Civil Litigation BPTC

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Introductory matters

Overriding objective=to deal w/cases justly+proportionately inc: equal footing,saving£,proportionate2£involved/importance of case/complexity/financial position of parties, ensure case dealt with expeditiously+fairly, allocating appropriate share of courts resources+enforcing compliance w/rules/PD+orders. Duty of court2 actively use case management. CPR=unified=applies2all courts BUT specialist guides for QBD/Comm Court/Chancery Division.

PDirection Pre-Action Conduct (default): letter b4 claiming (inc. C's name/addy, basis claim made, summary of facts, what wants from D, financial loss claimed (D2give full written response 14days/ack 14days), early exchange of info, allow4offers2be made/ADR i.e. co-operation that facilitates [email protected] early stage. If no compliance with PAC=sanctions=cost orders/strike out/stay/costs on indemnity basis/interest! Pre-action protocol=apps if no specific protocol.

PI protocol: intented2apply2fast track w/value up2£15k=send letter of claim w/summary of facts, nature of injuries+financial loss incurred+ask for insurer details+if CFA+D to reply w/in21days

Clin neg/Low Value PI protocol (new), Defamation protocol, med recods, JR, housing disrepair

County Court: generally CJ (or recorder)=multi track trials (interim-hearings=generally DJ). HC: Justices of HC/puisine judges/DJ's (interim-hearings=Masters or Commercial Court Judge)

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Case Management

CM: Court must further OO by actively managing cases inc: encouraging parties2co-operate, identify [email protected] stage, promptly deciding whcih issues need full investigation, deciding the order which issues2be resolved, considering whether likely benefits of taking a step justify the cost in making it, dealing w/case w/out parties having2attend court, use of technology, directions2ensure trial proceeds quickly/efficiently, encouraging ADR, fixing timetables etc. Court may extend/shorten time4compliance, adjourn/bring forward hearing, consolidate proceedings, 

Staying proceedings pending med exam: two stage test= 1)interests of justice rquire the test which D proposes? if yes....2)party who opposes test=have they put forward a substantial reason that is not imaginary/illusionary

Power2strike out statement of case=if discloses no reasonable grounds4bringing/def claim or statement=abuse of court process or failure2comply w/rule/PD/order. If strike out, court can make any consequential order it considers appropriate. If strikes out claim that is totally w/out merit=cout order must record fact and consider @same time if approp2make civil restraint order. 

POC: must be served no later than latest date for serving claim form i.e. 4months/6months

Dispute courts jurisdiction: if file ack=dont lose right2dispute juris but must file Part 11 app w/in 14 days after filing ack+be supported by evidence or will be accepted that juris stands.

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Remedies Briefly +jury

Trial by jury: app for claim (other than libel/slander) to be tried by jury=MUST be made w/in 28days of service of defence. Claim for libel/slander=MUST be tried by judge alone ([email protected] CM conference a party applies for jury+court makes order for one)

1. The measure of damages for nondelivery/non-performance is the difference in the market price of the goods at the contractual date of delivery and the contract price.Cant put the Claimant in a better position than had the contract been properly performed

2. Interest is only available under Late Payment of Commercial Debts (Interest) Act 1998=both parties acting in course of a business+there must be a ‘qualifying debt’.

3. Restitution damages (i.e. unjust enrichment) for the purchase price would only arise where payment for item made and there was a complete failure of consideration. 

PI LIMITS: Less than £50k=CC, More than £50k=CHOICE of CC/HC (start in court where case likely to be tried taking a/c of financial value/complexity,facts,law/importance2public)

CONTRACT LIMITS: Less than £100k=CC, More than £100k=CHOICE of CC/HC

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Remedies

Pecuniary future losses=do not carry interest.

Loss of congenial employment: can claim an award for loss of congenial employment as part of general damages to compensate for lack of job satisfaction or leaving a job which was particularly enjoyable.

Exemplary/Punitive damages = intended2reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit only available in the three situations laid down in Rookes v Barnard: 

  1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
  2. Where the defendant's conduct was 'calculated' to make a profit for himself.
  3. Where a statute expressly authorises the same.
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Starting proceedings

Claims only2be heard in HC=equity claims re admin of estates/execution of trusts/SP claims over £350k/habeas corpus/JR/Libel/Slander/S.7 HRA (JR)/search orders/freezing orders

Complex £600k breach of building contract=QBD (Technology/Construction court)

Complex carriage of goods by sea=QBD (Commercial Court/Admiralty Court/Mercantile Court)

Interpretation of trust=Chancery Division

PI limitation period = 3 years = runs from cause of action or date of knowledge (if later)=or if under 18 it runs FROM 18th birthday=think SAD (Significant, attributable, D identity known). Court has discretion to extend 3yrs (particularly if C=disabled) but D would need to make app under Part 23 (equitable grounds). If D recevied claim that is OfT=make app to court AND plead in response pack in defence. LIMITATION=ABUSE OF PROCESS! Issue claim form=STOPS time running. Once issue, then have 4 months2serve on D but clocked has been stopped when issue!

Contract limitation period = 6 years (from date of breach of contract) (NB: if fraud=when C discovered the fraud/mistake or due diligence)

Recovery of land limitation=12 years, Defamation=1 year, JR= 3months (extendable)

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Starting proceedings

Consquences of being in wrong court: if in HC and MUST be in CC = transfer (costs), costs can be reduced by up2 25%, strike out!

Consquences of applying after limitation period: can be struck out or D apply for summary judgment and C could be liable for D's costs=adverse cost order made!

Specified day=the first day starts from day after the specified day

Convictions as evidence: shall be admissible4purpose of proving where relevant2civil proceedings issue that he committed that O (plea or otherwise, even if not party2civil proceedings). PCN2be in pleaded in POC inc: conviction+date of it+by whom (Mags), issue in civil case that PCN is relevant i.e. driving conviction and civil issue re driving=RELEVANT!  MUST BE CONVICTED=not aquittals!

Privilege against incrimination of self/spouse: can refuse2answer in civil

Sueing 2 D's: can do if can be conveniently disposed of in same proceedings (OO applies). Should be related2facts (i.e. wages+accident=unrelated). If unlikely2be substantial dispute of fact then can bring under part 8. 

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Documents

Part 7 claim form (usual way)=address of C+D, nature of claim, remedy, statement value (excl the BIG 5: interests/costs/con-neg/counterclaims/benefits recoverable), statement of truth.

POC=claim form endorsed w/POC (simple debt claims), separate POC document (attached+4complex particulars), serve claim form w/out POC(once served claim form=send POC 14 days later OR no later than latest time for serving claim form i.e. 4months/6months post issue). If serve POC post claim form i.e. 14days later,C must file copy of POC w/in 7days of service on D. 

Docs w/POC=response pack (admit/deny/acknow serv), medical reports (if relev), schedule of past+future expenses (if PI), statement of truth, DOB (if PI).

Naming Different D's: soletrader (Char And t/a CAltd), trust (trustee/executors/administrators named), dead person (executor of estate/executor/execturix),

Part 8 (rare)=unlikely to involve a substantial dispute of fact (i.e. proposed settlement b4 proceedings+ask court2approve)=not used if bringing claim+no settlement.Part8=auto2multi-track. Part 8 should inc: remedy, Q court2answer(approve settle), state Part8applies, SOT+capacity. No POC for these cases (WS only), no defence, multi-track automatic, no default judgment. Part 8 used also for certain statutory (see table). 

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Claiming (cont'd)+serving claim form

Part 21=Litigation Friend=applies wholly2kids/protected parties= =ALWAYS4protected parties (sometimes4kids if not mature enough/v.young). Lit Friend=cant have adverse interest i.e. also claiming. Must file certificate of suitability within 28days. Claim should be made by litigation friend on behalf of protected party/kid. 

Latest date2serve Claim Form=12pm 4months after issued (6months if overseas). By: 1)personal service 2)1st class post/DX/other that delivers nxt bus day 3)delivery to or leaving at relevant place 4)fax. (these methods apply2service of POC also) (NB:can apply4 extension of time under part 23 if within 4month/6months but need: 1)app notice(sometimes part 23 app can be w/out notice) 2)evidence 3)notice2D (if can track down). If apply2extend 4/6month AFTER expired=court has stringent test: 1) court failed2serve claim form or 2)C taken all reason steps2comply with deadline but unable AND 3)in either case, C has acted PROMPTLY in making app. 

Serving CF on PLC (company)/LLP=same methods (+any in Companies Act 06 i.e. [email protected] office or w/senior [email protected] such as CEO/Director or Partner/person who controlls management if LLP)

Serve CF on solicitor: D must in writing Solicitors address or solicitor has notified in writing (w/DX/phone/email written on paper) then claim form MUST be served at bus address of solicitor.

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Serving claim form cont'd+serving other docs

If no known address for D (CF): C must reasonable steps2ascertain D's resid/business address+if no luck=part 23 application.

