if one or other party has: - **no real prospect of succeeding** on or successfully defending the claim or issue; and - there is **no other compelling reason** why the claim or issue **should proceed** to a trial.

Answer 136

claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.

Answer 137

the claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.

Answer 138

Non-money applications for default judgment (together with a small number of other claims, which are beyond the scope of this section) cannot be decided on paper. Instead the claimant must apply for a default judgment hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate

Answer 139

A default judgement on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment (CPR 12.7) provided: * The particulars of claim include details of the interest (as required by CPR 16.4); * Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; **and** * The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment. In any other case, the amount of interest will be decided by the court.

Answer 140

A claimant may obtain a default judgment against one or two or more defendants and proceed with the claim against the other defendants **if the claim can be dealt with separately from the claim against the other defendants** (CPR 12.9). Sometimes the claim cannot be dealt with separately (eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which). The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with separately. So the court will deal with the application for default judgment against one defendant at the same time as it disposes of the claim against the other defendants – quite possibly at trial.

Answer 141

- if judgment was wrongly entered (**must** be set aside) - if judgment was correctly entered (**may** be set aside)

Answer 142

The time limit for acknowledging service or serving a defence has not, in fact, expired when judgment was entered; or * An acknowledgment of service or defence had, in fact, been filed on time; or * Summary judgment or strike out had been applied for before judgment was entered; or * The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay. and *how promptly the defendant made its application to set the judgment aside*

Answer 143

* The **defendant** has a **real prospect of successfully defending** the claim; **or** * It appears to the court that there is **some other good reason** why judgment **should be set aside or varied** or defendant should be allowed to defend and *how promptly the defendant made its application to set the judgment aside*

Answer 144

- the claimant lulled the defendant into believing a claim was not forthcoming, - the claimant failed to serve a response pack, or - the claim raises issues which should be given a full and fair hearing in the public interest.

Answer 145

by applying for **relief from sanctions**

Answer 146

yes eg that the defendant pays the claimant’s costs of the hearing.

Answer 147

a statement of truth If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases

Answer 148

I believe that the facts stated in this claim form 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.

Answer 149

The defendant believes that the facts stated in this defence are true. I am duly authorised by the defendant to sign this statement.... ….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.

Answer 150

the claimant

Answer 151

- ‘The claimant expects to recover less than £10,000’ - ‘…between £10,000 - £25,000’ - ‘…more than £25,000’ (this information is used to provisionally allocate a claim to a track); OR - ‘I cannot say how much I expect to recover’.

Answer 152

the claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,000.

Answer 153

a special ‘jurisdictional endorsement’: * state that the claimant expects to recover more than £100,000; * state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment; * if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or * state that the claim is to be in one of the specialist High Court lists and state which list.

Answer 154

the claimant’s address for service

Answer 155

* The particulars of claim should set out any claim for aggravated damages, exemplary damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4). * In personal injury claims, the particulars should include the claimant’s date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4). * A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises (16 PD 7.1). * Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated) (16 PD 7.3). * Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where (16 PD 7.4). * Where the claim is based on an agreement by conduct, the particulars should set out the conduct relied on and state by whom, when and where the acts were done (16 PD 7.5). * There are detailed rules on the inclusion of information in relation to past convictions, fraud illegality, unsoundness of mind (16 PD 8). * Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.

Answer 156

* set out **in a contract** between the parties or, failing that, * there is a **statutory right to interest** (under section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court).

Answer 157

* Calculating **exactly** the amount of interest claimed; or * Claiming (‘pleading’) the interest **generally**.

Answer 158

only in relation to a specified claim (ie a debt or a specified/liquidated damages claim).

Answer 159

* the applicable percentage rate, * the dates from/to which interest is being claimed, * the total amount claimed up to the issue of the claim form, **and** * the daily rate of interest thereafter.

Answer 160

for an unspecified claim (the court must decide the amount, because the parties cannot agree) Certain types (or ‘heads’) of damage will naturally fall into this category, eg: * loss of goodwill or damage to reputation (which can usually only be estimated), * loss of future earnings or profits, and * any damages where remoteness, foreseeability and/or mitigation is an issue.

Answer 161

For such ‘hybrid’ claims, you have a choice: 1. treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim. 2. the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim.

Answer 162

* Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this section. * In personal injury claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion. * In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.

Answer 163

At all material times the Claimant was a professional equities investor and the Defendant was a firm of solicitors.

Answer 164

By a contract dated 24 October [year], the Claimant and the Defendant agreed that the Claimant would sell to the Defendant computers for the price of £200,000.

Answer 165

In breach of the express term of the contract referred to in paragraph 4 above, the Defendant did not pay.

Answer 166

As a result of the breach referred to in paragraph 5 above, the Claimant has suffered loss.

Answer 167

The Claimant claims the sum of £200,000.

Answer 168

a summary of the remedies sought by the claimant - the **‘prayer’**

Answer 169

AND THE CLAIMANT CLAIMS: (a) damages under paragraph 13 above; and (b) interest under paragraph 14 above.

Answer 170

the name of the firm of solicitors or barrister drafting the particulars of claim and the statement of truth

Answer 171

must attach the written agreement

Answer 172

must set out words spoken, by whom, to whom, when and where

Answer 173

must include claimant’s date of birth, injuries, schedule of past and future expenses / losses and any medical expert report

Answer 174

- admit; - deny; or - require proof

Answer 175

must give reasons or if it wishes to put forward a different version of events, it must state its version in the defence

Answer 176

the claimant will have to prove the allegation

Answer 177

if the defendant **does not have any knowledge of the fact** alleged

Answer 178

* If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it (CPR 16.5(3) and (5)). * In a money claim, however, it will always be understood that the **amount claimed is not admitted unless the defendant specifically admits it** (CPR 16.5(4)). It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.

Answer 179

[UPDATE LATER]

Answer 180

‘I don’t owe you X, because you owe me X, and the two cancel each other out’.

Answer 181

an optional statement of case

Answer 182

- served by the claimant - factual allegations which answer ‘new’ points raised in the defence

Answer 183

with the directions questionnaire (DQ)

Answer 184

at least 14 days’ notice (unless specialist proceedings e.g., Commercial Court claims)

Answer 185

permission of the court

Answer 186

usually at the same time as the defendant files its defence

Answer 187

permission of the court

Answer 188

yes. it is usually more convenient to deal with the main claim and counterclaim together rather than separately, as long as the parties are suing/being sued in the same capacities as in the main claim

Answer 189

it can order that the counterclaim be **struck out** or **heard separately**

Answer 190

- with the defence (‘Defence and Counterclaim’) - court fee is payable

Answer 191

The facts that give rise to a counterclaim may also amount to a **partial or complete defence** in the main claim

Answer 192

extinguishing any claim up to the same amount

Answer 193

- **S.53(1) Sale of Goods Act 1979**: Where the seller sues for the price of goods sold and delivered, the buyer can set off a claim for breach of implied terms as to quality and fitness for purpose. - **Defective services**: Where a claim is made for the price of services, the defendant can set off a claim for damages for poor services. - **Equitable set-off**: This has been developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim.

Answer 194

applies to: debts does not apply to: damages

Answer 195

the **defence** part of the Defence and Counterclaim (not the counterclaim part)

Answer 196

Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant’s claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether.

Answer 197

none. a claimant does not have to do this.

Answer 198

must be served within 14 days after service of the counterclaim

Answer 199

a judgment in default might be entered by the defendant

Answer 200

the ‘Reply and Defence to Counterclaim’ normally form one document with the defence to counterclaim following on from the reply

Answer 201

permission of the court

Answer 202

- A counterclaim by a defendant against the claimant. - A counterclaim by a defendant against the claimant and some other person. - An additional claim by a defendant against any person (already a party to theproceedings) claiming a contribution or an indemnity. An additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity. - An additional claim by a defendant against any person (not already a party to the proceedings) claiming a contribution or an indemnity or some other remedy. - An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20.

Answer 203

no. a claim by the original claimant cannot fall into any of the categories above, even if the claimant is adding a further claim to its existing claim

Answer 204

right of someone to recover from a third person **all or part** of the amount which he himself is liable to pay

Answer 205

right of someone to recover from a third person the whole amount which he himself is liable to pay.’

