SQE2 - DR Flashcards

Question

What is the indemnity principle?

Answer 1

The rule that a party cannot recover more than what they owe their solicitor. If reduced fee, cannot charge full fee because otherside is paying

Answer 2

Statement that disclosure inadequate Include - description of docs and extent of search sought - why reasonable and proportionate for documents to be disclosed, having regard to OO - explanation of how docs are relevent to matter in issue - grounds for believing in control and - safeguards that can be provided to ensure info not put at risk.

Answer 3

- mentioning in statement of case - client waiver - cannot pick the good bits without letting them see the rest unless it is severable and deals with different matters. - without prejudice privilege can only be waived if both agree

Answer 4

Parties should try and agree before If can’t, court decides.

Answer 5

Costs recoverable must be reasonably incurred and proportionate to value/complexity Doubt in favour of party paying. If not reasonably incurred or out of proportion, might not all be recoverable.

Answer 6

Sanction Costs must only be reasonably incurred. Not assessed for proportionality. Generally used for misconduct Doubt in favour of receiving party

Answer 7

In Multi track cases, parties file cost budgets with DQ (less than £50,000) or 21 days before CMC (if over £50,000) Aim = control and manage costs At CMC, judge will make costs management order. If exceeds this, must apply for new order. Once made, costs budget shouldn’t be exceeded. If over 20% must give reasons for why. Court expect to adhere to budget set.

Answer 8

Judge makes assessment at conclusion of hearing. If small value trial or interim app, must file statement of costs 24 hours before hearing or 2 days before trial Costs to be paid within 14 days of hearing. If not, receiving party entitled to interest.

Answer 9

Hearing to assess costs after conclusion if unable to agree. Receiving party prepared detailed bill of costs, served on opponent within 3 months of judgment Paying party files points of dispute within 21 days. If don’t, receiving party can apply for default costs certificate.

Answer 10

If under £75,000 provisionally assessed, paper exercise and indicate costs approved. If party receiving party unhappy can challenge it within 21 days and ask for detailed assessment hearing

Answer 11

Generally not much Cost of claim form & fixed fee for attending hearing £750 for experts

Answer 12

Costs fixed for trial Preparation for trial not fixed

Answer 13

Personal injury cases Unsuccessful C will not be ordered to pay costs unless - fundamentally dishonest - made for financial benefit of another - struck out for no cause of action or abuse of system Lose benefit of qualified one way cost shifting if fail to beat part 36 offer made by D.

Answer 14

If solicitors conduct has been improper, negligent or unreasonable. Court must be satisfied that acted improperly, unreasonably or negligently, that the conduct caused unnecessary cost and that it is just to make the order Normally made at end of hearing or trial. Solicitor must tell client within 7 days. Solicitor pays.

Answer 15

A party may apply to set aside a decision in the small claims court if they were not in attendance at the hearing. They need to make an application within 14 days of service of the order showing: * They had good reason for not attending; and * Their claim or defence has reasonable prospects of success.

Answer 16

- Claim form issued at Court. - Served on defendant - Defendant serves AOS/defence. - Court proceeds to allocation - Sends notice of allocation and directions questionnaire to parties - 28 days to respond - On receipt, Court confirms track and issues directions order or list for CMC - Timetable to trial

Answer 17

Matters that the parties must address in a Directions Questionnaire include: * Whether the parties have complied with the pre-action protocol; * Case management information (such as track allocation, details of any applications, and what directions are proposed as to disclosure and inspection) and any amendments required to Statements of Case or further information requests; * Whether experts are required and, if so, their identities and fields of expertise, why they are needed, and anticipated cost; * The names of witnesses and the issues to which their evidence relates; * An estimate of the length of the trial; * Details of the anticipated costs of the proceedings; * Trial periods and pre-trial checklists. On receipt of the Directions Questionnaire, the procedural judge will confirm track and issue directions/list for CMC. 28 Days to return DQ - cannot be extended

Answer 18

Disclosure Witness Statement exchange Expert report exchange Pre-trial checklists

Answer 19

Need to obtain witness statement and exchange this with the other side. If unable to obtain witness statement, may serve a witness summary which includes details of the witness and what they will give evidence about. Need court's permission to serve a witness summary.