Proceedings on Crown(CF): MUST be on Treasury Solicitor(AG) AND solicitors acting for gov dep

Child (NOT also protected party) (CF): on parents/guardians or adult w/whom child resides (court can order otherwise). Usually court serve CF, need certificate if want to serve yourself.

Protected party (CF): person in authority i.e. attorney, donee, deputy appointed by court of protection (court can order otherwise)

Deemed service (CF): deemed service on SECOND BUSINESS day AFTER completion of relevant step (i.e. personal service/1st class post etc.) Serve CF [email protected]=DDOS=Monday! Serve CF+POC together on Friday=DDOS=CF: Tuesday=POC: Monday

Deemed service (Other than CF): depends on method (non-instant i.e. post/DX=SECOND day (not business day) when sent on a business day) (instant i.e. fax/email/personal service=same day if before 4.30pm, if after 4.30pm=next business day)

Personal service (CF): can throw it at D if tell them what it is for 'it's a claim form'! pizza box!

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Responding2claim

Response methods: 1) admit whole or part of claim 2)deny whole or part of claim 3)acknowledge service (signed) 4)unable2admit/deny so put C to proof  5)pay up  (admit the claim first+ask for time2pay on admission form) (can apply4extension up to further 28days)

CF/POC together= Admit (within 14days of DDOS of CF), deny (within 14 days of DDOS of POC), acknowledge (within 14days of DDOS of CF)

CF/POC separate=Admit (within 14 days of DDOS of POC), deny (within 14 days of DDOS of POC or 28 days if acknowleged), acknowledge (within 14 days of DDOS of POC).

Acknowledge: used if dont have time to serve defence within 14days OR challenging jurisdiction

If do not expressly responding2allegation in POC=held by court that D accepts allegation!

C's reply2D: reply is optional (if do it=file it w/directions questionnaire)

Directons Questionnaire=allow court to allocate to right track (inc. info re complexity/value)=within 14 days (small track)or 28 days (fast track) of questionnaire being served on party

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Default Judgment

Part 12: default judgment (excl. categories: delivery of goods, Part 8, admiralty, arbitration, contentious probate, provisional damages, D applied4strike out, summary judgement, D paid up! Can REQUEST (if unspecified damages/fixed costs) or APPLY (usually complex i.e. injunction) for DJ. Procedure=C files request if for: specified£, fixed costs, £ TBC by court, delivery of goods where claim form gives D alternative of paying value or any combo of these. C MUST file app if: any other remedy (to request i.e. injunction) or non-fixed costs or child or tort spouse against spouse+must provide DOB. Against Crown=must be considered by Master or DJ who must be satisifed statement of case has been properly served. Evidence4DJ (request or app)=pOC served on D+either D not filed ack or defence+period expired, D not satisfied claim+D not returned admission. For child: lit friend2act must be appointed by court BEFORE judgment+C must satisfy by evidence that entitled2judgment.

Part 23: applications i.e. when want to ASK COURT something (include for default judgment)

Part 13: set aside default judgment (court MUST set aside if DJ WRONGLY entered i.e. 14/28day time limit not up) (court MAY set aside if=test= D has REAL PROSPECT of successfully defending the claim OR appears to be SOME OTHER GOOD REASON AND made application PROMPTLY!

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Amendments

Part 17=Amendments2statement of case (typos): i.e. SOC served already but other side do not consent=apply2amend with Part 23=need permission of court+verified with SOT. C serve app notice+copy of statement of case w/amendments WITHIN 14 days of court granting permissionDealt [email protected] or if permitted w/out hearing. Copy served on every party.

Part 19=Amend Parties=add/substitute/remove=no written consent=need permission of court=apply using Part 23+verified with SOT. C serve application notice+copy of statement of case w/amendments WITHIN 14 days of court granting permissionDealt [email protected] or if permitted w/out hearing. Copy served on every party. Cost burden on party applying for amend.

When limitation period CURRENT = Test=DESIRABLE/CONNECTION (discretionary) if no consent

When limitation period EXPIRED = (courts discretion)

a. Test2add/remove party=limitation current when started+addition/removal is necessary (only nec if party named mistakenly, claim cant carry on or orig party died/bankrupt+interest passed.

b. Test if amend by add/substitute new claim i.e. add neg= if=same facts/substantially same facts

c. Test2correct name i.e. wrong party=mistake must be genuine/not cause reasonable doubt as2identify (no1misled)

 

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Further information requests

Part 18=Further info requests: to clarify matters+proportionate/necessary (OO). Ask party in writing for it+concise+confined2neccessary/proportionate matters+state response date(reasonable time).Be made in single document (often by letter)+be distinguishable+state encloses Part 18 request+solely deal with the request. Responding2request: in writing+dated+signed+headed w/name of court+title/no of claim+identified as 'response'+verified by SOT. If object2request=explain why but PROMPTLY. Fail2respond2request=apply w/part 23

Part 20: Counterclaims: court criteria when [email protected] claim: supported by evidence inc: stage proceedings reached, nature of additional claim, summary of facts, name+address of proposed additional party. Should be verified by SOT also. ONLY need court permission if D wants to counterclaim AFTER have filed defence. If counterclaiming against party NOT on original claim, need to file an ADDITIONAL CLAIM+standard responses apply+add D to counterclaim as 'third party'. If already party=notice needed only (i.e. Eric Harrison). If not party=full claim (i.e. Peter Harrison-Dad). NB: default judgment applies2CC but not additional claims. D can CC C w/out permission in defence or any other time w/permission. NB: ACK OF SERVICE does not apply to C who wishes 2defence a CC. If D wants2CC against non-C=must apply2court 2add non-C as additional party. D's addit claim4contrib/indemnity on C=file+serve notice w/defence or 28days later=no permis, any other time=permission. Additional claim should be separate from claim criteria2consider= connection between claims+substantially same remedy. 

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Interim Applications

Interim Applications: summary judgment, default judgment, freezing injunction, extension of time, innjunction, search order (made by C, D or Court on own initiative). Interim costs (C only). Called Respondent/Applicant not C/D. Can be made anytime (before/after trial). Need app notice/evidence (WS etc.), draft order+statement of cost+affadavit (if freezing order/enter land)+give2all parties (if w/notice)+served on court (can be w/out notice if search order/urgent). Master/DJ deals w/interim apps. Other party can apply2have interim order set aside/varied/discharged. Court will decide [email protected] of app (statement of costs)2be assessed:

1) Summarily (interim app+deposit statement of costs 24hrs before hearing/48hrs if fast track)

2) Detailed (multi-track cases only)

Interim can b made b4 claim started if: 2limb test= 1)urgent + 2)necessary2do in interest of justice

Interim can b made w/out issuing app notice: Test=1)permitted by rule/PD or 2)court dispenses

Interim can b made w/out serving app notice: 6limb test: 1)appears2court there are GOOD REASONS for not giving notice and 2)exceptional urgency 3)OO/Case Man 4)consent of all parties 5)permission of court 6)when court order/rule/PD/insufficient time2serve notice=inform parties+court+in writing if poss+make app [email protected]

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Interim Applications 2

Interim can b made w/out [email protected] if: 1) parties agree2terms of order sought or 2) parties agree court should dispose of app or 3) court does not consider hearing is appropriate.

Interim can b made via telephone/video conf if: OO/CM and parties must consent to it 

Part 24: Summary judgment (can be used4SP too): used by C/D when NO REAL PROSPECT OF SUCCESS (by C when D files ack of service/defence UNLESS court gives permission/PD. D can [email protected]!) Defence MUST be filed/time expired. If not complied w/PA protocol i.e. exchange of info+not filed def=SJ wont normally b entertained (wont know D's prospect of success!). Court can: judgment on claim (if C=app), strikeout/dismiss whole claim (if D=applicant), dismiss application4SJ or a conditional order (requires R2£ into court or take specific step). NB: cheque rule=contract itself as so unconditional+summary judgment WILL be given for cheques!

SJ Full test= C=no real prospect of succeeding in claim or D=no real prospect in defending claim AND NO OTHER COMPELLING REASON why case should b disposed @TRIAL. NB: D=always apply, C cant apply4posession of residential premises against mortgagor/tenant/or admiralty. 

SJ procedure=14 days notice given b4 hearing, respond w/evid=7days, countrespond=3days. 

SJ procedure on courts own init= parties must file evidence on [email protected] before hearing

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Costs+misc

Strike out groundsno reasonable grounds for bringing claim/abuse of the court’s process/likely to obstruct the just disposal of the proceedings.

BASES of costs = standard vs indemnity (NB: court has HUGE discretion w/costs)

Standard (norm even if multi-track)=reasonable+proportionate incurred/in amount+in fav of PAYING party (likely2get 60%) NB: doubts if costs were reasonably incurred will be resolved in paying party's fav.

Indemnity=reasonable incurred/in amount+in favour of RECEIVING party (when conduct bad+likely2get 80%). Note that PROPORTIONALITY not part of this unlike in standard!