Answer 206

permission required

Answer 207

Examples include: * The defendant’s loss in the additional claim arises solely out of anything the defendant is ordered to pay to the claimant in the main claim. * There will frequently be related matters of evidence and fact which, once decided in the main claim, resolve the point in the additional claim as well.

Answer 208

- counterclaims against a person other than claimant -

Answer 209

- classic counterclaim - claims for a contribution or indemnity from an existing party - other additional claims

Answer 210

the ‘normal’ interim application procedure: - The **Application Notice** will be accompanied by a **draft order** and **evidence** in support which will include details of the stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party

Answer 211

'particulars of counterclaim'

Answer 212

serve the appropriate notice (???) If done in circumstances when the court’s permission is not required, the notice is filed and served with the defence. If the court’s permission is required, the court will give directions as to when the notice should be served.

Answer 213

by issuing an N211 claim form

Answer 214

on the person against whom it is made within 14 days of it being issued

Answer 215

if he was not already a party

Answer 216

* a response pack; and * a copy of every statement of case and any other documents that the court directs. A copy of the additional claim form must also be served on every existing party

Answer 217

if there is no substantial connection between the original proceedings and the proposed additional claim

Answer 218

the court will arrange a hearing to consider case management of the additional claim

Answer 219

Notice of the hearing will be given to any party likely to be affected by any order made at it – in most cases this will be all of the parties.

Answer 220

in accordance with the order in which they are joined to the proceedings, e.g., ‘Third Party’ or ‘Fourth Party’

Answer 221

* If a party does not file a defence to a counterclaim then a defendant can apply for **default judgment as usual** (CPR 12.3(2)(b)). * If an existing party does not reply to a notice of contribution or indemnity, it is **not possible to apply for a default judgment**. * Where an additional claim form (N211) is served on a person **not already a party**, it should be accompanied by an acknowledgment of service and a response pack. If a party fails to reply to a Form N211 in the appropriate way/within the specified time limits then it will **generally be deemed to admit the claim** and will be **bound by the judgment or decision given at trial of the main claim** (to the extent that it is relevant to any matter arising in the additional claim) (CPR 20.11(2)). It is **not possible to apply for default judgment in such claims**, other than in exceptional circumstances

Answer 222

the party applying for the **amendment** / **substitution or addition** of a party

Answer 223

at any time **before it is served** but this is subject to the court's power to disallow such amendments

Answer 224

at any time but this is subject to the court's power to disallow such amendments

Answer 225

‘Amended [particulars of claim/defence (or as may be)] under CPR [rule 17.1(1) or 17.1 (2)(a)] dated …’

Answer 226

When a statement of case has been served and the written consent of all the parties **has not been given**

Answer 227

- party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case - application can be dealt with at a hearing OR (where all parties consent) without a hearing on written submissions

Answer 228

usually give directions as to any consequential amendments and the service of any amended statements of case

Answer 229

usually within 14 days of the date of the order granting amendment, unless the court orders otherwise

Answer 230

‘Amended [particulars of claim/defence (or as may be)] by order of [Mr Justice…] dated …’

Answer 231

If the substance of the statement of case is changed by reason of the amendment

Answer 232

no specific guidance however, parties are expected to be cooperative in litigation so, once the necessity to amend has become apparent, a party should tell their opponents about the proposed amendment so as to enable them to consider whether to oppose or consent to it

Answer 233

if it is clear that the proposed amendment has no prospect, for example: - version of the facts which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. - raising by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention. required statement of truth verifying such an amendment could not properly be given.

Answer 234

- can potentially cause unfairness in that it might put the parties on an unequal footing; - add an excessive burden to the respondent’s task of preparing for trial; - could put the trial date at risk, which is **always** something that the court will wish to avoid

Answer 235

In this case the Trial Judge had allowed the claimants in a professional negligence action to reamend their particulars of claim on the first day of trial. The Court of Appeal said that the judge had misdirected himself and set out the following principles: (a) The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence. (b) A heavy onus lies on the party seeking a late amendment to justify it, not only as regards its own position, but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage. (c) The party seeking the late amendment must satisfy the full requirements of preparing a proper pleading. In other words, the party cannot say that deficiencies can be rectified by way of further information or evidence in due course.

Answer 236

the amendment is ‘desirable’

Answer 237

- enabling parties to be heard if their rights may be affected by a decision in the case - the overriding objective (adding parties adds to time/cost/complexity)

Answer 238

- the new claimant's consent - the court (**unless the claim form has not been served**)

Answer 239

they can instead be added as a defendant

Answer 240

that the amending party must pay the costs of and arising from the amendment

Answer 241

such amendments will not be allowed

Answer 242

These include when an original set off or counterclaim is raised by an amendment and where otherwise provided in the Limitation Act and by the rules of the court. The relevant situations to consider are: * Amendments in relation to personal injury claims (s.33 Limitation Act 1980) * Amendments generally (CPR 17.4) * Amendments which add or substitute a party (CPR 19.5)

Answer 243

yes, but only in the following circumstances: * When the **court directs that the limitation period will not apply in a personal injury action** (s.33 Limitation Act 1980). This provision gives the court a general discretion to disapply that time limit if satisfied that it is equitable to do so. For example, the cause or significance of personal injuries or disease caused by someone’s negligence might not be apparent within the standard 3 year limitation period for personal injury claims and this could be a reason for the court to exercise its discretion under this provision in order to do justice. If an action on some other basis was already underway, it could be amended under this provision to add this new claim after the limitation period had expired. * The new cause of action is an **original set-off or counterclaim** (s.35(3) Limitation Act 1980). * The new cause of action arises out of the **same facts or substantially the same facts as are already in issue** in the original claim (s.35(5)(a) Limitation Act 1980.

Answer 244

the new claim arises out of the same facts (or substantially the same facts) as a claim in respect of which the party seeking permission to amend has already claimed a remedy

Answer 245

the applicant

Answer 246

An amendment adding a new duty or obligation on the part of a defendant (or possibly even a claimant) will usually raise a new cause of action so this will be a new claim. An amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged, will not normally be interpreted as raising a new cause of action.

Answer 247

yes, for example the below, but **must meet certain criteria**. * correcting a mistake as to the name of a party (CPR 17.4(3)) * changing the capacity of a party (CPR 17.4(4)) * changing the identity of a defendant (CPR 19.5)

Answer 248

* the limitation period was **current when the proceedings were actually started**; and * the addition or substitution is **‘necessary’** (CPR 19.5(2). **'necessary'** means: (a) the new party is to be substituted for one that was named in the claim form in **mistake** for the new party; or (b) the claim cannot properly be carried on/by/against the original party **unless the new party is added or substituted**; or (c) the original party has **died** or had a **bankruptcy** order made against him and his **interest or liability has passed** to the new party.

Answer 249

amendments post limitation in relation to the name of the party might be allowed but those relating to someone with an entirely new identity will not be allowed. Has the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’? (*The Sardinia Sulcis [1991]*)

Answer 250

* There is no need for the amended statement of case to show the original text, unless the court orders otherwise (17 PD 2.2). * Amendments are to be shown by either: (i) using coloured amendments; or (ii) by using a numerical code (17 PD 2.2). * If colour coding is used, the order of colour for successive amendments is (1) red (2) green (3) violet and (4) yellow. * The amended statement of case should contain the appropriate endorsement (see 17 PD 2.1) and be verified by a statement of truth (CPR 22.1(2)). * Finally, once an amended statement of case has been served, there will often be knock on amendments to the existing statements of case so eg if the particulars of claim are amended, the defendant will likely need to amend their defence as a consequence.