Answer 20

Yes in civil proceedings. For evidence to be hearsay: * It must have been made out of court; and * Its purpose must be to prove the truth of what is being stated. Witness statements are hearsay but if they attend court its treated as evidence in chief.

Answer 21

If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence. This is because the other side will not have the opportunity to question the witness in cross-examination and thereby test the strength of the evidence. In considering the weight to apply, the court must consider: * Whether it would have been reasonable or practicable to force the witness to attend; * Whether the original statement was made contemporaneously with the event; * Whether the evidence involves multiple hearsay * Whether there was any motive to misrepresent the position stated in the hearsay or to conceal facts; * Whether the original statement was edited; and * Whether there can be any suggestion that the events leading to the evidence being presented as hearsay evi-dence constitute an attempt to prevent proper evaluation as to its weight.

Answer 22

A party wishing to rely on hearsay evidence must serve a notice on their opponent. If the witness will be attending the trial, service of the witness statement itself constitutes notice. However, if the witness will not be attending the trial, the party must serve a formal document giving notice A party served with a hearsay notice may seek to call the witness at trial (if the witness’s whereabouts are known) or seek to attack the witness’s credibility at trial. To do so, the party must act within 14 days of receiving the hearsay notice (that is, make an application to call the witness to court for the trial within 14 days of receiving the hearsay notice or, within 14 days of receiving the hearsay notice, serve a notice of intent to attack the credibility of the hearsay by establishing that the witness is biased, untrustworthy, or unreliable)

Answer 23

If the witness proves to be more than unfavourable and shows a significant lack of cooperation to tell the truth on behalf of the party who called them or gives their evidence in a way which is entirely inconsistent with their witness statement, it is possible for the party to ask the judge to declare them a ‘hostile witness’. If the judge agrees, the witness can then be cross-examined on the facts of the case, for example, to prove that the witness has made an inconsistent statement in the past.

Answer 24

If a party believes that certain facts are capable of agreement and admission, so as not to waste court time, they may serve a Notice to Admit Facts on their opponent no later than 21 days before trial. Facts admitted are deemed established and then need not be proved. If a Notice to Admit Facts was served, the facts were not admitted, but then were proved at trial, the court may order the party who refused to admit to pay the costs associated with proving the facts at trial, regardless of the case outcome.

Answer 25

If a party believes a document produced by an opponent is not authentic, the party can serve a notice to prove the document at trial. The notice must specify the document being challenged and must be served by the last day available for witness statement exchange or within seven days of disclosure of the document (whichever is later). If the recipient proves the authenticity of the document at the hearing, the court may make a costs order against the party who served the notice

Answer 26

* The application should be made as soon as it is apparent that it is necessary or desirable * If possible, the application should be made and heard at any hearing already listed * A party should apply to the court where the action is proceeding. If a trial is fixed, it should be to the trial court * The application should be on at least three days’ notice to the other party (five days if by telephone) unless there is good reason why notice should not be required (this means that the application should be served on the other side prior to the hearing so that they have an opportunity to serve evidence and attend the hearing to argue against the application being granted) * In any case, all evidence relied on in support of the application should be in writing and filed at court along with the notice and required filing fee within the above time limits; * For time limit purposes, an application is treated as having been made on the date on which the application notice and fee are received by the court; and * The applicant should file and serve a case summary and proposed draft order no later than two days before the hearing.

Answer 27

If the application is made without notice, it must include evidence explaining why notice was not given. * If an order is made on the without-notice application, it must be served on the defendant together with the application notice and supporting evidence. The defendant then has 7 days in which to make an application to vary or set aside the order. * If a party makes an application without notice erroneously, the court is likely to dismiss it with a wasted costs order (that is, an order that the solicitor—not the party—pay the other side’s legal costs associated with the application).

Answer 28

Claim is struck out

Answer 29

judgment awarded

SQE2 - DR Flashcards

(54 cards)