NB: Looooooooooser pays Winnnnnnnnnnnnnnnners Costs! BUT court will NOT ALLOW costs that have been UNREASONABLY INCURRED or are UNREASONABLE IN AMOUNT.

From April 13: Proportionate=reasonable relationship2: sums in proceedings, value of non-mon relief, complexity, additional work4conduct,wider factors (rep/pub importance)

Court can [email protected] of interim app (C or D): costs in ANY case, costs IN case, NO costs

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Costs assessments

Summary assessment=legal reps/party's=duty2assist judge in making SA of costs. If intend 2claim costs=written statement of costs showing: hours claimed, hourly rate, earner grade, disbursement, counsels £, VAT=filed not less than 2 days b4 trial (fast track)/all other hearings (not less than 24hrs)+failure w/out reasonable excuse.NB: NO summary assses4receiving kids/protec party's unless legal rep waives further costs. Court will make summ assess of [email protected] of trial (fast track+any other hearings not longer than 1day). If bad conduct (inc. preventing OO), court can disallow some or all of costs when assessing but must give party/legal rep in question reasonable opportunity2make written submissions/attend hearing.

Detailed assessment=multi [email protected] of trial=notice of commencement of detailed assess=w/in 3 months of judg/discont/Part 36 acceptance=w/bill of costs. If bill of costs accepted by other party=can apply for costs certificate. If disputed=paying party serves points in dispute w/in 21 days of service of commencement of detailed assess+hearing takes place (norm w/in 2months) but receiving party allowed £on a/c i.e. bill of £250k costs disputed then £100k on a/c. Court can never ignore cost budget+Cost management order will always been given by court UNLESS satisfied there is good reason2do so=even if no CMO=CB's cant be departed from. 

If 2D's+C wins against D1 only=  i.e.reasonable 4C2sue D2? (BULLOCK=bad=C pays D2 costs+recovers D2's+C's costs from D1 OR SANDERSON=good=D1 pays D2+C's costs)

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Cost budgets+ QOCS

22/4/14-present= both parties' solicitors MUST file cost budgets (precedent H i.e. landscape, dated+SOT). If FAIL2file=strike out (only get court fees back!) Must be reg review of costs budget as these WILL impact on case management. Cost management impacts [email protected] of case and won't depart from cost budgets UNLESS SATISFIED THAT THERE IS GOOD REASON2DO SO. NB: failure2comply w/court direction including cost budgets=sanction or order (if order, party must do so w/out delay but should warn other party of intention first) Failure2file cost budget=will be treated as having filed budget ONLY for court fees! NB: no CB for LIPS. If CMC=file w/in 7days b4CMC if no date specified. CMC=should be via telephone/writing

QOCS (ONLY FOR PI)=qualified one-way cost shifting= PROTECTS LOOSER CLAIMANT IN PI CASE (new since 2013). Although rare as C should win in PI as merit assessed. QOCS=PI ONLY=encourage settlement=jackson reforms. QUOCs cost orders can be enforced against C w/out permission of court if proceedings struck out on ground: 1)C disc'd no reasonable grounds4bringing proceedings/proceedings=abuse of process or conduct of C/their legal rep is likely2obstruct just disposal of proceedings. QUOC cost orders can be enforced against C BUT permission IS req'd where=on balance of prob's the claim is found2be fundamentally dishonest (this will be [email protected]+court if think just+fair determine the costs attributable2claim if fundamentally dishonest founded) or financial benefit other than C.

Court has power2order costs against person other than C also.

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Costs

Costs order: start point=loser pays winners costs=except in CoA, but court has discretion if costs payable, amount+when2be paid (OO). Factors4court=all circumstances inc. conduct (before/after trial inc. whether reasonable2pursue an allegation)/success in whole/part (whether successful C exaggerated claim), admissible offers (not Part 36). Diff interim cost orders that can be made b4 trial: costs (C or D), costs in case/app, costs reserved, costs thrown away, costs caused of+by, costs here+below, no order as2costs (each pays own, this applies if silent2costs). Counsel: court can make opinion as2whether hearing FIT FOR counsel (if paying party asks it to or 2>counsel attended or court wishes2record opinion that case not fit4counsel). Wasted cost order=against legal rep if acted improperly/unreasonably/negligently+caused wasted unneccessary costs and it is JUST IN ALL THE CIRCUMSTANCES

Factors when deciding costs: receving party's LAST approved/agreed budget (also conduct/amount/value of money involved, importance, complexity, skill/effort/special knowledge+responsibility involved, time spent, place where+circumstances work was done)

Before event insurance:or after event insurance: more costly at risk based (80% likely2win)

Pro-bono costs (interim+final) order:have2ask4it! Promotes settlement. Opposing party (if legally rep'd)=not getting benefit from litigating against legally aided party+costs go2good cause i.e. charity =Access2Justice Foundation=distributes£2agency+other2support free help. 

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Security4Costs

Security4costs (discretionary+only for D): Key criteria=show IN SERIOUS FINANCIAL DIFFICULTY+written evidence. D to app4S4C. (NB: likelihood of getting S4C app through=harder if C an individual. Claimant who is counterclaiming can also bring S4C for counterclaim party). App can be made @anytime but as soon as facts justifying order are known+should be done w/out delay/promptly.

S4C's TEST= (OO+DISCRETION)= 1)having regard2all the circum's 2)it is JUST AND 3) one or more conditions apply (company/C=resident out of juris but not in Brussels Contracting State/C changed address since claim2evade litigation consquences/C not given address/C=nominal claimant i.e. trustee with less interest /C taken steps w/assets2make diff2enforce costs order) OR 4) enactment permits AND 5) R2B they will be unable2pay D's costs if ordered

Court will decide (OO+CM): 1) bonafide+not sham 2)D made admissions (admitted) 3)Concerns genuine  4)Substantial £ into court or open offer  5)Whether app@late stage of proceedings

S4C procedure=app notice+evidence (written-WS+grounds+amount of security wanted+costs2date+estimated)+draft order+statement of costs+notice of 3 days, respond asap, counter-respond asap)

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Interim remedies

Part 25= Interim remedies (can be granted whether or not been a claim for final remedy)(relev property=subject of a claim or as to whcih any Q may arise on a claim): 1) interim injunction 2)interim declaration or order for 3)detention/custody/preservation of relev property 4)inspect of relev property 5)taking sample of property 6)experiment on/with property  7)sale of relevant property (perishable/need2sell quick)  8)payment of income from property until claim decided 9) authorising entry2land/building2carry out 3-8 10)order2deliver up goods  11)freezing injunction (2stop removing assets from jurisdiction or stop party dealing w/assets whether in/out jurisdiction) 12) order2provide info re location of property/assets  13)search order 2preserve evidence etc. 14)disclosure of docs/inspection of property b4 claim made  15)disclosure of docs/inspection of property against non-party  16)inteim payment  17)specified fund2be paid into court/secured when dispute over party's right  18)personal property recovery so pay£into court pending proceedings 19) file accounts  20)IP

Interim Remedy procedure= app notice+evidence (written i.e. WS/affadavit) if 4permission2enter property)+draft order+statement of costs. NB: Affadavit MUST be used as evidence when: sworn evidence req'd by enactment/any application for search order/freezing injunction or requiring an occupier2permit another2enter his land). App made as soon as necessary/desirable+serve on all.

Interims Time Limits=3 days before hearing, respond=ASAP, counter-r=ASAP.

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Interim's cont'd+interim payment

Want interim+claim not issued=urgent or necessary2do in interests of justice

Want interim+property w/3rd party=property is/may become subject matter in claim or relevant2issues that will arise+serve on 3rd party also!

Part 25: Interim-PAYMENTS = C only=TL's=14 days to file+serve, 7 days to respond+3days to counterR. Conditions=1)D admitted liability2pay damages/other£ OR 2)C obtained judgment (default/summary) against D 4 damages/other £ OR 3)court satisfied if claim went2trial then C WOULD (=high test) obtain judgment for a substantial £ (other than costs) against D (even if multi-D's) OR 4)possesion of land+court satisfied if went2trial D would be liable (even if possession fails)2payC£4D's use of land) OR 5)claim where 2 or more D's+order wanted against 1 or more of D's+court satisfied if claim went2trial=C WOULD obtain judgment4substantial£(other than costs)[email protected](undeterminable)AND all D's are insured4claim OR D's liability will be met by insurer per RTA OR D=public bod. Court MUST NOT order interim payment of more than REASONABLE PROPORTION of likely final judgment+MUST take into a/c con neg+relev set-off/counterclaim. Court can later clawback/reorder/adjust/vary/discharge interim payment order.

Interim Payment Evidence req'd=a)sum of £sought b)items/matters c)sum of £ [email protected] judgment d)reasons conditions met e)if PI=details of special damages+past/future loss. Interim payment orders are not revealed2later trial judge. NB: SJ+IP often made together. 