Answer 251

* To obtain admissions (although this is rare) * To obtain information which may reveal weaknesses in the other party’s case * To obtain information about facts which the other party needs to prove to make good their case * To acquire advance details of what a witness may say before exchange of witness statements. * To obtain clarification of the other party’s case (a common and useful function as it limits the other party’s ability to depart from it later) * To narrow the issues between the parties to save time and costs

Answer 252

- seek information from the other party on a voluntary basis first ------serves a written request ------stating a date for response ------allowing the other party a reasonable amount of time to respond ------confined to matters which are **reasonably necessary and proportionate** - only make an application to the court if the request cannot be resolved

Answer 253

- must be written, dated and signed by the party or its legal representative and include a statement of truth - response must be sent to the other party - and filed at court

Answer 254

- must inform the party who made the request - giving reasons for the objection - within the timeframe set out in the request *e.g., If the request can only be complied with at disproportionate expense, the reasons why must be explained, for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged.*

Answer 255

- can order a party to clarify any matter which is in dispute in the proceedings - give additional information in relation to any such matter whether or not the matter is contained or referred to in a statement of case

Answer 256

- the other party has not responded or - has responded with an objection to provide the information

Answer 257

- interim application - If, the other party has not responded after 14 days have passed, the application can be made without notice to the opponent and the court can deal with the application without a hearing. - If a court makes an order for further information, the party against whom the order made must file its response and serve its response on the other parties within the time specified by the court, verified by a statement of truth. - The court can direct that further information given by a party to another party either voluntarily or pursuant to an order is not be to used for any purpose other than the current proceedings

Answer 258

for example: * extending the time period for taking a particular step in the proceedings (like filing a defence) * applying to amend a statement of case * requiring the other party to provide further information * requesting specific disclosure of a document * seeking permission to rely on expert evidence.

Answer 259

parties should take a reasonable approach to trying to agree matters to avoid the need for an application to court

Answer 260

as soon as it becomes apparent that it is **necessary or desirable** to make an application

Answer 261

- at the same time as the case management conference; or - if closer to trial, at the pre-trial review.

Answer 262

they must **'bunch'** their applications: get their apps dealt with in a single hearing wherever possible

Answer 263

party making the application: applicant the other party: respondent

Answer 264

- file Form N244 - court fee payable to issue the application notice - made to the court in which the main claim is presently being dealt with or, in the case of pre-action applications, is likely to be dealt with - evidence (*advisable, even if not required by the CPR*) - draft order (*setting out the terms sought*) The applicant takes or sends to the court the application notice, evidence and draft order. The court issues the application and provides a notice indicating the date and time that the application will be heard by the court.

Answer 265

(a) Who is making the application (b) What order the applicant wants (c) Why the applicant is asking for that order (d) What information the applicant relies on in support of the application.

Answer 266

* In the application notice itself (Part C, in which case the statement of truth must also be completed (23A PD 9.7)) * By referring to the existing statements of case * In a witness statement (or, if required, affidavit).

Answer 267

- the court may - **but in practice the applicant's solicitor serves it**

Answer 268

- service as soon as practicable but no less than **3 clear days** before the hearing - respondent files and serves evidence **ASAP** - applicant files and serves evidence **ASAP**

Answer 269

by hearing

Answer 270

if the hearing is expected to last no more than on hour

Answer 271

exceptionally (rarely)

Answer 272

* The **parties have agreed the terms** of the order (in which case they should send in a **‘consent order’** – a order in the agreed form, signed on behalf of each party); * The **parties agree** there should be no hearing; or * The court does **not consider a hearing appropriate**.

Answer 273

the court will make its decision and the order will be drawn up, sealed and served by the court

Answer 274

only if: (a) there is exceptional urgency (for example, a remedy is needed immediately); (b) the overriding objective is best furthered by doing so; (c) all parties consent; (d) the court gives permission; (e) a court order, rule or practice direction permits; or (f) a date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. **In this case, the party should still inform the other party and the court (if possible in writing) as soon as possible** of the nature of the application and the reason for it.

Answer 275

(a) The application must explain why no notice is given; (b) The applicant must draw to the court’s attention **arguments and evidence in support of the (absent) respondent’s** position. (c) The applicant must **serve the respondent as soon as possible after** the hearing, whether or not the court has granted the relief sought. The documents the applicant must serve on the respondent are: - The application notice - The evidence in support - The order (d) The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any application to **set aside must by made within 7 days of the order being served** on the other party (CPR 23.10).

Answer 276

A claimant may wish to ask for an interim payment to assist it financially in the interim period prior to settlement/trial, for example, in a personal injury claim. Any payment would be made on account of damages.

Answer 277

only claimant

Answer 278

* The defendant has **admitted liability to pay damages** (or some other sum of money) to the claimant. * The **claimant has obtained judgment against that defendant for damages to be assessed** (or for a sum of money **other than costs**) to be assessed. * It is satisfied that, **if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant** from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.

Answer 279

* The reasons for believing that the conditions for making an interim payment are satisfied; * The sum of money for which final judgment is likely to be given; * The sum of money sought by way of an interim payment; * The items or matters in respect of which the interim payment is sought; * Any other relevant matters; * In claims for personal injuries, details of special damages and past and future loss; and * In claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.

Answer 280

no: - A claimant seeking an interim payment would make a request for a voluntary payment from the defendant first - If the defendant does not agree, for example if it is defending the claim, the claimant would make an application to the court for an interim payment

Answer 281

at any stage in the proceedings, including pre-action, **but not before the end of the period for the defendant filing an acknowledgment of service**

Answer 282

more than one (does this mean unlimited?)

Answer 283

The court must not make an interim payment of **more than a reasonable proportion of the likely amount of the final judgment**, taking into account any contributory negligence, set-off or counterclaim – (CPR 25.7). It may order payment in instalments.

Answer 284

* service of N244, supporting evidence, draft order and notice of hearing date **at least 14 days before the hearing** * respondent files at court and serves on the application evidence **at least 7 days before the hearing** * applicant files at court and serves on the respondent evidence in reply **at least 3 days before the hearing** * both parties file and exchange **statements of costs** not less than **24h before the hearing**

Answer 285

* By a defendant against a claimant (which is the usual case) * By a claimant against a defendant in respect of a counterclaim * By a third party against a defendant in respect of an additional claim (CPR 20)

Answer 286

(a) Having regard to all the circumstances of the case, it is **just** to make and order; **AND** (b) One or more of the **prescribed condition**s in the rules are satisfied

Answer 287

* Claimant is **resident out of the jurisdiction(( (but is **not** resident in a State bound by the 2005 **Hague Convention**) (*‘Claimant resident out of the jurisdiction’*) * Claimant is a **company** and there is reason to believe it will be **unable to pay the defendant’s costs if ordered** to do so (*‘Impecunious claimant company’ condition*) * Claimant has taken steps in relation to its assets that would make **enforcement of a costs order against it difficult** (*‘Claimant moving assets’ condition*) * Claimant has **changed address** since claim was commenced with a view to **evading the consequences** of the litigation (CPR 25.13(2)(d)). * Claimant **failed to give an address** in the claim form (CPR 25.13(2)(e)). * Claimant is acting as a nominal claimant and there is **reason to believe it will be unable to pay the defendant’s costs if ordered** to do so (CPR 25.13(2)(f)).

Answer 288

* For an individual this is their habitual or normal residence. * For a company this is where the company’s central management and control is exercised and it is usually, but not necessarily, where it is incorporated.

Answer 289

not in: - E&W - UK - EU - Mexico - Singapore - Montenegro (*because there are some (albeit limited) reciprocal arrangements between these states which would ease the enforcement of a costs order*)

Answer 290

no, only companies

Answer 291

a) The company **will be unable** to pay costs - *only a reason to believe but no need to show on balance of probabilities, even if the claimant company can adduce substantial evidence to the contrary (Jirehouse Capital v Beller)*; **and** b) the amount of the likely costs.

Answer 292

not necessarily. the court must also be satisfied that **it is just** to make an order

Answer 293

can the respondent comply with any order for security for costs? ie: balancing the potential injustice to the claimant in being prevented from carrying on with the claim if it cannot pay the security against the injustice of the defendant being at risk on costs if no security is provided

Answer 294

* Ability to comply with the order; * Admission of liability by D; * Substantial open offers (those the court can be made aware of); * If D responsible for C’s financial difficulties; * Claim which appears not to be genuine; * Claim which appears to have little prospect of success. * Delay.

Answer 295

witness statement, which should cover: * The **ground** eg for the impecunious company ground, the witness statement is likely to exhibit the accounts to show the claimant is unable to pay * The **factors** in the exercise of the court’s discretion * The **likely costs to trial** eg the witness statement is likely to exhibit a statement of costs or to refer to an approved costs budget * The **amount of security** requested.

Answer 296

* The amount of the defendant’s likely costs * The security can be for the whole action or up to a point in time eg up to disclosure * The amount can cover costs incurred (including pre-action) and future costs * A deduction can be made for the likely reduction upon assessment of costs or the possibility of settling * Other factors eg delay may mean that security is not given for costs already incurred but is given for future costs.

Answer 297

* A payment into court * A payment to the defendant’s solicitor * A bank guarantee * An undertaking to pay costs

Answer 298

payment into court

Answer 299

- service as soon as practicable but no less than **3 clear days** before the hearing - respondent files and serves evidence **ASAP** - applicant files and serves evidence **ASAP**

Answer 300

- Prohibitory injunction - mandatory injunction - quia timet injunctions

Answer 301

**Requires the respondent to refrain from doing an act** eg An employer has brought a claim against an employee for breaching a confidentiality clause in an employment contract. The employer obtains an interim prohibitory injunction preventing specified uses of information pending trial.

Answer 302

**Requires the respondent to do a specific act** eg In a claim alleging that a supplier of computer software failed to deliver up software at the end of the parties’ relationship, the claimant obtains an interim mandatory injunction requiring the software to be delivered up pending trial.

Answer 303

**Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed** eg In a claim alleging that the threatened closure of a bank account would be a breach of statutory duty, the customer obtains an interim mandatory injunction requiring the bank to keep the account open

Answer 304

where it is **just and convenient**

Answer 305

1. Is there a serious question to be tried? 2. Would damages be an adequate remedy for a party injured by the court's grant of (respondent) or failure to grant (applicant) an injunction? 3. Where does the balance of convenience lie?

Answer 306

equitable and discretionary

Answer 307

The court must be satisfied that this is not: - “frivolous or vexatious”; and - that “there is a serious question to be tried”.

Answer 308

the injunction will **generally** be refused (and the court will not go on to consider steps 2 and 3).

Answer 309

the court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has no means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.

Answer 310

if an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial – but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.

Answer 311

if it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain **whether granting or not granting the injunction carries the lesser risk of injustice** ie to ascertain where the ‘balance of convenience’ lies.

Answer 312

- An injunction will not be obtained when it would serve **no practical purpose**; - The court might refuse to grant an injunction if the applicant has **not come to court with ‘clean hands’** - **Excessive delay** may lead to a refusal of the application.

Answer 313

there is no automatic right to an injunction just because all the ‘guidelines’ have been met

Answer 314

yes, but the evidence must state the reason why notice has not been given

Answer 315

**1. undertakings**: - A court will often decide to grant an interim injunction only if the applicant offers an crossundertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction - for example, if proceedings are discontinued, or the injunction is discharged before trial, or if it is decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do. - The cross-undertaking is made to the court. - It is there for the protection of the respondent, but the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order. **2. without notice safeguards** - If the application is made **without notice** and the injunction is granted, it will be granted initially for a **limited period only** - at a second hearing (**return date**), the respondent may make representations. - at the return date, the court can order the following: * Maintain order (to keep the injunction in place until the trial of the substantive matter). * Discharge the injunction vary the terms of the injunction. * Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted. * Accept an undertaking by the respondent not to do the acts in question, in place of the injunction.

Answer 316

yes the applicant must make **full and frank disclosure** of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.

Answer 317

yes, but only if the matter is: * Urgent; or * It is otherwise desirable to do so in the interests of justice. AND the applicant must undertake to the court to **issue a claim form immediately**.

Answer 318

Enables the court to dispose of **claims** or **issues** without the need for a full trial

Answer 319

allows the court to deal with weak cases or issues proportionately and expeditiously

Answer 320

the **claimant** has no real prospect of succeeding on the claim or issue OR the **defendant** has no real prospect of succeeding on the claim or issue AND there is **no other compelling reason** why the case or issue should be disposed of at trial.

Answer 321

fanciful, imaginary or false

Answer 322

just **some chance of success**, even if it is improbable

Answer 323

**more than merely arguable**

Answer 324

(non-exhaustive list) * Defendant needs more time to investigate * Expert evidence is required * Multi-party litigation * Scrutiny of key documents is required * Defendant has a right to trial by jury eg fraud

Answer 325

usually a witness statement * Identify concisely any point of law or provision in a document on which the applicant relies; **and** * State the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim / issue should be disposed of at trial.

Answer 326

- The claimant can apply for summary judgment **after the defendant has filed an acknowledgment of service or defence** (or earlier with the court’s permission) - The defendant can apply **any time after proceedings have commenced**. - The court can fix a hearing of its own initiative

Answer 327

either before or at the same time as filing the DQ to avoid incurring unnecessary costs. If the application is made on filing DQ, the court will delay allocating the matter to a track until after the summary judgment hearing. If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will **not normally be considered before the defence has been filed** or time for doing so has expired

Answer 328

it stays the proceedings, meaning that: * If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)). * If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.

Answer 329

- service at least **14 days** before the hearing - respondent files and serves evidence at least **7 days** before the hearing - applicant files and serves evidence at least **3 days** before the hearing

Answer 330

The application notice must: * Include a statement that it is an application for summary judgment under Part 24; and * Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least **7 days before the summary judgment hearing**

Answer 331

1. Dismissal of the application 2. Dismissal of the claim 3. Judgment on the claim 4. Conditional order

Answer 332

The application fails. The issues must continue to trial. The court will give directions to take the claim forward.

Answer 333

If the defendant applies for summary judgment and succeeds, the claim is dismissed. The defendant has ‘won’.

Answer 334

If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant: the claimant has ‘won’.

Answer 335

The judge has decided that the respondent may succeed but it is improbable that it will do so: the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court, such as paying a sum of money into court.

Answer 336

if they bear a reasonable relationship to: * The sums in issue in proceedings; * The value of any non-monetary relief in issue in proceedings; * The complexity of the litigation; * Any additional work generated by the conduct of the paying party; and * Any wider factors in the proceedings, such as reputation or public importance.

Answer 337

- on its own initiative - on the application of a party

Answer 338

- ASAP; and - preferably before allocation

Answer 339

- requiring the party at fault to amend its statement of case; or - *if the ground for striking out is failure to comply with previous orders made by the court*, imposing a sanction such as an adverse costs order.

Answer 340

1. the SoC discloses no reasonable ground for bringing or defending the claim; 2. the SoC is an abuse of the court process or otherwise likely to obstruct the just disposal of proceedings; 3. there has been a failure to comply with a rule, practice direction or court order (*abuse in not in the SoC itself, but in the way the claim or defence has been conducted*)

Answer 341

make an order imposing a lesser sanction for non-compliance

Answer 342

1. defence is filed 2. court sends out the **notice of proposed allocation**, *provisionally* allocating to small claims/fast track/multi-track 3. parties file DQs 4. if the claim has been provisionally allocated to the **fast track or multi-track**, the parties also file **proposed directions** 5. the court will allocate the claim to a track (after a hearing, if necessary) and serve a **notice of allocation** *if allocated to small claims or fast track*: the court will usually give directions *if allocated to multi-track*: the court will give directions OR fix a CMC where directions will be considered

Answer 343

- a court officer will provisionally decide the track and serve a **notice of proposed allocation** - parties will need to serve a **DQ** - (if on fast track or multi-track): file **proposed directions**; AND - (for claims under costs mgmt regime): file and serve a **costs budget** and an **agreed budget discussion report**

Answer 344

Form N180 for small claims track cases Form N181 for fast track and multi-track cases

Answer 345

the claim is stayed for a month

Answer 346

the court can stay the claim if it considers it appropriate

Answer 347

the case will be referred to a judge for allocation and directions.

Answer 348

- consumer disputes - personal injury cases where damages for pain, suffering and loss of amenity are less than £1,500 (although there are different limits for personal injuries arising from road traffic accidents) - to disputes about enforcement of parking charges and holiday claims.

Answer 349

other than very limited fixed costs (and court fees and witness expenses), there is very limited costs recovery

Answer 350

(a) Parties to file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing (this in place of more detailed directions for disclosure, witness and expert evidence that you might expect on other tracks); (b) Original documents to be brought to the hearing; (c) Notice of the hearing date (at least 21 days’ notice will usually be given) and time allowed for the hearing (CPR 27.4(2)); and (d) That the court must be informed if, by agreement between the parties, the case settles.