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Interim Injunctions

Interim injunction to cease if claim is stayed: (a) the court has granted an interim injunction (other than freezing injunction); and (b) claim is stayed other than by agreement between the parties=the interim injunction shall be set aside unless the court orders that it should continue to have effect.

Interim injunction ceases after 14 days if claim struckout: if a) court granted interim injunction; AND (b)claim=struck out4sanctions4non-payment of fees, interim injunction ceases2have effect 14 days after the date claim is struck out unless C applies to reinstate claim before injunction ceases2have effect=injunction shall continue until hearing of app unless ordered otherwise.

Urgent interim injunctions: Can simply go2court today w/draft order+evidence in support, though should endeavour2file app notice, evidence+draft order with the court 2 hours before the hearing.

Damages undertaking: Allen v Jambo estab'd principle=court wont deny legally aided C interim injunction if otherwise entitled on ground that damages undertaking of limited value, since Q's of financial stability ought not2affect position w/regard2essential justice of case.

Grounds4discharging an injunction=if failed2issue a claim form after obtaining injunction/failed to file+serve app notice+evidence in support after obtaining injunction/not disclose2court that parties in dispute over only had personal licence2 stay in the house, as opposed to a lease.

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Interim Injunctions 2

Cyanamid factors2take into consid: Whether claim has serious Q 2be tried/D=likely2be able2pay any damages/D=adequately protected by C's damages undertaking. NB: Doesnt matter if C already commenced proceedings4perpetual injunction.Strict Cyanamid approach used when app2restrain (i.e. “prevent”) from doing acts.

App Notice: must state order sought+date/time/place hearing be supported by evid. If no time2 serve notice=still apply2court for interim injunct+draft order filed w/court 2 hours b4 hearing if poss+ app notice/evidence in support filed on same/nxt working day as hearing or as ordered by court=also state why notice not given.Docs w/app notice=draft order+ disk w/draft order+skele. 

Claim form=If time2 issue then must issue claim form. If no time, unless court orders otherwise, C required2undertake2 court2issue claim form immediately or court will give directions4commencement of the claim.WS verified by SOT; or Statement of case verified by SOT, or App notice verified by SOT (unless court/Act/rule/PD requires evidence by affidavit)

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Small/Fast/Multi allocation

Small Claims track limit =£10k (value of claim- ANY) +£1k max (PI damages). 

Fast track limit=£25k (after 6th April 2009) or £15k (before 6/4/09)=no more than 1 day=limited to 1 expert per party in relation to any expert field; and expert evidence in two expert fields.

Multi track limit =£ (any claim where small claims track/fast track=not the normal track)

NB: CIVIL Double Jeopardy= RES JUDICATA= 1 bite [email protected] cherry! Can get Civil Restraint Order if abuse of process or strike out if reasonable grounds!

Part 26: Auto transfer in HC= if claim for specified £+claim commended in court not D's home+claim not transferred+D=individual then court WILL TRANSFER proceedings2 D's home court when defence filed. 

Transfer of money claims w/in CC: if unspecified or specified then Court Officer may send proceedings2 preferred court ot D's home court. Whichever occurs first. 

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Track Allocation

Part 27: Small claims track=<£10k (unless >£1k PI/PSLA or >£750 expert/landlord repairs/tenants harrassment/fraud=ALL fast=too complex)   Directions4Small= exchange copies in post 14days before hearing, then bring originals2court.  Final hearing=can be conducted in any way considers fair+may be informal too+strict rules of evidence dont apply+can be taken w/out oath. Court may limit XX+unlikely2be allowed expert.Court MUST still give [email protected]. NB: NO costs recoverable in small (think: sue Currys for TV+they send their TOP barrister+still no costs recovered except4fixed costs (issuing claim+disbursements: travel of party/witness=reasonable only, loss of earnings, expert costs up2£750 UNLESS: unreasonable behaviour+then costs or injunctions/specific performance=costs up2£260. 

Part 28: Fast track=£10k-£25k (court also thinks about complexity/no of parties etc/parties can express preference4certain allocation=important factor but its the courts decision+not bound!): one expert per party in each of 2 fields only i.e. doctor and road traffic expert but should have joint expert (then send list of experts and can agree to save cost/time but if cant agree then 2 separate experts who would then exchange reports+meet2come up with something can agree on (still need court permission4expert), trial takes no more than 1 day. Take claims2trial within 30 weeks of notice of allocation. Costs assessed on summarily + fixed costs too.                        Directions2be given: standard disclosure, WS simulatenous (expert+fact), fix trial window, filing+service of further info, single joint expert directions or direct discussion between 2, ADR

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Track Allocation 2

Fast track timeline (from date of notice of allocation after directions questionnaire filled in): 4weeks=disclosure, 10weeks=exchange of WS, 14weeks=exchange of expert reports, 20weeks=court sends pre-trial checkinlist, 22weeks=file completed pre-trial checklist, 30weeks=hearing. NB: since April 22 2014=all solicitors2provide cost budgets (under £10m)

Part 29=Multi track:>£25k+tailored+can have as many experts per party+court will give directions (and expects parties2agree directions too i.e. parties MUST endeavour2agree appropriate directions@least 7 days before CMC) OR may fix case management conference or pre-trial review or both (legal rep MUST attend CMC/PTR if familiar and sufficient auth) AFTER claim allocated and will then will fix trial date. At CMC court will: review steps parties taken in prep of case+compliance w/directions+decide and give directions about steps to be taken and ensure agreements can be reached about matters in dispute between parties. If court gives directions on OWN initiative w/out CMC+not aware of parties taking steps then gen approach= give direc's4 filing/service further info, direct standard disc+disc of simultaneous WS, single joint expert direction, specify trial period, date4CMC. NB: If <£50k likely2be transferred2county court. 

AllocationIf a D files a defence, court officer will provisionally allocate claim+serve notice of proposed allocation on each party.Where 2 or more defendants+at least 1 D files a defence, the notice of proposed allocation will be served when all D's have filed a defence, or when period4 filing the last defence has expired, whichever is sooner. NB: no con-neg taken into consideration.

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Disclosure+inspection

PART 31: Disclosure/Inspection (limited2what is really necessary/OO, ONLY applies2fast/multi NOT SMALL!) Docs="anything in which information of any description is recorded"

NB: standard disclosure (fast track limited to really but first stage in multi track). Parties/Court MAY dispense/limit standard disclosure. Disclosure means=stating a doc exists/existed=no auto-disclosure) specific disclosure=PROPORTIONALITY. CAN apply2w/hold disclosure if damages pub interest. If inadvertently see priv'd doc=only allowed2use contents w/courts permission.

Doc's that MUST be disclosed (NB: fast track=more limited, multitrack=less limited):

Part 1= docs that have+disclosable (not priv'd) i.e. POC/defence/WS/quantum is issue

Part 2=have docs but object2disclosing (priv'd) i.e. instructions2counsel=legal prof priv'd or offer2settle=w/out predjudice or docs where dominant purpose is for litigation or WS before exchanged. CAN request client WAIVE PRIV (if in interests)

Part 3=docs had but no longer have i.e. draft defence  + Part 4 = DISCLOSURE STATEMENT

Inspection procedure: MUST give written notice wants2inspect+must be permitted within 7 days of receiving notice (photocopies/actual if think dodgy!)

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Disclosure+inspection 2

Public Auth: can COMPEL local auth2disclose but only (AFTER CLAIM ISSUED) and where: 1)doc likely2support applicants case or 2a) adversely affect case of other side AND b)disclosure is necessary OR c) save costs

Multi-track procedure (NON-PI)(unless court orders otherwise)(from April 13): parties must file+serve report with SOT not less than 14 days before first CMC that: 1)briefly describes what docs exist/may exist or may be relevant2matters in issue 2)describe where+with whom docs are/may be located 3)e-docs: how stored 4)estimate broad range of costs involved4standard disc (i.e. WHAT/WHO/E-STORED/COSTS). Not less than 7 days parties must agree disc proposal (if parties agree scope AND court agrees approp in all circums=court must approve w/out hearing. At first or future CMC's, court may make order 1)dispensing disc 2)order P disclose docs relies on and any specific disc required from other party 3)issue by issue basis disc 4)disc docs it is reasonable2suppose may contain info enabling advancement of own case or damage other party 5)anything else court considers approp.

Fast track+multitrack PI (from April 13) : order2give disclosure is order2give STANDARD disclosure AND parties MAY agree in writing2dispense/limit disclosure. 

NB: Small track=not less than 14days applies too. 

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Standard disclosure

Standard disclosure: requires party2disclose only: a)docs relied on and b)docs which adversely affect his own case c)adversely affect other party's case or d)support another party's case AND the docs which he is required2disc by a relev PD.

Procedure4standard disc: 1) each party make list+serve on every other party 2)list must identify docs in convenient order+concisely 3)list2indicate docs claimed2 be witheld from inspection and docs no longer in party's control+what happened2them 4)disclosure statement (can be made by paralegal but must: set out the search, understands duty2disclose, best of knowledge carried out that duty, if company: identify person making statement/why person is appropriate) NB: parties can agree in writing2dispense of list req AND disclose docs w/out disc makER the statement. 

Legal Prof Priv:

a)docs relating2whether or not lit contemplated/pending (i.e. legal advice priv+absolute+not subject to balancing+should be able2consult lawyer in confidence+fundamental right)    

b)docs priv'd because lit contemplated/pending i.e. DOMINANT PURPOSE TEST (prof litigation priv) NB: patent/trade mark agents same as if solicitor/client

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Disclosure...2

Self-incrimination: you+spouse protectED+dont have2reveal doc if incriminate (except if child/IP/fraud)

Public interest immunitybalancing act (exception: gov has certificate4nat security+court not allowed2look behind it!)

Comms between solicitor+non prof agent/third party after lit contemplated=priv'd

Client+non-prof agent/third party=priv'd (only if came in2existence4purpose of obtaining legal advice in existing/contemplated proceedings)

Co-C's/D's=not priv'd (except if came in2existence4purpose of obtaining legal advice in existing/contemplated proceedings)

Once doc=priv'd=principle=ALWAYS PRIV'D. Death doesnt defeat it! Duty2disc=ongoing!!

Fraud/illegality=NOT PRIV'd

'Confidential' communications w/third party=not priv'd

W/out predjudice comms: if negotation genuinely aimed at settlement=priv'd

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Disclosure...3

Specific disclosure or if refuse2allow inspection=can part 23 app2court to order 1)disclose doc or 2)search or 3)disc any docs as a result of search (party can state in disclosure stat=not proportionate)

Norwich Pharamacal=person innocently caught up in wrongdoing of another so more than mere witness=can be compelled i.e. facilitator+therefore compelled2identify wrongdoer to allow proceedings against proper D to be brought. App under part 7 or 8 (w/out notice)

Norwich Pharmacal exception=s.10 Contempt Court Act='innocent person/facilitator is a journalist=journalists not compelled2identify wrongdoer (except if in interests of justice/prevention of crime/nat security)

Mere witness CANNOT be compelled to disclose identity!

Doc's priv'd on ground would injur public interest=application2court w/out notice

ECHR rights infringed=valid objection 2 inspection

Collateral use of docs: not allowed except if 1)doc read2by court 2)court gives permission 3)parties agree

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disclosure...4

Consquence of non-disc=party's CANT rely on it (UNLESS court gives permission)

Duty of search: standard disc=party req'd to make REASONABLE SEARCH (deciding reasonableness: a)no of docs b)nature/complexity of proceedings c)ease/expense d)significance

Disclosure b4 proceedings started= app MUST be supported by evidence+court may order only where: resp LIKELY2be a party2future proceedings+applicant likely2be party2proceedings+if proceedings had started the respondents duty by way of standard disclosure would extend2the docs which applicant seeks disc of AND disc before proceedings have started is DESIRABLE to: 1) dispose fairly of future proceedings/assist dispute2be resolved w/out lit OR save £. 

Disclosure against non-partyapp MUST be supported by evidence+ court may make order only if: 1)docs sought are likely2support the case of applicant or adversely affect another AND disclosure is NECESSARY to dispose fairly of claim or to save £

False disclosure = CONTEMPT OF COURT

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WS/Hearsay/Opinion Evidence

Court can control evid by giving directions as2: issues, nature AND way evid2be put b4 court+may exclude evidence otherwise admissible+limit XX (OO)

Gen evidence rule=any fact which needs2be proved by evidence is to be proved = 1)@trial AND 2)at any other hearing by their evidence in writing. Since April 13: court can identify/limit issues, identify witnesses who's evidence can be read or limit length/format of WS=OO/proport/CM.

WS [email protected]=give evidence+prove fact=WS stands as evidence in chief (unless order otherwise)

XX: @hearing other than trial=evidence in writing=any party can apply4permiss 2 XX W=if W doesnt turn up after permiss given, evidence cant be used!

WS: if served AND [email protected]=MUST call W to give oral or put in statement as 'hearsay' evid unless court orders otherwise . W (w/permiss) may amplify WS AND give evidence4new mat arisen since making WS. If not called4oral or no hearsay notice=other party can put as hearsay

WS must contain: headed by title of proceedings, initials/surname, number of statement, initials+number of each exhibit, date statement made, occupation of maker, state if party2proceedings, state made from own knowledge or what told by others (hearsay), numbered paragraphs, SOT.  Other than live evid=next best thing! WS's hold most weight as verified w/SOT.

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WS/Hearsay/Opinion Evidence 2

Opinion not allowed (unless expert or no other way for it2be said i.e. conveying relevant facts perceived that way).  Opinion=must be QUALIFIED!

W summons=only if in jurisidiction+court serves it but party requesting it must deposit £into court 2bepaid2W (NB: can use video conferencing (if other county allows it). Binding if 7 days or more before trialONLY need permission4summons if: issued less than 7 days before trial, give evidence/produce docs othan than trial date. Summons=person2attend court or produce docs2court. WSum can be issued in aid of inferior court i.e. doesn't have power. Expenses for W summoned= £reasonably sufficient2cover travel expenses+compensation4loss of time. 

WS pre-trial req's: simultaneous exchange of WS w/in 10 weeks of notice of allocation (fast track)

Consquences of not serve WS by time allowedNOT ALLOWED2RELY ON IT (unless permission)

WSummary: if party req'd2serve WS but unable2obtain=may apply w/out notice4permiss2serve WSumm instead. WSumm=summ of evidence or if not known then matters. WSumm=MUST inc name+addy of W (unless ordered otherwise). Same WS time limits apply to WSumm.

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ws/Hearsay/Opinion Evidence 3

WS not open2inspection=can ask4direction but court will only not allow inspect if: interests of justice/pub interest/nature of any expert med/nature of confidential info/protect child or protec party. Court can exclude words/passages from inspection.

Affadavit: (report) needed4freezing/search/permiss2enter land (deponent=person giving affadavit)

Deposition: examined by lawyers b4 hearing/trial (used if cant attend trial). Deposition can then be put in as evidence+treated as a WS@trial unless court orders otherwise BUT party must serve notice of intention on every other party@ least 21 days before date of trial. Court can require deponent2attend.Letter of request: person out of juris (+not in reg state). Letter2judicial auth of the country where deponent is. HC can do this for CC.Lord Chancellor appoints examiner (often barristers/solictors of 3+years) for this may charge fee+deposition can be w/held until £ paid. 

Bus records=hearsay evidence=proof of evidence cert signed by responsible company person

Notice2admit facts=saves time/cost as evidence doesnt have2be heard at trial

Similar fact evidence=same as crim=balancing act=just because done it b4=doesnt mean do it again vs. if so similiar=should be allowed. Probative value vs. potential4 unfair predjudice.

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ws/Hearsay/Opinion Evidence 4

Hostile W=if summoned may not want2tell truth so can ask court2treat as hostile W+if get leave then XX+ask re inconsistencies.

Hearsay formulastarting point=hearsay is admissible in proceedings but should give other side NOTICE adducing hearsay. Two types of notice= 1)serve WS w/hearsay 2)S.2 Civil Evidence Act notice (notice of intention2rely on hearsay to inc: identification of hearsay, state propose2rely on and why the maker cannot come i.e. dead/abroad). Notice must be served NO LATER THAN THE LATEST DATE4SERVING WS i.e. fast track=10 weeks (tailored time limits4multi track). If no notice served=hearsay=admissible but less weight attached. If party proposes2rely on hearsay AND person not being called=court may on APPLICATION give permission4person2be XX not more than 14 days after notice of intention2rely on hearsay is servedNB: notice not req'd2be given 4 evidence OTHER than trials, probate action/excluded by PD. 

Weighting hearsay= court should have regard2any circums from which inferences can be drawn inc: whether it would have been reasonable/practicable2have produced maker as W, whether original statement made contemporaneously w/occuranc/existence of matters stated, whether evidence is multiple-hearsay, whether any motive2conceal/misrep facts, failure2give due notice

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Expert evidence (and sanctions)

Part 35: Experts: PERMISSION IS REQUIRED. Since Apr 13: when applying, must state estimated costs+identify experts field+issues expert will address+name of expert (if pract). i.e. permission+costs+field+issue+name+fees recovery limited+single joint exp (small/fast). Will be in report form (unless directed otherwise)+if small/fast=court wont normally direct expert2attend hearing UNLESS...NECESSARY+INTERESTS OF JUSTICE. Experts must be QUALIFIED=means=experience or expertise (i.e. high degree of skill/knowledge in particular subject w/relevant+up2date expertise+sufficient edducation2produce clear report. 

Single joint expert= NOT contrary 2HRA, expert owes duty2court=impartial=SJE=enhances impartiality+parties can jointly question SJE. OO important too. 