Answer 351

on the basis of the DQ, but occasionally can hold a hearing

Answer 352

Disclosure - **within 4 weeks of notice of allocation** Exchange of witness statements - **within 10** weeks Exchange of experts’ reports (with associated directions for questions etc) - **within 14** weeks Filing pre-trial checklists at court - **within 22** weeks Trial date/period fixed or trial itself - **within 30** weeks

Answer 353

- no disclosure - standard disclosure, or - disclosure of particular documents *proportionate to the value/complexity of the claim.*

Answer 354

County Court

Answer 355

fixed costs

Answer 356

At a CMC, the court is likely to consider: (a) Whether the claim is clear; (b) Whether any statements of case need to be amended; (c) What disclosure is required, if any; (d) What expert evidence is required, and how and when it should be obtained; (e) What factual evidence (eg witness statements) should be provided for; (f) Whether any further information is required; and (g) Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Answer 357

- Any legal representative attending a CMC must be familiar with the case and have sufficient authority to deal with any issues likely to arise (like discussing directions / identifying issues). - Court can also **order the client** to attend

Answer 358

If such a representative does not attend and the CMC is postponed as a consequence, it is likely to result in a wasted costs order (a costs order payable by the solicitor as opposed to by the client).

Answer 359

- **budget** filed and exchanged not less than than **21 days** before first CMC - **disclosure report** filed and exchanged not less than **14 days** before first CMC - **agreed or draft directions** and **budget discussion report** (and possibly **EDQ**) filed and exchanged not less than **7 days** before first CMC

Answer 360

try to agree directions before any CMC

Answer 361

with the Disclosure Report, even where it has already been exchanged

Answer 362

case summary of not more than 500w, prepared by the claimant and if possible agreed with the other parties, containing: (a) A chronology of the claim; (b) Factual issues agreed and in dispute; and (c) The nature of the evidence needed to decide them.

Answer 363

* Small claims. * Fast track claims. * Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more. * Claims commenced on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more. * Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18. * Claims that are the subject of fixed costs or scale costs. Note, however, that the court can disapply the costs management regime even when it would normally apply automatically (for example, where a claimant has as a limited or severely impaired life expectation of 5 years or less remaining – 3E PD 1), or require compliance with the regime even when it would not normally apply.

Answer 364

An estimate of the **reasonable** and **proportionate** costs (including **disbursements**) which a party intends to incur in the proceedings

Answer 365

with the DQs

Answer 366

21 days before the first CMC

Answer 367

budgets: - parties prepare budgets: estimates of future costs - filed and exchanged, usually 21 days before the CMC - subsequently discussed by the parties budget discussion reports: - record the extent to which the parties have agreed budgets - filed and exchanged, usually 7 days before the first CMC case / costs mgmt conference: - budgets and budget discussion reports are considered by the court directions order and / costs mgmt order: - directions are determined in light of estimated costs - court might make a costs mgmt order: a provisional indication of what should be considered reasonable and proportionate costs in any later assessment proceedings

Answer 368

Precedent H

Answer 369

a party will only recover budgeted costs unless there is good reason

Answer 370

costs incurred **before** the costs budget is produced ie budgeting is all about **future costs**

Answer 371

Precedent R

Answer 372

(a) The figures which are agreed and not agreed for each phase of the litigation; and (b) A brief summary of the grounds of dispute. *to focus on the parts of the costs budget where there is disagreement*

Answer 373

at any time

Answer 374

(a) Record the extent to which the costs budgets are agreed between the parties. **Agreed figures cannot be changed by the court**. (b) Where the figures are not agreed, “record the court’s approval of a costs budget, after making appropriate revisions”.

Answer 375

a party’s last approved or agreed costs budget

Answer 376

unless satisfied that there is good reason to do so departure = allowing costs in excess of those in the approved costs budget or CMO to be recovered

Answer 377

If there is a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in a budget filed by that party, the receiving party must provide a statement of the reasons for the difference with the bill of costs, and the court may reduce the recoverable sum if the paying party reasonably relied on the budget.

Answer 378

If **significant developments** in the litigation warrant a revision to a party’s budget (upwards or downwards) **this is not (generally) for correcting inadequacies or mistakes!**

Answer 379

(a) An amended budget should be submitted to the other parties for agreement if possible (using a form prescribed specifically for variations – ‘Precedent T’, annexed to 3E PD); **and** (b) The amended budget then needs to be submitted to court for consideration.

Answer 380

automatically treated as having filed a costs budget comprising of **only the applicable court fees** unless the court otherwise orders

Answer 381

* **Interest** (eg reducing the interest payable to the claimant as a sanction imposed on the claimant) * **Costs** (eg ordering the defendant to pay costs on the indemnity rather than standard basis, as a sanction imposed on the defendant) * **Striking out a statement of case**

Answer 382

* Immediately; or * Make an unless order

Answer 383

an automatic sanction in the event of non-compliance with the order. the order must specify the date and time in which to comply. *‘unless the defendant serves its list of documents at or before [time and date] its defence will be struck out and judgment entered for the claimant’*

Answer 384

automatic sanctions

Answer 385

- where **failure to disclose an expert report** prevents a party from using that report at trial - where **failure to file a costs budget** will be treated as only filing a costs budget of applicable fees

Answer 386

timings may be varied by the written agreement of the parties, **unless a rule, practice direction or the court orders otherwise**

Answer 387

e.g., the rules prevent the parties from agreeing to vary the date for a CMC and most other types of hearing

Answer 388

parties can agree an extension of time by prior written agreement (ie before the deadline is reached) for **a maximum of 28 days provided that this does not put at risk any hearing** date. unless the court orders otherwise.

Answer 389

the party applies for and obtains relief from that sanction

Answer 390

* For litigation to be conducted **efficiently and at proportionate cost**. * To enforce **compliance with rules, practice directions and orders**. * + evidence!

Answer 391

(a) Identify and assess the **seriousness and significance of the failure to comply** with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is **neither serious nor significant, then relief should be granted**. (b) If the breach is serious or significant, consider **why the default occurred**. (c) Having considered the reason for the default, the court should then evaluate **all the circumstances of the case** to ensure that the court deals with the matter justly, but with **particular weight to the fact that litigation must be conducted efficiently and at proportionate cost** and the court must **enforce compliance with rules, practice directions and orders**.

Answer 392

when the deadline has passed - **out of time** applications

Answer 393

file for an **an extension of time**, and this applies even if the court actually deals with the application after the expiry of the relevant period. this is **different to applying for relief from sanctions**

Answer 394

- where the parties exchange documents relevant to the dispute - the 1st exchange of docs (then witnesses of fact, then sometimes expert evidence)

Answer 395

Stating [to another party] that a document exists or has existed

Answer 396

[the party to whom a document has been disclosed] looking at a document

Answer 397

right to request a copy

Answer 398

- no automatic obligation - obligation comes from a court order

Answer 399

allocation or at a CMC

Answer 400

party can also apply for an order for disclosure at a later stage in the proceedings

Answer 401

- Directions given on allocation - The usual order is that **at least 14 days** before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing

Answer 402

- court usually gives directions on allocation - usually **standard disclosure**

Answer 403

a search for relevant documents and also an obligation to disclose documents which are adverse to the disclosing party’s case costly and time consuming

Answer 404

(a) complete a disclosure report to be filed and served **not less than 14 days before the first CMC** (CPR 31.5(3)). (b) **not less than 7 days before the first CMC**, consider the issues in the case and enter into discussions to **seek to agree a draft disclosure order** which they will then ask the court to make. The proposal should meet the overriding objective to conduct litigation at **justly and at proportionate cost** and to **limit to necessary disclosure only** At the CMC (in any case), the court will consider carefully what form of disclosure order is most appropriate.

Answer 405

N263 and N264

Answer 406

(a) what relevant documents exist, or may exist; (b) Where, and with whom, they are; (c) How any electronic documents are stored; (d) Estimate the broad range of costs that could be involved in giving standard disclosure in the case; (e) States which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought (CPR 31.5(7) and (8)). + EDQ if necessary

Answer 407

none. the court can make any order in relation to disclosure that it thinks is appropriate.