How2instruct SJE: give instructions+MUST send copy2other parties. Court may give directions re:payment/fees/expenses+inspection/experiments for SJE to carry out+may LIMIT £+direct £into court4SJE. UNLESS COURT ORDERS=PARTIES ARE JOINTLY+ SEVERALLY LIABLE.

Fast track=strict rule=only 1 expert per party in no more than 2 fields (not norm give oral)

Separate experts=exchange reports 14 weeks from notice of alloc+simulatenously+experts discuss what agree/disagree on2narrow issues+if giving oral='hot tubbing'=questioned together. 

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Expert evidence (and sanctions)2

Court will take ALL CIRCUMSTANCES into a/c when deciding experts, in partic1)proportionate for separate expert (amount in dispute/importance/complexity), 2) likely2assist parties+court2resolve issues quicker+cost effectively, 3)expert evidence on liability/causation/quantum/substantially estb area of knowledge or range of expert opinion, 4)already instructed expert 5)Q's2SJE may not conclusively deal w/all issues, 5)conference req'd w/legal reps/experts/other W's=make SJE impractical 6)claim2priv=SJE inappropriate

Experts duty: help court w/matters w/in expertise=overrides any obligation2person instructed by/paid by. Court CAN dispense of expert if duty disregarded. Expert NOT advocate (so not make finding of fact only opinion)+should be unbiased. 

Form of expert report: written report (unless otherwise directed) address2court NOT party, [email protected]=understand+complied w/duty2court+state substance of instructions that based report. NB: instructions not priv'd against disc but court wont order disc of specific doc/permit q'ing of instructions by other party other than party who instructed originally UNLESS reasonable grounds2consider instructions inaccurate/incomplete, expert must: comply w/guidance in protocol, give details of qual's/research relied on4report, statement setting out substance of facts/instructions material2opinion expressed, make clear of facts w/in own knowledge,who carried out exam/exper, summary of conclusions, if cant give opinion w/out certain qualification then state what qual, verified by SOT!

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expert evidence 3

Expert report: once disclosed=ANYONE CAN USE IT! 

Priv: if report unfavourable2party+expert NOT named on order=duty2disclose report but right2withold inspection as litigation priv'd as dominant purpose of being made for lit+dont have2exchange but no expert report so should instruct new expert but as consequence may bear costs for additional! If expert NAMED=MUST disclose as condition of being given court permission. Stops expert shopping. ALL ABOUT IF EXPERT NAMED ON ORDER!!

Costs=now allowed contingency costs i.e. expert can have slice of win! 

Written Q's2experts: may put written Q's(must b proportionate)2expert instructed by other party or SJE but ONLY ONCEwithin 28days of service of report+only4CLARIFICATION unless court gives permission/other party agrees.

Expert can ask court: for dir's by written request+experts must (unless ordered otherwise) provide copies of requests2party instructed(w/in 7 days before request)/other parties(at least 4 days)

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Sanctions (and relief)

Relief from sanction4defaulting party: i.e. where rule/PD/court order requires party2do something within specified time=since Aug 14=IN CERTAIN SITATUONS-IT MAY BE EXTENDED BY WRITTEN AGREEMENT between parties up to 28 days provided the hearing date is not put at risk. Mitchell case=appeal allowed=3-stage test: 1) seriousness/significance 2)why default occured (reason) 3)evaluate all circums in case2enable court2deal justly/proportionately = more serious the breach, less likely to be granted relief. Court will consider ALL THE CIRCUMSTANCES when giving relief from sanctions inc: justly/efficiently/proportionate costs/2enforce compliance/MUST BE supported by evidence

Strike out: +judgement: can be applied4 if party fail to comply (but think HRA) so can order...

Unless order: Part 23 app, 3 days notice, evidence inc. directions given previously+given 7 days and now allowed 14 days for an unless order. i.e. UNLESS exchange disclosure list w/in7 days defence will be struck out. If still dont comply=strike out is auto unless apply4relief. NB: party could just apply for judgment instead of this as simple if only damages! 

Strike out+Judgment: if judgement entered after strike out, could apply4it to be set aside (NOT MORE THAN 14DAYS after strike out after judgment served)

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Part 36 Offers

Part 36: OFFERS: earlier on in proceedings=offer should [email protected] level as costs minimal at early stage i.e. lower than expect if [email protected] but not so low to consider seriously. Need dilemma feeling that may not better [email protected]. PART 36=WITHOUT PREJUDICE+not comm'd 2judge unless: defence raise defence of tender b4claim (i.e. paid C+settled) or proceedings stayed or offeror/offeree agree in writing. ALL PART 36's to kids/protected parties=NEED courts approval. Part 36's=NOT limited to money=still adverse cost consquences though!

Advantages of Part 36 offers=costs minimal, save time/stress/worry/adverse consquences i.e. if dont accept offer+wins [email protected]=will have costs paid during relevant period but will have to pay own costs AND other sides costs AFTER relevant period even though won! 

Form/content of offer: writing, consquences of part 36 stated, specify period not less than 21 days within which D will be liable for C's costs, state whether relates2whole/part of claim, takes into a/c counterclaim (If PI=inc pecuniary loss)

Costs: accept within relevant period=costs auto. If accept after relevant period=costs not auto. If offer made for less than 21 days=costs not auto (but likely court would order offerror pay offeree)

Benefits: offeree can't be double benefited i.e. getting sick pay+offered £X, need certificate then Part 36 offer must state: GROSS-BENEFIT=NET. 

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Part 36 Offers 2

Acceptance of offer: principle=@ANY TIME+unless written notice of withdrawal. Could accept: 1)within relevant period (at least 21 days)=best option+no permission req'd. 2)if outside relevant period=no auto costs but a)parties could agree on costs b)if parties dont agree then court will decide=D will pay costs up2end of relevant period but because Ron not accepted w/in relevant period, Ron will pay his costs AND Botchits costs from end of relevant period until date of acceptance. 3)Offer made less than 21 days before trial=accepted  4)During trial (ONLY ONE THAT NEED PERMISSION FOR) NB: Part 36 offer will be inclusive of all interest until expiration of relevant period or a date 21 days after date of offer made in accordance with 36.2. I.E. If you accept within relevant period (not less than 21 days)='I promise2pay your costs'...if accept outside relevant period 'I can't promise I will pay your costs'. 21days=minimum can hold open offer. Part 36=made when served. 

Withdrawing Part 36 offer: if want to withdraw BEFORE expiry of relevant period=need courts PERMISSION. If want to withdraw AFTER expiry of relevant period = permission not req'd. Withdrawal MUST be in writing

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Part 36 Offers 3

D makes Part 36 offer to C cost consquences principle= loooser pays winners costs on standard basis. BUT...if D offers C £18k+refuses+C wins £20k [email protected]=LESS ADVANTAGEOUS then £18k offer as £20k=£16k damages+£4k interest=COST CONSEQUENCES! MORE ADVANTAGEOUS if interest is less than £2k=looser pays winners costs still. 

Claimant makes Part 36 offer=different cost consequences i.e. C offers that D pays him £50k, rules the same re timing etc. If D accept, LOOOOSER still pays WINNNNERS costs BUT if D does NOT accept= a)if final award LESS than offer made=looooser still pays winners costs  b)if final award same or more than offer to D =COST CONSEQUENCES (unless court says UNJUST2doso)=1. interest on damages (whole or [email protected] more than 10% above base rate 2. costs on indemnity basis 3. interests on those [email protected] not exceeding 10% 4.additional amount which wont exceed £75k (if up2£500k=10% of amount awarded, £500k-1m=10% of first £500k+5% of any amount above that figure up to £1m) = PUNISHMENT FOR NOT ACCEPTING AN OFFER THAT WAS LESS THAN C WOULD BE AWARDED AND WASTED COURT TIME!

Part 36 condition=single sum of money+paid up within 14 days follwing acceptance

If Part 36 accepted=claim STAYED

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Part 36 Offers 4

Cost consquences summarised (unless unjust):

1. D offers: if C fails2get more advantageous judgment=D entitled to a) costs from date relev period expired and b)interest on costs (NB: D pays C's costs until end of relevant period ONLY)

2. C offers/requests: if C obtains more advantageous judgment than offer=C entitled to a)interest on whole/part of any sum [email protected] not >10%above base for some/all from date when relev period expired b)C costs on indemnity basis from date relevant period expired c)interest on costs [email protected] not >10%above base and d)(new from April 13)=additional amount not exceeding £75k (10% up2£500k, £500k-£1m=10% of first 500k, 5% above)

Unjust=court considers: all circumstances inc: terms of offer, stage in proceedings,information avail when offer made, conduct of parties

PI claims4 future pecuniary loss=Part 36 may contain offer2pay/offer2accept: a)lump sum b)periodical payments or c) both

Joint D's: C may accept if discontinues claim against all D's who have not made offer+those D's give written consent2accept offer

Severally liable D's: C may accept D1 offer and continue w/claim against D2/D3

 

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Witnesses/Civil Evid/Trial/Judgments

Setting trial date: when court allocates case, will give directions4timetable+one set trial date. Other directions=disc, exchange of WS, trial date, pre-trial checklist. 