Answer 408

Business and Property courts (part of the High Court)

Answer 409

(a) They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or (b) The party has never had the original or no longer has the original in its control.

Answer 410

Any duty of disclosure continues until proceedings are concluded, including: - those that come within its control; or - those that were created after the date it originally gave disclosure

Answer 411

may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose eg in other proceedings

Answer 412

(a) The document has been read to or referred to by the court at a hearing held in public (‘read’ includes pre-read and referred to in skeleton arguments); (b) The court gives permission; or (c) The party who disclosed the document and the person to whom the document belongs agree. The court can be asked to make an order restricting or prohibiting the use of a document read or referred to at a public hearing.

Answer 413

a party must disclosure **only*: 1. documents on which the **disclosing party relies**; 2. docs which **adversely affect his own** case; 3. docs which **adversely affect another** party's case; 4. docs which **support another party's** case; 4. docs which he is required to disclose by a **relevant practice direction**

Answer 414

3 questions to ask: 1. is it a document? 2. is or was it in the party's control? 3. does it fall within standard disclosure?

Answer 415

anything that records information

Answer 416

- the doc **is (or was) in the physical possession** of the party; or - the party **has (or has had) a right to possession** of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or - the party **has (or has had) a right to inspect or take copies** of the document (eg a party has a right to inspect their own medical records).

Answer 417

documents which are or were in the disclosing party’s control

Answer 418

1. the numbers of docs involved 2. the nature and complexity of the proceedings 3. how difficult/expensive it is to retrieve any doc 4. the significant of any doc likely to be found + overriding objective (*proportionality*)

Answer 419

each party makes a list of the required documents and serving it on the other party (**Disclosure List** plus disclosure statement)

Answer 420

(a) ’I have control of the documents numbered and listed here. I **do not object to you inspecting them/producing copies.**’ (b) ’I have control of the documents numbered and listed here, but I **object to you inspecting them [due to privilege]**.’ (*can be described generically e.g., "correspondence fr the purpose of legal advice"*) (c) ’I have had the documents numbered and listed below, but they are **no longer in my control**.’

Answer 421

it can apply to court challenging the alleged privilege

Answer 422

(a) sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date); (b) certifies the party understands its duty to disclose the documents; and (c) certifies that, to the best of the party’s knowledge, it has carried out that duty. + signed

Answer 423

- by an appropriate officer - who must identify him/herself - and state why they are the appropriate person to make the statement

Answer 424

‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure

Answer 425

yes, but **only if the court gives permission**

Answer 426

if a person makes, or causes to be made, a false disclosure statement, without an honest belief in its truth

Answer 427

(a) The document is no longer in the disclosing party’s control (CPR 31.3(1)(a)); (b) Allowing inspection would be disproportionate (CPR 31.3(2); or (c) The disclosing party has a right or duty to withhold inspection, ie it is privileged

Answer 428

must state this in its disclosure statement

Answer 429

A document need not be produced if there is a **right** or **duty** to withhold inspection

Answer 430

- legal advice - litigation - without prejudice

Answer 431

- redaction - waiver - once privileged, always privileged - burden of proof

Answer 432

- no CPR rules/guidelines on redaction - clients sometimes wish to redact parts of docs that will be inspected

Answer 433

most often because they contain information which is confidential and commercially sensitive.

Answer 434

1. if there is a **clear and distinct part of a document which does attract privilege, but the remainder does not**, then the privileged part can and indeed should be redacted, to avoid waiving privilege 2. if the **confidential/commercially sensitive info is totally irrelevant** to the dispute

Answer 435

An accountant receives a letter of complaint from a customer. He telephones his solicitor to take advice in relation to the complaint, and makes a note of the advice on the letter from the customer. As you will come to understand later in this chapter when reading about different types of privilege, the letter as a whole is not privileged and inspection of it would be permitted, but the note of advice from the solicitor would be privileged. That note should be redacted at the time of inspection.

Answer 436

There is a dispute between a law firm and a recruiter about the terms of the contract between them. The recruiter is obliged to disclose and allow inspection of the correspondence it sent to the law firm. That correspondence also includes the addresses and personal details of work-seekers. That is sensitive information, and it is entirely irrelevant to the dispute. It can be redacted from the documents at the time of inspection.

Answer 437

a party deliberately allows inspection of a privileged document if it considers that the document helps its case

Answer 438

1. waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter (parties cannot cherry-pick) 2. waiver of privilege in one document can lead to privilege being lost in other documents (if docs all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood - **e.g., waiver of the privilege attaching to a solicitor’s letter of advice may also result in privilege being lost in respect of letters from the same solicitor dealing with the same issue**)

Answer 439

documents referred to in a statement of case, a witness statement, a witness summary, an affidavit and (subject to certain restrictions – not considered in this section) an expert’s report

Answer 440

If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings (The Aegis Blaze [1986] 1 Lloyd’s Rep 203) unless something takes place to cause the privilege to be lost, such as waiver

Answer 441

the party claiming privilege to establish it.

Answer 442

- must send a written notice of its wish to do so to the other side - and the other side must allow inspection within **7 days** of receipt of the notice

Answer 443

yes, by the court

Answer 444

- ask for copies - provide an undertaking to pay reasonable photocopying charges - copies must be provided **within 7 days of receipt** of the request

Answer 445

- a confidential communication - between a lawyer and a client - prepared for the dominant purpose - of giving or receiving legal advice

Answer 446

A solicitor’s attendance note of a conversation between parties, because there is **no confidentiality in notes of matters at which both sides are present** (*Parry v Newsgroup Newspapers [1990]*)

Answer 447

advice given by lawyers through ‘legal spectacles’ will be covered by LAP

Answer 448

if a client **repeats internally legal advice provided by his lawyer**, for example to other personnel within his company, then that repetition is covered by LAP but it needs to be a **repetition of the advice**, not a **matter of his opinion**

Answer 449

yes, as long as the communication is **LEGAL** and **not in a general commercial or executive** capacity

Answer 450

- a **confidential** communication - between the lawyer and his client - or between lawyer or client, and a **third party** - where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of **litigation** - which was at the time **reasonably in prospect**

Answer 451

Following an accident on a railway, the railway faces a claim by an injured person. The railway produces a report for the dual purposes of improving safety on the railway and being submitted to the railway’s solicitors for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report was not privileged (Waugh v British Railways Board (‘BRB’) [1980] AC 521).

Answer 452

Documents produced by a company, not for specific litigation, but because it felt it was constantly under the threat of litigation by customers, were not privileged (USA v Philip Morris [2003] EWCH 3028).

Answer 453

- a document whose purpose - is a **genuine attempt to settle**

Answer 454

substance i.e., a doc marked 'WP' may not actually be WP, and vice versa.

Answer 455

WP docs will **not generally be seen** by the court unless the privilege is **expressly waived** and / or when deciding costs

Answer 456

specific disclosure and/or specific inspection

Answer 457

pre-action disclosure

Answer 458

non-party order

Answer 459

Norwich Pharmacal Orders

Answer 460

a party must do one or more of the following things: (a) Disclose documents / classes of documents specified in the order; (b) Carry out a search to the extent stated in the order; (c) Disclose any documents located as a result of that search.

Answer 461

any time after proceedings have been issued

Answer 462

after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party

Answer 463

- Opponent has not complied with its existing disclosure obligations (eg failed to comply with a direction for standard disclosure. - Applicant wants documents earlier than the current directions provide for (but after proceedings have been issued) - Applicant wants something more than the current directions provide for

Answer 464

(a) all the circumstances of the case; (b) in particular, the overriding objective (including, for example, the **proportionality and reasonableness** of making an order for specific disclosure); and (c) If the court decides that the party against whom specific disclosure is sought has **‘failed adequately to comply with the obligations imposed by an order for disclosure’**, the court **‘will usually make such order as is necessary to ensure that those obligations are properly complied with’**. So, for example, if a party can show that: (a) The court has made an order for standard disclosure; and (b) On a proper consideration of the applicable disclosure rules, the documents concerned should therefore have already been disclosed by the opponent; then the court will usually order the opponent to disclose the documents.

Answer 465

also/in the alternative: even where the respondent has complied properly with its obligations to give standard disclosure but in circumstances where the applicant satisfies the court that: (a) such disclosure is, in fact, ‘inadequate’; or (b) the case is one where something more than standard disclosure is called for - for example, disclosure of documents which may lead to a train of inquiry with the consequence of producing documents which advance the applicant’s case or damage the respondent’s case.

Answer 466

* application notice; * specify the order sought, including listing the documents sought in a schedule to the order. *The more specific the list, the more likely the application is to succeed*; and * evidence (*usually witness statement*)

Answer 467

an order that a party permit inspection of a document which has been disclosed, but the **disclosing party alleges it would be disproportionate** to allow inspection (rare, because it is uncommon for a party to disclose and then claim inspection is disproportionate. **this is different to claiming a right or duty to withhold inspection due to privilege**.)

Answer 468

The court may make an order for pre-action disclosure where: (a) The respondent is likely to be a party to subsequent proceedings; and (b) The applicant is also likely to be a party to those proceedings; and (c) If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks (*so the scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order*); and (d) Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. If **ALL** are satisfied, a court **may** (not must) order pre-action disclosure.

Answer 469

it is the same as specific disclosure: * specify the order sought, including listing the documents sought * be supported by evidence. (+ a pre-action disclosure order may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection)

Answer 470

the **applicant** for pre-action disclosure will **generally** have to pay the respondent’s (the non party's) costs

Answer 471

for example: - if the respondent did not comply with a pre-action protocol - if the respondent did not comply with a relatively modest request for pre-action disclosure it may find itself bearing the costs of the subsequent application.

Answer 472

(a) The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings (*similar to the test for standard disclosure*); and (b) Disclosure is necessary in order to dispose fairly of the claim or to save costs. in this case, non-party disclosure **may** (not must) be ordered

Answer 473

only once proceedings have actually started

Answer 474

* be made by application notice; * specify the order sought, including listing the documents sought * be supported by evidence * require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.17(4)). + must be served on **respondent** and **any other party** to the proceedings

Answer 475

the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence

Answer 476

e.g., if the non-party respondent has acted unreasonably in opposing the application and any previous request for disclosure.

Answer 477

where court proceedings cannot be commenced because the identity of the **defendant is unknown**, the court it orders the respondent, who is **not the defendant**, to disclose information allowing the claimant to sue the right defendant

Answer 478

The owner of a patent for a particular chemical learns that unknown people are importing goods in a way that infringes the patent. HMRC knows the identify of the wrongdoers. The court orders HMRC to disclose the information so that the owner of the patent can bring proceedings against the correct defendant

Answer 479

NOT application notice claim form against **Persons Unknown**, setting out its claim as best as poss against the **ultimate wrongdoer**

Answer 480

subject to any statutory exceptions and also to cases of ‘intended’ actions against a person, if the court is to make an effective order against that person, proceedings must either first be started against that person or that person must be joined into existing proceedings

Answer 481

(a) a **wrong** must have been carried out (or arguably carried out) by an **ultimate wrongdoer** (for example, a tort, breach of contract or crime); (b) there must be **the need** for an order to enable action to be brought against the ultimate wrongdoer (*so it is unlikely an order will be obtained if the information can be obtained another way*) (c) the person against whom the order is sought must (i) be **more than a mere witness / bystander** (they must have some greater involvement, but not necessarily any fault); and (ii) **be able to (or likely be able to)** provide the information necessary to enable the **ultimate wrongdoer to be sued**.

Answer 482

the successful applicant will pay the costs incurred by the respondent, including the costs of giving the disclosure. The applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings

Answer 483

stages 2 and 3 of the 3 main stages between case mgmt and trial

Answer 484

Direct evidence of **fact** by a witness of what they have **perceived with their own senses**.

Answer 485

evidence of **opinion** given by a highly skilled or knowledgeable individual whose role is to advise the court **impartially** on matters within their expertise

Answer 486

The court has the power to control the evidence by giving directions as to: * The issues on which it requires evidence * The nature of the evidence it wants * The way the evidence is to be placed before the court * Exclude evidence that would otherwise be admissible * Limit cross-examination

Answer 487

**any fact** which needs to be proved by the evidence of witnesses at trial will be by **oral evidence** (or sometimes video link)

Answer 488

a written statement signed by a person which contains the evidence which that person would be allowed to give orally

Answer 489

exchanged with the other parties

Answer 490

saves time and costs at trial and helps to facilitate settlement because the parties are able to evaluate the merits of their respective cases.

Answer 491

witness statement, meaning the witness will only be asked to **confirm the truth** of the contents of the statement in the witness box

Answer 492

- the other party’s counsel will cross-examine the witness - witness will then be reexamined by their own party

Answer 493

at the allocation and case management stage

Answer 494

- date for exchange with the other party (it is not normal to file trial witness statements at court, although this can be ordered * Limiting the issues * Identifying the witnesses whose evidence may be used * Limiting the number, length or format of witness statements * Specifying the order in which witness statements are to be served

Answer 495

- the party must **call the witness to give oral evidence** at trial; or - put in the statement as **hearsay evidence**

Answer 496

the witness may not be called to give oral evidence unless the court gives permission

Answer 497

provided any such extension does not put a hearing at risk

Answer 498

1. if an extension of time is agreed which has an effect on a subsequent key date 2. if an extension of time cannot be agreed before witness statements are due to be served

Answer 499

relief from the **sanction that the witness may not be called to give evidence**

Answer 500

it may **only be used for the proceedings in which it is served** unless: - the **witness** or the **court** has given **permission for some other** use; or - it has been put in evidence at a hearing held **in public**

Answer 501

interim applications

Answer 502

any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence **in writing**

Answer 503

the witness does not generally ‘give evidence’ in person at the interim hearing and is not cross-examined however, any party may apply for permission to cross-examine the person giving the evidence (*though this is very unusual*)

Answer 504

it must be in the witness’ own words although it will usually be drafted by a lawyer, following which the witness will amend as appropriate

Answer 505

(a) What is the argument? (b) What is the legal basis for the argument? (c) What are the facts that this witness can speak about that support the legal argument? These are what should be set out in the witness evidence.

Answer 506

opinions of witnesses are not admissible

Answer 507

- perceived facts; - expert opinion

Answer 508

**“The car was driving fast”** - is made up of smaller facts such as: - hearing the car’s engine turning over at high revolutions (it was loud and high pitched) - the car overtaking other cars - the car leaving tyre marks on the road **“Leanne was drunk”**

Answer 509

a statement of truth

Answer 510

they may be in contempt of court and face proceedings

Answer 511

an **individual** (not a company or partnership) and it must be signed by that individual

Answer 512

*"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." Signed, [The individual witness]*

Answer 513

I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment (after the information and belief paragraph) In the circumstances, I submit to the Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgment should be dismissed (before the statement of truth)

Answer 514

(with limited exceptions) These rules include: * The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement. * As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case. * The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Answer 515

- if this is required by the court or rule (eg for an application for a search order or a freezing order) - A party may also choose to give evidence by affidavit at a hearing other than trial if they wish to

Answer 516

it is a **written statement of evidence sworn before a person authorised to administer affidavits**

Answer 517

a deponent

Answer 518

1. introduction - *"state on oath"* 2. exhibit wording - *"there is now shown to me marked"* 3. ending has a **jurat** (not a statement of truth) which must: - be signed by all deponents; - completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath) - contain the full address of the person before whom the affidavit was sworn - follow immediately on from the text and not be put on a separate page

Answer 519

all evidence that is **relevant to the facts** is **admissible**, but there are special rules for: - opinion evidence - evidence which is privileged - hearsay evidence

Answer 520

hearsay is indirect evidence, either written or oral - an oral or written statement - made out of court - which is being adduced in court to prove the truth of the matter stated

Answer 521

admissible (can be used)

Answer 522

it is indirect evidence and therefore inherently less reliable than direct oral, documentary or real evidence

Answer 523

parties must give **notice of intention to rely on hearsay**

Answer 524

1. request particulars of hearsay 2. call for cross-examination 3. challenge the weight of hearsay evidence 4. attack credibility of an absent witness

Answer 525

A party who has received the notice can **‘request particulars’** of the hearsay that are **reasonable and practicable** for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.