Trial bundle contents: claim form/statements of case, case summ/chronology, requests4further info/responses, WS, Wsumaries, notice of intention2rely on hearsay, plan/photo notices2rely on not contained elsewhere, med reports+responses, expert reports+responses, order4conduct of trial, other necessary info. NB: C MUST file trial bundle NOT MORE THAN 7days+not less than 3days before start of trial.

Order of proceedings: 1)C's open speech (unless dispensed), C presents case (each W in term/EIC then XX), D's opening speech, D's case (EIC then XX), D closes, C closes, Judgments, Costs, Appeal (if permission)

Manner4evidence: oral [email protected] (WS), in PUBLIC=gen rule unless permitted2be private i.e. nat interests, confidential info, interests of justice, child/protected party. Case management powers (court can limit W evid), EIC (WS will stand unless court orders otherwise): leading Q's avoided or will affect weight. Exceptions when can lead: formal/intro matters (name/addy/job), otherside's counsel agree/don't object or court given leave2treat own witness as hostile. XX: leading Q's, court can limit XX or court can stop Q's that are improper/oppressive/unnecessary. 

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Witnesses/Civil Evid/Trial/Judgments 2

Children giving evidence: 3 options: 1)SWORN evidence (over 14 norm) OR if judge thinks child doesnt pass test then 2) UNSWORN evidence (10-14 norm=less weight). If doesnt pass unsworn test=3) NONE (0-10 norm) i.e. WONT be allowed to give evid. If satisfied Hayes test or unsworn evid test=CAN BE COMPELLEDNB: persons of unsound mind/defective intellect=SWORN OR NOTHING i.e. if cant pass Hayes then can't give evidence. 

Sworn evidence test=court asks gen Q's per Hayes HIGH test: Child must have SUFFICIENT UNDERSTANDING of: 1) Solemnity of occasion (solemn=scary) AND 2)The added responsibility2tell truth that is involved in taking oath over+above ordinary social duty2tell truth.

Unsworn evidence test (s.96 Childrens Act 1989)=if court doesnt think child can satisfy Hayes test= 1)Duty2tell truth (social duty) AND 2)sufficient understanding to justify evid being heard.

Judge2visit site='A VIEW'=legal reps, judges and parties go=expensive+only for where cant be brought2court conveniently. Often RTA i.e. Diana's tunnel accident. Proportionality is key=costs!

Previous consistent statement=can be addmitted but ONLY WITH PERMISSION OF COURT or to REBUT ALLEGATION OF RECENT FABRICATION or MEMORY REFRESH or AFFECT OF EVIDENCE IS THAT IT CAN BE USED2PROVE TRUTH OF MATTERS STATED. If court gives leave =takes into a/c ALL THE CIRCUMSTANCES+whether admission would be unjust2other party. 

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witnesses/Civil Evid/Trial/Judgments 3

Previous inconsistent statement=other sides W=admissibleOF EVIDENCE OF THE TRUTH, TOWARDS LACK OF CREDIBILITY/CREDIBILITY+no permission req'd (because W for other side) NB: only need permission where own W. 

Rule of Finality=W's answer2a collateral (non relevant/not main issue) issue is final.... but 4 exceptions2the rule: 1) bias/impartiality 2)PCN (spent i.e. time done=generally no evidence can be brought. unspent=generally evidence can be brought but court has discretion2disallow dependent on relevance) 3)Physical/mental disability that affects reliability  4)Reputation4untruthfulness

Character/cred Q's in XX: cant ask Q's that are unneccessary/ oppressive/ improper/ disproportionate/too remote in time (NB: distinguish between character and pre cons for admissibility but character of party/non-party=the same. Test= 1)is character THE fact+issue i.e. defamation  2) is character relevant2an issue or  3)is character relevant2 to credibility

Hostile W: can XX, contradict W by calling other evid, w/leave of court=put previous inconsistent stat's (as C's W) but cannot IMPEACH W's CREDIBILITY GENERALLY. Must be ruled a hostile W, cant just do this if W doesn't come up2proof. 

Civil cases w/jury=fraud (as complex) but not libel/slander

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witnesses/Civil Evid/Trial/Judgments 4

Written matters2prep b4trial: skeles, reading list4judge, case summary, auth's relied on

SkelesHC=mandatory, CC=optional

Companies represented: company may be rep'd by employee if AUTH'D+court gives permission

Drawing up judgment/interim order= responsib of judge unless orders party+party agrees=court dispenses+consent order=party does no later than 7days but if fails=any other party can do it

Time period4payment of money judgment=14 days i.e. be good for your money! (Installment judgment inc's: total £of judgment, lump sum, breakdown of each installment+whom2b paid. 

Failure2attend trial: court may proceed w/trial in absence of party BUT if no party turns up then may STRIKE OUT or if C doesnt attend=strike out claim+counterclaim2def or if D doesnt attend strike out defence+counterclaim(or both). Can RESTORE. If judgment entered, party against can apply to set aside/restore ONLY ifacted PROMPTLY+had GOOD REASON+REASONABLE PROSPECT OF SUCCESS@trial. 

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Stays/Discontinuance

Stays: (automatic/settlement/tomlins/lit reasons i.e. med exam/pre-action protocol/til costs paid/reference2EC pending/ringfencing i.e. crim/arbitration). NB: claim automatically stayed once 6months elapsed+need2apply2court2have stay lifted. Procedure4requesting stay2settle=written request2court in Directions Q'naire4stay4settlement=will be stayed4 1month (courts discretion so can be more/less, particularly if only 1 party requests stay then appropriate stay=court discretion).

Discontinuance: C Sham case: legal reps2advise C to withdraw from case=file4discontinuance+serve on all other parties. Gen rule=dont need permission (only if dont get written consent from other C's, interim injunction or undertaking given2court). If >1 D, C can [email protected] against all/none. BUT...cost consquences=C liable for D's costs up2discontinuance. If discontinue=can restart but WITH PERMISSION if AFTER defence filed+facts same/substantially same as first claim (otherwise no permiss req'd)

Consent judgment/order: terms agreed, expressed as 'by consent', signed by legal rep/party themself if LIP, permission of court req'd if child/protected party. Judgment+proceedings stayed. Consent judgment has exactly the same affect if judgment sealed. If terms broken, party can lift stay+apply4an order per schedule, if still non-compliant=enforcement.

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Compromise/Funding

Tomlin order (get things court cant order): 2 parts: 1)public part 2)private part w/settlement terms. Effect=same as consent order i.e. judgment+proceedings are stayed. If terms broken, party can lift stay+apply4an order per schedule, if still non-compliant=enforcement.

Funding: 1)privately funded 2)public (legal aid) 3)insurance 4)CFA/DBA's  5)Third Party funding

Retainer=how client will pay solicitor i.e. hourly rate/monthly/3monthly. Disbursements=court fees/travel/expenses/counsels fees

DBA's= came in April 13=not permitted4family=must be in WRITING=fixed fee=no win no fee= take % of damages (PI=25%max of PSLA (not future loses), Employment=35%max of damages, Non-PI=50%max of damages). Restrictions=costs+disbursements are net of sums paid/payable. NB: win £20K PSLA (25% owed under DBA=£5k but cost budget is £3k therefore looser only has to pay £3k BUT winner has to pay shortfall of £2k out of winnings/damages. Indemnity rule applies! DBA's dont have2be disclosed2 other side in claim letter.

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Legal Aid

Legal aid: excluded for: PI, death, comapnies, wills, conveyancing, boundary disputes, family. Legal aid agency=assess means+merits=need 60% or more likely2win. May qualify for legal aid but may have2make contribution also! Statutory charge=ALWAYS a shortfall i.e. looooser pays winnners costs but alwas shortfall=admin costs etc. +winner will have to pay this shortfall from damages if legally aid funded. Counsel has a DUTY2legal aid agency to keep INFORMED inc. Part 36 offers/funding entitlement/inc if good offer made+dont accept=agency can stop funding.NB: If legally aided party wins, the Legal Aid Agency will have the right to recover its costs out of the damages if costs are not fully recovered from otherside. If he loses, he will only be ordered to pay a reasonable amount of othersides costs, regard2financial resources+conduct. 

Non-legally aid funded D: C (legally aided) cant pay D's costs+cant be forced(Costs Protection Order made at outset stating party wont be liable regardless of outcome). D can request2agency4costs if: 1)cost protec order is LESS than full costs (always the case) 2)Non-legally aided winner applies w/in 3months 3)Conditions met: a)proceedings started by aided party b)non-legally aided party=individual c)non-aided party=suffer financial hardship d)just+equitable

Public: legal help (form filling), [email protected](one off), full legal rep, family help. Eligibility=means/capital based i.e. very poor! AND merits (60%+ chance of winning: 80%>v.good=1-2-1 damages x1 costs,60-80%=good=2-2-1damages twice costs, 50-60%=moderate=4-2-1 damages 4x costs=merits n/a4kids in care/mental health. 