Answer 526

Where a party adduces hearsay evidence of a statement made by a person and **does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them** on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief. This could have devastating tactical effects for the adducing party, for example, **if the witness is weak**. The application must be made **no later than 14 days after the hearsay notice was served** on the applicant.

Answer 527

It is possible to **challenge the weight the court will attach to the hearsay** evidence at trial. The factors the court will consider when assessing the weight to attach to hearsay evidence include, for example: (a) whether it would have been **reasonable and practicable** for the party who adduced the evidence to have **produced the maker of the original statement as a witness**; (b) whether the **original statement** was made **contemporaneously** to the matters stated; (c) whether the evidence involves **multiple hearsay**, etc.

Answer 528

Where a person wishes to rely on hearsay evidence but **does not propose to call the person who made the original statement to give evidence**, the party who has received notice can attack the credibility of the absent witness at trial (even though they are not present). The attack should show that the **absent witness made previous inconsistent or contradictory** statements. The receiving party must **notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served**.

Answer 529

- oral statements - statements made in documents - plans - photographs - models

Answer 530

any evidence that is: * Not contained in a witness statement or expert’s report; * Not to be given orally at trial; or * Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the section. including any plans, photographs and models

Answer 531

Proving the offence must be relevant to an issue in the proceedings (s.11 Civil Evidence Act 1968)

Answer 532

(a) he shall be taken to have **committed that offence unless the contrary is proved**; and (b) the contents of **any document which is admissible as evidence of the conviction** (and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted), shall be **admissible in evidence for the purpose of identifying the facts on which the conviction** was based.

Answer 533

a person wanting to prove the contrary will have the burden of proving that the person convicted - did not commit the offence - on a balance of probabilities.

Answer 534

scientific, technical, medical or other issues of which the judge may have no direct experience or knowledge

Answer 535

a court order

Answer 536

- CPR 35 - 35 PD - Guidance for the Instruction of Experts in Civil Claims

Answer 537

the general rule that opinion evidence is inadmissible

Answer 538

duty to **restrict** expert evidence to **that which is reasonably required to resolve the proceedings**

Answer 539

no e.g., if the issues are only factual, the court should refuse permission to use expert evidence

Answer 540

small claims track and fast track

Answer 541

- duty to restrict expert evidence; - experts – overriding duty to the court; - court’s power to direct that evidence is to be given by single joint expert; and - instructions to a single joint expert

Answer 542

- one expert per party in relation to any expert field; and - expert evidence in two expert fields

Answer 543

evidence from only one expert on a particular issue

Answer 544

in the **directions questionnaire**: (a) Provide an estimate of the costs of the proposed expert evidence; (b) Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert

Answer 545

naming an expert in the directions questionnaire - because if the court orders a named expert to be used, the party will have to go back to court to obtain permission to use a different expert - this entails a risk of having to allow the other party to see the original expert's report

Answer 546

the duty of experts to **help the court** on matters within their own expertise

Answer 547

the duties and responsibilities of the expert

Answer 548

(a) Expert evidence presented to a court should be the independent product of the expert, uninfluenced as to form or content by the pressures of litigation. (b) Independent assistance should be provided to the court by way of objective, unbiased opinion regarding matters within the expertise of the expert witness. An expert should never assume the role of the advocate. (c) An expert witness should state the facts or assumptions on which their opinion is based. Experts should not omit to consider material facts which could detract from their concluded opinion. (d) An expert witness should make it clear when a question or issue falls outside their expertise. (e) If the opinion was not properly researched because it was considered that insufficient data was available, then that has to be stated with an indication that the opinion is provisional. (f) If, after exchange of reports, an expert witness changes their mind on a material matter, the change of view should be communicated to the other party, and when appropriate to the court. (g) Photographs, plans, survey reports and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.

Answer 549

no, it can still be inspected

Answer 550

it will not require this unless it considers that the **instructions** (as summarised by the expert in the report) are **inaccurate or incomplete**

Answer 551

a party must have **reasonable grounds** without **reasonable grounds**, it cannot use this rule to **force disclosure and inspection**

Answer 552

in a written report unless the court directs otherwise

Answer 553

* Be addressed to the court, not the instructing party * Set out the expert’s qualifications * Set out details on any material relied on * Set out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report * Make it clear which of the facts stated in the report are within the expert’s own knowledge (CPR 35.10(1)-(3) and 35 PD 3) * Explain who carried out any test or experiment relied on, give the qualifications of that person and say whether this was under the expert’s supervision * If there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion * Contain a summary of the conclusions reached by the expert * If the expert is not able to give an opinion without qualification, state the qualification * Contain a statement that the expert understands their duty to the court and has complied with it, and is aware of CPR 35, 35 PD and the Guidance for the Instruction of Experts. The report should be verified by a statement of truth (35 PD 3.3):

Answer 554

*"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. 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."*

Answer 555

draft reports shared with its instructing party are generally subject to litigation privilege

Answer 556

in the final version of the expert report when it is served.

Answer 557

simultaneous exchange or sequential exchange

Answer 558

the evidence cannot be used unless the court gives permission

Answer 559

- the parties can agree to appoint one - (if the parties do not do so) the court has power to permit a single expert only - pre-action protocol also encourage single joint experts where appropriate (*less appropriate in multi-track, more so in small and fast track*)

Answer 560

transparency at all times - should be copied into all relevant correspondence - both parties could co-operate and produce a joint letter of instruction - but if each party gives separate instructions to the expert, it must send a copy to the other instructing party

Answer 561

the court can select from a list prepared by the parties or direct that the expert by selected in some other manner

Answer 562

a party can put written questions to the other party’s expert, or to the single joint expert

Answer 563

* Questions can only be put once * Questions should generally only be for the purposes of clarifying the report * Questions must be submitted to the expert **within 28 days of service of the report* * A copy of the questions must be sent to the other party * There is **no time limit within which the expert must answer questions unless ordered by the court** * Answers to the questions become part of the report * If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and or cannot recover the expert’s fees from the other party

Answer 564

Unless the court orders otherwise, the expert must: (a) provide to the party instructing the expert, a copy of any proposed request for directions **at least 7 days before filing** it at court; and (b) provide a copy to all other parties **at least 4 days before filing** it at court. The court, when it gives directions, can direct that a party also be served with a copy of the directions. To assist experts, where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert (35 PD 8). The claimant must serve the order on the single joint expert.

Answer 565

discuss the various expert issues in dispute The court can: - specify the issues which the experts must discuss; and - direct a joint statement to be produced after the meeting, setting out the issues on which the experts agree and those on which they do not - with a summary of reasons.

Answer 566

they are **not binding**, unless the parties **expressly agree to be bound** but parties should give careful consideration before refusing to be bound by such an agreement, and be able to explain their refusal should it become relevant to the issue of costs.

Answer 567

no, unless: - ordered by the court - agreed by the parties and experts

Answer 568

the party can argue that: * The agreement should not be accepted by the court * The party should adduce further expert evidence if it felt there was a good reason to suppose that the first expert has modified their opinion for reasons that cannot properly and fairly support their revised decision, and such a procedure is reasonably required to resolve the proceedings.

Answer 569

no, the discussions **should not** be referred to, **unless the parties agree**. (without prejudice)

Answer 570

if it is in the interests of justice to do so

Answer 571

- the claimant will often present all the evidence supporting its case first including, if appropriate, the oral evidence of its experts - and then the defendant does the same. However, the court can direct expert oral evidence is given in a different way: - issue-by-issue basis (each side having a turn to call witnesses / experts in relation to that issue); or - hot-tubbing (*some or all the evidence of experts from similar disciplines is given concurrently - judge will ask each expert in turn for their views on the issues on a pre-agreed agenda*)

Answer 572

1. put questions to expert 2. seek advice from another expert advisor 3. if there is not a direction for the expert to give oral evidence, seek such a direction from the court

Answer 573

(CHECK THIS) the party can still use the second expert to assist in preparing questions for cross examination

Answer 574

difficult and costly

Answer 575

yes it must seek court permission often only on the condition that the **first report be disclosed** (*to prevent 'expert shopping'*)

Answer 576

possible cost sanctions and/or loss of credibility

Answer 577

the other party can rely on the report at trial

Answer 578

settlement

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