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JR

Part 54: JR=review lawfulness of enactment/public function decision/action/failure2act (inc's all tribunals/gov ministers/immigration/prison/police etc). Court=supervisory role. App must have LOCUS STANDI 2bring JR. 1) pre-action protocol stage (letter of claim2other side, if dont respond=action). 2)Part 8 claim form issued+served inc: statement of facts relied on, served on any interested parties w/in 7 days of issue, otherside than ack service w/in 21days, 3) Permission decision made (on paper), if refused=can have reconsid, if reconsid refused=3rd chance to CoA. 

Procedure (if permiss granted): court will give directions, respondent can take issue w/permission granted by filing evidence w/in 31days. Claimant skele served not less than 21working days before hearing+D skele served not less than 14working days before hearing. Hearing takes place (with or w/out D there - if does take part=procedural points2go through. 

Grounds2bring JR(NEED PERMISSION)=error of law, procedural improp, irrationality(Wednesbury),abuse of power,ultra vires, breach of nat justice (legit expect), HRA.NB:even if ground estab=still discretion. TL: 1)PROMPTLY+ 2)in any event not more than 3months after grounds arose (NON-EXTENDABLE TIME LIMITS unless good reason/adequate explanation4delay+extension wont cause substant hardship/predjudice/detriment good admin).

JR remedies: quash (+remit back4fresh order but can be same decision), mandatory order, prohibitory (stopping), declaration, injunction, damages (only if linked2another order)

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Appeals

Part 52: APPEALS:  Permission2appeal procedure: seek permission i.e. @end of summary judgment w/master (i.e. orally+instructions given from client2seek appeal=Master will hear permission request there and then). If Master says no then can appeal in appeals notice2court above (i.e. to HC from master ), then file appelants notice2HC judge w/out hearing in writing+w/in such period as court specifies or if doesn't specify then w/in 21days+served on each respondent ASAPracticable+in any event not less than 7days after filed. If still says no=can have reconsid of HC refusal4permission. NB: If no instructions from client, have to do in appeals notice. NB: if no hearing for permission=THREE bites @cherry, if a hearing had = TWO [email protected]. Test for granting permission: REAL PROPSECT OF SUCCESS or some OTHER COMPELLING REASON why the appeal should be heard. 

Permission granted orally+go on2appeal=more simple= 1)appelants notice=starts appeal procedure=file (such period as lower directs or if no direction=21days after date of decision)+serve (ASAPrac but w/in 7days) 2)respondents notice (a must if x-appealing or R appealing on diff grounds to A)=file (such period as directed or if no direction=14days of A's service of notice)+serve (ASAPrac but w/in 7days of filing). 3)skele (if CoA) 4)appeal bundle (+docs req'd)  5)hearing

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Appeals2

Permission EXCEPTIONS: 1)final decision (trial in multi track part 7 or final in specialist proceedings) or 2) second appeal i.e. itself an appeal from DJ (in CC w/DJ and didnt like decision so appealed to CJ in CC and dont like CJ's decision=goes straight to CoA4permission. Different test for 1+2=APPEAL WOULD RAISE IMPORTANT PRINCIPLE/SOME OTHER COMPELLING REASON WHY CoA should hear it. NB: permission not req'd2appeal where: commital order/refusal2grant habeas corpus or secure accom order under Childrens Act 89

Case Management Decisions (i.e. disc/WS filing/expert reports)-permission2appeal: TEST=SUFFICIENT SIGNIFICANCE2JUSTIFY COSTS OF APPEAL or PROCEDURAL CONSQUENCES OF AN APPEAL OUTWEIGH SIGNIFICANCE OF CM decision or IT WOULD BE MORE CONVENIENT2DETERMINE ISSUE @/AFTER TRIAL.  

Skele's: if appealing to CC/HC=not usually needed (grounds go in appelants notice). If appealing2CoA=MUST have skele+inc grounds IN skele or court can refuse2hear grounds+also need other docs: appelants notice x3, order being appealed/order granting/refusing appeal, first order (if relev), order of allocation,approved transcript of judgment. 

Judges in hierarchy: CC=DJ, CJ. HC=Master, HCJ. 

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Appeals3

Appeal limitations=limited2review of decision UNLESS (PD allows, court considers in circumstances would be in INTERESTS OF JUSTICE to hold rehearing. Unless ordered otherwise, appeal court will NOT hear: oral evid/evid not b4 lower court. Grounds4appeal=WRONG or UNJUST=serious procedural or other irregularity. Legal rep can ONLY rely on what is in the appeals notice. Fresh evidence: rule=no fresh evidence BUT Ladd v Marshall+OO test=1)fresh evid couldnt be obtained b4trial w/reasonable dilig 2)important influence on result (not decisive) 3)Appar credible 

Appeal on facts vs. law: difficult2appeal on facts (lower court judge has better grasp+courts unlikely2interfere w/courts wide discretion unless exceeded) Appeal = ONLY A REVIEW! 

STAY Judgement: unlikely2STAY execution of judgment UNLESS appeal court/lower court orders otherwise OR appeal from Immigration/Asylum Chamber. Solid grounds4this= parties would risk injustice if stay not granted (i.e. financial ruin unless stay)

Court Officers exercising powers of CoA: barrister or solicitor (w/consent of Master of Rolls): incidental proceedings, other matters w/no substantial dispute, dismissal of appeal or app where party failed2comply w/order/rule/PD. CO MAY NOT DECIDE: permission2appeal, bail pending appeal, injunction, stay of any proceedings. CO decisions may be made w/out hearing+party can request reconsid of CO (w/in 7days after being served w/notice of decision)

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Enforcement

Which court: gen principle: <£600=MUST transfer2CC. >£600=MAY transfer2HC. £600-5000=enforce in either CC/HC.£5000>MUST transfer2HC

Money orders enforcement=avail in CC/HC but diff details4each court. Can use a variety of money [email protected] time (except4 attachment of earnings). HC Enforcement Officer will enforce

Non-monetary orders: delivery of goods/injunction/breach of order

Company search=only4company's

Request4further info: determines debtors assets etc. Inquiry agent=private detect

Writ of control (HC) or Warrant of control (CC): norm best option as cheap/quick. Think of things people have in home. Any assets owned by company but non-fixed only+not HP goods! NB: value of goods may not meet value=goods [email protected] auction or may be 3rd party interest. Warrant/Control=valid for 12 months (this can be extended), enforceable between 6am-9pm. Enforcement Officer can use REASONABLE force if necessary.

Attachment of earnings: (indiv's only+CC only) takes a long time. Inc's bonuses, commission, SSP, pension earnings. Req's@least 1 installment u/p+debtor cant be left below poverty line. Need permiss2combine this w/other orders. Debtor sent questionnaire.

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Enforcement 2

Charging order: (securities/land)often bank owns house so not best option+charge doesnt create sale so would need sale order but if debt £40k vs. house worth £500k=judge wont order sale+HRA. 2stage procedure (like TP debt order): objections filed 7 days before final hearing, reg interim+final order w/Land Reg. Part 8 if want to force sale subsquently.

Third Party Debt order: i.e. bank a/c (TP= the bank)+they pay creditor instead. Two stage process (interim then final). May not meet whole sum so may need2combine. Joint a/cs not allowedApply2court (in app=details of debtor, judgment, judgment sought, amount of debt, name+addy of bank, a/c no, source/grounds of knowledge believed) w/out notice verified by SOT+dealt w/out hearing usually, if interim made (serve on third party not less than 21days before 2nd hearing+on debtor not less than 7 days before 2nd hearing=sum in a/c FROZEN)+judge fixes 2nd hearing (NB: objections to final debt order should be filed ASAP but not less than 3days before final hearing). NB: when Bank served w/interim order=duty2carry out search+disc2court+creditor w/in 7days of being served: the a/c number/if in credit+balance or if doesnt hold a/c then must inform within 7days also. If non-compliance=breach of court order. Final order effect=TP pays£to creditor+discharges £owed from TP to debtor (i.e. D's £ in bank)

Receiver: rare, cost outweighs benefit, used4insolvency, ranking of creditors

Bankruptcy: writ of sequestration (seize goods)

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Enforcement misc

Judgment summonses: Since Section 11 of Administration of Justice Act 1970 came into force, judgement summonses have been available only for chasing some types of tax arrears and enforcing matrimonial orders 

Receivership order: A receivership order can only be made where it is impossible to enforce using any other method of enforcement and the appointment of a receiver will be effective. 

Contempt of court: contempt of court could occur where there is disobedience by the contemner of an order requiring a party to the proceedings to take or refrain from taking specified action. 

Penal notice: An order requiring a party to the proceedings to take or refrain from taking specified action must contain a penal notice clearly displayed on its front warning that disobedience will be a contempt of court punishable by imprisonment, a fine or sequestration of assets.

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